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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 


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FRANK  L.  SIMONS 

756  S.  SPRING  ST.^ 

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A  TREATISE 


ON  THE  LAW  OF 


INSTRUCTIONS  TO  JURIES 

IN  CIVIL  AND  CRIMINAL  CASES 

WITH  FORMS  OF  INSTRUCTIONS 
APPROVED  BY  THE  COURTS 


BY  THE 

EDITORIAL  STAFF  OF  THE  WEST  PUBLISHING  COMPANY 

UNDER  THE  SUPERVISION   OF 

HENRY  E.  RANDALL 


VOLUME  I 


1922 
VERNON  LAW  BOOK  COMPANY 

KANSAS  CITY.  MO. 


Copyright,  1922 

BY 

VERNON  LAW  BOOK  CO. 
(Randall  Inst.Jub.) 

T 

^  m  i 


PUBLISHER'S  PREFACE 


Out  of  the  dim  and  distant  past  in  juridical  history  there  has 
come,  and  now  abides  with  us,  the  Jury  System,  impregnably  in- 
trenched in  constitutional  guaranty.  In  civil  actions,  and  in  crim- 
inal prosecutions,  one  of  the  greatest  elements  of  the  contest  is 
involved  in  the  inquiry,  What  are  the  Facts?  The  wisdom  of 
mankind  has  reached  the  definite  and  decisive  conclusion  that  the 
determination  of  questions  of  fact  rests,  not  with  the  jurist,  but 
with  a  body  of  laymen,  possessing  no  intimate  knowledge  of  the 
law,  but  endowed  with  the  faculties  and  experience  of  the  common 
and  average  man.  This  body,  known  as  the  Common-Law  Jury, 
is  intrusted  with  the  task  of  sifting  the  truth  from  circumstances, 
the  frailties  of  human  memory,  the  passions  and  evil  designs  of 
factions,  and  the  defects  of  understanding.  This  task  is  made 
the  Function  of  the  jury,_  and  the  law,  in  positive  and  certain 
terms,  declares  that  that  function  shall  not  be  invaded  by  the 
trial  judge.  But  the  Law  of  the  Case  is  to  be  pronounced  by  the 
judge  in  Instructions,  couched  in  plain  and  unambiguous  terms. 
In  these  instructions  the  judge  is  required  rigidly  to  refrain  from 
expressing  his  own  views  as  to  the  facts,  from  intimating  to  the 
jury  the  weight  to  be  given  to  particular  testimony,  and  from  as- 
suming the  existence  of  facts  not  clearly  admitted  by  both  parties 
to  the  litigation.  To  accomplish  this  result  the  judge  is  required 
to  resort  to  a  most  adroit  and  painstaking  literary  effort,  and  to. 
produce  a  Charge  which  will  withstand  the  assaults  of  counsel  for 
the  unsuccessful  party  in  the  appellate  court. 

The  supervising  editor,  for  more  than  a  generation,  has  con- 
stantly watched  the  stream  of  current  decisions  which  has  steadily 
flowed  into  the  reservoir  of  reported  cases ;  he  has  observed  the 
questions  debated  and  decided  in  these  cases;  and  one  thing  that 
has  been  borne  in  upon  him  is  the  fact  that  almost  one-half  of  the 
legal  warfare  inscriljed  on  the  pages  of  these  opinions  deals  with 
the  subject  of  the  Province  of  the  Court  and  Jury,  and  the  delim- 
itation of  that  province  in  the  Instructions  of  the  trial  judge  in 
the  court  below.  In  this  stream  of  opinions  he  has  seen  the  same 
case  come  several  times  before  the  same  appellate  court,  indicat- 
ing tragic  consequences  in  the  administration  of  justice,  due  wholly 
to  the  failure  of  the  trial  judge  to  instruct  the  jury  according  to 

(iii) 


^fin-^ 


IV  PREFACE 

the  established  law.  These  conceptions  moved  him  to  bring  about 
the  production  of  a  work  on  Instructions  that  might  tend  to  clarify 
the  turgid  waters  of  jury  trial  litigation,  and  stand  as  a  guide  for 
correct  instructions  on  all  of  the  subjects  of  the  law.  To  this 
task  he  bent  his  energies  for  several  years,  and  applied  to  the  sub- 
ject the  most  painstaking  care.  He  has  employed  in  the  supervi- 
sion of  the  work  the  full  measure  of  his  long  experience.  With  a 
corps  of  skilled  assistants,  working  under  his  supervision,  he  has 
gathered  together  and  assimilated  the  general  rules  applicable  to 
instructions  to  the  jury,  and  has  culled  from  the  whole  mass  of 
adjudicated  cases  all  of  the  forms  of  instructions  in  particular  cases 
which  have  received  the  approval  of  the  courts  of  last  resort.  His 
sincere  hope  is  that  this  work  will  be  of  utility  to  the  bench  and 
bar  of  the  Nation  in  resolving  the  eternal,  the  vital,  and  the  ever- 
present  question:  The  form  and  sufficiency  of  Instructions  in 
jury  trials. 

January,  1922. 


TABLE  OF  CONTENTS 


PART  ONE 

RULES  GOVERNING  THE   GIVING  OR  REFUSAL  OF  INSTRUCTIONS 

Chapter  Sections 

1.  Definitions,  Distinctions,  and  General  Considerations 1-5 

2.  Credibility  of  Witnesses  as  a  Jury  Question 6-27 

3.  Comment  by  Court  or  Expression  of  Opinion  on  the  Weight 

or  SufBciency  of  the  Evidence 28-73' 

4.  Assumption  of   Existence  or  Nonexistence  of  Facts  by   the 

Court   74-S2 

5.  Comment  by  Court  on  Merits  or  Conduct  of  Cause  or  Parties  83-85 

6.  Questions  of  Law  in  Civil  Cases 86-96 

7.  Questions  of  Law  in  Criminal  Cases 97-102 

8.  Directing    Verdict 103-117 

9.  General  Considerations  as  to  Necessity  of  Instnictions 118-120 

10.  Relation  and  Applicability  of  Instructions  to  Pleadings  and 

Evidence  121-145 

11.  Necessity,  Propriety,  and  Sufficiency  of  Instructions  on  Credi- 

bility of  Witnesses 146-184 

12.  Instructions  on  Presumptions  and  Inferences 185-202 

13.  Instructions  on  Burden  of  Proof 203-207 

14.  Instructions  with  Regard  to  Probative  Force  of  Particular 

Classes  of  Evidence 208-223 

15.  Instructions  on  Circumstantial  Evidence 224-235 

16.  Instructions  on  Character  of  Defendant  in  Criminal  Prosecu- 

tion      236-244 

17.  Instructions  on  Degree  of  Proof 245-278 

18.  Facts   Conclusively    Established   or    Failure    or   Absence   of 

Proof   279-280 

19.  Summing   up   the  Whole   Case  or   Summarizing  the   Entire 

Evidence  281-283 

20.  Grouping  Facts  for  Purpose  of  Declaring  Law  Thereon  or  Di- 

recting  Verdict 284-287 

21.  Exclusion  of  Evidence  from  Consideration  of  Jury 288-292 

22.  E?xplaining  Purpose  for  Which  Particular  Evidence  may  be 

Considered   293-300 

23.  Necessity,  Propriety,  and  Sufficiency  of  Instructions  Where 

Case  is  Submitted  to  Jury  for  Special  Findings 301-303 

24.  Instructions  in  Equity  Causes 304-305 

25.  Instructions  on  Particular  Matters  in  Criminal  Cases 306-317 

26.  Instructions  on  Defenses  in  Criminal  Cases 318-340 

27.  Instructions  Bearing  on  Relief  Awarded  or  Punishment  In- 

flicted     i 341-356 

INST.TO  Juries  (v) 


VI  TABLE   OF    CONTENTS 

Chapter  Sections 

28.  Definition  or  Explanation  of  Terms 357-365 

29.  Necessity  and  Propriety  of  Instructions  as  to  Duties  of  Jury. .  366-376 

30.  Instructions  Considered  with  Reference  to  Duty  of  Jury  to 

Form  Conclusions  Solely  from  the  Evidence 377-384 

31.  Necessity  and   Propriety  of  Instructions  with   Reference  to 

Arguments  of  Counsel 385-386 

32.  Directions  as  to  Form  of  Verdict 387-389 

33.  Formal  Matters  Connected  with  Giving  of  Instructions 390-454 

34.  Instructions   Correcting,   Explaining,   or  Withdrawing  Other 

Instructions    455-456 

35.  Giving  Additional  Instructions  after  Retirement  of  Jury 457-463 

36.  Requests   or   Prayers   for   Instructions 464-505 

37.  Objections  and  Exceptions 506-529 

38.  Construction  and  Operation 530-539 


PART  TWO 

rORMS  OF  INSTRUCTIONS 

39.  Abduction     540-554 

40.  Abortion    555-575 

41.  Abstracts  of  Title 576 

42.  Abuse  of  Process 577-581 

43.  Abutting   Owners 582-592 

44.  Accident   Insurance 593-619 

45.  Accord  and  Satisfaction 620-628 

46.  Account,  Action  on 629-632 

47.  Account    Stated 633-637 

48.  Acknowledgment    638-640 

49.  Adjoining   Landowners 641-656 

50.  Adultery    657-669 

51.  Adverse    Possession 670-739 

52.  Alteration   of  Instruments 740-758 

53.  Amusement    Enterprises 759-763 

54.  Animals    764-810 

55.  Apprentices    811-812 

56.  Arbitration  and  Award 813-818 

57.  Architects  819-824 

58.  Arrest    825-830 

59.  Arson    831-837 

60.  Assault   and  Battery 838-919 

61.  Assignments    920 

62.  Assignment  for  Benefit  of  Creditors 921-932 

63.  Assumpsit    933-936 

64.  Attachment    937-950 

65.  Attorney  and  Client 951-983 

66.  Bailment    984-1000 

67.  Bankruptcy    1001-1009 

68.  Banks  and  Banking 1010-1037 

69.  Bastardy 1038-1053 


Vll 
TABLE  OF  CONTENTS 

Sections 
Chapter  1054-1059 

70.  Bipamy    '_ " '  ] 1060-1135 

71.  Bills  and  Notes [ 1136 

72.  Boards  of  Trade '  * " ,  1137-1138 

73.  Bonds    .]....... , •  1139-1173 

74.  Boundaries    -^t  1174-1197 

75.  Breach  of  Promise  to  Marry • '  ]'"7"ii9S-1200 

76.  Breach  of  the  Peace [..........• 1201-1206 

77.  Bribery    "  * 1207-1229 

78.  Bridges 1230-1281 

79.  Brokers   * .  1282-1324 

80.  Building  and  Construction  Contracts •  i325_i327 

81.  Building  and  Loan  Associations ".'.'.....  1328-1360 

82.  Burglary  ' '_  .  1361-1369 

83.  Cancellation  of  Instruments •  •  • ' 1370-I76I 

84.  Carriers    _  _  1762-1770 

85.  Cautionary   Instructions 1771-1772 

86.  Champerty   and  Maintenance •  •  •       ir-73_i797 

87.  Chattel    Mortgages .'..*.'.'.*...  1798-1799 

88.  Collision    • 1800-1806 

89.  Compromise  and  Settlement • 18U7-1S0S 

90.  Concealing  Birth 1809-1819 

^1.  Conspiracy l^^^ 

92.  Continuance  *  * 1821-1889 

93.  Contracts 1890-1919 

94.  Corporations    ' " '  * 1920-1924 

95.  Counties    "/.....*.'..'. 1925-1929 

96.  Covenants    " 1930-2017 

97.  Criminal    Law "" 2018 

98.  Crops 2019-2020 

99.  Customs  and  Usages ......'.*.*.'.*.'. .  2021-2091 

100.  Damages / 2092-2093 

101.  Dead  Bodies [^  2094-2128 

102.  Death  by  Wrongful  Act '.".'.*.".'.'.'.....  2129-2135 

103.  Dedication 2136-2145 

104.  Deeds   .'....'. 2146 

105.  Depositaries   .....'. 2147 

106.  Depositions 2148-2149 

107.  Detinue 2150 

108.  Disorderly  Conduct 2151-2158 

109.  Disorderly    House 2159 

110  Disturbance  of  Public  Assembly 2160-'>162 

111.  Disturbance  of  Religious  Assembly '.'..'.'..'.'.'.  2163-2167 

112.  Divorce 2168 

113.  Domicile    ......'.".'.'..  2169-2171 

114.  Dower 2172-2176 

115.  Drains   "" 2177-2182 

116.  Druggists    '.*.*.'.'.'....  2183-2184 

117.  Drunkards   " 2185-2196 

118.  Ejectment '.*.....  2197-2201 

119.  Elections 2202-2232 

120.  Electricity    


Vlll  TABLE   OF  CONTENTS 

Chapter  Sections 

121.  Embezzlement   2233-2257 

122.  Eminent  Domain 2258-2321 

123.  Equity   2322 

124.  Escape  2323-2324 

125.  Escrow    2325 

126.  Estoppel 2326-2338 

J27.  Evidence   2339-2355 

128.  Exchange  of  Property - 2356 

129.  Execution    2357-2359 

180.  Executors   and  Administrators 2360-2365 

131.  Exemptions    2366-2371 

132.  Explosives    2372-2383 

133.  Extortion    2384 

134.  Factors    2385-2414 

135.  Fair    Associations 2415-2418 

136.  False  Imprisonment 2419-2444 

137.  False  Personation 2445 

138.  False   Pretenses 2446-2471 

139.  Fences   2472-2473 

140.  Ferries    2474 

141.  Fidelity   Bonds 2475-2477 

142.  Fire    Insurance 2478-2575 

143.  Fires    - 2576-2584 

144.  Fish  and  Game 25S5-25S8 

.145.  Fixtures    2589-2591 

146.  Food    2592-2594 

147.  Forcible  Entry  and  Detainer 2595-2597 

148.  Forgery  2598-2623 

149.  Fornication 2624-2625 

150.  Fraud    2626-2658 

151.  Frauds,  Statute  of 2659-2666 

152.  Fraudulent    Conveyances 2667-2719 

153.  Gaming    2720-2739 

154.  Garage  Keepers 2740-2741 

155.  Garnishment   2742-2746 

156.  Gas    2747-2754 

157.  Gifts    2755-2760 

158.  Good   Will 2761-2762 

159.  Guaranty    2763-2769 

160.  Hawkers  and  Peddlers 2770 

161.  Homestead   2771-2780 

162.  Health    Insurance 2781 

163.  Homicide    2782-3085 

164.  Hospitals    3086-3091 

165.  Husband  and  Wife 3092-3130 

166.  Improvements   3131 

167.  Incest 3132-3139 

168.  Indemnity    3140-3142 

169.  Indians  3143 

170.  Indictment  and  Information 3144-3147 

171.  Infants   3148 


TABLE   OF  CONTENTS  IX 

Chapter  Sections 

172.  Injunction    3149-3150 

173.  Innkeepers   3151-3167 

174.  Insanity    3168 

no.  Insolvency    3169-3171 

176.  Interest   31'<'2 

177.  Internal    Revenue 3173 

178.  Intoxicating    Liquors 3174-3213 

179.  Joint   Adventures 3214-3216 

180.  Judgment   3217 

181.  Judicial    Sales 3218-3219 

182.  Junk    Dealers 3220 

183.  Kidnapping    3221 

184.  Landlord  and   Tenant 3222-3291 

185.  Larceny    3292-3335 

186.  Lewdness    . 3336-3340 

187.  Libel  and  Slander 3341-3436 

188.  Licenses    3437-3438 

189.  Life  Estates   3439 

190.  Life  Insurance 3440-3492 

191.  Limitation   of  Actions 3493-3511 

392.  Lis   Pendens , 3512 

193.  Livery  Stable  Keepers 3513-3521 

194.  Logs  and  Logging 3522-3536 

195.  Lost  Instruments 3537 

196.  Lotteries   3538 

197.  Malicious    Mischief 3539-3552 

]  98.  Malicious    Prosecution 3553-3587 

399.  Marine   Insurance 3588-3590 

200.  Marriage    3591-3594 

201.  Master    and    Servant 3595-3837 

202.  Mechanics'    Liens 3838-3840 

203.  Mines  and  Mining 3841-3S66 

204.  Money   Lent 3867 

205.  Money   Paid 3868 

206.  Money    Received 3869 

207.  Monopolies    3870-3877 

208.  Mortgages    3878-3SS1 

209.  Motor    Vehicles 3SS2-3S8S 

210.  Municipal    Corporations 3889-4015 

211.  Mutual  Benefit  Insurance 4016-4034 

212.  Navigable  Waters 4035-4048 

213.  Negligence    4049-4097 

214.  Notaries  Public 4098 

215.  Notice    4099-4100 

216.  Novation   4101 

217.  Nuisance  4102-4117 

218.  Obstructing  Justice 4118 

219.  Officers    4119-4120 

220.  Parent  and  Child 4121-4133 

221.  Partition    4134 

222.  Partnership    4135-4159 


X  TABLE   OF   CONTENTS 

Chapter  Sections 

223.  Patents    4160 

224.  Paupers  4161 

225.  Payment    4162-4174 

226.  Perjury    4175-4186 

227.  Physicians  and   Surgeons 4187-4220 

228.  Pledges    4221-4224 

229.  Post    Office 4225 

230.  Principal  and  Agent 4226-4273 

231.  Principal  and  Surety 4274-4279 

232.  Prostitution     4280-4285 

233.  Public  Lands 4286-^287 

234.  Railroads    4288-4502 

235.  Rape 4503-4559 

236.  Receivers    4560 

237.  Receiving  Stolen  Goods 4561-4569 

238.  Recoupment,  Set-Off,  and  Counterclaim 4570 

239.  Records     4571 

240.  Reformation  of  Instruments 4572-4574 

241.  Register  of  Deeds 4575 

242.  Release  and  Discharge 4576-4581 

243.  Religious    Societies 4582-4585 

244.  Replevin    4586-4597 

245.  Riot    4598 

246.  Robbery    4599-4618 

247.  Sales    4619-4743 

248.  Schools  and  School  Districts 4744-4746 

249.  Searches  and  Seizures 4747-4753 

250.  Seduction    4754-4795 

251.  Sequestration 4796 

252.  Sheriffs  and   Constables 4797-4801 

253.  Shipping    4802-4813 

254.  Signature   4814 

255.  Specific    Performance 4815 

256.  Stallions    4816 

257.  States     4817 

258.  Street  Railroads 4818-4899 

259.  Streets    and    Highways 4900-5010 

260.  Subrogation    5011 

261.  Subscriptions  5012 

262.  Sunday   5018 

263.  Taxation   5014-5018 

264.  Telegraphs  and  Telephones 5019-5052 

265.  Tenancy  in  Common .5053-5055 

266.  Tender    .5056-5058 

267.  Theaters    .50.59-5062 

268.  Threats    , 5063-5065 

269.  Torts    .5066-5071 

270.  Towage    ,5072-5073 

271.  Trespass    5074-5099 

272.  Trespass  to  Try  Title ."100-5105 

27."^.     Trover  and   Conversion 5106-51 13 


TABLE   OF   CONTENTS  XI 

Chapter  Sections 

274.  Trusts    5114-51ir> 

275.  Turnpikes  and  Toll  Roads 5117 

276.  Undertakers     5118 

277.  United  States  Marshals 5119 

278.  Use  and  Occupation 5120 

279.  Usury 5121-5125 

280.  Vagrancy    5126 

281.  Vendor  and  Purchaser 5127-5156 

282.  War 5157-5159 

283.  Warehousemen    5160-5179 

284.  Waste    5180 

285.  Waters  and  Water  Courses 5181-5228 

286.  Weapons 5229-5243 

287.  Weights  and  Measures 5244 

288.  Wharves 5245 

289.  Wills    5246-5329 

290.  Witnesses    5330-5350 

291.  Work  and  Labor 5351-5356 

292.  Workmen's   Compensation   Acts 5357-5361 


TABLE  OP  CASES  CITED 

(Volume  5) 

INDEX 

(Volume  5) 

t 


INSTRUCTIONS  TO  JURIES 


Inst.to  Juries  (1)* 

\ 


PART  ONE 

RULES  GOVERNING  THE  GIVING  OR  REFUSAL 
OF  INSTRUCTIONS 


CHAPTER  I 

DEFINITIONS,  DISTINCTIONS,  AND  GENERAL  CONSIDERATIONS 

§  1  Significance  and  purpose  of  instructions.  ^ 

2.  Importance  of  definition  of  province  of  court  and  3ury. 

3.  Difficulties  of  administering  jury  system. 

4.  Province  of  court  with  respect  to  tlie  facts  at  common  law.  , 

5.  Province  of  the  court  with  respect  to  the  facts  under  constitutional  and 

statutory  provisions. 

S  1      Significance  and  purpose  of  instructions  • 

The  word  "instructions."  as  used  to  describe  the  directions  given  by 
the  judge*  to  the  jury  on  the  trial  of  a  civil  or  criminal  case  has  a  tend- 
ency to  mislead,  in  that  it  seems  to  imply  some  degree  of  subordination 
on  the  part  of  the  body  instructed  to  that  instructing.  The  word  may, 
perhaps,  suggest  the  relation  of  principal  and  agent— a  principal  who 
evolves  from  his  own  breast  rules  of  conduct  for  an  agent  who  owes 
his  existence  solely  to  the  act  of  the  principal.  The  analogy  is  not  a 
true  one.  The  jury  is  in  no  sense  the  agent  of  the  judge.  They  both 
derive  their  origin  from  the  same  high  source,  and  the  judge  in  laying 
down  rules  to  guide  the  jury  in  their  deliberations,  merely  acts  as  the 
mouthpiece  of  the  law  for  the  purpose  of  marking  out  a  definite^  and 
clearly  ascertained  path  by  which  the  ends  of  justice  are  attained. 
That  this  is  so  becomes  more  apparent  when  it  is  seen  that  even  in  those 
actions  at  law  in  which  the  judge  acts  without  the  aid  of  a  jury,  a  party 
has  a  right  to  demand  that  the  principles  of  law  applicable  to  the  facts 
found  by  the  court  shall  be  declared  by  it  as  distinctly  as  in  instructions 
to  a  jury,^  and  that  such  declarations  should  as  in  cases  tried  before  a 
jury,  avoid  comment  upon  the  weight  and  probative  efifect  of  the  evi- 
dence.'^ . 

The  province  of  instructions  to  juries  may  be  said  to  be  to  state  and 
apply  the  law  to  the  facts  in  a  particular  case,  so  that  it  may  readily  be 

1  Harbison   v.    School   Dist.   No.   1,      M.  R.  Co.,  47  Mo.  Ai^.  570;    King  v. 
1  S   W.  30,  S9  Mo.  184.  Allemania  Fire  Ins.  Co.,  37  Mo.  App. 

2  Patterson  v.  Kansas  City.  Ft.  S.  &     102. 

*  In  this  book  ^urt"  or  "judge,"  for  convenience,  will  be  used  as  converti- 
ble terms. 

INST.TO  JUKIETS  (3) 


§  2  mSTEUCTIONS   TO  JURIES  4 

understood  by  the  mind  untrained  in  the  law.^  Accordingly  the  purpose 
of  such  instructions  should  be  to  present  the  issues  of  the  case  in  the 
most  intelhgible  form,*  notice  the  claims  of  the  parties,  suggest  so  far 
as  necessary  the  principles  of  evidence  and  their  application,^  and  de- 
fine for  the  jury  and  direct  their  attention  to  the  legal  principles  which 
govern  the  facts  proved  or  presumed  in  the  case,*^  and,  where  the  evi- 
dence is  of  such  a  character  as  may  easily  lead  to  the  raising  of  a  false 
issue,  the  court  should  guard  against  such  an  issue  by  appropriate  in- 
structions.^ It  has  been  said,  however,  that  the  principal  benefit  to  be 
derived  from  a  charge  to  the  jury  is  not  a  statement  of  the  law,  but 
the  elimination  of  irrelevant  matters.^ 

§  2.     Importance  of  definition  of  province  of  court  and  jury 

At  the  ven,'  threshold  of  a  work  on  instructions  to  juries  lies  the 
problem  of  defining  the  respective  provinces  of  court  and  jury,  since 
in  every  instruction  to  the  jui-y  which  is  not  a  mere  abstract  statement 
of  the  law  there  must  necessarily  be  present  in  the  mind  of  the  court 
the  question  how  far  it  can,  or  should,  go  without  surrendering  its  own 
prerogatives  or  invading  those  of  the  jury.  The  problem,  of  course,  is 
largely  to  prevent  the  jury  from  being  reduced  to  a  mere  ministerial 
agent  of  the  court.  While  laws  have  been  enacted  from  time  to  time 
confirming  and  strengthening  the  status  of  the  jury  as  a  part  of  our 
judicial  machinery,  and  courts  recognize  theoretically  that  the  jury 
performs  functions  equal  in  importance  to  their  own,  yet  when  they 
come  to  instruct  the  jury  they  frequently  fail  to  visualize  that  the  prov- 
ince of  the  jury,  although  not  so  tangible  as  an  acre  of  land  or  a  geo- 

3  Carty  v.  State,  204  S.  W.  207,  135  reference  to  the  law  of  the  case, 
Ark.  169 ;  Pagels  v.  Meyer,  61  N.  E.  enabling  the  jury  to  better  under- 
1111,  193  111.  172.  stand  their  duty  and  to  prevent  them 

4  Owen  V.  Owen,  22  Iowa,  270 ;  from  arriving  at  a  wrong  conclusion. 
Louisville  &  N.  R.  Co.  v.  King's  Hanson  v.  Kent  &  Purdy  Paint  Co., 
Adm'r,  115  S.  W.  196,  131  Ky.  347.  129  P.  7,  36  Okl.  583 ;    Butler  v.  Gill, 

The  court  should  give  the  jury  127   P.   439,   34   Okl.   814;     Leavitt   v. 

all    reasonable    aid    in    solving    the  Deichmann,  120  P.  983,  30  Okl.  423. 

questions    before    them,    taking    care  What    are    instructions    within. 

not    to    overstep    the   plain    boundary  statutes  requiring  them,  to  be  in 

that    separates    the    two.      Gillett    v.  writing,  see  post,  §§  444-446. 

Webb,  17  111.  App.  458.  7  Estes  v.  Desnoyers  Shoe  Co.,  155 

5  Souvais  V.  Leavitt,  15  N.  W.  37,  Mo.  577,  56  S.  W.  316. 

50  Mich.  108.  s  irvin  v.  Southern  Ry.  Co.,  80  S. 

6  Nelson  v.   State,  52  S.  E.  20.  124      E.  78,  164  N.  C.  5. 

Ga.  8;    Virgin  v.  Lake  Erie  &  W.  Ri.  Teaching   law  to   jury.     The   ob- 

Co.,  101  N.  E.  500,  55  Ind.  App.  216;  ject  of  a  charge  is  not  to  teach  law  to 

St.    Louis    Southwestern    Ry.    Co.    of  the  .iurors,  but  to  direct  their  conduct 

Texas  v.  Cleland.  110  S.  W.  122,  50  in  the  controversy  they  are  called  on 

Tex.  Civ.  App.  499;    State  v.  Dodds,  to   decide.      Lendberg   v.    Brotherton 

46  S.  E.  228,  54  W.  Va.  289.  Iron  Min.  Co.,  42  N.  W.  675,  75  Mich. 

Instructions     are     directions     in  84. 


5  DEFINITIONS   AND   GENERAL  CONSIDERATIONS  S  3 

graphical  subdivision,  has  certain  definite  frontiers  which  are  to  be  de- 
fended. 

§  3.     Difficulties  of  administering  jury  systen:i 

The  fundamental  conception  of  the  jury  system  is  a  simple  one: 
Two  tribunals  sitting  side  by  side  in  the  adjustment  of  human  rights 
and  relations,  one  supreme  in  the  realm  of  fact,  and  the  other  absolute 
in  the  realm  of  law;  the  composite  decision  of  law  and  fact  being  ren- 
dered by  the  jury  after  being  duly  instructed  in  the  law  by  the  court. 
However,  it  must  be  admitted  that  we  have  here  a  very  delicate  piece 
of  mechanism.     Embarrassment  is  pretty  certain  to  arise  when_  one 
equal  is  called  upon  to  instruct  a  coequal  as  to  their  respective  rights 
and  duties.    Human  nature  being  what  it  is,  there  is  a  tendency  for  the 
one  to  be  accorded  dominance  and  the  other  to  acquire  subserviency. 
Moreover,  in  pointing  out  to  the  jury  the  matters  they  are  to  pass  upon 
the  boundaries  between  fact  and  law  must  be  plainly  indicated      Yet 
it  is  not  always  easy  even  for  the  trial  judge,  to  fix  such  boundaries, 
and  not  every  judge  has  the  power  of  lucid  expression  necessary  to 
avoid  misapprehension  by  the  juror,  or,  if  the  judge  has  such  power, 
he  frequently  has  not  the  disposition  or  opportunity  to  use  it  m  the 
hurry  of  the  courtroom.     Then,  too,  the  trial  judge  trained,  not  only 
in  the  law,  but  in  the  ability  to  grasp  quickly  the  meaning  of  facts, 
often  finds  it  difficult  not  to  anticipate  the  conclusions  of  the  jury. 
It  ou-ht  not  to  be  a  matter  of  surprise,  therefore,  that  m  the  trial  ot 
cases\efore  a  jury  instructions,  intended  to  guard  against  error   be- 
come themselves  a  prolific  source  of  error,  and  there  is  often  involved 
much  of  vexation,  annoyance,  and  hope  deferred,  which  might    per- 
haps, have  been  avoided  if  the  trial  had  been  before  a  single  tribunal. 
But  whatever  the  defects  of  the  jury  system  are,  it  will  m  all  hu- 
man probability  endure  as  long  as  our  present  form  of  government. 
It  is  too  broadly  buttressed  upon  political,  sociological,  and  histori- 
cal reasons  to  be  overthrown  by  mere  considerations  of  efficiency. 
When  our  society  is  more  perfectly  organized,  perhaps  the  juror 
will  come  to  the  performance  of  his   duties  with  an   equipment 
which  will  enable  the  court  merely  to  lay  down  general  principles, 
leaving  to  the  jury  their  concrete  application.     Until  that  time  ar- 
rives it  will  be  the  duty  of  the  profession  to  eliminate  waste  and 
friction  by  a  study  of  the  precedents  in  the  decisions  of  the  courts 
of  last  resort,  of  which  there  are  now  a  vast  number,  and  which 
discuss  the  relations  of  court  and  jury  from  almost  every  conceiv- 
able   angle.      In    this    and    the    immediately    ensuing    chapters,    ii- 
VIII  and  also  to  some  extent  in  chapters  XXIX  and  XXX,  it  has 


8  4  INSTRUCTIONS    TO  JURIES  6 

been  sought,  from  these  decisions,  to  construct  a  chart  of  the  fun- 
damental principles  which  should  guide  the  court  in  giving  in- 
structions, so  far  as  their  formulation  is  affected  by  the  necessity 
of  preserving  unimpaired  the  supremac}^  of  court  and  jury  in 
their  respective  spheres. 

§  4.     Province  of  court  with  respect  to  the  facts  at  common  law 

Under  the  common  law  it  is  competent  for  the  trial  judge  to  give 
his  opinion  upon  the  facts,  as  well  as  upon  the  law,  so  long  as  he  leaves 
it  to  the  jury  to  find  a  verdict  according  to  their  opinions,^  and  in  the 
federal  courts,  where  the  common  law  prevails,  it  is  the  settled  doc- 


9  U.  S.  (C.  C.  A.  Iowa)  Freese  v. 
Kemplay,  118  F.  428,  55  C.  C.  A.  258. 

Conn.  Cullum  v.  Colwell,  83  A. 
695,  85  Conn.  459 :  Cook  v.  M.  Stein- 
ert  &  Sons  Co.,  36  A.  1008,  69  Conn. 
91 ;  Appeal  of  Dale,  57  Conn.  127,  17 
A.  757 ;  Appeal  of  Comstock's  Com'rs, 
55  Conn.  214,  10  A.  559. 

Ga.     Beall  v.  Mann,  5  Ga.  456. 

Me.  Phillips  v.  Inhabitants  of  Via- 
zie,  40  Me.  96;  Frankfort  Bank  v. 
Johnson,  24  Me.  490;  Dyer  v.  Greene, 
23  Me.  464;  Inhabitants  of  Phillip  v. 
Inhabitants  of  Kingfield,  19  Me.  375.  36 
Am.  Dec.  760;  Ware  v.  Ware,  8  Me. 
42. 

Mass.  Mansfield  v.  Corbin,  4  Cush. 
213:  Whiton  v.  Old  Colony  Ins.  Co., 
2  Mete.  1;  Davis  v.  Jenney,  1  Mete. 
221;    Curl  v.  Lowell,  19  Pick.  25. 

Minn.  First  Nat.  Bank  of  De- 
corah  V.  Holan,  63  Minn.  525,  65  N. 
W.  952. 

N^  Y.  Hurlhurt  v.  Hurlburt,  128 
N.  Y.  420,  28  N.  E.  651,  26  Am.  St. 
Rep.  482;  Powell  v.  Jones,  42  Barb. 
24 :  Hunt  v.  Bennett,  4  E.  D.  Smith, 
647,  affirmed  19  N.  Y.  173;  Bulkeley 
V.  Keteltas,  6  N.  Y.  Super.  Ct.  450, 
reversed  6  N.  Y.  384;  Gardner  v. 
Picket,  19  Wend.  186 ;  People  v.  Gen- 
ung,  11  Wend.  18,  25  Am.  Dec.  594. 

Ohio.  Jaspers  v.  Mallon,  9  Ohio 
Dec.  184,  11  Wkly.  Law  Bui.  166. 

Pa.  Lappe  V.  Gfeller,  60  A.  1049, 
211  Pa.  462;  Didier  v.  Pennsvlvania 
Co.,  146  Pa.  582,  23  A.  801 ;  Hulett  v. 
Patterson.  8  A.  917;  Bonner  v.  Her- 
rick,  99  Pa.  220;  Leibig  v.  Steiner,  94 
Pa.  466;    Greeley  v.  Thomas,  56  Pa. 


35 ;  Ditmars  v.  Commonwealth,  47 
Pa.  335;  Bernstein  v.  Walsh,  32  Pa. 
Super.  Ct.  392;  Knee  v.  McDowell,  25 
Pa.  Super.  Ct.  641 ;  Oldham  v.  United 
States  Express  Co.,  25  Pa.  Super.  Ct. 
549 ;  Rondinella  v.  Metropolitan  Life 
Ins.  Co.,  24  Pa.  Super.  Ct.  293 ;  Wills 
V.  Hardcastle,  19  Pa.  Super.  Ct.  525; 
Sampson  v.  Sampson,  4  Serg.  &  R. 
329;   Long  v.  Ramsay,  1  Serg.  &  R.  72. 

S.  C.  State  v.  Smith,  12  Rich.  Law, 
430;  Kirkwood  v.  Gordon,  7  Rich. 
Law,  474,  62  Am.  Dec.  418;  Martin 
V.  Teague's  Exts,  2  Speers,  260 ;  Farr 
V.  Thompson,  1  Speers,  93 ;  State  v. 
Bennet,  3  Brev.  514. 

Vt.  Rowell  V.  Fuller's  Estate,  59 
Vt.  688,  10  A.  853 ;  Missisquoi  Bank 
V.  Evarts,  45  Vt.  293;  Sawyer  v. 
Phaley,  33  Vt.  69;  Yale  v.  Seely,  15 
Vt.  221. 

Instructions  Iield  permissible 
'nrithin  rule.  A  remark  of  a  judge, 
in  his  instructions,  that  he  had  per- 
ceived no  evidence  in  support  of  a 
position  taken  by  one  of  the  parties, 
but  still  referring  it  to  the  jury  to 
settle  the  case  on  the  evidence,  is  no 
ground  for  exceptions.  Cunningham 
V.  Batchelder,  32  Me.  316.  It  is 
within  the  province  of  a  trial  judge 
to  tell  the  jury  that  a  certain  case, 
in  its  facts,  is  very  like  the  case  at 
bar,  and  the  fact  that  he  incidentally 
divulges  the  circumstance  that  In 
that  case  the  jury  found  for  plaintiff 
is  immaterial,  where  the  jury  are  in- 
structed that  they  are  to  find  a  ver- 
dict on  the  evidence  before  thenj. 
Anderson  v.  McAleenan,  8  N.  Y.  S. 
483,  15  Daly,  444. 


7  DEFINITIONS   AND    GENERAL   CONSIDERATIONS  §  4 

trine,  both  in  civil  ^°  and  in  criminal  cases/ ^  that  it  is  not  reversible  er- 
ror for  the  judge  to  express  his  own  opinion  on  the  facts,  if  the  rules 
of  law  are  correctly  laid  down  and  all  matters  of  fact  are  ultimately 


10  u.  S.  Baltimore  &  P.  R.  Co.  v. 
Fifth  Baptist  Chiu-ch,  137  U.  S.  56S, 
11  S.  Ct.  185,  34  L.  Ed.  784;  Vicks- 
burg  &  M.  R.  Co.  v.  Putnam,  118  U. 
S.  545,  7  S.  Ct.  1,  30  L.  Ed.  257;  (C. 
C.  A.  Ark.)  Lesser  Cotton  Co.  v.  St. 
Louis,  I.  M.  &  S.  Ry.  Co.,  114  F.  133, 
52  C.  C.  A.  95;  (C.  C.  Cal.)  Nome 
Beach  Ligliterage  &  Transp.  Co.  v. 
Munich  Assur.  Co.,  123  F.  820;  (C. 
O.  A,  Del.)  Pullman's  Palace  Car 
Co.  V.  Harkins,  55  F.  932,  5  C.  C.  A. 
326;  (C.  C.  A.  Fla.)  Smith  v.  St. 
Louis  I.  M.  &  S.  R.  Co.,  214  F.  737, 
131  C.  C.  A.  43;  (C.  C.  A.  111.)  Illinois 
Cent.  R.  Co.  v.  David.son,  76  F.  517, 
22  C.  C.  A.  306,  certiorari  denied  17 
S.  Ct.  994,  166  U.  S.  719,  41  L.  Ed. 
1186 ;  (C.  C.  A.  Iowa)  Kerr  v.  Modei-n 
Woodmen  of  America,  117  F.  593,  54 
C.  C.  A.  655 ;  (C.  C.  A.  Kan.)  Vanars- 
dale  V.  Hax,  107  F.  878,  47  C.  C.  A. 
31;  Chicago.  R.  I.  &  P.  Ry.  Co.  v. 
Stahley,  62  F.  363,  11  C.  C.  A.  88; 
(C.  O.  A.  Md.)  Fidelity  Mut.  Life 
Ass'n  of  Philadelphia,  Pa.,  v.  Miller,  92 
F.  63,  34  C.  C.  A.  211;  (C.  C.  A.  Mass.) 
Provident  Sav.  Life  Assur.  Soc.  of  New 
York  V.  Hadley,  102  F.  856,  43  C.  O.  A. 
25,  affirming  judgment  Hadley  v. 
Provident  Sav.  Life  Assur.  Soc.  of 
New  York  (C.  C.)  90  F.  390;  Doyle 
V.  Boston  &  A.  R.  Co.,  82  F.  8G9,  27 
C.  C.  A.  264 ;  (C.  C.  A.  Minn.)  Griggs 
V.  Nadeau,  250  F.  781,  163  C.  C.  A. 
113;  (C.  C.  A.  Mo.)  Aerheart  v.  St. 
Louis,  I.  M.  &  S.  Ry.  Co.,  99  F.  907,  40 
C.  C.  A.  171;  (C.  C.  A.  Ohio)  Young 
V.  Corrigan.  210  F.  442,  127  C.  C.  A. 
174;  (C.  C.  A.  Pa.)  Fuller  v.  New 
York  Life  Ins.  Co.,  199  F.  897,  118 
C.  C.  A.  227;  (C.  C.  Pa.)  Butler  v. 
Barret  &  Jordan,  130  F.  944 ;  (C.  C. 
A.  Pa.)  Martin  v.  Hughes,  98  F.  556, 
39  C.  C.  A.  160;  (C.  C.  A.  Tenn.) 
Treece  v.  American  Association,  122 
F.  598,  58  C.  C.  A.  266. 

Illnstrations  of  comment  held 
proper  iieitliiii  rule.  A  statement 
by  the  court  that  the  meaning  of  the 
terra  "scalps,"  as  used  in  the  contract 
between  the  parties,  has  not  been  de- 
veloped by  the  testimony.     Hansen  v. 


Boyd,  161  U.  S.  397,  16  S.  Ct.  571,  40 
L.  Ed.  746.  An  instruction,  in  an  ac- 
tion for  injuries  to  a  spectator  at  an 
amusement  park  by  the  bursting  of  a 
bomb,  discharged  as  part  of  certain 
fireworks,  that,  if  defendant's  commit- 
tee employed  a  couple  of  Italians 
about  whom  they  knew  nothing  to 
produce  and  discharge  the  fireworks, 
they  did  not  exercise  the  prudence 
which  an  intelligent  man  would  have 
exercised,  and  then  stating,  "For  my- 
self I  do  not  believe  for  a  minute  that 
they  did  any  such  thing,  but  that  is  a 
question  of  fact  for  you  to  determine, 
and  not  me."  (C.  C.  A.  N.  Y.)  Sebeck 
V.  Plattdeutsche  Volksfest  Verein,  124 
F.  11,  59  C.  C.  A.  531. 

11  U.  S.  (C.  C.  A.  Cal.)  Schulze  v. 
United  States,  259  F.  189,  affirming 
judgment  United  States  v.  Schulze  (D. 
C.)  253  F.  377  ;  Beyer  v.  United  States, 
251  F.  39,  163  C.  C.  A.  289 ;  (C.  C.  A. 
Idaho)  Kettenbach  v.  United  States, 
202  F.  377,  120  C.  C.  A.  505 ;  (C.  C.  A. 
111.)  Keller  v.  United  States,  168  F.  697, 
94  C.  C.  A.  368;  (C.  C.  A.  Mass.)  Mac- 
Knight  V.  U.  S.  263  F.  832 ;  (C.  C.  A. 
N.  Y.)  Oppenheim  v.  United  States, 
241  F.  625,  154  C.  C.  A.  383,  reversing 
judgment  United  States  v.  Oppenheim 
(D.  C.)  228  F.  220;  (C.  C.  A.  Ohio) 
Shea  V.  United  States,  251  F.  440,  163 
C.  C.  A.  458,  writ  of  certiorari  denied 
248  U.  S.  581,  39  S.  Ct.  132,  63  L.  Ed. 
431;  (C.  C.  A.  Pa.)  Hart  v.  United 
States,  84  F.  799,  28  C.  C.  A.  612,  af- 
firming United  States  v.  Hart  (D.  C.) 
78  F.  868 ;  (C.  C.  A.  R.  I.)  Balcom  v. 
United  States,  259  F.  779,  170  C.  C.  A. 
579,  certiorari  denied  40  S.  Ct.  14, 
250  U.  S.  669.  63  L.  Ed.  1198 ;  (C.  C. 
A.  S.  C.)  Perkins  v.  United  States.  228 
F  408,  142  C.  C.  A.  638;  (C.  C.  A. 
Tenn.)  Sylvia  v.  U.  S.,  264  F.  593 ;  (C 
C.  A.  Va.)  Morse  v.  United  States,  255 
F.  681,  167  C.  C.  A.  57. 

D.  C.  Maxey  v.  United  States,  30 
App.  D.  C.  63. 

Under  such  rule  a  statement  of  a 
federal  judge  that  he  does  not  see  any 
wa.v  in  which  the  defendants  can  be 
acquitted,  while  not  to  be  approved, 


INSTRUCTIONS   TO  JURIES 


submitted  to  the  jury.     In  some  of  the  state  courts,  also,  this  practice 
still  obtains,  in  criminal  ^^  as  well  as  in  civil  cases. ^^ 

As  indicated  by  the  foregoing  statement  such  an  expression  of  opin- 
ion will  be  erroneous,  even  at  common  law,  unless  accompanied  by  an 
instruction  that  the  jury  are  not  bound  by  the  opinions  of  the  court, 
or  at  least  unless  the  jury  are  given  clearly  to  understand  in  some  part 
of  the  charge,  that  they  are  the  exclusive  judges  of  the  facts. ^*  The 
greatest  caution  should  be  used  in  the  exercise  of  such  power  of  com- 
ment, that  the  jury  may  be  left  free  and  untrammeled  in  the  determi- 
nation of  questions  of  fact  submitted  to  them.^^     It  follows  that  the 


is  no  ground  for  reversal.  (C.  C.  A. 
Alaska)  Endleman  v.  United  States, 
86  F.  456,  30  C.  C.  A.  186. 

12  Conn.  State  v.  Main,  52  A.  257, 
75  Conn.  55. 

N,  J.  State  V.  Pulley,  82  A.  857,  82 
N.  J.  Law,  579 ;  State  v.  Schuyler,  68 
A.  56,  75  N.  J.  Law,  487;  State  v. 
Simon,  58  A.  107,  71  N.  J.  Law,  142, 
affirmed  .59  A.  1118. 

Pa.  Commonwealth  V.  Ross,  110  A. 
327,  266  Pat.  580;  Commonwealth  v. 
Marcinko,  89  A.  457,  242  Pa.  388; 
Commonwealth  v.  Leyshon,  44  Pa. 
Super.  Ct.  507,  515 ;  Commonwealth 
V.  Scott,  38  Pa.  Super.  Ct.  303;  Com- 
monwealth V.  Martin,  34  Pa.  Super. 
Ct.  451;  Commonwealth  v.  Zuem,  16 
Pa.  Super.  Ct.  588;  Commonwealth  v. 
Warner.  13  Pa.  Super.  Ct.  461. 

Opinion  as  to  degree  of  offense. 
On  trial  for  murder,  the  question  of 
the  degree  thereof  is  for  the  jury,  but 
the  (.'ourt  in  its  instructions  may  ex- 
press its  views  as  to  the  effect  of  the 
evidence,  if  in  thom  there  is  no  inter- 
ference with  the  exclusive  right  of  the 
jury  to  determine  the  degree.  Com- 
monwealth V.  Frucci,  64  A.  879,  216 
Pa.  84. 

13  Conn.  Miller  v.  Perlroth,  110  A. 
535,  95  Conn.  79 ;  Smith  v.  Ilausdorf, 
103  A.  939,  92  Conn.  579;  Dick  v. 
Colonial  Trust  Co.,  89  A.  907,  88  Conn. 
93:  Temple  v.  Gilbert,  85  A.  380,  86 
Conn.  335 ;  Houghton  v.  Citv  of  New 
Haven.  66  A.  509,  79  Conn.  659 ;  Crot- 
ty  V.  Citv  of  Danbury,  65  A.  147,  79 
Conn.  .379. 

Minn.  Presley  Fruit  Co.  v.  St. 
Louis.  I.  M.  &  S.  Ry.  Co.,  153  N.  W. 
115,  1.30  Minn.  121 ;  I^arson  v.  Barlow, 
127  N.  W.  924,  112  Minn.  246;  Bon- 
ness  v.  Felsing,  100  N,  W.  909,  97 
Minn.    227,    114    Am.    St.    Rep.    707; 


Ames  v.  Cannon  River  Mfg.  Co.,  27 
Minn.  245,  6  N.  W.  787. 

N.  J.  Chrisafides  v.  Brunswick  Mo- 
tor Co..  100  A.  196,  90  N.  J.  Law,  313; 
W.  A.  Manda,  Inc.,  v.  Delaware,  L.  & 
W.  R.  Co.,  98  A.  467,  89  N.  J.  Law, 
327;  Merklinger  v.  Lambert,  72  A. 
119,  76  N.  J.  Law,  806;  Folev  v. 
Loughran,  38  A.  960,  39  A.  358,  60  N. 
J.  Law,  464. 

Pa.  Pool  V.  White,  175  Pa.  459,  34 
A.  801,  38  Wlvly.  Notes  Cas.  253; 
Fredericks  v.  Northern  Cent.  R.  Co., 
157  Pa.  103,  27  A.  689,  22  L.  R.  A. 
306;  Adams  v.  Uhler,  2  Walk.  96; 
Pennsylvania  Co.  v.  Allen,  3  Penny. 
170. 

Vt.  Noyes  v.  Parker,  64  Vt.  379,  24 
A.  12. 

In  Michigan  there  are  decisions 
which  hold  that  it  is  not  error  which 
will  require  the  reversal  of  a  judg- 
ment that  a  circuit  judge  indicates  his 
views  as  to  the  credibility  of  a  wit- 
ness or  the  weight  of  the  evidence,  if 
he  expressly  directs  the  jury  to  decide 
for  themselves  without  reference  to 
his  views.  Sheahan  v.  Barr.v,  27 
Mich.  217.  But  there  are  decisions 
which  point  the  other  way.  Richards 
v.  Fuller,  38  Mich.  653.  A  fuller  dis- 
cussion of  the  position  of  the  Michi- 
gan courts  with  reference  to  this 
matter  will  be  found  in  a  subsequent 
chapter. 

14  (C.  C.  A.  Va.)  Anderson  v.  Avis, 
62  F.  227,  10  C.  C.  A.  347;  (C.  C.  A. 
Wis.)  Nvback  v.  Champagne  Lumber 
Co.,  109  F.  732,  48  C.  C.  A.  632  ;  Char- 
ter v.  Lane,  62  Conn.  121,  25  A.  464 ; 
Potts  V.  House,  6  Ga.  324,  50  Am.  Dec. 
.329 :  Caldwell  v.  Kennison,  4  Minn.  47 
(Gil.  23),  77  Am.  Dec.  499. 

10  (C.  C.  A.  Mo.)  Rudd  v.  United 
States,  173  F.  912,  97  C.   C.  A.  462; 


DEFINITIONS  AND   GENERAL   CONSIDERATIONS 


§4 


manner  of  expression  by  the  court  of  its  opinions  must  not  be  such  as 
to  be  Hkely  to  prevent  the  jury  from  acting  upon  an  opposite  opinion.^® 
Moreover,  the  expression  of  such  an  opinion  is  only  permissible  when 
it  is  based  upon  the  evidence  in  the  case.^^ 

The  general  rule  is  that  the  court  is  not  obliged  to  exercise  such  pow- 
er of  comment,  and  that  it  may,  in  its  discretion,  decline  to  express  an 
opinion  on  a  matter  of  fact  submitted  to  the  jury/^  In  some  jurisdic- 
tions, however,  both  in  civil  and  criminal  cases,  it  is  held  that  some 
times  it  may  be  the  duty  of  the  trial  judge,  within  the  limitations 


(C.  C.  A.  Va.)  Foster  v.  United  States, 
188  F.  305,  110  C.  C.  A.  283,  reversing 
judgment  (D.  C.)  United  States  v. 
Foster,  183  F.  626,  and  rehearing  de- 
nied 192  F.  1022,  112  C.  C.  A.  665. 
16  Blumeno  v.  Grand  Rapids  &  I. 
K.  Co.,  59  N.  W.  594,  101  Mieli.  325 ; 
Reiclaenbach  v.  Ruddach,  127  Pa.  564, 
18  A.  432,  24  Wkly.  Notes  Cas.  476. 

Illustrations  of  instructions  ob- 
noxious to  rule.  An  expression  of 
opinion  by  the  judge  to  the  jury  that 
"I  do  not  see,  under  the  law,  how  you 
can  find  that  there  was  adverse  pos- 
session for  any  part  of  this  land,  ex- 
cent  the  part  where  these  posts  were 
actually  placed."  Lindley  v.  O'Reilly, 
46  N.  J.  Law,  352.  An  instruction 
presenting  "views  which,  were  the 
presiding  judge  in  the  jury  box,  would 
control  him  in  giving  his  verdict 
against  the  plaintiff,"  is  erroneous, 
although  accompanied  by  the  caution 
that  the  jury  were  sole  judges  of  the 
weight  of  evidence  and  the  inferences 
it  would  bear.  Burke  v.  Maxwell's 
Adm'rs,  81  Pa.  139.  Though  a  state- 
ment by  the  trial  judge  that  there  was 
little  conflict  of  testimony,  and  that 
commonwealth's  testimony,  if  believ- 
ed, made  out  murder  in  the  first  de- 
gree beyond  a  reasonable  doubt,  was 
a  proper  expression  of  the  'judge's 
opinion,  it  was  error  for  him  there- 
after to  state  that  defendant  claimed 
insanity,  and  that  practically  the  only 
question  for  the  jury  to  determine 
was  whether  he  was  insane  where  the 
court  added  that  there  was  no  evi- 
dence to  warrant  the  jury  in  conclud- 
ing that  the  defendant  was  insane. 
Commonwealth  v.  Berkenbush,  110  A. 
263,  267  Pa.  455.  It  is  more  than  a 
mere  expression  of  the  opinion  as  to 
the  weight  and  value  of  the  evidence, 
and  constitutes  reversible  error,  for 


the  trial  judge  to  charge  a  jury  that 
"in  our  opinion,  under  the  law  and  un- 
der the  facts,  the  plaintift  is  entitled 
to  a  judgment,  but  I  leave  that  matter 
entirely  for  your  consideration.  We 
are  leaving  the  matter  in  your  hands 
without  express  or  binding  instruc- 
tions, because,  if  we  err,  we  can  con- 
trol the  matter  afterwards."  Shipp 
v.  Schmitt  &  Murphy,  71  Pa.  Super. 
Ct.  496. 

Duty  not  to  shoTr  partisanship 
in  expressing  opinion.  In  every 
case  which  justifies  a  judge  in  ex- 
pressing an  opinion  the  jury  should 
be  directly  informed  that  it  is  his 
opinion,  and  that  they  are  not  to  be 
bouml  by  it,  and  the  expression  of 
opinion  should  always  be  made  with 
the  utmost  fairness  and  absence 
of  partisanship.  Commonwealth  v. 
Meads,  29  Pa.  Super.  Ct.  321. 

17  (C.  C.  A.  Kv.)  Mullen  v.  United 
States,  106  F.  892,  46  C.  C.  A.  22; 
Camden  &  A.  R.  Co.  v.  Williams,  40  A. 
634,  61  N.  J.  Law,  646. 

IS  U.  S.  (C.  C.  Mass.)  United 
States  V.  Burnham,  Fed.  Cas.  No.  14,- 
690,  1  Mason,  57;  (C.  C.  Pa.)  Conse- 
qua  V.  Willings,  Fed.  Cas,  No.  3,128, 
Pet.  C.  C.  225. 

Conn.  Appeal  of  Sturdevant,  42 
A.  70.  71  Conn.  392 ;  Cohen  v,  Pember- 
ton.  53  Conn.  221,  2  A,  315,  5  A.  682, 
55  Am.  Rep.  101. 

Ga.    Hillburn  v.  O'Barr,  19  Ga.  591. 

La.  Riviere  v.  McCormick,  14  La. 
Ann.  139. 

N.  J.  Battschinger  v.  Robinson,  85 
A.  317,  83  N.  J.  Law,  739, 

R.  I.  Smith  V.  Rhode  Island  Co., 
98  A.  1,  39  R.  I.  146 ;  Tucker  v.  Rhode 
Island  Co.,  69  A.  850. 

Vt.  Noyes  v.  Parker,  64  Vt.  379,  24 
A,  12. 


§5 


INSTRUCTIONS   TO   JURIES 


10 


of  the  above  rule,  to  tell  the  jury  how  the  evidence  strikes  his 
mind.^^ 

§  5.  Province  of  the  court  with  respect  to  the  facts  under  consti- 
tutional and  statutory  provisions 
Because  of  the  fact  that  judicial  utterances  concerning  the  evidence 
are  apt  to  be  given  great  moral  weight  by  the  jury,  sometimes  leading 
them  to  shirk  responsibility  by  adopting  the  opinion  of  the  judge  and 
because  of  the  fact  that  judges  have  not  infrequently  evinced  partisan- 
ship, molding  verdicts  to  their  will,  the  power  of  the  court  to  comment 
on  the  evidence  or  to  charge  on  the  facts  has,  in  the  great  majority  of 
the  states,  at  various  times  and  in  varying  degrees,  been  abridged  by 
constitutional  or  statutory  limitations.^ °     Whatever  may  be  said  of  the 


19  State  V.  Hummer,  65  A.  249,  78 
N.  J.  Law,  714,  affirming  judgment  62 
A.  388,  72  N.  J.  Law,  328,  and  re- 
hearing denied  67  A.  294,  81  N.  J. 
Law,  430;  Church  v.  Delaware,  L.  & 
W.  R.  Co.,  95  A.  341,  250  Pa.  21; 
Jackson  v.  Hillerson,  59  Pa.  Super. 
Ct.  508 ;  Commonwealtli  v.  Benedick, 
39  Pa.  Super.  Ct.  477;  Commonwealth 
V.  Wmkelman,  12  Pa.  Super.  Ct.  497; 
Devlin  v.  Kilcrease,  2  McMul.  (S.  C.) 
425. 

2  0  Ala.  Lay  v.  Fuller,  59  So.  609, 
178  Ala.  375. 

Ariz.  Griswold  v.  Home,  165  P. 
318,  19  Ariz.  56,  L.  R.  A.  1918A,  862. 

Ark.  St.  Louis.  I.  M.  &  S.  R.  Co.  v. 
Devaney,  135  S.  W.  802,  98  Ark.  83. 

Cal.  Seligman  v.  Kalkman,  8  Cal. 
207. 

Colo.  Garver  v.  Garver,  121  P.  165, 
52  Colo.  227,  Ann.  Cas.  1913D,  674; 
Sopris  V.  Truax,  1  Colo.  89 ;  Kinney 
V.  Williams,  Id.  191. 

Ga.  Bowen  v.  Smith-Hall  Grocery 
Co.,  91  S.  E.  32,  146  Ga.  157;  Wors- 
ham  V.  Ligon,  87  S.  E.  1025,  144  Ga. 
707;  Scott  V.  Valdosta,  M.  &  W.  R. 
'Co.,  78  S.  E.  784,  13  Ga.  App.  65; 
Acme  Brewing  Co.  v.  Central  R.  & 
Banking  Co.,  42  S.  E.  8,  115  Ga.  494 ; 
Hudson  V.  Best,  30  S.  E.  688,  104  Ga. 
131. 

Idaho.  Kroetch  v.  Empire  Mill 
Co.,  74  P.  868,  9  Idaho,  277. 

111.  Belt  Ry.  Co.  of  Chicago  v.  Con- 
frey,  111  111.  App.  473. 

Iowa.  Russ  V.  The  War  Eagle,  9 
Iowa.  374. 

Md.     United  Rys.  &  Electric  Co.  of 


Baltimore  v.  Carneal,  72  A.  771,  110 
Md.  211. 

Mich.  Hine  v.  Commercial  Bank 
of  Bay  City,  78  N.  W.  471,  119  Mich. 
448. 

Mo.  Webb  v.  Baldwin,  147  S.  W. 
849,  165  Mo.  App.  240;  Leggett  v. 
Louisiana  Purchase  Exposition  Co., 
137  S.  W.  893,  157  Mo.  App.  108  ;  Ford 
V.  Gray,  110  S.  W.  692,  131  Mo.  App. 
240;  In  re  Imboden's  Estate,  86  S. 
W.  263,  111  Mo.  App.  220;  Meyer 
Bros.  Drug  Co.  v.  McMahan  50  Mo. 
App.  18  ;  Bowling  v.  Hax,  55  Mo.  446  ; 
Morris  v.  Morris,  28  Mo.  114;  Chou- 
quette  v.  Barada,  Id.  491. 

Mont.  Hardesty  v.  Largey  Lumber 
Co.,  86  P.  29,  34  Mont.  151. 

N.  C.  Phillips  V.  Giles,  95  S.  E. 
772,  175  N.  C.  409;  Dobbins  v.  Dob- 
bins, 53  S.  E.  870,  141  N.  C.  210,  10 
L.  R.  A.  (N.  S.)  185,  115  Am.  St.  Rep. 
682 ;  Albertson  v.  Terry,  109  N.  C.  8, 
13  S.  E.  713. 

N.  D.  State  V.  Barry,  92  X.  W.  809, 
11  N.  D.  428. 

S.  C.  Black  V.  State  Co.,  83  S.  E. 
1088,  99  S.  C.  432 ;  Lewis  v.  Pope,  68 
S.  E.  680,  86  S.  C.  285;  Stouffer  v. 
Erwin,  62  S.  E.  843,  81  S.  C.  541. 

Tenn.  Fisher  v.  Travelers'  Ins. 
Co.,  1.38  S.  W.  316,  124  Tenn.  450,  Ann. 
Cas.  1912D,  1246;  Fitzpatrick  v.  Fain, 
3  Cold.  15. 

Tex.  Houston  &  T.  C.  R.  Co.  v. 
Washington,  127  S.  W.  1126,  60  Tex. 
Civ.  App.  391;  Pennington  v.  Tbonip- 
son  Bros.  Lumber  Co.  (Civ.  App.)  122 
S  W.  923 :  Galve.ston,  H.  &  S.  A.  Ry. 
Co.  V.  Sullivan,  115  S.  W.  615,  53  Tex. 


11  DEFINITIONS   AND   GENERAL   CONSIDERATIONS  §  5 

policy  of  the  old  common-law  iiile,  it  is  simple  and  easy  of  application. 
That  the  barrier  set  up  for  the  courts  by  the  modern  rule  has  been 
difficult  to  observe  is  attested  by  the  multitude  of  cases  in  which  its 
interpretation  has  been  a  matter  of  dispute.  These  cases  will  be  dis- 
cussed in  the  ensuing  chapters. 

Civ.  App.  394;    San  Antonio  &  A.  P.  better    Lumber    Co.,   98    P.    1130,    51 

Ry.  Co.  V.  Dickson,  93  S.  W.  481,  42  -  Wash.  316 ;    Patten   v.   Town  of  Au- 

Tex.  Civ.  App.  163.  burn,  84  P.  594,  41  Wash.  644;    State 

Va.     Whitelaw's  Ex'r  v.  Whitelaw,  v.  Hyde,  55  P.  49,  20  Wash.  234. 

S3  Va.  40,  1  S.  E.  407.  Wis.     Kamp  v.  Coxe  Bros.  &  Co., 

Wash.     Cook  v.  Pittock  &  Lead-  99  N.  W.  366,  122  Wis.  206. 


§  6  INSTRUCTIONS   TO   JURIES  12 

CHAPTER  II 
CREDIBILITY  OF  WITNESSES  AS  A  JURY  QUESTION 

§     6.     General  rule  in  civil  cases. 

7.  General  rule  in  criminal  cases. 

8.  Limiting  right  to  disbelieve  witnesses. 

9.  Limiting  right  to  believe  witnesses. 

10.  Negative  directions  as  to  consideration  of  matters  bearing  on  credibility. 

11.  Positive  directions  as  to  matters  to  be  considered  in  determining  ques- 

tion of  credibility. 

12.  Instructions  as  to  comparative  credibility  of  different  classes  of  wit- 

nesses. 

13.  Jury  to  determine  question  of  interest  and  the  credibility  of  interested 

witnesses. 

14.  Right  or  duty  of  jury  to  consider  interest  of  witness. 

15.  Credibility  of  accused  as  question  for  jury. 

16.  Right  or  duty  of  jury  to  consider  interest  of  accused. 

17.  Lack  of  corroboration  of  accused. 

18.  Testimony  of  prosecuting  witness. 

19.  Testimony  of  wife  or  relative  of  accused  or  prosecuting  witness. 

20.  Testimony  of  detectives  and  informers. 

21.  Testimony  of  accomplices  and  codefendants  in  criminal  cases. 

22.  Effect  of  false  testimony  of  witness  on  credibility  of  part  of  testimony 

not  shown  to  be  false. 

23.  Determination  of  question  whether  witness  has  made  contradictory 

statements. 

24.  Effect  of  contradictory  statements  of  witness. 

25.  Station  in  life  of  witness. 

26.  Appearance  and  demeanor  of  witness. 

27.  Instructions  directed  at  particular  witness  or  class  of  witnesses. 

Instructions  on  credibility  of  witnesses  criticized  on  other  grounds  than  that 
of  invading  the  province  of  jury,  see  post,  §§vl46-184. 

§  6.     General  rule  in  civil  cases 

With  a  qualification  to  be  hereafter  stated,  the  jury  is  the  sole  judge 
of  the  credibility  of  witnesses,^  and  it  is  of  the  utmost  importance  that 

1  Ala.      RoutheiTi   Industrial    Insti-  tier,  45  S.  W.  518,  20  Ky.  Law  Rep. 

tute  V.  Hellier,  39  So.  163,   142  Ala.  169. 

686.  Me.     Dunning   v.    Maine   Cent.    R. 

Ark.     Malloi-y  v.  Brademyer,  89  S.  Co.,  39  A.  352,  91  Me.  87,  64  Am.  St. 

W.  551,  76  Ark.  538.  Rep.  208. 

wa.  '  Mills  V.   State,   30  S.   E.  778,  Mass.     Hankinson  v.  Lynn  Gas  & 

104  Ga.  502.  Electric  Co.,  56  N.  E.  604,  175  Mass. 

111.  Peterson  v.  Fullerton,  106  HI.  ^71.  o^     ^      ,  .^-i  r^ 

Ann    '^'M  Mich.     Stowell  v.  Standard  Oil  Co., 

V'j      L<^  ,  ^       .,  102  N.  W.  227,  1.39  Mich.  18. 

Ind      .Stephens  v.  American  Car  &         ^^     Woodnrd  v.  Cooney,  85  S.  W. 

Foundry  Co.,   78  N.   E.  33o,   38   Ind.  ^.^^   ^^^  ^^   ^^pp   ^52. 

^I^P-  '*-^^-                                                  ^  Mont.     Holland  V.  Huston,  49   P. 

Iowa.     Hardwick  v.  Hardwick,  106  oqq  oq  ]\iont  84 

N.  W.  639,  130  Iowa.  230.  'n.~J.     Acolia'v.  Elizabeth,  P.  &  C. 

Ky.  Louisville  &  N.  R.  Co.  v.  Pel-  J.  Ry.  Co.  (Sup.)  57  A.  257. 


13  CREDIBILITY   OP   WITNESSES   AS   A  JURY   QUESTIOl^  §  6 

the  trial  iud-e  in  giving  instructions,  should  not  trench  upon  their 
t^^  in  tlSs  regard.?  Any  -^truction  which  _  In^ts  ^or  quahfies 
this  right  of  the  jury,^  or  tends  to  hamper  the  jury  in  the  full  exercise 
of  Its  judgment  as  I  the  credibility  of  witnesses/  is  error,  and  it  is, 
of  course,  proper  to  refuse  such  an  instruction. 


N  Y  Fisher  v.  Union  Ry.  Co.,  88 
N.  Y.   S.  GM,  S6  App.  Div.  365. 

N.  C.  Craft  v.  Norfolk,  &  fe-  R.  ^^-^ 
48  S.  E.  519,  136  N.  C.  49. 

Pa.  Bartlett  v.  Rothschild,  63  A. 
1030,  214  Pa.  421. 

R.  I.  Lebeau  v.  Dyerville  Mfg. 
Co.,  57  A.  1092,  26  R.  I.  34. 

Va.  Duncan  v.  Carson,  103  b.  il*. 
665,  127  Va.  306.  ^^.     .    . 

W.  Va.  Young  v.  West  Virginia 
&  P.  R.  Co.,  28  S.  E.  932,  44  W.  Va. 
*>18 

2"Norfolk  &  W.  R.  Co.  v.  Poole  s 
Adm'r,  40  S.  E.  627,  100  Va.  148. 

3  Ala.  Skeggs  v.  Horton  82  Ala. 
352,  2  So.  110 ;  Brooks  v.  Hildreth,  22 
Ala    469 

Ark.  "  Kansas  City  Southern  Ry. 
Co.  V.  Dickerson,  165  S.  W  9ol  112 
Ark.  607,  denying  rehearing  Ibo  fe.  w. 
•^72,  112   Ark.   607. 

Ga.    Minor  v.  State,  63  Ga.  318 
111.  Emmons  v.  Hilton,  72  111.  App. 

124 

Ind.  Unruh  v.  State,  105  Ind.  117, 
4  N.  E.  453 ;  Finch  v.  Bergins,  89  Ind. 

^  ky.  Holloway  v.  Commonwealth, 
11  Bush,  344.  ^    ^^  „, 

Mich.  Linsell  v.  Linsell,  100  N.  W. 
1009  138  Mich.  64;  Kelly  v.  Emery, 
75  Mich.  147,  42  N.  W.  795 ;  Dibble  v. 
Assurance  Co.,  37  N.  W.  704,  70  Mich. 
1,  14  Am.  St.  Rep.  470. 

Miss.  Mobile,  J.  &  K.  C.  R.  Co.  v. 
•  Jackson,  46  So.  142,  92  Miss.  517. 

Mo.  Rearden  v.  St.  Louis  &  &>• 
F.  Ry.  Co.,  114  S.   W.   961,  215  Mo. 

105. 

N  H  Holman  v.  Boston  &  M.  R- 
R..  84  A.  979.  76  N.  H.  496. 

N.  Y.  Dickerson  v.  Wason,  48 
Barb.  412. 


N.  C.     McRae  v.  Lawrence,  75  N. 

C.  289.  ,,   ^      oa 

Pa.    Colonial  Trust  Co.  v.  Getz,  2» 
Pa.  Super.  Ct.  619. 

Tenn.    Citizens'  St.  R.  Co.  v.  Burke, 
40  S.  W.  1085,  98  Tenn.  650. 

Tex.  International  &  G.  N.  R.  Co. 
V.  Schubert  (Civ.  App.)  130  S.  W  70S ; 
Smith  V.  Fears  (Civ.  App.)  122  b.  vv. 
433  ;  City  Nat.  Bank  v.  Martin-Brown 
Co.,  48  S.  W.  617,  20  Tex.  Civ^APP.  52 
modified  on  rehearing.  49  S.  W.  52c5.  ^u 
Tex.  Civ.  App.  52. 

Wis.  Bodenheimer  v.  Chicago  & 
N  W  R.  Co.,  123  N.  W.  148,  140  Wis. 
623  :  Roberts  v.  State,  84  Wis.  361,  54 
N  W  580;  Lampe  v.  Kennedy,  bO 
Wis.  ilO,  18  N.  W.  730. 

In  New  York  the  court,  in  com- 
menting on  one's  testimony,  may  prop- 
erly express  an  opinion  of  his  honesty, 
but  this  very  cautiously,  if  the  testi- 
mony be  conflicting.  Hoffman  v.  New 
York  Cent.  &  H.  R.  R.  Co.,  87  N.  Y. 
25,  41  Am.  Rep.  337. 

4  Illinois  Cent.  R.  Co.  v.  Burke,  112 
111.  App.  415.  ^.      , 

5  U  S  (CCA.  Kan.)  Connecticut 
Mut.  Life  Ins.  Co.  v.  HiUmon  107  F 
834,  46  C.  C.  A.  668,  I'eversed,  23  S.  Ct. 
294,  188  U.  S.  208,  47  L.  Ed.  446 

Ala,     Tait  v.  Murphy,  80  Ala.  440,  2 

%T'  In  re  Gird's  Estate,   108  P. 
499.   157  Cal.  534,   137  Am.   St.  Rep. 

131 

Mass.  Coombs  V.  New  Bedford 
Cordage   Co.,   102   Mass.   572,  3   Am. 

N  C.  Leak  v.  Covington,  99  N.  C. 
559.*  6  S.  E.  241. 

Tex.  Riggins  v.  Sass  (Civ.  App.) 
143  S.*  W.  689. 


INSTRUCTIONS   TO  JURIES 


14 


§  7.     General  rule  in  criminal  cases 

In  criminal  cases,  too,  the  general  rule  is  that  the  jury  are  the  ex- 
clusive judges  of  the  credibility  of  the  witnesses,*^  although  they  may  be 


6  U.  S.  (D.  C.  Kan.)  United  States 
V.  Pacific  Exp.  Co.,  15  F.  867  ;  (C.  C.  A. 
Minn.)  Harris  v.  United  States,  249  F. 
41  161  C.  C.  A.  101,  certiorari  denied 
38  S.  Ct.  425,  246  U.  S.  675,  62  L.  Ed. 
933;  (C.  C.  Ohio)  United  States  v. 
Brown,  Fed.  Cas.  No.  14,667,  4  Mc- 
Lean, 142;  (C.  C.  A.  Tenn.)  Friedman 
V.  U.  S.,  260  F.  388,  171  C.  C.  A.  254, 
certiorari  denied  40  S.  Ct.  15,  250  U.  S. 
671,  63  L.  Ed.  1199;  Mayer  v.  United 
States,  259  F.  216,  170  C.  C  A.  284. 

Ala.  Quinn  v.  State,  74  So.  743, 
15  Ala.  App.  635;  Stout  v.  State,  72 
So.  762,  15  Ala.  App.  206,  writ  of  cer- 
tiorari denied,  73  So.  1002,  198  Ala. 
695;  Snead  v.  State,  61  So.  473,  7 
Ala.  App.  118 ;  Phelps  v.  State,  60  So. 
537,  6  Ala.  App.  58;  Davis  v.  State, 
44  So.  561,  152  Ala.  25;  Kennedy  v. 
State,  40  So.  658,  147  Ala.  687;  Town- 
send  V.  State,  34  So.  382,  137  Ala.  91 ; 
Ex  parte  Warrick,  73  Ala.  57. 

Ark.  Dean  v.  State,  197  S.  W.  684, 
130  Ark.  322;  Hays  v.  State,  196  S. 
W.  123,  129  Ark.  324 ;  White  v.  State, 
194  S.  W.  2,  128  Ark.  640:  Alexander 
'v.  State,  193  S.  W.  78,  128  Ark.  35; 
Paxton  V.  State,  170  S.  W.  80,  114 
Ark.  393,  Ann.  Cas.  1916A,  1239; 
Spinks  V.  State,  149  S.  W.  54,  104  Ark. 
641 ;   Wallace  v.  State,  28  Ark.  531. 

Cal.  People  v.  Stephens,  157  P. 
570,  29  Cal.  App.  616,  rehearing  denied 
in  Supreme  Court,  157  P.  572,  29  Cal. 
App  616 ;  People  v.  Villalovas,  156  P. 
982,  29  Cal.  App.  537;  People  v. 
Parrish,  143  P.  546,  25  Cal.  App.  314 ; 
People  V.  Bauweraerts.  130  P.  717,  164 
Cal.  696;   People  v.  White,  90  P.  471, 

5  Cal.  App.  329;  People  v.  Compton, 
56  P.  44,  123  Cal.  403. 

Colo.  Curl  V.  People,  127  P.  951,  53 
Colo.  578,  Ann.  Cas.  1914B,  171;  Da- 
vidson V.  People,  4  Colo.  145. 

Conn.  State  V.  Ross,  89  A.  163, 
87  Conn.  585. 

Del.     D'Amico  v.   State,  102  A.  78, 

6  Boyce.  598 :  State  v.  Dougherty,  86 
A.  736,  4  Boyce,  163;  State  v.  Wig- 
gins, 76  A.  6.32.  7  Pennewill,  127  ;  State 
V.  Dinnoen.  76  A.  623,  7  Pennewill, 
505 ;  State  v.  Brinte,  58  A.  258,  4  Pen- 
newill,  551. 


Fla.  Bailey  v.  State,  76  Fla.  213, 
79  So.  730 ;  West  v.  State.  68  So.  379, 
69  Fla.  400;  Knight  v.  State,  53  So. 
541,  60  Fla.  19;  Atzroth  v.  State,  10 
Fla.  207. 

Ga.  Blood  V.  State,  100  S.  E.  761, 
24  Ga.  App.  344;  Mason  v.  State,  86 
S.  E.  1072,  17  Ga.  App.  377;  Smith 
V.  State,  84  S.  E.  159,  15  Ga.  App.  713 ; 
Moody  V.  State,  58  S.  E.  262,  1  Ga. 
App.  772;  Whitten  v.  Same,  47  Ga. 
297;    Clarke  v.  State,  35  Ga.  75. 

Idaho.  State  v.  Marren,  107  P.  993, 
17  Idaho,  766;  State  v.  Simes,  85  P. 
914,  12  Idaho,  310,  9  Ann.  Cas.  1216. 

111.  People  V.  Silver,  286  111.  496, 
122  N.  E.  115 ;  People  v.  Bond,  118  N. 
E.  14,  281  111.  490,  1  A.  L.  R.  1397; 
People.  V.  0'Bri;n,  115  N.  E.  123,  277 
111.  305;  People  v.  Williams,  88  N.  E. 
1053,  240  111.  633 ;    People  v.  Whalen, 

151  111.  App.  16;  Sullivan  v.  People, 
108  111.  App.  328;  Bowers  v.  People, 
74  111.  418. 

Ind.  Cotner  v.  State,  89  N.  B.  847, 
173  Ind.  168;  Callahan  v.  State,  63 
Ind.  198,  30  Am.  Rep.  211. 

Iowa.  State  v.  Clough,  165  N.  W. 
59,  181  Iowa,  783 ;  State  v.  Hall,  150 
N.  W.  97,  168  Iowa,  221;  State  v. 
Fishel,  118  N.  W.  763,  140  Iowa,  460. 

Ky.  Wattles  v.  Commonwealth, 
215  S.  W.  291,  185  Ky.  486;  Ruark 
v.  Commonwealth,  150  S.  W.  5,  150 
Ky.  47 ;   Fields  v.  Same,  153  S.  W.  29, 

152  Ky.  SO;  Franklin  v.  Common- 
wealth, 92  Ky.  612,  18  S.  W.  532,  13 
Ky.  Law  Rep.  814  ;  Evans  v.  Common- 
wealth,  79  Ky.  414. 

La.  State  v.  Hataway,  80  So.  227, 
144  La.  138;  State  v.  Folden,  66  So. 
223,  135  La.  791. 

Minn.  State  V.  Halvorson,  114  N. 
W.  957,  103  Minn.  265,  14  L.  R.  A.  (N. 
S.)  947,  123  Am.  St.  Rep.  326. 

Miss.  Miller  v.  State,  35  So.  690; 
Newcomb  v.  Same,  37  Miss.  383  ;  Ned 
V.  State,  33  Miss.  364. 

Mo.  State  v.  Yocum  (App.)  205  S. 
W.  232:  State  v.  Jackson  (Sup.)  186 
S.  W.  990:  State  v.  Johnson,  145  S. 
W.  1183,  163  Mo.  App.  41;  State  v. 
Hubbard.  100  S.  W.  586,  201  Mo.  629; 
State  v.  Eyermann,  90  S.  W.  1168,  115 


15  CREDIBILITY  OF   WITNESSES   AS  A  JURY   QUESTION  §  7 

uncontradicted/   or  although  they  may  have  been  impeached,^  unless 
their  testimony  is  inherently  at  variance  with  the  common  knowledge 


Mo.  App.  660;  State  v.  Urspruch  90 
S  W  451,  191  Mo.  43 ;  State  v.  Smith, 
90  S  W  440,  190  Mo.  706;  State  v. 
McKeuzie.  76  S.  W.  1015,  177  Mo.  699 ; 
State  V.  Williams,  12  Mo.  App.  591. 

Mont.  State  v.  Vinu,  144  P.  773,  50 
Mont.  27;  State  v.  Jones,  SO  F.  1095, 
32  Mont.  442. 

Neb.  Parker  v.  State,  93  ^.  W. 
1037,  67  Neb.  555. 

Nev.  State  v.  Clark,  149  P.  ISd,  o8 
Nev.  304,  reversing  judgment  on  re- 
hearing 135  P.  10S3,  36  Nev.  472. 

N.  J.  State  V.  Littman,  92  A.  5S0, 
86  N.  J.  Law,  453,  judgment  affirmed 
96  A.  66,  88  N.  J.  Law,  392. 

N.  Y.  People  v.  Walker,  91  N.  E. 
806  198  N.  Y.  329,  reversing  judgment 
118  N.  Y.  S.  1132,  134  App.  Div.  909 ; 
Same  v.  Stanley,  114  N.  Y.  S.  395,  130 
App.  Div.  64;  Woodin  v.  People,  1 
Parker,  Cr.  R.  464. 

N.  C.  State  v.  Phillips,  100  S.  E. 
577  178  N  C.  713;  State  v.  Evans, 
98  S.  E  788,  177  N.  C.  564;  State  v. 
Horner,  94  S.  E.  291,  174  N.  C.  788 ; 
State  v.  Carlson,  89  S.  E.  30,  171  N. 
C.  818 ;  State  v.  Wilcox,  44  S.  E.  625, 
132  N.  C.  1120 ;  State  v.  Hall,  44  S.  B. 
553,  132  N.  C.  1904. 

N.  D.  State  v.  Brandner,  130  N.  W. 
941,  21  N.  D.  310. 

Okl.  Jones  v.  State,  179  P.  619, 
15  Okl.  Cr.  547;  Powell  v.  State.  150 
P  92  11  Okl.  Cr.  615;  Wainscott  v. 
State,'  129  P.  655,  8  Okl.  Cr.  590; 
Foster  v.  State,  126  P.  835,  8  Okl.  Cr. 
139. 

Or.  State  v.  Emmons,  127  P.  791, 
63  Or.  535;  State  v.  Lucas,  24  Or. 
168,  33  P.  538. 

Pa.     Commonwealth  v.  Hanlon,  » 

Phila.  401.  _   .^ 

S.  C.    State  V.  Scott,  1  Bailey,  270. 

S  D.  State  v.  Lamb,  164  N.  W.  69, 
39  S.  D.  307. 

Tenn.  Kinchelow  v.  fetate,  o 
Humph.  9. 

Tex.  Surginer  v.  State,  217  S.  W. 
145  86  Tex.  Cr.  R.  438;  Martinez  v. 
State,  207  S.  W.  930,  84  Tex.  Cr.  R. 
261;  Ricks  v.  State,  203  S.  W.  901, 
83  Tex  Cr.  R.  440 ;  Sanford  v.  State, 
79  Tex.  Cr.  R.  346,  185  S.  W.  22; 
Grimes  v.   State,  178   S.  W.   523,   77 


Tex,  Cr.  R.  319;  McCue  v.  State, 
170  S  W.  280,  75  Tex.  Cr.  R.  137, 
Ann  Cas.  1918C,  674;  Christian  v. 
State,  161  S.  W.  101,  71  Tex.  Cr  R. 
566 ;  Ross  v.  State,  159  S.  W.  1063,  71 
Tex  Cr.  R.  493 ;  Claussen  v.  State, 
157 'S.  W.  477,  70  Tex.  Cr.  R.  607; 
Hamilton  v.  State,  153  S.  W.  331,  6S 
Tex  Cr.  R.  419 ;  Crowell  v.  State,  148 
S  W.  570,  66  Tex.  Cr.  R.  537 ;  Free- 
ney  v.  State  (Cr.  App.)  102  S.  W  113; 
Elkins  V.  State,  87  S.  W.  149,  48  Tex. 
Cr  R  205 ;  Franklin  v.  State  (Cr. 
App.)  28  S.  W.  472;  Doss  v.  State,  21 
Tex.  App.  505,  2  S.  W.  814,  57  Am. 
Rep.  618. 

Va.  Broaddus  v.  Commonwealth, 
101  S  E.  321,  126  Va.  733 ;  McCue  v. 
Commonwealth,  49  S.  E.  623,  103  Va. 
870 

Wasli.  State  v.  Miller,  178  P.  459, 
105  Wash.  475 ;  State  v.  Siebenbaum, 
177  P  669,  105  Wash.  157;  State  v. 
Gaul  152  P.  1029,  88  Wash.  295;  State 
v.  Littooy,  100  P.  170,  52  Wash.  87,  17 
Ann.  Cas.  292;  State  v.  Johnson,  78 
P.  903,  36  Wash.  294. 

Wyo.  Murdica  v.  State,  137  P. 
574  22  Wyo.  196 ;  Starke  v.  State,  96 
P   148    17  Wyo.  55,  17  Ann.  Cas.  222. 

7  State  v.  Frederici,  192  S.  W.  464, 
269  Mo.  689,  affirming  judgment  (App.) 

184  S  W.  170 ;  State  v.  Rucker,  161 
P  337  22  N.  M.  275 ;   Meiggs  v.  State, 

185  P'  450,  16  Okl.  Cr.  557;  Ritter  v. 
State,  132  P.  913,  9  Okl.  Cr.  626 ;  Bay- 
less  V.  State,  130  P.  520,  9  Okl.  Cr.  2<. 

8  Ala.     Addison  v.   State,  48   Ala. 

^'oa.  Hawkins  v.  State,  92  S .  E  958 
'>0  Ga.  App.  179;  Hunter  v.  State,  91 
S  E.  927,  19  Ga.  App.  615 ;  ^V  are  v. 
State,  89  S.  E.  155,  IS  Ga  ^^PP-  1^?' 
Brown  v.  State,  S7  S.  E.  155,  17  Ga. 
App  402;  Edenfield  v.  State,  81  b. 
E  253,  14  Ga.  App.  401;  Brown  v. 
State  72  S.  E.  537,  10  Ga.  App.  50; 
Cothran  v.  State,  58  S.  E.  544,  2  Ga. 

App.  437.  „  ^   ^    r./^ 

Ind      Terry  v.  State.  13  Ind.  70. 
Iowa.     Stite  v.   Dietz,  143   N.  W. 
lOSO  162  Iowa.  332 ;   State  v.  Carpen- 
ter. 98  N.  W.  775, 124  Iowa,  5. 

Mo.     State   v.   Brown,   145   S.    W. 
1180,  163  Mo.  App.  30. 


8 


INSTRUCTIONS   TO  JURIES 


16 


and  experience  of  mankind,^  and  that  the  trial  judge  cannot  take  from 
the  jury  the  right  to  believe  or  disbelieve  a  witness. ^°  Instructions  in 
a  criminal  case,  which  deprive  the  jury  of  the  right  to  make  their  own 
deductions  and  decide  for  themselves  whether  witnesses  are  credible, 
or  which  convey  or  tend  to  convey  the  impression  that  it  is  the  province 
of  the  court  to  pass  upon  their  credibility,  are  erroneous,^ ^  and  are 
properly  refused/^  and,  subject  to  the  qualification  already  stated,  the 
general  rule  is,  in  criminal  as  well  as  in  civil  cases,  that  the  trial  judge 
should  not  express  or  even  intimate  an  opinion  as  to  the  credibility  of 
any  witness. ^^ 

§  8.     Limiting  right  to  disbelieve  witnesses 

In  accordance  with  the  above  rule  ^*  it  is  error  to  instruct  that  the 
jury  must  believe  the  evidence,^^  or  that  it  must  accept  as  true  the  tes- 


N.  Y.  People  v.  Morano,  183  N.  Y. 
S.  483,  192  App.  Div.  432. 

Okl.  Oelke  v.  State,  133  P.  1140, 
10  Okl.  Cr.  49. 

Tex.  Hays  v.  State,  204  S.  W.  229, 
83  Tex.  Cr.  R.  398;  tlobertsou  v. 
State,  150  S.  W.  893,  68  Tex.  Cr.  R. 
243;  Chester  v.  State,  1  Tex.  App. 
702 ;    Kelly  v.  State,  1  Tex.  App.  628. 

0  Watson  v.  State,  78  S.  E,  1014, 
13  Ga.  App.  181. 

10  Spivey  v.  State,  8  Ind.  405;  State 
V.  Stout,  31  Mo.  406. 

Credibility  of  impeacbing  testi- 
mony. An  instruction  which  takes 
from  the  jury  the  right  to  determine 
the  weight  and  value  of  impeaching 
testimony  is  error.  Pryor  v.  State,  13 
So.  681,  99  Ala.  196. 

iiMuUins  V.  People,  110  111.  42; 
Howell  V.  State,  85  N.  W.  289,  61  Neb. 
391;  Strong  v.  State,  84  N.  W.  410, 
61  Neb.  35;  Wilbanks  v.  State,  10 
Tex.  App.  642 ;  State  v.  Sutfin,  22  W. 
Va.  771. 

Instructions  erroneous  witbin 
rule.  An  instruction  that  if  the  jury 
are  convinced  beyond  a  reasonable 
doubt  they  should  find  accused  guilty, 
regardless  of  what  they  may  think  of 
any  of  the  witnesses  for  the  prosecu- 
tion, is  objectionable,  as  misleading  on 
the  right  of  the  jury  to  determine  the 
credibility  of  the  witnesses.  People  v. 
Gray,  9G  N.  E.  268,  251  111.  431. 

12  Ala.  Axelrod  v.  State,  60  So. 
959,  7  Ala.  App.  61 ;  Fleming  v.  State, 
43  So.  219,  150  Ala.  19;  Horn  v.  State, 
98  Ala.  23,  13  So.  329 ;  Green  v.  State, 
97  Ala.  59,  12  So.  416. 


Fla.  Wolf  V.  State,  73  So.  740,  72 
Fla.  572 ;  Hisler  v.  State,  42  So.  692, 
52  Fla.  30. 

Ind.  Jones  v.  State,  64  Ind.  473; 
Richie  v.  State,  58  Ind.  355. 

Micb.  People  v.  Stewart,  127  N. 
W.  816,  163  Mich.  1. 

Tex.  Bonner  v.  State  (Cr.  App.) 
32  S.  W.  1043;  Gibbs  v.  State  (Cr. 
App.)  20  S.  W.  919. 

13  Idabo.  State  v.  Bouchard,  149 
P.  464,  27  Idaho,  500. 

Ky.  Barnett  v.  Commonwealth,  84 
Ky.  449,  1  S.  W.  722. 

Mass.  Commonwealth  v.  Barry,  9 
Allen,  276. 

Okl.  Havill  v.  State,  121  P.  794,  7 
Okl.  Cr.  22 ;  Slater  v.  United  States, 
98  P.  110,  1  Okl.  Cr.  275. 

Tex.  Riojas  v.  Same,  8  Tex.  App. 
49 ;  Pharr  v.  State,  7  Tex.  App.  472 ; 
Ross  V.  State,  29  Tex.  499. 

In  New  York,  within  the  limits  of 
soimd  discretion,  the  court  may  com^ 
ment  on  the  credibility  of  witnesses, 
but  cannot  decide  it,  for  that  is  the 
exclusive  duty  of  the  jury,  and  it  can- 
not withdraw  any  controlling  fact 
which  depends  on  the  credibility  of 
witnesses  even  of  the  highest  char- 
acter and  standing.  People  v.  Walker, 
91  N.  E.  806,  198  N.  Y.  329,  reversing 
judgment  118  N.  Y.  S.  1132,  134  App. 
Div.  909. 

14  Ante,  §§  6,  7. 

15  Vaulx  v.  Campbell,  8  Mo.  224. 

Witness  best  supported  by  cor- 
roborative evidence.  An  instruction 
which  affirms  or  assumes  that  credit 
must  be  given  to  the  witness  who  was 


17 


CREDIBILITY   OF   WITNESSES   AS   A  JURY   QUESTION 


8 


tintony  of  a  witness,  or  a  particular  part  of  the  testimony  of  a  wit- 
ness,^® or  that  the  jury  must  beheve  the  testimony  of  a  witness,  unless 
the  facts  testified  to  are  disproved  by  other  evidence.^'  This  is  true, 
although  the  evidence  tends  very  strongly  and  clearly  to  establish  a 
given  fact,^^  The  jury  should  not  be  instructed,  as  a  rule  of  law,  to 
presume  that  witnesses  have  spoken  truly, ^®  and  it  is  error  for  the 
court  to  assume  the  truth  of  the  testimony  of  a  witness,^"  or  to  speak 
favorably  of  his  credibility,-^  or  to  suggest  reasons  for  believing  a 
witness. ^^  Thus  it  is  error  to  raise  a  question  as  to  whether  it  is  jus- 
tifiable to  charge  witnesses  with  want  of  veracity  merely  because  they 
are  inmates  of  a  low  theater  which  is  licensed  by  the  authorities.^* 
Where  evidence  has  been  offered  to  impeach  a  witness,  an  instruc- 


best,  or  apparently  best,  supported  by 
corroborative  evidence,  without  tell- 
ing the  jury  that  they  are  the  exclu- 
sive judges  of  the  weight  of  the 
evidence,  tbe  credibility  of  witnesses, 
and  the  inferences  of  fact  from  the 
proofs,  is  erroneous.  Comstock  v. 
Whitworth,   75  Ind.  129. 

16  Reed  v.  McCready,  136  N.  W.  488, 
170  Mich.  532;  State  v.  Parker,  66 
N.  C.  624;  Watkins  v.  Bowyer,  173  IM. 
W.  745,  42  S.  D.  189. 

17  Southern  Exp.  Co.  v.  Wolfe,  41 
Miss.  79 ;  Territory  v.  Leslie,  106  P. 
378,  15  N.  M.  240. 

18  Rhodes  v.  Lowry,  54  Ala.  4. 
Instate    V.    Jones,    77    N.    C.    520; 

State  V.  Taylor,  35  S.  E.  729,  57  S. 
C.  483,  76  Am.  St.  Rep.  575. 

2  0  Battles  v.  Tallman,  96  Ala.  403, 
11  So.  247 ;   Huff  v.  Cox,  2  Ala.  310. 

21  Travis  v.  Barkhurst,  4  Ind.  171; 
Morris  v.  State,  150  P.  89,  11  Okl.  Cr. 
630. 

Testimony  of  detectives.  In 
prosecution  for  violation  of  state  pro- 
hibition act,  where  the  only  evidence 
of  guilt  was  the  testimony  of  two  de- 
tectives that  after  several  unsuccess- 
ful efforts  to  induce  they  succeeded  in 
persuading  defendant  to  violate  law, 
an  instruction  as  to  right  of  any  citi- 
zen, independently  of  state  and  coun- 
ty officers,  to  detect  illicit  sale  of  in- 
toxicating liquors,  and  obtain  evidence 
thereof,  was  an  attempt  to  bolster  up 
credibility  of  state's  witnesses  in  vio- 
lation of  Constitution  prohibiting  com- 
ment by  court  upon  evidence.  State 
V.  Siebenbaum,  177  P.  669,  105  Wash. 
157. 

Inst. TO  Juries— 2 


Rule  in  Pennsylvania.  In  this 
jurisdiction,  where  the  court  may 
comment  on  the  evidence,  it  may  state 
in  its  charge  that  the  reply  of  a  wit- 
ness seemed  to  be  that  of  a  "manly 
man."  Simmons  v.  Pennsylvania  K. 
Co.,  48  A.  1070,  199  Pa.  232.  But 
where  plaintiff  testified  that  before 
she  attempted  to  alight  the  car  had 
stopped,  and  her  evidence  is  corrob- 
orated by  another  witness,  but  is 
contradicted  by  the  conductor  and 
other  passengers,  a  submission  of  the 
evidence  of  the  plaintiff  to  the  jury  by 
the  court  with  apparent  approval, 
while  presenting  that  of  defendant  so 
as  to  cast  doubt  upon  its  truthfulness, 
is  error.  Lingle  v.  Scranton  Ry.  Co., 
63  A.  890,  214  Pa.  500. 

22  Thomas  v.  State,  95  Ga.  484,  22  S. 
E.  315;  Moore  v.  State,  85  Ind.  90; 
People  v.  Barone,  55  N.  E.  1083,  161 
N.  Y.  451. 

Violation  of  proliibition  against 
charging:  on  matters  of  fact.  In 
a  prosecution  for  burglary,  a  charge 
that  it  is  said  the  testimony  of  a  cer- 
tain witness  is  incredible,  because  he 
saw  the  burglary  being  committed 
and  did  not  attempt  to  stop  it,  and 
asking  whether  the  fact  that  the  wit- 
ness did  not  attempt  to  arrest  the 
burglar,  it  being  in  the  nighttime,  was 
such  a  dreadfully  foolish  thing  as  to 
make  his  testimony  doubtful  for  that 
reason  alone,  is  a  charge  on  a  matter 
of  fact.  State  v.  Brown,  33  S.  C.  151, 
11  S.  E.  641. 

2  3  People  v.  Wallace,  89  Cal.  158, 
26  Pac.  650. 


8 


INSTRUCTIONS  TO  JURIES 


18 


tion  that  there  is  no  evidence  impeaching  him  will  ordinarily  be  erro- 
neous ;  ^*  the  question  of  whether  a  witness  has  heen  successfully  im- 
peached being  for  the  jury,"  and  an  instruction  tending  to  minimize 
impeaching  testimony  is  error,- ^  and  it  is  error  to  instruct  that  one 
witness  corroborates  another.-' 

It  is  error  to  instruct  as  a  matter  of  law  that  it  is  the  duty  of  the 
jury  to  accept  as  true  the  undisputed  testimony  of  a  witness,  unless 
such  testimony  is  of  such  a  conflicting  nature  as  in  itself  to  discredit 
it.^®  Although  it  has  been  held  not  error  to  charge  that  there  is  a  prima 
facie  presumption  that  witnesses  not  impeached  tell  the  truth,- °  there 
is  no  positive  rule  that  the  jury  must  believe  such  a  witness, ^°  and  the 
court  should  not  instruct  or  intimate  that  the  jury  cannot  disregard 
the  testimony  of  unimpeached  witnesses,^ ^  unless  such  testimony  is 
not  discredited  by  anything  in  the  case,^-  in  which  event,  by  the  weight 


2  4Rambo  v.  State,  32  So.  650,  134 
Ala.  71;  Berliner  v.  Travelers'  Ins. 
Co.,  53  P.  922,  121  Cal.  451. 

2  5  Ark.  Seoggins  v.  City  of  Morril- 
ton,  191  S.  W.  914,  127  Ark.  108. 

Ga.  Griggs  v.  State,  86  S.  E.  726, 
17  Ga.  App.  301;  Smith  v.  State,  86 
S.  E.  660,  17  Ga.  App.  298;  Shropshire 
V.  State,  S3  S.  E.  152.  15  Ga.  App.  345. 

Iowa.    State  v.  Mylor,  46  Iowa,  192. 

Micli.  People  v.  Hare,  24  N.  W. 
843,  57  Mich.  505. 

Mo.  State  v.  Sharp,  183  Mo.  715, 
82  S.  W.  134. 

2  6  state  V.  Rutledge,  113  N.  W.  461, 
135  Iowa,  581. 

2T  state  V.  Keen,  75  P.  362,  29 
Mont.  508,  101  Am.  St.  Rep.  579 ;  Las- 
siter  V.  Seaboard  Air  Line  Ry.  Co., 
88  S.  E.  335.  171  N.  C.  283 ;  Noland  v. 
State,  19  Ohio,  131. 

Qualification  of  rule.  In  one  ju- 
risdiction such  an  instruction  has  been 
held  not  to  be  error  if  accompanied  by 
an  instruction  that  the  jury  are  to 
determine  what  the  respective  wit- 
nesses meant  by  their  testimony,  as 
well  as  the  weight  of  the  evidence  and 
the  credibility  of  the  witnesses,  and 
the  facts  which  the  whole  evidence 
established.  Wilcox  v.  Majors,  88 
Ind.  203. 

2  8  People  V.  Mindeman,  121  N.  W. 
488,  157  Mich.  120. 

2  9  Cornwall  v.  State,  91  Ga.  277,  18 
S.  E.  ].j4. 

Impeacliing  evidence  consisting 
only  of  uns\»rorn  statement  of  de- 
fendant. An  instruction  to  the  jury 
as  follows:  "Every  witness  in  the  case 


is  to  be  believed  until  impeached  in 
some  one  of  the  modes  known  to  the 
law.  A  jury  cannot  arbitrarily,  of 
their  own  motion,  set  aside  the  evi- 
dence of  any  witness;  the  presump- 
tion of  innocence  attaches  to  witness- 
es, which  remains  until  removed  by 
proof" — has  been  held  proper,  in  a  case 
where  there  was  no  impeaching  evi- 
dence, except  the  unsworn  statement 
of  defendant,  in  reference  to  which 
the  court  further  charged,  "that  they 
were  the  exclusive  judges  of  the 
weight  that  was  due  to  such  state- 
ment."    Jones  V.  State,  48  Ga.  163. 

30  Chicago  Union  Traction  Co.  v. 
O'Brien,  76  N.  E.  341,  219  111.  303,  af- 
firming judgment  117  111.  App.  183; 
State  V.  Smallwood.  75  N.  C.  104. 

31  Chicago  &  G.  T.  Ry.  Co.  v.  Fos- 
ter, 46  111.  App.  621 ;  Gamble  v.  John- 
son. 9  Mo.  605 ;  Noland  v.  McCracken, 
18  N.  C.  594;  State  v.  Norton,  28  S. 
C.  572,  6  S.  E.  820. 

Proper  to  refuse  sucli  an  in- 
struction. In  New  York  under  a 
statute  providing  that,  in  criminal  ac- 
tions, the  jury  are  the  exclusive 
judges  of  all  questions  of  fact,  it  is 
not  error  for  the  trial  judge  to  refuse 
to  charge  that  the  jury  are  bound  to 
believe  the  testimony  of  any  disinter- 
ested witness  which  is  not  contradict- 
ed, and  which  is  not  in  itself  im- 
probable. People  V.  Tuczkewitz,  149 
N.  Y.  240,  43  N.  E.  548. 

3  2  Rowland  v.  Plummer,  50  Ala.  182. 

"What  constitutes  impeachment 
of  witness.  Under  this  rule  any  con- 
flict with  the  testimony  of  a  witness 


X9 


CREDIBILITY   OP   ^YITNESSES  AS  A  JURY  QUESTION 


§8 


of  authority,  it  will  be  proper  to  instruct  that  the  jury  cannot  arbi- 
trarily disregard  the  testimony  of  any  witness,  in  the  absence  of  any- 
thing to  discredit  or  contradict  it.^^  Any  instruction  to  the  contrary 
would  clothe  the  jury  with  a  supreme  arbitrary  and  irresponsible 
power^*  and  is  error. ^^  The  jury  may  be  instructed  that  it  is  their 
duty  to  consider  the  testimony  of  a  witness  who  has  not  been  contra- 
dicted or  impeached,  and  give  it  such  weight,  if  any,  as  it  is  enti- 
ded  to.3« 

The  court  should  not  tell  the  jury  that  they  cannot  reject  the  testi- 
mony of  a  witness  because  his  statements  are  in  conflict  with  those  of 
another  witness,^^  or  are  otherwise  impeached,^^  nor  instruct  that 
slight  discrepancies  in  the  testimony  of  witnesses  as  to  collateral  facts 
will  not  authorize  the  jury  to  discredit  it,^''  and  a  charge  that  the  jury 
should  not  discredit  the  testimony  of  an  impeached  witness,  if  they 
find  that  it  is  corroborated,  is  erroneous.*" 

It  is  error  to  instruct  in  effect  that  the  testimony  of  one  witness  will 
counterbalance  that  of  another.'*^  Thus  it  is  error  to  instruct  that,  if 
two  witnesses  of  equal  credibility  testify  directly  opposite  to  each  other 


would  be  an  impeachment  of  him. 
Rowland  v.  Plummer,  50  Ala.  182. 

33  Brunswick  &  W.  R.  Co.  v.  Wig- 
gins, 39  S.  E.  551,  113  Ga.  842,  61  L. 
R.  A.  513 ;  Thompson  v.  Flint  &  P.  M. 
R.  Co.,  90  N.  W.  1037,  131  Mich.  95; 
State  V.  Sutfin,  22  W.  Va.  771.  See 
Jackson  v.  State,  57  So.  594,  5  Ala. 
App,  306;  Ferkel  v.  People,  16  111. 
App.  310. 

In  Texas,  however,  it  is  held  that 
it  is  proper  to  refuse  to  give  such  an 
instruction.  International  &  G.  N. 
Ry.  Co.  V.  Jones  (Civ.  App.)  175  S.  W. 
488. 

In  Georgia,  an  instruction  that  the 
testimony  of  employees  of  a  railroad 
company,  in  an  action  against  it  for 
injuries  to  another  employee,  could 
not  be  "absolutely  discarded  or  disre- 
garded," unless  "the  evidence  intro- 
duced before  the  jury"  discredited  or 
contradicted  them,  was  held  to  be 
properly  refused ;  the  case  being  dif- 
ferentiated from  the  case  cited  in  sup- 
port of  the  text.  Central  of  Georgia 
Rv.  Co.  v.  Mote,  62  S.  E.  164,  131  Ga. 
166. 

3  4  Engmann  v.  Immel's  Estate,  59 
Wis.  249,  18  N.  W.  182. 

35  Owens  V.  State,  63  Miss.  450; 
Benson  v.  State,  118  S.  W.  1049,  56 
Tex.  Cr.  R.  52;    Johnson  v.  State,  9 


Tex.  App.  558;  Jackson  v.  State,  7 
Tex.  App.  363. 

3c  Schwamb  Lumber  Co.  v.  Schaar, 
94  111.  App.  544. 

37  F.  Dohmen  Co.  v.  Niagara  Fire 
Ins.  Co.  of  City  of  New  York,  71  N.  W. 
69,  96  Wis.  38. 

3  8  Crockett  v.  State,  49  S.  W.  392, 
40  Tex.  Cr.  R.  173. 

3  9  Pace  v.  Cochran,  86  S.  E.  934,  14i 
Ga.  261;  Louisville  &  N.  R.  Co.  v. 
Ledford,  83  S.  E.  792,  142  Ga.  770. 

40  Clevenger  v.  Curry,  81  111.  432 ; 
Rea  v.  State,  105  P.  381,  3  Okl.  Cr. 
269. 

Testimony  reasonable  and  con- 
sistent. An  instruction  that,  though 
numerous  witnesses  may  have  testi- 
fied against  the  credibility  and  truth- 
fulness of  a  particular  witness,  and 
the  jury  may  believe,  from  the  evi- 
dence, the  general  reputation  of  the 
witness  for  truth  and  veracity  is  bad. 
yet  they  should  not,  on  that  account, 
discredit  his  testimony,  if  they  believe 
the  same  to  be  reasonable  and  con- 
sistent, and  that  the  same  is  corrob- 
orated, etc.,  is  erroneous.  Roach  v. 
People,  77  111.  25. 

4  1  Smith  V.  Milwaukee  Builders"  & 
Traders'  Exchange,  91  Wis.  360,  64  N. 
W.  1041,  30  L.  R.  A.  504,  51  Am.  St. 
Rep.  912. 


INSTRUCTIONS   TO  JURIES 


20 


on  a  question  of  fact,  the  party  holding-  the  affirmative  of  the  proposi- 
tion will  not  have  a  preponderance  of  the  evidence.^^ 

§  9.     Limiting  right  to  believe  witnesses 

The  court  is  not  required  or  authorized  to  give  an  instruction  which 
disparages  the  testimony  of  a  witness.*^  It  is  not  the  province  of  the 
court  to  tell  the  jury  that  certain  matters  will  be  sufficient  to  discredit 
a  witness/*  and  instructions  directing  the  jury  to  view  the  evidence  of 
any  class  of  witnesses  with  caution  or  suspicion  are  improper.*®    Thus 


42  Holmes  V.  Horn,  120  111.  App, 
359 ;  Leek  v.  People,  118  111.  App.  514; 
Stern  v.  Tuch,  55  111.  App.  445 ; 
Thomas  v.  Law.  25  Pa.  Super.  Ct.  19. 

■13  U.  S.  (Sup.)  Smith  v.  United 
States,  161  U.  S.  85,  16  S.  Ct.  483,  40 
L.   Ed.  626. 

Cal.  People  V.  Christensen,  85  Cal. 
568,  24  P.  888. 

Conn.  Norman  Printers'  Supply 
Co.  V.  Ford,  59  A.  499,  77  Conn.  461. 

Mass.  Hayes  v.  Moulton,  80  N.  B. 
215,  194   Mass.  157. 

Mich.  People  v.  Goodrode,  94  N. 
W.  14,  132  Mich.  542;  Williams  v. 
City  of  West  Bay  City,  78  N.  W.  328, 
119  Mich.  395;  Wheeler  v.  Wallace, 
19  N.  W.  33,  53  Mich.  355. 

Minn.  Goodhue  Farmers'  Ware- 
house Co.  V.  Davis,  83  N.  W.  531,  81 
Minn.  210. 

Mo.  Granby  Mining  &  Smelting  Co. 
V.  Davis,  57  S.  W.  126,  156  Mo.  422. 

N.  Y.  William  J.  Burns  Interna- 
tional Detective  Agency  v.  Powers, 
162  N.  Y.  S.  578,  176  App.  Div.  114; 
Hunt  V.  Becker,  160  N.  Y,  S.  45,  173 
App.  Div.  9 ;  Bei-kowitz  v.  Schlanger, 
126  N.  Y.  S.  664,  70  Misc.  Rep.  239. 

Pa.  Bughman  v.  Byers,  12  A.  357 ; 
Commonwealth  v.  Meads,  29  Pa.  Super. 
Ct.  321. 

Wis.  McKeon  v.  Chicago,  M.  &  St. 
P.  Ry.  Co.,  69  N.  W.  175,  94  Wis.  477, 
35  L.  R.  A.  252,  59  Am.  St.  Rep.  910. 

Instructions  objectionable  \(ritli- 
in  rule.  An  instruction  that  "the 
jury  are  the  judges  as  to  the  credibili- 
ty of  witnesses,  and  as  to  the  weight 
to  be  given  to  the  testimony  of  each 
witness,  and  in  weighing  the  evidence 
they  may  decide  as  they  deem  it  pre- 
ponderates," is  ground  for  reversal,  as 
suggesting  a  conflict  of  the  evidence  or 
a  suspicion  of  the  witnesses'  veracity. 
Anderson  &  Nelson  Distilling  Co.  v. 


Hair,  103  Ky.  196,  44  S.  W.  658,  19 
Ky.  Law  Rep.  1822.  It  is  error  mere- 
ly on  the  basis  of  groundless  criticisn* 
of  counsel  for  the  court  to  raise  a 
question  as  to  whether  a  witness  tes- 
tified truly  in  stating  that  he  made  a 
certain  memorandum  at  the  time  of 
the  transaction  involved.  Valley 
Lmnber  Co.  v.  Smith,  71  Wis.  304,  37 
N.  W.  412,  5  Am.  St.  Rep.  216. 

Comparing  relative  credibility 
of  witnesses  for  state  and  de- 
fense. It  is  error  for  the  court  to 
make  argumentative  comparisons  on 
the  relative  credibility  of  the  princi- 
pal witnesses  for  the  defense  and 
prosecution,  their  testimony  being 
diametrically  in  conflict,  and,  in  doing 
so  disparage  the  credibility  of  wit- 
nesses for  the  defense.  Territory  v. 
O'Hare,  1  N.  D.  30,  44  N.  W.  1003.  An 
instruction,  calling  attention  to  the 
testimony  of  a  witness  for  the  people 
as  opposed  to  the  testimony  of  a  wit- 
ness for  defendant,  which  carried 
with  it  the  intimation  that  the  peo- 
ple's witness  was  to  be  distrusted,  was 
properly  refused.  People  v.  Amer,  90 
P.  698,  151  Cal.  303. 

Rule  wbere  affidavit  of  absent 
witnesses  is  used.  Where  the  pres- 
ence of  a  witness  in  a  criminal  case 
is  waived,  and  it  is  agreed  that  an 
atfidavit  shall  be  used,  instead  of  his 
oval  testimony,  it  is  error  to  charge 
the  jury  to  believe  as  much  of  the 
affidavit  as  they  please,  or  as  little  as 
they  please.  Parker  v.  State,  75  S.  E. 
437,  11  Ga.  App.  251. 

44  Louisville  &  N.  R.  Co.  v.  Trout, 
75  S.  E.  328,  138  Ga.  324. 

45  State  v.  Smith,  174  P.  9,  103 
Wash.  267. 

In  Pennsylvania,  it  is  not  error 
for  the  court  to  call  the  attention  of 
the  jury  to  the  testimony  of  admitted 


21  CREDIBILITY  OF   WITNESSES   AS   A  JURY   QUESTION  §  9 

it  is  error  to  instruct  that  the  testimony  of  a  private  detective  should 
be  looked  upon  with  suspicion,*''  or  that  the  experience  of  courts  warns 
them  to  scan  with  caution  the  testimony  of  immoral  or  abandoned 
women,* ^  or  that  the  jury  should  receive  with  great  caution  the  tes- 
mony  of  an  attesting  witness  to  a  will  against  the  testamentary  ca- 
pacity of  the  testator/^  and  it  is  proper  to  refuse  an  instruction  in  a 
criminal  case  that  the  jury  should  be  very  cautious  in  weighing  the 
testimony  of  a  child.* ^ 

An  instruction  that,  on  the  one  hand,  coincidence  in  all  parts  of  the 
stories  of  two  witnesses  engenders  suspicion  of  collaboration,^"  or 
that,  on  the  other  hand  striking  contradictions  in  the  stories  of  different 
witnesses  should  be  attributed  to  deliberate  perjury,^ ^  constitute  an  in- 
vasion of  the  jury's  province. 

While  the  court  should  not  suggest  theories  on  which  inconsistencies 
in  the  testimony  may  be  accounted  for,^^  yet,  where  conflicting  ver- 
sions of  the  happening  of  an  event  have  been  testified  to,  the  jury 
should  be  permitted  to  reconcile  the  testimony,  if  possible,  without  at- 
tributing willful  perjury  to  any  of  the  witnesses. ^^ 

The  court  should  not  instruct  as  to  the  ethical  duty  of  an  attorney 
to  retire  from  the  trial  of  a  case  in  which  he  appears  as  a  witness,^* 
and  it  is  error  to  instruct  that  but  little  or  no  credence  should  be  given 
to  a  witness,  because  of  his  ill  will,^^  or  to  tell  the  jury  that  a  witness 
has  been  impeached.^" 

It  is  for  the  jury  to  determine  what  credit  shall  be  given  to  the  tes- 
timony of  an  impeached  witness,-^''  and  it  is  error  to  tell  the  jury  that 
they  may  ^^  or  should  ^''^  disregard  the  testimony  of  a  witness  because 

thieves,  provided  that  attention  to  the  Brow,   90  Hun,  509,   35  N.   Y.    Supp. 

fact  that  they  are  thieves  is  directed  1009;  Bodenheimer  v.  Chicago  &  N.  W. 

as  a  matter  affecting  the  credibility  of  Ry.  Co.,  123  N.  W.  14S,  140  Wis.  623. 

the  witnesses.     Rohm   v.   Borland,   7  5  4  Fletcher  v.  Ketcham,  141  N.  W. 

Atl.  171.  916.  160  Iowa,  364. 

46  De  r^ng  V.  Giles,  11  111.  App.  33;  ss  Norwood  v.  State,  24  So.  53,  US 
Burns  v.  People,  45  111.  App.  70.  Ala.  134. 

47  State  V.  Tnttle,  66  N.  E.  524,  67  5  6  Strickland    v.    State,    44   So.    90, 
Ohio  St.  440,  93  Am.  St.  Rep.  689.  151  Ala.  31 ;    City  of  Huntingburg  v. 

4  8  Bohlsen  v.  Bohlsen,  5  Ky.  Law  First,  53  N.  E.  246,  22  Ind.  App.  66; 

Rep.  (abstract)  613;    Ogden  v.  Ogden,  E.  Mt.  L.  Coal  Co.  v.  Schuyler  (Pa.) 

6  Ky.  I^w  Rep.  (abstract)  310.  3  Leg.  Gaz.  106. 

49  Gordon  v.  State,  41  So.  847,  147  5  7  Shorter  v.  Marshall.  49  Ga.  31. 
Ala.  42.  5R  Kornazsewska    v.    West    Chicago 

50  state  V.  Allen,  87  P.  177,  34  Mont.  St.  R.  Co.,  76  111.  App.  366  ;   INIcMurrin 
403;    State  v.  Anderson.  89  P.  831,  35  v.  Rigby,  SO  Iowa,  322,  45  N.  W.  877. 
Mont.  374.  Impeaclunent   by  direct  contra- 

51  State  V.  Allen,  87  P.  177,  34  Mont,  diction.    Where  a  witness  or  witness- 
403.  es  testifying  on  one  side  of  a  case  are 

52  Petrich  v.  Town  of  Union,  93  N.  in   direct  conflict   with   a   witness  or 
W.  819,  117  Wis.  46.  witnesses  on  the  other  side,  it  should 

53  Segaloff  V.  Interurban  St.  Ry.  Co.      

<Sup.)   102  N.   Y.   S.   500;    People  v.  5  9  sge  note  59  on  following  page. 


9 


INSTRUCTIO>:S   TO   JURIES 


22 


they  may  believe  he  has  heen  impeached,  unless  such  witness  is  cor- 
roborated by  other  evidence  in  the  case.^''  This  is  true,  no  matter  how 
thoroughly  a  witness  may  have  been  impeached."^ 

Ordinarily  it  is  error  to  instruct,  or  to  intimate  to,  the  jury,  either 
in  a  civil  or  criminal  case,  that  the  testimony  of  an  uncontradicted  wit- 
ness can  or  should  be  disregarded  because  of  its  inherent  improba- 
bility.*'^ The  mere  fact  that  the  court  thinks  that  the  testimony  to 
establish  a  material  fact  is  incredible  does  not  authorize  it  to  instruct 


be  left  to  the  jury  to  judge  of  the 
credibility  of  the  respective  witnesses, 
and  it  is  improper  to  instruct  them 
that  they  may  disregard  the  testimony 
of  one  witness  or  set  of  witnesses  on 
the  ground  that  he  or  they  have  been 
impeached  by  direct  contradiction. 
Peters  v.  Bourneau,  22  111.  App.  177. 
An  instruction  that,  as  certain  wit- 
nesses for  the  prosecution  had  contra- 
dicted each  other,  their  testimony 
should  be  disregarded,  was  properly 
refused,  on  the  ground  that  the  jury, 
being  the  exclusive  judges  of  the 
facts,  may,  as  their  judgment  indi- 
cates, give  effect  to  the  testimony  of 
certain  of  the  witnesses,  and  disre- 
gard that  of  others.  State  v.  Bazile, 
23  So.  8,  50  La.  Ann.  21. 

5  8  Pentecost  v.  State,  107  Ala.  81, 
18  So.  146;  Sharp  v.  State,  16  Ohio 
St  218;  East  Mt.  Laffee  Coal  Co.  v. 
Schuyler  (Pa.)  1  Walk.  342 ;  State  v. 
Gaul,  152  P.  1029,  88  Wash.  295. 

Effect  of  conviction.  A  jury  can- 
not lawfully  be  charged  that  a  witness 
who  has  been  convicted  of  burglary, 
and  served  out  his  term,  is  not  en- 
titled to  full  credit.  People  v.  Mc- 
Lanc,  60  Cal.  412. 

Instruction  tliat  conviction  can- 
not be  had  on  testimony  of  im- 
peached witness.  An  instruction 
that  the  testimony  of  a  single  witness 
under  a  cloud,  and  who  is  contradict- 
ed in  material  matters,  is  not  such 
prejionderance  of  testimony  as  will 
warrant  a  conviction,  and  that,  "if 
the  jury  find  from  the  evidence  this  to 
be  the  condition  of  this  case  it  is  their 
duty  to  discharge  the  defendant,"  is 
properly  refused,  as  invading  the  prov- 
ince of  the  jury.  Gilyard  v.  State, 
98  Ala.  .59,  13  So.  391. 

6  0  Osborn  v.  State,  27  So.  758,  125 
Ala.  106:   Moore  v.  State,  68  Ala.  360; 


Addison  v.  State.  48  Ala.  478;  Scog- 
gins  V.  State,  98  S.  E.  240,  23  Ga.  App. 
366 ;  State  v.  Larson,  85  Iowa,  659,. 
52  N.  AV.  539. 

Requirement  of  corroboration. 
It  is  error  to  instruct  that  the  testi- 
mony of  an  impeached  witness  is  of 
no  value,  except  when  corroborated. 
Green  v.  Cochran,  43  Iowa,  544.  On 
an  indictment  for  an  assault  with 
intent  to  murder,  a  request  to  charge 
the  jury  that  "the  testimony  of  a 
witness  for  the  state,  who  is  shown 
to  be  unworthy  of  credit,  is  not  suffi- 
cient to  justify  a  conviction  without 
corroboration,  and  such  corroborating 
evidence,  to  avail  anything,  must  be  a 
fact  tending  to  show  the  guilt  of  the 
defendant  held  properly  refused,  as  an 
invasion  of  the  province  of  the  jury. 
Nabors  v.  State.  82  Ala.  8,  2  So.  357. 

61  Lav  V.  Fuller,  59  So.  609,  178 
Ala.  375. 

62  U.  S.  (C.  C.  A.  Fla.)  Post  v. 
United  States,  135  F.  1,  67  C.  C.  A. 
569.  70  L.  R.  A.  989,  reversing  judg- 
ment United  States  v.  Post  (D.  C.)  328 
F.  950  and  rehearing  denied  135  F. 
1022,  67  C.  C.  A.  679,  70  L.  R.  A.  989 ; 
(C.  C.  A.  N.  J.)  Beaumont  v.  Beau- 
mont, 152  F.  55,  81  C.  C.  A.  251. 

Ga.  Louisville  &  N.  R.  Co.  v.  Trout, 
75  S.  E.  328,  138  Ga.  324. 

111.  Bressler  v.  People,  117  111.  422, 
3  N.  E.  .521;  Id.,  117  111.  422,  8  N.  E. 
62. 

Tex.  Bishop  v.  State,  43  Tex.  390; 
Searcy  v.  State,  1  Tex.  App.  440. 

In  Pennsylvania,  it  is  not  error 
for  the  trial  judge  to  comment  on  the 
testimony  of  a  witness  and  to  call  at- 
tention to  its  inherent  probability  or 
improbability,  if  he  does  it  fairly,  and 
leaves  the  question  of  his  credibility 
to  the  iury.  McNeile  v.  Cridland,  6 
Pa.  Super.  Ct.  428. 


23  CREDIBILITY   OF    WITNESSES    AS   A   JURY    QUESTION  §  11 

the  jury  to  cast  it  aside. °^  However,  the  facts  may  be  such  as  to  make 
the  testimony  of  a  witness  incredible  as  a  matter  of  law,  in  which  case 
it  will  be  error  for  the  court  to  refuse  an  instruction  to  that  effect.*^* 
This  rule  applies  where  the  testimony  of  a  witness  is  contrary  to  the 
physical  facts.''" 

The  jury  may  be  told  that  they  are  not  bound  to  accept  as  true  a 
statement  of  fact  made  on  the  witness  stand,  if  from  all  other  facts 
and  circumstances  in  evidence  they  believe  that  such  statements  are 
not  true,®*'  and  the  court  may,  in  its  discretion,  tell  the  jury  that  they 
are  not  bound  to  believe  the  testimony  of  a  witness  because  it  is  con- 
tained in  a  deposition,  any  more  than  they  would  if  he  testified  from 
the  witness  stand. ^^ 

§  10.  Negative  directions  as  to  consideration  of  matters  bearing 
on  credibility 
It  is  error  not  to  permit  the  jury  to  consider  matters  bearing  on  the 
credibility  of  the  witnesses.*'^  Thus  it  is  improper  to  instruct  the  jury 
not  to  regard  slight  variances  between  the  testimony  of  witnesses,*'*' 
or  to  give  instructions  preventing  the  jury  from  considering  circum- 
stances tending  to  show  bias.'^°  On  the  other  hand,  the  court  may 
instruct  that  the  doing  of  certain  acts  by  a  witness  within  his  legal 
right  to  do  shall  not  be  considered  upon  the  question  of  his  credi- 
bility.^^ 

§  11.     Positive  directions  as  to  matters  to  be  considered  in  deter- 
mining question  of  credibility 

Necessity  and  sufficiency  of  instructions  on  pai'ticular  matters  affecting  credi- 
bility, see  post,  §§  153-156. 

In  one  jurisdiction  it  is  held  that  the  law  has  not  prescribed 
as  tests  of  the  credibility  of  witnesses  their  demeanor,  intelligence, 
prejudice,  etc.,^^  and  that  it  is  error  to  refer,  even  in  a  general  way, 

6  3  Curry    V.   Curry,   114   Pa.  367,  7  is   held   to   be  on   the   weight  of  the 

A.  61.  evidence.     Ft.  Worth  &  D.  C.  Ry.  Co. 

64Hagglund  v.  Erie  R.  Co.,  103  N.  v.  Osborne  (Civ.  App.)  26  S.  W.  274; 

E.  770,  210  N.  Y.  46,  reversing  judg-  Dwver  v.  Bassett,  63  Tex.  274. 

ment  133  N.  Y.  S.  1124,  148  App.  Div.  07  Johnson    County    Sav.    Bank    v. 

935.  Walker,  65  A.  132,  79  Conn.  348. 

6  5  McClanahan  v.  St.  Louis  &  S.  F.  es  Bodenheimer  v.  Chicago  &  N.  W. 

R.  Co.,  126  S.  W.  535,  147  Mo.  App.  Rv.  Co.,  123  N.  W.  148.  140  Wis.  623. 

386.  6  9  state  v.  Swayze,  11  Or.  357,  3  P. 

66  Goss  Printing-Press  Co.  v.  Lemp-  574. 

ke,    90    111.    App.    427,    judgment    af-  70  Moore  v.  Nashville,  C.  &  St.  L. 

firmed    60    N.    E.    968,    191    111.    199 ;  Ry.,  34  So.  617,  137  Ala.  495. 

Price  V.  Lederer,  33  Mo.  App.  426.  71  Calhoun,  Denny  &  Ewing  v.  Whit- 
Rule  in  Texas.     In  this  jurisdic-  comb.  155  P.  759,  90  Wash.  128. 

tion  an  instruction  that  the  jury  may  ^2  Houston,  E.  &  W.  T.  Ry.  Co.  v. 

discredit  the   testimony  of  an  unim-  Runnels,  47  S.  W.  971,  92  Tex.  .305, 

peached    and    uncontradicted   witness  reversing  judgment  (Civ.  App.)  46  S. 

on  account  of  attendant  circumstances  W.  394. 


§   11  INSTRUCTIONS   TO  JURIES  24 

to  such  elements  as  matters  to  he  considered  in  determining  such 
credibiHty,  on  the  ground  that  such  an  instruction  is  calculated  to  give 
the  jury  the  impression  that  the  court  is  of  the  opinion  that  such  mat- 
ters affect  the  weight  to  be  given  to  the  testimony  of  some  particular 
witness,  whose  manner  of  testifying  may  be  peculiar,  or  who  may  have 
admitted  interest,  bias,  or  prejudice.'^ ^  But  the  general  rule  is  that  it  is 
not  error  for  the  court  to  instruct  that  the  jury  may  consider  various 
enumerated  elements  in  passing  on  tlie  question  of  the  credibility  of 
the  witnesses,'^*  and  that  it  is  proper  to  instruct  that  the  jury  may  con- 
sider upon  such  question  the  relation  of  the  witnesses  to  the  parties, 
their  interest,  temper,  bias,  demeanor,  and  intelligence.'''^ 

The  decisions  are  not  entirely  harmonious  as  to  the  right  of  the 
court  to  instruct  the  jury  in  language  expressive  of  their  obligation 
to  consider  such  matters.  In  some  jurisdictions  the  court  must  not 
tell  the  jury  that  they  must  or  should,  as  a  matter  of  law,  take  into 
consideration  certain  things  in  passing  upon  such  question  of  cred- 
ibility.''" In  Illinois  it  is  proper  to  instruct  the  jury  that  they  should 
take  into  consideration  various  matters  in  determining  the  credibility 
of  each  witness  on  the  stand,  where  all  the  matters  enumerated  are 
such  as  may  affect  the  estimate  by  the  jury  of  such  credibility;  the 
use  of  "may"  not  being  considered  necessary.^'  In  Indiana,  the  later 
cases  and  some  of  the  earlier  ones,''^  at  variance  with  some  of  the 
early  cases  in  this  jurisdiction,'^^  hold  that  the  use  of  the  words 
"should"  or  "must,"  rather  than  a  less  mandatory  form  of  expression, 
is  not  error;  the  theory  being  that  such  words  only  imply  duty  to 
consider,  the  weight  to  be  given  to  the  various  matters  suggested  being 
another  thing.  In  another  jurisdiction  it  is  held  in  a  criminal  case  that 
it  is  not  proper  for  the  court  to  direct  the  jury  as  to  the  method  by 
which  it  shall  exercise  its  powers,®"  it  also  being  held  in  this  jurisdic- 
tion, however,  that  an  instruction  that  the  degree  of  credit  due  a  wit- 
ness should  be  determined  by  various  elements  detailed  therein  is  not 
reversible  error.^^ 

7s  KellosK  V.  McCabe,  38  S.  W.  542,  7c  state  v.  Rosa.  62  A.  695.   72  N. 

14  Tex.  Civ.  App.  598.  .T.  Law.  462;    Brady  v.  Cassidy  (Com. 

74  111.     La  Fevre  v.   Du  Bmle,  71  PI.)  9  Misc.  Rep.  107,  29  N.  Y.  S.  45. 

111.  App.  2G3.  .I'lKlirment  affinned  145  N.  Y.  171.  .39  N. 

Ind.    Shular  v.  State,  105  Ind.  289,  E.  814. 

4  N.  E  870  .55  Am.  Rep.  211 ;   Stanley  t 7  People  v.  Lalor,   124  N.   E.  SG6, 

V.  Montgomery,  102  Ind.  102,  26  N.  E.  290  111.  234. 

213.  7  8  Lynch  v.  Bate.s,  38  N.  E.  806,  139 

Iowa.     Stewart  v.  Anderson,  82  N.  Ind.  206 ;   Robertson  v.  Monroe,  7  Ind. 

W.  770,  111  Towa,  329.  App.  470,  .33  N.  E.  1002. 

Mont.     White  v.  Chicago,  M.  &  P.  7  0  Pennsylvania  Co.  v.  Hunsley,  54 

S.  Ry.  Co..  143  P.  .561.  49  Mont.  419.  N.  E.  1071,  23  Ind.  App.  37. 

Pa.    Williams  v.  Moore,  43  A.  1022,  so  People  v.  Newcomer,  50  P.  405, 

192  Pa.  211.  118  Cal.  263. 

7r.  Klopsch  v.  Donald,  4  Wash.  436,  si  People   v.   Bene,   62   P.   404,   130 

30  P.  991,  31  Am.  St.  Rep.  9.36.  Cal.  159. 


CREDIBILITY   OP   WITNESSES   AS   A  JURY   QUESTION 


25  

4.^  o«rr,K.arafive  credibility  of  different  classes 
§  12.     Instructions  as  to  comparative  creaiunity  ^ 

The  co"otr  not  classify  the  witnesses  -  and  it  is  error  to 
charge   and  proper  to  refuse  to  charge,  that  any  witness  or  class  of 
'  Sersha'u  Leive  greater  consideration  *»  -y  <«her  ^  -     o 
to  make  a  distinction  between  different  classes  of  ™f  \<=J  f^/^'"  ^^ j 
credibility   whether  because  of  supenor  intelligence,  better  means  o 
So  mation,  the  affirmative  character  of  the  testimony  g-^'  -  f  ^^ 
reasons"    Thus  it  is  an  erroneous  usurpation  of  the  f"f  °"  °'  '"^ 
iurv  Winst  uct  them  that  one  credible  witness  ,s  worth  more  than 
naVwi  nessef  who  the  jury  may  and  do  believe  have  kno-ng  y  t 
"fied  untruthfully  on  any  material  point,  and  "f.  "f  ,""°'~^^,'„tses 
other  credible  witnesses,"  and  an  instruction  that  Ind.an  wUness  s 
are  entitled  to  as  much  credit  as  white  men  is  improper         But  the 
court  may  charge  that  the  jury^  should  not  reject  the  testimony  of  a 
witness  on  account  of  his  race.^^ 


82  state  V.  Tuttle,  66  N.  B.  524,  67 
Ohio  St.  440,  93  Am.  St.  Rep.  689 

83  Ala.  Cummings  v.  McDonnell, 
m  So  717,  189  Ala.  96;  Crane  v. 
Ftate,  111  Ala.  45,  20  So.  590. 

Del.  State  V.  Long,  108  A.  <Jb,  7 
Boyce,  397.  ,   .  ^.. 

111.  Village  of  Des  Plaines  v.  Win- 
iJSan,  llO^N.  E.  417  270  111  149 ; 
Belskis  V.  Bering  Coal  Co.,  146  11  . 
App  124;  Barron  v.  Burke,  82  111. 
App.  116;  Hope  V.  West  Chicago  St. 
R  Co  82  111.  App.  311;  Chittenden 
V  *  Evans,  41  HI.  251 ;  Yundt  v.  Hart- 
runft,  41  111.  9. 

Ind.  Muncie,  H.  &  Ft.  W.  Ry.  Co. 
V.  Ladd,  76  N.  E.  790,  37  Ind.  App 
90-  Winklebleck  v.  Wiuklebleck,  67 
N  E.  451,  160  Ind.  570;  Jones  y 
easier,  38  N.  E.  812,  139  Ind.  382.  47 
Am.  St.  Rep.  274.  «.   ^t    v    « 

N.  Y.  Durst  V.  Ernst,  91  N.  x.  b. 
13,  45  Misc.  Rep.  627. 

Instructions  objectionable  wit Ji- 
in  rule.  An  instruction  that  if  there 
is  a  conflict  in  the  evidence  of  the 
witnesses  who  testified  in  a  case,  and 
the  jurv  cannot  reconcile  that  evi- 
dence they  should  believe  that  wit- 
ness or  those  witnesses  who  have  the 
best  opportunity  of  knowing  the  facts 
about  which  they  testify,  and  the  least 


inducement  to  swear  falsejy.  Wall  ^. 
Crown  Cotton  Mills,  65  S.  E  788  6 
Ga  App.  732 ;  Southern  Mut.  Ins- Co. 
V.  Hudson,  38  S.  E.  9G4,  113  Ga^  ^34 ' 
Hudson  V.  Best,  30  S.  E.  688,  104  Ga. 

131-  .^        .  +„ 

Instructions    not    obnoxious    to 

rule.  An  instruction  that  the  credi- 
bilitv  of  the  witness  is  a  question  ex- 
ciisfve'y  for  the  jury,  and  that  they 
have  a  right  to  determine  from  he 
appearance  of  witnesses  on  the  stand, 
their  manner  of  testifying,  their  ap- 
parent candor  and  fairness,  their  ap- 
parent intelligence  or  lack  of  intelli- 
o-ence  and  from  all  the  other  sur- 
rounding circumstances  appearing  on 
the  trial,  which  witnesses  are  tne 
more  worthy  of  credit,  is  not  ob- 
iectionable  on  the  ground  that  it  in- 
structs the  jury  that  an  intelligent, 
witness  is  more  credible  than  an  ig- 
norant one.  North  Chicago  St  R.  Co. 
V.  Wellner,  69  N.  E.  6,  206  HI-  2*2, 
affirming  judgment  105  111.  App.  6u2. 

84  Henderson  v.  Miller,  36  HI.  App. 

85  Campbell  v.  United  States  (C.  C. 
A.  Alaska)  221  F.  186,  136  C.  C.  A. 

8  6  McDaniel  v.  Monroe,  41  S.  E.  456, 
63  S.  C.  307. 


§   13  INSTRUCTIONS   TO   JURIES  26 

§  13.     Jury  to  determine  question  of  interest  and  the  credibility  of 
interested  witnesses 

The  court  should  not  tell  the  jury  that  a  particular  witness  is  or  is 
not  interested,*'  or  suggest  that  the  servants  or  agents  of  a  party  called 
as  witnesses  may  have  an  interest  that  will  affect  their  testimony.^^ 
The  question  of  the  credibility  as  witnesses  of  the  parties  to  a  suit,  or 
other  persons  having  an  interest  in  its  result,  is  for  the  jury,  who 
should  be  left  at  full  liberty  to  believe  or  to  disbelieve  such  witnesses.®^ 
Accordingly  an  instruction  that  if  a  party  testifying  as  a  witness  is 
corroborated  the  jury  have  no  right  to  disbelieve  him  is  erroneous,^" 
and  it  is  error  to  give,  and  proper  to  refuse  to  give  instructions  which 
cast  suspicion  or  distrust  on  the  testimony  of  a  party,^^  or  to  instruct 
that  the  testimony  of  a  witness,  who  is  also  a  party,  is  to  be  received 
with  caution,^-  or  that  such  testimony  is  to  be  disregarded,  if  contra- 
dicted by  the  testimony  of  unimpeached  witnesses, ^^  or  that  the  jury 
may  disregard  the  testimony  of  any  witness  interested  in  the  result 
of  the  trial.''* 

In  accordance  with  the  rule  above  stated  ^^  it  is  error  to  charge,  and 
proper  to  refuse  to  charge,  that  the  testimony  of  an  uninterested  wit- 
ness should  be  given  more  weight  than  that  of  an  interested  one,^'' 
or  to  charge  that,  when  the  witnesses  appear  to  be  equally  credible  in 
every  other  respect,  the  one  who  appears  to  have  the  greater  interest 


8  7  Swan  V.  Carawan,  84  S.  E.  699,  v.   Chicago,   R.   I.   &   P.   Rv.   Co.,   61 
168  X.  C.  472.  Iowa.  434,  16  N.  W.  336. 

88  Solomon  R.  Co.  v.  Jones.  34  Kan.  92  Coloritype  Co.  v.  Williams  (C.  C. 
443,  8  P.  730.  A.  N.  Y.)  78  F.  450,  24  C.  C.  A.  163. 

89  New  Orleans.  J.  &  G.  N.  R.  Co.  v.  93  Delvee   v.    Boardman,    20    Iowa, 
Allbritton,  38  Miss.  242.  75  Am.  Dec.  446. 

98;   Allen  V.  Lyles,  35  Miss.  513 :    Van  9*  Rucker   v.    State    (Miss.)    18    So. 

Doren   v.   Jelliffe   (Com.   PI.)   1   Misc.  121 ;    McEwen  v.  State  (Miss.)  16  So. 

Rep.  .3.54,  20  X.  Y.   S.  636.  affirming  242. 

.judgment  (City  Ct.  N.  Y.)  16  N.  Y.  S.  9  5  Ante,  §  9. 

209:    McGuire  v.  Ogdensburg  &  L.  C.  9g  Ala.     Louisville  &  N.  R.  Co.  v. 

R.  Co.,  63  Hun.  632,  18  N.  Y.  S.  313.  Watson,  90  Ala.  68.  S  So.  249. 

9  0  Duygan    v.    Third    Ave.    R.    Co.  D.  C.    Metropolitan  R.  Co.  v.  Jones, 
(City  Ct.  N.   Y.)  6  Misc.  Rep.  66,  26  1  App.  D.  C.  200. 

N.  Y.  S.  79.  Ind.     Dodd  v.  Moore,  91  Ind.  522 : 

91  Smith  v.  Woolf,  49  So.  395,  160  Nelson  v.  Vorce,  55  Ind.  455. 

Ala.  644  ;   Dow  v.  City  of  Oroville,  134  Neb.     Omaha  Belt  Rv.  Co.  v.  Mc- 

P.  197,  22  Cal.  App.  215.  Dermott,  25  Neb.  714,  41  N.  W.  648. 

Hopes    and    fears    of    witnesses.  N.   C.      State  V.  Jenkins,  85  N.   C. 

In  an  action  against  a  railway  com-  544. 

pany  for  injuries  to  an  employe,  in-  Rule  in  Iowa.     In  this  jurisdiction 

structions  that  tlie  jury  should  take  it    is    lic4d    that,    other    things    being 

into    consideration    "the    hopes    and  equal,  it  is  not  error  to  give  such  an 

fear.s"  of  the  witnesses  in  determining  instruction,  although  it  is  better  not 

their  credibility,  does  not  cast  doubt  to  do  so.     Bonnell  v.  Smith,  53  Iowa, 

on   the  witnesses'  veracity.     Hatfield  281,  5  N.  W.  128. 


27  CREDIBILITY   OF   WITNESSES   AS   A  JURY   QUESTION  §  14 

in  the  result  of  the  case  is  to  have  the  less  weight,"^  and  it  is  error  to 
charge  that  the  testimony  of  a  witness  against  himself  should  be  ac- 
corded more  weight  than  his  testimony  in  favor  of  himself. ^^  In 
Missouri,  in  civil  cases,  the  later  decisions  hold  that  an  instruction 
which  undertakes  to  value  the  testimony  of  a  party  against  his  inter- 
est, as  compared  with  that  in  his  own  favor,  and  to  tell  the  jury  that 
the  former  testimony  may  be  taken  as  true,  but  that  the  latter  should 
be  given  only  such  credit  as  the  jury  may  think  it  is  entitled  to,  is 
erroneous,  as  usurping  the  province  of  the  jury;^^  but  in  criminal 
cases  in  this  jurisdiction  such  an  instruction,  while  criticized,  is  held 
not  to  be  reversible  error.  ^ 

§  14.     Right  or  duty  of  jury  to  consider  interest  of  witness 
Necessity  and  sufficiency  of  instructions  on  question  of  interest  of  witness,  see 
post,  §  159. 

As  a  general  rule  it  is  proper  for  the  court  to  give  an  instruction, 
applicable  generally  to  all  the  witnesses,  that  the  jury  may  consider 
the  interest  that  any  witness  may  have  in  the  event  of  the  trial  in  pass- 
ing upon  his  credibility,-  and  in  some  jurisdictions  it  is  not  error  un- 
der some  circumstances  to  single  out  a  particular  party  testifying  as 
a  witness,  and  instruct  that  the  jury  may  take  the  fact  of  his  interest 
in  the  outcome  of  the  trial  into  consideration.^  Such  an  instruction 
should  not  be  given  where  the  witnesses  for  the  other  side  are  also  in- 
terested in  the  result ;  *  and  in  Missouri  in  civil,^  and  now  in 
criminal,  cases  it  is  reversible  error  to  instruct  that,  while  the  law 
permits  a  j)yrty  to  testify  in  his  own  behalf,  the  jury,  in  considering 
the  credence  to  be  given  to  his  testimony,  may  consider  the  fact  that 
he  is  a  party  and  is  interested  in  the  result  of  the  suit.®  In  Texas, 
under  the  statute  prohibiting  the  trial  judge  from  commenting  on  the 

9  7  Lee  V.  State,  74  Wis.  45,  41  N.  to  the  testimony  of  witnesses  in  tlio 

W.  9C0.  employ   of   one   of   tlie    parties,    that 

9  8  Douglass'   Estate  v.  Fullerton,  7  if-    from    the    evidence,    they    believe 

111.  App.  102.  they  testified  in  fear  of  losing  their 

99  Brown  v.  Quincy,  O.  &  K.  C.  R.  fmployment,  they  may  take  such  fact 
Co.,  106  S.  W.  551,  127  Mo.  App.  614  ;  "^^o  consideration.  Central  Ware- 
Zander  v.  St.  Louis  Transit  Co.,  lOli  J^"^^  ^o.  v.  Sargeant,  40  111.  App. 
S.  W.  1006,  206  Mo.  445.  ' 

1  State  V.    Porter   (Mo.)    199   S.   W.  tarium  T47  ni    fvlTC^.fcL^cf^' 

'-•  "•  '^""**  -  ment  affirmed  61  N.  E.  459,  192  111. 

2- Lovely  v.  Grand  Rapid.s  &  I.  Ry.      514 

Co.,   100  N.   W.    894,   137   Mich.  653  ;  4'Bailey  v.  Niebruegge.  211  111.  App 

Territory  v.  Taylor,  71  P.  489,  11  N.  82. 

^^-  ^?.o'  ^.Kavanaugh  v.  City  of  Wau-  5  Copeland  v.  American  Cent.  Ins. 

sau,  98  N.  W.  550,  120  Wis.  611.  Co.,  138  S.  W.  557,  158  xMo.  App.  3.38. 

Fear     of      losing      employment.  e  state    v.    Finkelstein,    191    S.    W. 

The  court  may  instruct,  with  respect  ioo2    269  Mo.  612. 


§  14 


INSTRUCTIONS   TO  JURIES 


28 


evidence,  an  instruction  that  the  jury  may  take  the  interest  of  a  witness- 
into  consideration  is  error. '^ 

As  above  indicated,  the  authorities  are  conflicting  as  to  whether  it 
is  proper  for  the  court  to  instruct  that  the  jury  "should"  consider  the 
interest  of  a  witness  in  a  judicial  controversy  in  determining  his  cred- 
ibility. Perhaps  the  greater  weight  of  authority  upholds  such  an  in- 
struction.® In  Indiana  the  later  cases,®  overruling  some  of  the  earlier 
ones,  hold  that  such  an  instruction  is  not  objectionable  because  of  the 
use  of  the  words  "should"  or  "must,"  instead  of  the  words  "might"  or 
"may."  ^*^  In  Illinois  it  is  held  that  either  the  words  "may"  or  "should" 
are  proper,  both  forms  meaning  substantially  the  same  thing. ^^  In 
Missouri  such  an  instruction  is  disapproved.^^ 

§  15.     Credibility  of  accused  as  question  for  jury 

It  is  within  the  exclusive  domain  of  the  jury  to  pass  upon  the  credi- 
bility of  one  defending  against  a  criminal  accusation  and  testifying  as 
a  witness, ^^  and  instructions  disparaging  the  testimony  of  such  an  ac- 


^  St.  Louis  &  S.  F.  R.  Co.  v.  Sproule, 
101  S.  W.  26S,  4.5  Tex.  Civ.  App.  615 ; 
Daggett  V.  State,  44  S.  W.  842,  39 
Tex.  Cr.  R.  5;  Penny  v.  State  (Tex. 
Cr.  App.)  42  S.  W.  297;  Isliam  v. 
State  (Tex.  Cr.  App.)  41  S.  W.  622; 
Williams  v.  State  (Tex.  Cr.  App.)  40 
S.  W.  801. 

Where  only  one  -witness  has  a 
real  pecuniary  interest  in  a  suit,  it 
is  lield,  in  tliis  jurisdiction,  that  sucti 
an  instruction,  general  in  form,  is  in 
effect  a  charge  that  the  jury  should 
consider  the  interest  of  such  witness. 
Willis  V.  Whitsitt,  67  Tex.  673,  4  S. 
W.  253. 

8  Salazar  v.  Taylor,  18  Colo.  538, 
33  P.  369;  Herndon  v.  Southern  Ry. 
Co.,  78  S.  E.  287,  162  N.  C.  317; 
Speight  V.  Seaboard  Air  Line  Ry.,  76 
S.  E.  684,  161  N.  C.  80;  Oliver  v. 
Columbia,  N.  &  L.  R.  Co.,  43  S.  E.  307, 
65  S.  C.  1. 

9  Ind.  Mi  shier  v.  Chicago,  S.  B.  & 
N.  I.  Ry.  Co.  (App.)  Ill  N.  E.  460, 
rehearing  denied  113  N.  E.  310; 
Pittsburg,  C,  C.  &  St.  L.  Ry.  Co.  v. 
Chappell,  106  N.  E.  403,  183  Ind.  141, 
Ann.  Cas.  1918A,  627;  In  re  Darrow, 
92  N.  E.  369.  175  Ind.  44;  Southern 
Ry.  Co.  V.  State,  75  N.  E.  272.  165 
Ind.  613 ;  Strebin  v.  Labengood.  71 
N.  E.  494,  163  Ind.  478 ;  Fifer  v.  Rit- 
ter,  64  N.  E.  463,  159  Ind.  8. 

In  an  early  case  it  was  held  in 
this    jurisdiction     that     an     instruc- 


tion that  the  jury  are  the  exclusive 
judges  of  the  credibility  of  witnesses, 
and  that  they  should  consider  the  re- 
lationship of  the  witnesses  to  the  par- 
ties, their  interest,  their  apparent 
candor  and  intelligence,  and  other 
matters  of  like  character,  so  far  as 
observable  in  evidence  or  from  their 
demeanor  on  the  stand,  does  not  make 
it  the  duty  of  the  jury,  as  matter  of 
law,  to  detract  from  the  weight  of  the 
testimony  of  an  interested  witness, 
and  hence  does  not  invade  the  prov- 
ince of  the  1ury.  Young  v.  Gentis,  7 
Ind.  App.  199,  32  N.  E.  796. 

10  Wabash  R.  Co.  v.  Biddle,  59  N. 
E.  284,  27  Ind.  App.  161;  Lynch  v. 
Bates,  38  N.  E.  806,  139  Ind.  206; 
Duvall  V.  Kenton,  127  Ind.  178.  26  N. 
E.  688 ;  Woollen  v.  Whitacre,  91  Ind. 
502. 

11  Chicago  &  E.  R.  Co.  v.  Meech, 
45  N.  E.  290,  163  111.  305;  Brown  v. 
Walker,  32  111.  App.  199. 

12  Kansas  City.  N.  &  Ft.  S.  R. 
Co.  v.  Dawley,  50  Mo.  App.  480. 

13  Ark.  Douglass  v.  State,  121  S. 
W.  923,  91  Ark.  492. 

Fla.  Ballard  v.  State,  31  Fla.  266, 
12  So.  865. 

111.  People  V.  Sehrer,  196  111.  App. 
442;  Same  v.  Clayton.  196  111.  App. 
445:   Rider  v.  People,  110  111.  11. 

Ky.  Commonwealth  v.  Thomas, 
104  S.  W.  326,  31  Ky.  Law  Rep.  899. 

N.  Y.     People  v.  Biddison,  121  N. 


29 


CREDIBILITY  OP   WITNESSES  AS   A  JURY  QUESTION 


15 


cused  person,  or  implying  lack  of  confidence  in  it,  or  that  there  is  some 
doubt  as  to  whether  it  is  entitled  to  any  weight,  are  erroneous.^*  This 
rule  applies  to  unsworn  statements  made  by  the  accused, ^^ 


Y.  S.  129,  136  App.  Div.  525,  judg- 
ment affirmed  93  N.  E.  378,  199  N.  Y. 
5S4;  People  v.  McDonald,  54  N.  E. 
46,  159  N.  Y.  309 ;  Newman  v.  People, 
63  Barb.  630. 

Okl.  Powell  V.  State,  150  P.  92,  11 
Okl.  Cr.  615 ;  Wainscott  v.  State,  129 
P.  655,  S  Okl.  Cr.  590. 

Tex.  INIcCormick  v.  State,  216  S. 
W.  871,  86  Tex.  Cr.  R.  306 ;  Nowlin  v. 
State,  175  S.  W.  1070,  76  Tex.  Cr.  R. 
4S0:  Tilmyer  v.  State,  126  S.  W.  870, 
58  Tex.  Cr.  R.  562,  137  Am.  St.  Rep. 
982 ;    Ross  v.  State,  29  Tex.  490. 

Whether  defendant  successfully 
impeached.  Where  witnesses  testi- 
fied that  defendant's  reputation  for 
truth  and  veracity  in  the  neighbor- 
hood in  which  he  lived  was  bad,  and 
that  they  would  not  believe  him  under 
oath,  and  such  evidence  was  not  con- 
tradicted, the  question  whether  de- 
fendant was  successfully  impeached 
was  for  the  jury.  Carle  v.  People,  66 
N.  E.  32,  200  111.  494,  93  Am.  St.  Rep. 
208. 

Sufficiency  of  explanation  by  de- 
fendant of  incriminating  circum- 
stances. The  explanation  of  one  in 
possession  of  the  fruits  of  a  crime 
is  for  the  jury,  unless  the  explanation 
was  so  clearly  satisfactory  that  it 
was  unreasonable  for  the  jury  to  dis- 
regard it.  State  V.  Curtis,  161  P.  578, 
29  Idaho.  724. 

14  U.  S.  Hickory  v.  United  States, 
160  U.  S.  408,  16  S.  Ct.  327,  40 
L.  Ed.  474;  Hicks  v.  United  States, 
150  U.  S.  442,  14  S.  Ct.  144,  37  L.  Ed. 
1137. 

Fla.  Hampton  v.  State,  39  So.  421, 
50  Fla.  55;  Andrews  v.  State,  21  Fla. 
598. 

Ga.  Roberson  v.  State,  81  S.  E. 
798,  14  Ga.  App.  557. 

111.  Lambert  v.  People,  34  111.  App. 
637. 

Mo.  State  V.  Porter,  111  S.  W.  529, 
213  Mo.  43,  127  Am.  St.  Rep.  589. 

Nev.  State  v.  Johnson,  16  Nev.  36; 
Same  v.  Vasquez,  Id.  42. 

N.  C.  State  v.  Collins,  118  N.  C. 
1203,   24    S.   E.   118. 

Pa.     Commonwealth  v.  Pipes,  158 


Pa.  25,  27  A.  839,  33  Wkly.  Notes  Cas. 
237. 

S.  C.  State  V.  Wyse,  32  S.  C.  45,  10 
S.  E.  612 ;  State  v.  Caddon,  30  S.  C. 
609,  8  S.  E.  536;  State  v.  Addy,  28 
S.  C.  4,  4  S.  E.  814. 

Tex.  Johnson  v.  State,  90  S.  W. 
633,  49  Tex.  Cr.  R.  106. 

W^ash.  State  v.  White,  10  Wash. 
611,  39  P.  160. 

Illustrations  of  instructions  ob- 
noxious to  rule.  An  instruction, 
where  only  issue  was  self-defense  that 
jury  should  not  accept  defendant's 
testimony  blindly,  or  unless  corrob- 
orated, but  might  consider  its  truth, 
taking  into  account  defendant's  in- 
terest, as  bearing  on  his  credibility. 
State    V.    Lundhigh,    164    P.    690,    30 

15  Fla.    Miller  v.  State,  15  Fla.  577? 

Ga.  Daniel  v.  State,  88  S.  E.  694, 
17  Ga.  App.  774;  Slaughter  v.  State, 
86  S.  E.  741,  17  Ga.  App.  332;  Field 
V.  State,  55  S.  E.  502,  126  Ga.  571; 
Inman  v.  State,  72  Ga.  269;  Wilson 
V.  State,  69  Ga.  224 ;  Day  v.  State,  63 
Ga.  667;    Pease  v.  State,  63  Ga.  631. 

Instructions  not  erroneous  un- 
der rule.  An  instruction  that  de- 
fendant has  a  right  to  make  a  state- 
ment to  the  jury  which  is  not  under 
oath,  and  the  jury  may  believe  it  iu 
preference  to'  the  sworn  testimony  in 
the  case,  or  may  disregard  it,  is  not 
erroneous  as  excluding  the  jury  from 
the  privilege  of  believing  the  state- 
ment in  part  and  rejecting  it  in  part. 
Suple  V.  State,  66  S.  E.  919,  133  Ga. 
601.  After  instructing  the  jury  in  the 
language  of  the  statute  that  they  were 
authorized  to  believe  the  defendant's 
statement  iu  preference  to  the  evi- 
dence in  the  case,  the  addition  by  the 
judge  of  the  words:  "But  you  are 
not  under  any  obligation  to  do  so  or 
not  to  do  so.  The  law  simply  gives 
you  power  to  do  so,  if  you  believe  it 
is  the  truth" — is  not  error,  as  a  dis- 
paragement of  the  statement,  or  as 
impressing  the  jury  with  the  idea 
that  they  were  under  no  obligation 
to  believe  defendant's  statement. 
Stevens  v.  State,  68  S.  E.  874,  S  Ga. 
App.  217. 


15 


INSTRUCTIONS  TO  JURIES 


-30 


It  is  error,  where  the  accused  is  a  witness  in  his  own  behalf,  to  charge 
that,  in  general,  a  witness  who  is  interested  will  not  be  as  honest,  candid, 
and  fair  as  one  who  is  not,^  ^  or  to  give  an  instruction  tending  to  mislead 
the  jury  into  the  belief  that  the  evidence  of  interested  parties  is  to  some 
extent  discredited,  although  the  jury  may  think  them  honest  and 
truthful,^''  or  to  charge,  as  a  matter  of  law,  that  the  jury  may  disre- 
gard the  testimony  of  defendant  because  of  his  interest  in  the  matter, 
if  in  conflict  with  other  evidence. ^^  On  the  other  hand,  it  is  error  to 
instruct,  and  proper  to  refuse  to  instruct,  that  the  jury  should  not  dis- 
regard the  statement  or  testimony  of  the  accused  simply  because  he  is 
the  defendant,^®  or  that  the  same  consideration  shall  be  given  to  the 
testimony  of  the  defendant,  or  to  his  testimony  when  corroborated,  as 
to  that  of  any  other  witness.^" 


Idaho,  365.  Instructions  that  the  jury 
were  "not  bound  to  believe  the  evi- 
dence of  the  defendant  in  a  criminal 
case  and  treat  it  the  same  as  the  evi- 
dence of  other  witnesses."  Chambers 
V.  People,  105  111.  409.  An  instruction 
which  singles  out  accused  as  a  wit- 
ness to  call  special  attention  to  the 
weight  and  defects  of  his  testimony, 
and  to  declare  exclusive  rules  by 
which  his  testimony  alone  is  to  be  con- 
sidered, and  in  effect  tells  the  jury 
that,  however  unworthy  of  belief  he 
may  be,  the  jury  must  give  some  weight 
to  his  testimony.  People  v.  Oliver,  95 
P.  172,  7  Cal.  App.  601.  An  instruc- 
tion that  a  defendant  in  a  criminal 
trial  is  a  competent  witness  in  his 
own  behalf,  and  his  evidence  should 
not  be  discarded  for  the  sole  reason 
that  he  is  the  defendant,  but  that 
the  jury  are  to  take  that  fact  into 
consideration  in  determining  the  cred- 
it to  be  given  his  testimony ;  that 
they  are  the  sole  judges  of  the  cred- 
ibility of  witnesses;  and  that,  if  they 
believe  a  witness  testified  falsely  to 
any  material  fact,  they  may  disi'egard 
the  whole  or  any  part  of  his  testi- 
mony. State  V.  Hobbs,  117  Mo.  620, 
2.3  S.  W.  1074:  State  v.  Austin,  21 
S.   W.  31,  113  Mo.  538. 

Instructions  not  objectionable 
within  rule.  An  instruction,  in  a 
prosecution  for  homicide,  that  there 
was  nothing  shown  to  justify  or  ex- 
cuse the  killing,  under  the  law,  is 
not  objectionable  as  a  criticism  on  de- 
fendant's credibility  as  a  witness, 
where  defendant's  testimony  does  not 


support  a  claim  of  self-defense  as  a 
matter  of  law.  Hicklin  v.  Territory, 
80  P.  340,  9  Ariz.  184. 

Instruction  on  effect  of  contra- 
diction of  defendant.  An  instruc- 
tion regarding  the  weight  to  be  ac- 
corded accused's  testimony,  "and  you 
are  also  to  take  into  consideration  the 
fact,  if  such  is  the  fact,  that  he  has 
been  contradicted  by  other  credible 
witnesses,"  was  not  objectionable,  be- 
cause of  the  mandatory  character  of 
the  word  "are,"  or  as  assuming  as  a 
fact  that  accused  had  been  contradict- 
ed, or  as  stating  that  accused's  testi- 
mony should  be  disbelieved,  if  con- 
tradicted. People  v.  Meyer,  124  N. 
E.  447,  289  111.  184. 

In  New  Jersey,  a  charge  intimat- 
ing that  the  jury  are  not  bound  to 
accept  as  verity  the  testimony  of  the 
accused,  given  in  his  own  behalf,  will 
not  justify  a  reversal.  State  v.  Rom, 
72  A.  431,  77  N.  J.  Law,  248. 

18  Greer  v.  State,  53  Ind.  420; 
Holmes  v.  State,  123  N.  W.  1043,  85 
Neb.  506 ;  Beddeo  v.  State,  123  N.  W. 
1044,  85  Neb.  510. 

1-  State  v.  Holloway,  117  N.  C.  730, 
23  S.  E.  168. 

18 -Allen  V.  State,  87  Ala.  107,  6  So. 
370. 

10  Stevens  v.  State,  35  So.  122.  138 
Ala.  71 ;  People  v.  Winters,  57  P. 
1067.    125    Cal.    325. 

2  0  McKee  v.  State,  82  Ala.  32,  2 
So.  451;  Blackburn  v.  State,  71  Ala. 
319,  46  Am  Rep.  323 ;  People  v.  Pier- 
son.  2  Idaho.  71,  3  P.  688:  Clark  v. 
State  (Tex.  Cr.  App.)  59  S.  W.  887. 


CREDIBILITY   OF   WITNESSES   AS   A  JURY    QUESTION 


16 


31 

§  16.     Right  or  duty  of  jury  to  consider  interest  of  accused 
Necessity  and  sufficiency  of  instnictions  on  this  head,  see  post,  §^  10(^1.1. 

An  instruction,  framed  in  general  terms  applicable  to  all  witnesses 
that  the  jury,  in  determining  the  credibility  of  witnesses,  may  conside 
hdr  charact;r  and  appearance,  the  consistency  -^-rX  ca-"et 
their  statements,  the  interest,  if  any,  they  may  feel  m  the  case    etc 
does  not  invade  the  province  of  the  jury,  a  though   he  de  endant    e 
tifies  in  his  own  behalf,-  and  it  is  generally  held  that  it  ^^  P^^per  to 
nstruct  that  the  jurv  may  consider  the  interest  of  an  accused  m  the 
"erdkt  to  be  rendered  and  his  relation  to  the  offense  charged  as  affect- 
ing  Iris  credibility  as  a  witness." 


21  Felker  v.  State,  54  Ark.  489,  16 
S  W.  663 ;  People  v.  Waysman,  bl  i . 
1087    1  Cal.  App.  246. 

In  Missouri,  an  instruction,  wheie 
the  defendant  testifies,  that  the  jury 
are  the  sole  judges  of  the  credihihty 
"of  the  witnesses."  and  will  cousidei 
their  character,  manner  on  the  stand 
interest,  relation  to  the  parties,  and 
probability  of  statements,  as  well  as 
all  circumstances  in  evidence,  is  not 
erroneous ;  it  being  held  that  will 
has  not  an  imperative  force,  like  the 
word  "shall."  State  v.  Hilsabeck,  132 
Mo.  348,  34  S.  W.  38.  ,^^    .,„ 

22  Ala.  Smith  v.  State,  107  Ala. 
139  18  So.  306 ;  Dryman  v.  State,  102 
Ala  130,  15  So.  433 ;  Norx-is  v.  State, 
87  Ala.  85,  6  So.  371. 

Ark.     Denton  v.   State,  198  S.  W. 

Cal^  People  v.  Hitchcock,  104  Cal. 
4S2,  38  P.  198. 

Contra.  People  v.  Bartol,  142  P. 
510,  24  Cal.  App.  659. 

111.  Siebert  v.  People,  143  111.  571, 
32  N  E  431,  distinguishing  Purdy  v. 
People,  140  111.  46,  29  N.  E-   '00-    .„ 

Kan.     State  v.  Bursaw,  8<   I.  Ib^. 

74  Kan.  473.  ^o-  tvt   w 

Mich.  People  v.  Dumas,  12o  N.  W. 
766,  161  Mich.  45;  People  v.  Resh, 
107  Mich.  251,  65  N.  W.  99 

Mo.  State  v.  Maguire.  113  Mo  670, 
21  S  W  212 ;  State  v.  Wells.  Ill  Mo. 
|^q'>  20  S  W  232  ;  State  v.  Ihrig,  106 
So'  267  17  S.  W.  300;  State  v.  Mc- 
Ginnis,  76  Mo.  326;   State  v.  Maguire, 

"^^Conira^^State  v.  Clark   (Mo.  App.) 

OQ9  s    W   259. 

"  Neb.     Housh  v.  State,  43  Neb.  163, 


61  N  W  571 ;  Clark  v.  State,  32  Neb. 
246,  49  N.  W.  367. 

N  M.  Territory  v.  Taylor,  71  f. 
489  'll  N.  M.  588 ;  Territory  v.  Rom- 
ine,'  2  N.  M.  114.  ^     ^^ 

Or.     State  v.  Tarter,  26  Or.  ob,  o* 

P  53 

Pa.      Commonwealth    v.    Orr,    138 

Pa.    276,   20   A.    866.  ,^  r>  9^(^ 

Wash.  State  v.  McCann,  49  P.  21b, 
16  Wash.  249 ;  Id.,  47  P.  443, 16  Wash 
249T  State  V.  Carey,  46  P.  1050,  lo 
Wash  549;  State  v.  Nordstrom,  * 
Wash.  506,  35  P.  382. 

Wyo.     Haines  v.  Territory,  3  n  yo. 

167,  13  P.  8.  .  ^v,^ 

In  the  federal  court,  where  the 
defendant  testifies  in  his  own  behalf, 
the  court  is  not  at  liberty  to  charge 
the  iury,  directly  or  indirectly,  that 
he  is  not  to  be  believed,  because  he 
is  the  defendant ;  but,  on  the  other 
hand,  it  may,  and  sometimes  ought,  to 
remind  the  jury  that  interest  creates 
a  motive  for  false  testimony;  that 
the  greater  the  interest  the  stronger 
the  temptation;  and  that  the  interest 
of  the  defendant,  being  of  a  character 
rot  possessed  by  other  witnesses,  is  a 
matter  which  may  seriously  affect  the 
credibility  of  his  testimony.  J^^eaS^^} 
V.  United  States,  157  U.  S.  oOl,  10 
S.  Ct.  610,  39  L.  Ed.  709. 

In  Illinois,  in  connection  with  such 
an  instruction,  the  jury  should  be  told 
that  the  same  tests  are  to  be  applied 
to  the  testimony  of  the  defendant  as 
to  the  testimony  of  any  other  wihiess. 
People  V.  Harvey,  122  N.  E.  138,  286 

111.  593.  ,  .,.„ 

In  Louisiania,  under  a  constitu- 
tional  provision,   it  is    error  to   give 


§  It) 


INSTRUCTIONS  TO  JURIES 


32 


In  some  jurisdictions  it  is  proper  to  charge  that  the  jury  "should"  or 
"must"  consider  the  interest  of  the  accused  in  passing  upon  his  cred- 
ibility as  a  witness,-^  but  in  other  jurisdictions  this  is  error.-*  In 
Missouri  the  later  decisions,^^  overruling  the  earlier  ones,-*'  hold  that 
the  permissive  form  "may"  should  be  used  rather  than  "should,"  al- 
though this  question  is  now  a  merely  academic  one  under  the  recent  de- 
cisions.^' In  Texas  it  is  held  that  the  statutory  prohibition  in  that  state 
against  charging  upon  the  weight  of  evidence  prohibits  the  court  from 
singling  out  a  witness  and  instructing  the  jury  as  to  any  tests  they  are 
to  apply  in  determining  his  credibility,  and  consequently  it  is  error 
in  this  state  to  charge  that  in  passing  upon  the  credibility  of  an  ac- 
cused the  jury  should  consider  his  interest  in  the  result  of  the  trial.^' 


such  an  instruction.  State  v.  Smith, 
65  So.  59S,  135  La.  427;  State  v.  Car- 
roll, 64  So.  868,  134  La.  9(55. 

In  Texas,  the  rule  seems  to  be  that 
calling  the  attention  of  the  jury  to  the 
interest  of  the  accused  in  the  result 
of  the  trial  is  error,  and  that  au  in- 
struction in  general  terms  that,  in  de- 
termining the  credibility  of  conflicting 
witnesses,  the  jury  may  consider  their 
interest  in  the  case,  is,  when  defend- 
ant, has  testified,  reversible  eiTor. 
Harrell  v.  State,  40  S.  W.  799,  37  Tex. 
Cr.  R.  612 ;  Oliver  v.  State  (Cr.  App.) 
42  S.  W.  554 ;  Shields  v.  State,  44  S. 
W.  844,  39  Tex.  Cr.  R.  13.  There  are, 
however,  decisions  that  such  a  general 
instruction  is  not  erroneous,  as  calcu- 
lated to  call  the  attention  of  the  jury 
to  the  interest  of  the  defendant.  Mc- 
Grath  v.  State,  35  Tex.  Cr.  R.  413, 
34  S.  W.  127,  941 ;  Cockerell  v.  State, 
.32  Tex.  Cr.  R.  585,  25  S.  W.  421. 

23  Mich.  People  v.  Calvin,  60  Mich. 
113,  26  N.  W.  851 ;  People  v.  Herrick, 
.59  Mich.  563,  26  N.  W.  767. 

Neb.  Johnson  v.  State,  84  Neb.  257, 
51  N.  W.  835;  St.  Louis  v.  State,  8 
Neb.  418,  1  N.  W.  371. 

N.  Y.  People  v.  Crowley,  102  N, 
Y.  2.34,  6  N.  E.  .384. 

Okl.  Rhea  v.  United  States,  50  P. 
992,  6  Okl.  249:  Territory  v.  Gatliff, 
37  P.  809,  2  Okl.  523. 

24  Ala.  Adams  v.  State  (App.)  75 
So.  641:  Swain  r.  State,  62  So.  446, 
8  Ala.  App.  26 ;  Pugh  v.  State,  58  So. 


936,  4  Ala.  App.  144 ;  Tucker  v.  State, 
52  So.  464,  167  Ala.  1. 

Ind.  Hartford  v.  State,  96  Ind. 
461,   49  Am.   Rep.   185. 

In  California,  the  early  decisions 
allowed  the  use  of  "should."  Peo- 
ple V.  Knapp,  71  Cal.  1,  11  P.  793; 
People  V.  O'Neil,  7  P.  790,  67  Cal.  378 ; 
People  V.  Wheeler,  65  Cal.  77,  2  P.  892. 
But  the  later  decisions  are  to  the  ef- 
fect that  no  instructions,  either  requir- 
ing or  permitting  the  jury  to  consider 
the  interest  of  the  accused,  should  be 
given.  People  v.  Blunkall,  161  P.  997, 
31  Cal.  App.  778;  People  v.  Bartol, 
142  P.  510,  24  Cal.  App.  6-59;  People 
V.  Borrego,  95  P.  381,  7  Cal.  App.  613 ; 
People  V.  Van  Ewan,  43  P.  520,  111 
Cal.  144. 

25  State  V.  Fairlamb,  121  Mo.  137, 
25  S.  W.  895. 

2  6  Mo.  State  v.  Reufrow,  111  Mo. 
589,  20  S.  W.  299;  State  v.  Mounce,  106 
Mo.  226,  17  S.  W.  226,  following 
State  V.  Young,  105  Mo.  634,  16  S. 
W.  408;  State  v.  Morrison,  104  Mo. 
638,  16  S.  W.  492;  State  v.  Brown, 
104  Mo.  305.  16  S.  W.  406;  State  v. 
Young,  99  Mo.  666.  12  S.  W.  879; 
State  V.  Cook,  84  Mo.  40;  Same  v. 
Wisdom.  Id.  177. 

2  7  State  V.  Pace,  192  S.  W.  428,  269 
Mo.  681. 

28Muely  V.  State,  31  Tex.  Cr.  R. 
155,  19  S.  W.  915,  reversing  18  S.  W. 
411, 


33  CREDIBILITY  OF    WITNESSES   AS   A  JURY   QUESTION  §  19 

§  17.     Lack  of  corroboration  of  accused 

In  some  jurisdictions,  in  a  criminal  case,  it  is  not  improper  to  call 
the  attention  of  the  jury,  under  some  circumstances,  to  the  fact  that 
the  testimony  of  the  defendant  is  not  corroborated.^* 

§  18.     Testimony  of  prosecuting  witness 
Corroboration  of  prosecuting  witness,  see  post,  §  67. 
iNecessity  and  sufficiency  of  instructions,  see  post,  §  160. 

The  general  rule  that  it  is  for  the  jury  to  determine  the  credibility  of 
witnesses  applies  to  the  testimony  of  the  prosecuting  witness  in  a 
criminal  case,^*^  and  it  invades  the  province  of  the  jury  to  charge  that, 
in  the  absence  of  disproof  of  the  statements  of  the  prosecuting  wit- 
ness by  defendant,  they  are  bound  to  presume  such  statements  to  be 
true.^^  So,  where  the  law  does  not  require  corroboration  of  the 
prosecuting  witness,  an  instruction  that  the  jurj^  should  acquit,  in  the 
absence  of  corroborating  circumstances,  is  erroneous,  as  on  the  weight 
of  the  evidence.^^  The  court  may,  however,  caution  the  jury  to  consider 
the  relation  of  the  prosecuting  witness  to  the  case,^^  and,  where  cor- 
roboration is  not  required  as  a  matter  of  law,  it  is  not  improper  to 
charge  that  the  jury  may  convict  on  the  uncorroborated  testimony  of 
the  prosecuting  witness.^* 

§  19.     Testimony  of  wife  or  relative  of  accused  or  prosecuting  wit- 
ness 

Necessity  and  sufficiency  of  instructions,  see  post,  §  162, 

It  is  error  to  charge  that  the  jury  may  disregard  the  testimony  of 
any  witness  in  a  criminal  prosecution  who  is  related  to  the  defendant,^  ^ 
or  to.  instruct  that  the  testimony  of  the  wife  of  an  accused  should  be 
examined  with  great  caution  or  peculiar  care.^^    In  some  jurisdictions 

28   People  V.  Rohl,  138  N.  Y.  616,  33  defendant's  wife  is  a  competent  wit- 

N.  E.  933 ;    Commonwealth  v.  Pender-  ness ;    that  the  jury   should   not  dis- 

gast,  1.3S  Pa.  633,  21  A.  12  ;   Hanuon  v.  card  her  testimony  for  tjiat  fact  alone, 

State,  70  Wis.  448,  36  N.  W.  1.  but  may  consider  it  in  determining  her 

^0  People  V.   Mazzurco    (Cal.   App.)  credibility;    that  if  they  believe  that 

193  P.  164.  any  witness  has  intentionally  sworn 

31   People  V.  Murray,  86  Cal.  31,  24  falsely,  they  may  disregard  the  whole 

P.  802.  or  any  part  of  the  testimony  of  wit- 

3  2  Gonzales  v.  State,  32  Tex.  Cr.  R.  ness — is  erroneous,  as  telling  tlie  jury 

611,  2.5  S.  W.  781.  by  implication  to  disregard  the  testi- 

33  People  V.  Herriek,  59  Mich.  563,  mony    of   defendant's   wife    on    some 

26  N.  W.  767.  ground,  but  not  alone  because  she  is- 

3  4  People  V.  Akey,  124  P.  718,  163  his  wife.    State  v.  Hobbs,  117  Mo.  620, 

Cal.  54.  23  S.  W.  1074. 

30  McEwen  v.   State  (Miss.)  16  So.  se  state  v.  Bernard,  45  Iowa,  234; 

242.  State  v.  Rankin,  8  Iowa,  355;    State 

Testimony  of  wife  of  defendant.  V.  Guyer,  6  Iowa,  263. 

An  instruction,  in  a  criminal  case,  that  In   one   jurisdiction,    the   rule  is 
Inst.to  Juries— 3 


§  20  INSTRUCTIONS   TO   JURIES  34 

it  is  not  error  to  charge  that  the  jury  may,^^  or  should,  consider  wheth- 
er the  relationship  of  any  of  the  witnesses  to  the  defendant  or  the 
complaining  witness  may  have  influenced  them  to  swerve  from  the 
truth. ^^  But  in  other  jurisdictions  it  is  held  that,  while  it  is  proper 
to  instruct  tliat,  in  weighing  the  testimony  of  a  defendant  in  a  criminal 
case,  the  jury  may  consider  his  peculiar  situation  and  relationship  to 
the  case,  the  rule  cannot  be  extended  beyond  the  defendant,  so  as  to  in- 
clude his  relatives.^®  In  Texas,  where  the  province  of  the  jury_  is 
perhaps  more  jealously  guarded  than  in  almost  any  other  jurisdiction, 
an  instruction,  framed  in  general  terms,  that  the  jury,  in  estimating  the 
credibility  of  the  testimony,  may  consider  the  intelligence  and  ap- 
parent prejudice,  if  any,  of  the  witnesses,  has  been  held  not  erroneous, 
as  calculated  to  call  the  attention  of  the  jury  to  the  interest  of  relatives 
or  of  the  wife  of  defendant  testifying  in  the  case.*** 

§  20.     Testimony  of  detectives  and  informers 
Necessity  and  sufficiency  of  instructions,  see  post,  §  161. 

The  credibility  of  the  testimony  of  detectives  employed  to  discover 
violations  of  the  law  is  for  the  jury,'*^  and  while  in  some  jurisdictions 
it  is  held  that  the  giving  of  instructions  as  to  the  caution  to  be  ob- 
served in  weighing  testimony  of  private  detectives  or  persons  employed 
to  find  evidence  is  based  upon  rules  of  practice  rather  than  of  law, 
and  rests  largely  in  the  discretion  of  the  trial  judge,*^  the  general  rule 
is  that  it  is  error  to  instruct,  and  proper  to  refuse  to  instruct,  because 
invading  the  province  of  the  jury,  that  the  testimony  of  police  officers 

stated  to  be  that,  where  defendant's  case  to  be  shown  tor  the  purpose  of 
wife  is  a  witness  in  his  behalf,  it  is  affecting  their  credibility,  the  court 
error  to  charge  that  the  jury  should  might  instruct  the  jury  in  weighing 
scrutinize  carefully  her  evidence,  and,  testimony  of  defendant's  wife  to  con- 
on  account  of  her  interest  in  the  sider  the  fact  of  her  relationship  to 
event,  receive  her  testimony  with  him.  State  v.  Young,  99  Mo.  666,  12 
grains  of  allowance,  without  a  fui'ther  S.  W.  S79.  t 
charge  that,  if  they  believe  her  tes-  so  People  v.  Shattuck,  109  Cal.  673, 
timony  to  be  true,  it  should  be  given  42  P.  315 ;  People  v.  Hertz,  105  Cal. 
full  credit.    State  v.  Collins,  118  N.  C.  660,  39  P.  32. 

1203.  24  S.  E.  118.  Earlier     decisions     in     California 

3T  State  v.  Parker,  39  Mo.  App.  116.  holding  contrary  to  the  text.   People 

8  8  State  V.   Hogard,   12    Minn.   293  v.  Wong  Ah  Foo,  69  Cal.  180,  10  P. 

(Gil.  101).  375,  have  been  overruled. 

In  Missouri,   in  an  early  case  it  4o  McGrnth  v.  State,  35  Tex.  App. 

was  bold  that,  under  statutory  provi-  413,  34  S.  W.  127;    Cockerell  v.  State, 

sions  prohil)iting  the  court  in  a  crimi-  32  Tex.  Cr.  R.  585,  25  S.  W.  421. 

nal  case  from  commenting  on  the  evi-  4i  Baumgartner  v.  State,  178  P.  30, 

dence,  and  making  the  accused  or  his  20  Ariz.  157. 

wife  competent  witnesses,  but  allow-  42  O'Grady  v.  People,  95  P.  346,  42 

ing  tlie  fact  of  their  relation  to  the  Colo.  312. 


35 


CREDIBILITY   OF   WITNESSES  AS   A  JURY  QUESTION 


21 


and  professional  detectives  *^  or  informers  is  to  be  received  with  cau- 
tion, or  great  caution,**  and,  on  the  other  hand,  an  instruction  that  the 
jury  is  not  authorized  to  disregard  testimony  of  a  witness  merely  be- 
cause he  is  employed  as  a  detective,  but  must  give  the  testimony  of  such 
witness  the  same  credence  as  that  of  any  other  witness,  unless  they 
believe  from  the  testimony  that  such  witness  has  knowingly  and  cor- 
ruptly sworn  falsely  to  a  material  fact,  is  erroneous,  as  invading  the 
province  of  the  jury.*^ 

§  21.     Testimony  of  accomplices  and  codefendants  in  criminal  cases 

On  conflicting  evidence,  the  court  should  leave  the  question  of 
whether  a  witness  is  an  accomplice  to  the  jury ;  *®  but,  where  the 
facts  concerning  the  connection  of  a  witness  with  the  offense  charged 


4  3  Cal.  People  V.  Rudolph,  153  P. 
721.  28  Cal.  App.  683. 

Ga.  Lynn  v.  State,  79  S.  E.  29,  140 
Ga.  387. 

111.  People  V.  Dressen,  158  111.  App. 
139;  Hronek  v.  People,  134  111.  139, 
24  N.  E.  861,  23  Am.  St.  Rep.  652. 

Mo.  State  v.  Kimmell,  137  S.  W. 
329,  156  Mo.  App.  461;  State  v.  Ken- 
nett,  132  S.  W.  286,  151  Mo.  App.  637 ; 
State  V.  Haines,  107  S.  W.  36,  128 
Mo.  App.  245 ;  State  v.  Oliphant,  107 
S.  W.  32,  128  Mo.  App.  252. 

Okl.  Remer  v.  State,  109  P.  247,  3 
Old.  Cr.  706. 

S.  C.  State  V.  Bennett,  40  S.  C. 
308,  18  S.  E.  886. 

Va.  Robinson  v.  Commonwealtli, 
87  S.  E.  553,  118  Va.  785. 

Instructions  objectionable  V7ith- 
in  rule.  An  instruction  that  police 
officers  and  detectives  had  testified, 
and  that  in  weighing  their  testimony 
greater  care  should  be  used  by  the 
.iury  as  to  testimony  of  persons  in- 
terested in  or  employed  to  find  evi- 
dence against  the  accused  than  in  the 
case  of  other  witnesses,  because  of 
the  unavoidable  tendency  and  bias  of 
such  persons  to  construe  everything 
as  evidence  against  accused,  and  dis- 
regard everything  not  tending  to  sup- 
port their  preconceived  opinions. 
State  V.  Paisley,  92  P.  566,  36  Mont. 
237. 

In  Nebraska,  however,  an  Instruc- 
tion informing  the"  jury  as  to  the 
weight  to  be  given  the  evidence  of  de- 
tectives, and  stating  that  greater  care 
should  be  used  than  in  other  cases, 


but  that  it  should  not  be  disregarded 
entirely  and  that  the  jury  are  the  sole 
judges  of  the  credibility  of  all  the 
witnesses,  is  not  erroneous  as  invad- 
ing the  province  of  the  jury.  Everson 
V.  State,  93  N.-  W.  394,  4  Neb.  (Unof.) 
109. 

4  4  State  V.  Wisnewski,  102  N.  W. 
883,  13  N.  D.'  649;  State  v.  Hoxsie, 
15  R.  I.  1,  22  Atl.  1059. 

Testimony  of  "spotters."  It  is 
proper  to  refuse  an  instruction  which 
characterizes  a  witness  as  a  "spotter," 
and  which  tells  the  jury  to  take  his 
testimony  with  extreme  care  and  sus- 
picion, when  there  is  nothing  in  the 
conduct  or  demeanor  of  such  witness 
to  reflect  unfavorably  upon  his  cred- 
ibility, except  his  admission  that  he 
made  a  purchase  of  intoxicating  liq- 
uor from  one  reputed  to  be  engaged  in 
the  illegal  sale  thereof,  intending,  if 
called  upon,  to  testify  thereto.  State 
V.  Keys.  4  Kan.  App.  14,  45  P.  727. 

4  5  Pederre  v.  State,  54  So.  721,  99 
Miss.  171. 

4c  Ala.     Horn  v.  State,  72  So.  768, 

15  Ala.  App.  213;  Newsum  v.  State, 
65  So.  87,  10  Ala.  App.  124. 

Ark.  Spencer  v.  State,  194  S.  W. 
863,  128  Ark.  452. 

Cal.  People  v.  Truax,  158  P.  510, 
30  Cal.  App.  471;  People  v.  Coffey, 
119  P.  901,  161  Cal.  433,  39  L.  R.  A. 
(N.  S.)  704;  People  v.  Bunkers,  84 
P.  364,  2  Cal.  App.  197,  rehearing  de- 
nied (Sup.)  84  P.  370,  2  Cal.  App.  197 ; 
People  V.  Compton,  56  P.  44,  123  Cal. 
403. 

Ga.     Curtis  v.  State,  85  S.  E.  980, 

16  Ga.  App.  678 ;  Hays  v.  State,  72  S. 


21 


INSTRUCTIONS   TO  JURIES 


36 


are  not  in  dispute,  the  court  may,  or  should,  instruct  that  he  is  or  is 
not  an  accompHce.*^ 

As  in  the  case  of  other  witnesses,  the  general  rule  is  that  the  jury 
are  the  exclusive  judges  of  the  credibility  of  accomplices  testifying  as 
witnesses,*^  and  it  is  usually  error  to  instruct  and  proper  to  refuse  to 


E.  285,  9  Ga.  App.  829;  Hargrove  v. 
State,  54  S.  E.  164,  125  Ga.  270. 

Idabo.  State  V.  Grant,  140  P.  959, 
26  Idaho,  1S9. 

Ky.  Elmendorf  v.  Commonwealth, 
188  S,  W.  483,  171  Ky.  410 ;  Smith  v. 
Commonwealth,  146  S.  W.  4,  14S  Ky. 
60. 

Mass.  Commonwealth  v.  Glover, 
111  Mass.  395;  Same  v.  Ford,  Id. 
394;    Same  v.   Elliot,   110  Mass.   104. 

N.  M.  State  v.  Williams,  161  P. 
334,  22  N.  M.  337. 

N.  Y.  People  v.  Richardson,  118  N. 
E.  514,  222  N.  T.  103,  affirming  judg- 
ment 165  N.  Y.  S.  1104,  178  App.  Div. 
925;  People  v.  Swersky,  111  N.  E. 
212,  216  N.  Y.  471,  modifying  judg- 
ment 153  N.  Y.  S.  1134,  168  App.  Div. 
941;  People  v.  Wood,  157  N.  Y.  S. 
541,  93  Misc.  Rep.  701;  People  v. 
Katz,  103  N.  E.  305,  209  N.  Y.  311, 
affirming  judgment  139  N.  Y.  S.  137, 
154  App.  Div.  44;  People  v.  Elliott, 
140  N.  Y.  S.  553,  155  App.  Div.  486. 

N.  D.  State  v.  Kellar,  80  N.  W. 
476.  8  N.  D.  563,  73  Am.  St.  Rep.  776. 

Okl.  Cudjoe  v.  State,  154  P.  500, 
L.  R.  A.  1916P,  1251. 

Temn.  Hicks  v.  State,  149  S.  W. 
1055,  126  Tenn.  359. 

Tex.  McCormick  v.  State,  216  S. 
W.  871,  86  Tex.  Cr.  R.  366;  Melton 
v.  State,  197  S.  W.  715,  81  Tex.  Cr. 
R.  604;  Savage  v.  State,  170  S.  W. 
730,  75  Tex.  Cr.  R.  213 ;  Goldstein  v. 
State,  166  S.  W.  149,  73  Tex.  Cr.  R. 
558;  Hvde  v.  State,  165  S.  W.  195, 
73  Tex.  Cr.  R.  452;  Foster  v.  State, 
150  S.  W.  936,  68  Tex.  Cr.  R.  38; 
Franklin  v.  State,  140  S.  W.  1091,  63 
Tex.  Cr.  R.  438;  Brown  v.  State,  125 
S.  W.  915,  58  Tex.  Cr.  R.  336;  Pace 
V.  State,  124  S.  W.  949,  58  Tex.  Cr. 
R.  90 ;  Davis  v.  State,  117  S.  W.  159, 
55  Tex.  Cr.  R.  495;  Wyatt  v.  State, 
114  S.  W.  812,  55  Tex.  Cr.  R.  73; 
Lightfoot  V.  State  (Cr.  App.)  78  S.  W. 
1075;  McAlister  v.  State,  76  S.  W. 
760,  45  Tex.  Cr.  R.  258,  108  Am.  St. 
Rep.  958;    Preston  v.  State,  53  S.  W. 


127,  41  Tex.  Cr.  R.  300,  rehearing  de- 
nied 53  S.  W.  881,  41  Tex.  Cr.  R.  300 ; 
Clay  V.  State,  51  S.  W.  212,  40  Tex. 
Cr.  R.  556;  Ransom  v.  State  (Cr. 
App.)  49  S.  W.  582 ;  Preston  v.  State, 
48  S.  W.  581,  40  Tex.  Cr.  R.  72 ;  Rios 
V.  State  (Cr.  App.)  48  S.  W.  505 ;  Han- 
kins  V.  State  (Cr.  App.)  47  S.  W.  992 ; 
Delavan  v.  State  (Cr.  App.)  29  S.  W. 
385;  Williams  v.  State,  33  Tex.  Cr. 
R.  128,  25  S.  W.  629,  47  Am.  St.  Rep. 
21;  Crowell  v.  State,  24  Tex.  App.  404, 
6  S.  W.  318. 

Wis.  Porath  v.  State,  90  Wis.  527, 
63  N.  W.  1061,  48  Am.  St.  Rep.  954. 

4  7  Cal.  People  v.  Coffey,  119  P. 
901,  161  Cal.  433,  39  L.  R.  A.  (N.  S.) 
704. 

Iowa.  State  V.  Stalker,  151  N.  W. 
527,  169  Iowa,  396,  L.  R.  A.  1915E, 
1222. 

N.  M.  Territory  v.  West,  99  P. 
343,  14  N.  M.  546. 

Okl.  Wiley  v.  State  (Cr.  App.)  191 
P.  1057;  Moore  v.  State,  170  P.  519, 
14  Okl.  Cr.  292. 

R.  I.  State  V.  Ridden,  96  A.  531, 
reargument  denied  97  A.  15. 

Tex.  Smalley  v.  State,  127  S.  W. 
225,  59  Tex.  Cr.  R.  95;  Spencer  v. 
State,  106  S.  W.  386,  52  Tex.  Cr.  R. 
289;  Swan  v.  State  (Cr.  App.)  76  S. 
W.  464. 

4  8  u.  S.  (C.  C.  Tex.)  United  States 
V.  Reeves,  38  F.  404. 

Cal.    People  v.  Gibson,  53  Cal.  601. 

Colo.  Tollifson  v.  People,  112  P. 
794,  49  Colo.  219. 

Del.  State  v.  Ryan,  75  A.  869,  1 
Boyce,  223  ;  State  v.  Curdy,  75  A.  868, 
1  Boyce,  208. 

Kan.  State  v.  McDonald,  193  P. 
179,  107  Kan.  568. 

Me.    State  v.  Litchfield,  58  Me.  267. 

Mich.  People  v.  Dumas,  125  N.  W. 
766,  161  Mich.  45 ;  People  v.  Jenness, 
5  Mich.  305. 

Miss.  Osborn  v.  State,  55  So.  52,  99 
Miss.  410,  overruling  the  suggestion  of 
error  54  So.  450. 


37 


CREDIBILITY   OF   WITNESSES   AS  A  JURY   QUESTION 


22 


instruct  that  the  testimony  of  accomplices,*^  or  of  the  wife  of  an  ac- 
compHce,^"  is  to  be  viewed  with  distrust,  or  received  with  great  cau- 
tion, or  is  worthless,^^  and  where  corroboration  of  the  testimony  of 
an  accomph'ce  is  not  indispensable  to  warrant  the  jury  in  basing  a 
verdict  thereon,  an  instruction  that  they  ought  not  to  convict  on  the 
uncorroborated  evidence  of  an  accomplice  is  erroneous,^-  and  properly 
refused. ^^  On  the  other  hand,  it  is  proper  to  refuse  to  charge  that 
the  testimony  of  an  accomplice  is  not  to  be  given  less  weight  than 
that  of  other  witnesses,^*  and  it  is  error  to  charge  that  the  jury  are 
bound  to  credit  the  testimony  of  an  accomplice,  if  corroborated/" 

The  jury  may  be  told,  in  a  criminal  case,  that  they  may  take  into 
consideration  the  fact  that  a  witness  is  a  codefendant.^^ 

§  22.     Effect  of  false  testimony  of  witness  on  credibility  of  part  of 

testimony  not  shown  to  be  false 
Necessity  and  correctness  of  instructions  as  statements  of  legal  propositions, 
see  post,  §§  178-180. 

The  fact  that  a  witness  has  knowingly  testified  falsely  to  material 
facts  does  not  require  the  jury  to  disbelieve  his  testimony  on  other 
matters,^^  and  therefore  it  invades  the  province  of  the  jury  to  instruct 


Mo.  State  v.  Faulkner,  84  S.  W. 
9G7,  IS.j  Mo.  673. 

N.  Y.    Maine  v.  People,  9  Hun,  113. 

W.  Va.  State  v.  Betsall,  11  W. 
Va.  703. 

Wis.  Mack  V.  State,  4  N.  W.  449, 
48  Wis.  271. 

4  0  People  V.  Hoosier,  142  P.  514,  24 
Cal.  App.  746;  People  v.  Moran,  77  P. 
777,  144  Cal.  48;  People  v.  Wardrip, 
74  P.  744,  141  Cal.  229;  People  v. 
O'Brien,  96  Cal.  171,  31  Pac.  45; 
State  V.  Bol)bitt,  114  S..  W.  511,  215 
Mo.  10.  Contra,  People  v.  Costello,  1 
Denio,  83. 

In  tlie  federal  courts,  the  court 
cannot  declare  as  matter  of  law.  that 
the  declarations  of  self-confessed  ac- 
complices and  members  of  a  con- 
spiracy are  unworthy  of  belief  unless 
corroborated.  United  States  v.  Mc- 
Kee,  Fed.  Cas.  No.  15,685,  3  Dill.  546. 

5  0  Crittenden  v.  «tate,  32  So.  273, 
134  Ala.  145. 

5  1  People  V.  Wallin,  22  N.  "W.  15, 
55  Mich.  497. 

f'S  Richardson  v.  United  States  (C. 
C.  A.  Pa.)  181  F.  1,  104  C.  C.  A.  69; 


State  V.  Hare,  100  N.  E.  825,  87  Ohio 
St.  204 ;  State  v.  Sowell,  67  S.  E.  316, 
85  S.  C.  278;  State  v.  Musgrave,  28 
S.  E.  813,  43  W.  Va.  672.  Contra. 
Abaly  V.  State,  158  N.  W.  308,  163 
Wis.  609. 

5  3  People  V.  Schweitzer.  23  Mich. 
301. 

5  4  Hicks  V.  State.  26  So.  .837.  123 
Ala.  15. 

5  5  People  V.  Eckert,  16  Cal.  110; 
Hamilton  v.  People,  29  Mich.  173. 

56  Mathews  v.  State,  100  Ala.  46. 
14  So.  .3,59  ;   State  v.  Hing,  16  Nev.  307. 

5  7  Ala.  Grimes  v.  State,  63  Ala. 
166. 

Cal.     People  V.  Hicks,  53  Cal.  354. 

111.  Pennsylvania  Co.  v.  Conlan, 
101  111.  93. 

La.  State  v.  Washington,  31  So. 
638.  107  La.  298. 

Me.     Parsons  v.  Huflf,  41  Me.  410. 

Mass.  Commonwealth  v.  Clune. 
162  Mass.  206,  38  N.  E.  435. 

Minn.  Schuek  v.  Hagar,  24  Minn. 
3.39. 

Miss.    Finley  v.  Hunt,  56  Miss.  221. 

Mo.    State  V.  Anderson,  19  Mo.  241. 


22 


INSTRUCTIONS  TO  JURIES 


38 


that  the  jury  ought  to,  should,  or  must,  disregard  the  entire  testimony 
of  a  witness  whom  they  may  beheve  to  have  so  spoken  falsely  as  to  a 
material  fact,  unless  he  is  corroborated  by  other  reliable  evidence,^  ^ 
and  such  an  instruction  is  properly  refused.^^  But  the  juiy  may  be 
told  in  a  proper  case  that  if  they  believe,  from  all  the  circumstances,  a 
witness  to  have  willfully  testified  falsely  on  a  material  point,  they 
should  consider  such  fact  in  determining  the  weight  to  be  given  to 
his  evidence,®"  and  in  some  jurisdictions  it  is  proper,  in  such  case,  to 
tell  the  jury  that  they  may  disregard  the  entire  testimony  of  such 
witness.®^  In  one  jurisdiction,  however,  an  instruction  that  the  jury 
may  disregard  the  entire  testimony  of  a  witness  who  has  willfully 


Neb.  Neal  v.  State,  175  N.  W.  669, 
lOi  Neb.  56. 

N.  H.  Senter  v.  Carr,  15  N.  H. 
351. 

N.  Y.  People  v.  Kerr  (O.  &  T.)  6 
N.  Y.  S.  674. 

Wis.    Mercer  v.  Wright,  3  Wis.  645. 

5  8  Ala.  Mills  V.  State,  55  So.  331, 
1  Ala.  App.  76. 

m.  Hoge  V.  People,  117  111.  35,  6 
N.  E.  796;  Ruddock  v.  Bel  ton,  7  111. 
App.  517 ;  Otmer  v.  People,  76  111.  149. 

Iowa.  Judge  v.  Jordan,  81  Iowa, 
519,  46  N.  W.  1077. 

Kan.  Higbee  v.  McMillan.  IS  Kan. 
133;  State  v.  Potter,  16  Kan.  SO; 
Shellabarger  v.  Nafus.  15  Kan.  547. 

Ky.  Hall  v.  Renfro,  3  Mete.  51; 
Letton  V.  Young,  2  Mete.  55S. 

Miss.  Spivey  v.  State,  58  Miss. 
858. 

Mo.     State  v.  Gushing,  29  Mo.  215. 

N.  Y.  Dunn  v.  People,  29  N.  Y. 
523.  86  Am.  Dec.  319. 

N.  C.  State  v.  Williams,  47  N.  C. 
257. 

Pa.  Commonwealth  v.  leradi,  64  A. 
SS9.  216  Pa.  87.  116  Am.  St.  Rep.  761. 

Tenn.  Frierson  v.  Galbraith,  12 
I^n.  129. 

W.  Va.  State  v.  Thompson,  21  W. 
Va.  741. 

In.  New  York,  early  oases  appar- 
ently in  opposition  to  the  rule  of  the 
text' Roth  V.  Wells,  29  N.  Y.  471 ;  Peo- 
ple V.  Petmecky,  2  N.  Y.  Cr.  R.  450 
have  been  explained,  answered,  or 
overruled  by  the  later  cases. 

-9  Rutler  V.  State,  77  So.,  72,  16 
Ala.  App.  234 ;    Saulsberry  v.  State,  59 


So.  476,  178  Ala.  16;  Edmondson  v. 
State,  59  So.  229,  4  Ala.  App.  196; 
Lowe  V.  State,  SS  Ala.  8,  7  So.  97; 
Slayton  v.  State,  94  S.  W.  901,  50  Tex. 
Cr.  R.  62. 

6  0  Bowles  V.  Glasgow,  2  Posey,  Un- 
rep.  Cas.  714. 

GiAla.  Byrd  v.  State,  84  So.  777, 
17  Ala.  App.  301 ;  Barker  v.  Tennessee 
Coal,  Iron  &  R.  Co.,  66  So.  600,  189 
Ala.  579;  Seaboard  Air  Line  Ry.  Co. 
V.  Taylor,  64  So.  187,  9  Ala.  App.  62S; 
Kress  v.  Lawrence,  47  So.  574,  15S 
Ala.  652 ;  Sanders  v.  Davis,  44  So. 
979,  153  Ala.  375;  Alabama  Steel  & 
Wire  Co.  v.  Griffin,  42  So.  1034,  149 
Ala.  423 ;  Jordan  v.  State,  81  Ala.  20, 
1  So.  577. 

Cal.  Whitaker  v.  California  Door 
Co.,  95  P.  910,  7  Cal.  App.  757. 

Colo.  Denver  &  R.  G.  R.  Co.  v. 
Warring,  86  P.  305,  37  Colo.  122. 

Mo.  Myers  v.  City  of  Independence 
(Sup.)  1S9  S.  W.  816;  Cohen  v.  St. 
Louis  Merchants'  Bridge  Terminal  Ry. 
Co.,  181  S.  W.  1080,  193  Mo.  App.  69 ; 
Price  V.  Hiram  Lloyd  Bldg.  &  Const. 
Co..  177  S.  W.  700,  191  Mo.  App.  395 ; 
Hall  V.  Manufacturers'  Coal  &  Coke 
Co.,  168  S.  W.  927,  260  Mo.  351,  Ann. 
Cas.  1916C,  375;  State  v.  Martin,  124 
Mo.  514,  28  S.  W.  12  ;  State  v.  Mounce. 
106  Mo.  226,  17  S.  W.  226,  following 
State  v.  Vansant,  80  Mo.  67. 

Neb.  Atkins  v.  Gladwish,  27  Neb. 
841,  44  N.  W.  37. 

Ohio.  Dye  V.  Scott,  35  Ohio  St. 
191.  35  Am.  Rep.  604. 

Okl.  Striokler  v.  Gitchel,  78  P.  94, 
14  Okl.  523. 


39  CREDIBILITY  OF   WITNESSES  AS  A  JURY   QUESTION  §  23 

sworn  falsely  to  a  material  fact  is  held  to  be  erroneous,^-  as  suggesting 
to  the  jur}'  the  weight  to  be  attached  to  a  particular  part  of  the  evi- 
dence/^ and  in  other  jurisdictions  such  an  instruction  should  be 
hedged  around  with  certain  qualifications,  as  will  be  shown  in  a  sub- 
sequent chapter,®* 

Under  some  statutes,  on  a  proper  occasion,  the  court  may  instruct 
that  a  witness  false  in  one  part  of  his  testimony  is  to  be  distrusted  in 
another,®^  and  under  such  a  statute  an  instruction  that,  if  the  jury  is 
convinced  that  a  witness  has  willfully  stated  what  is  untrue  with  intent 
to  deceive,  the  jury  must  treat  all  his  testimony  with  distrust  and 
suspicion,  and  reject  it  unless  they  are  convinced  that,  notwithstanding 
his  base  character,  he  has  in  other  respects  sworn  to  the  truth,  may 
not  be  objectionable  as  withdrawing  the  credibility  of  the  witness 
from  the  jury.®®  An  instruction,  however,  which  makes  it  the  un- 
qualified duty  of  the  jury  to  distrust  the  entire  testimony  of  a  witness 
because  of  such  a  false  statement  is  erroneous.®'' 

While  the  maxim,  "Falsus  in  uno,  falsus  in  omnibus,"  should  not 
be  laid  down  as  a  rule  of  law  for  the  jury  in  testing  the  credibility  of 
the  witnesses,  the  doing  so  may  not  be  material  error,  when  viewed 
in  connection  with  the  entire  instruction,®^ 

§  23,  Determination  of  question  whether  witness  has  made  contra- 
dictory statements 
•  As  a  general  rule,  whether  a  part  of  the  testimony  of  a  witness  is  at 
variance  with  other  parts,  or  with  his  statements  made  out  of  court, 
or  on  a  former  trial,  should  be  left  to  the  jur}%®^  and  it  is  not  proper 
for  the  court  to  instruct  that  certain  testimony  of  a  witness  qualifies 
what  he  has  already  said,''"  nor  should  the  jury  be  told  to  reconcile, 
if  possible,  the  conflicting  statements  of  a  witness, ^^  and  where  a  wit- 
ness attempts  to  explain  contradictory  statements  the  court  should 
not  so  instruct  as  apparently  to  approve  such  explanation.'^- 

6  2  Cook    V.    Commonwealth,    4    Kv.  cs  state  v.  Littlejohn,  33  S.  C.  599, 

Law  Rep.  31.  11   S.   E.  63S. 

Contra,    Rutherford    v.    Common-  go  Pound  v.  State,  43  Ga.  88 :  State 

wealth,  2  ]\Ietc.  387.  v.  Davis  (Mo.)  217  S.  W.  S7 ;    Wendt 

0  3  Baruett  v.  Commonwealth.  84  Ky.  ^'-  Craig.  147  N.  Y    697   41  N.  E.  516, 

44Q   1   «;   w   709  reversing  63  Hun,  627,  17  2s.  1.  S.  748; 

C4  Post    §5  179   ISO  ^t'''*^  ^-  ^^^^^y-  ^^^  '^'-  "^'^  1^^-'  -^  ''^• 

rost,  s§  LtJ,  ibu.  J)  550^  -j^g  ^j^^   (..jg   -,^52,  judgment  re- 

6  5  People  V.  Votaw,  177  P.  4So.  38  versed  on  reliearing  124  N.   W.   713, 

Cal.  App.  714  ;   State  v.  Connors,  94  P.  04   S.  D.   533. 

199,  37  Mont.  15.  "to  Beard  v.'  Kirk,  11  N.  H.  397. 

6  6  People  V.  Kelly,  79  P.   846,  146  71  isiv  v.  Illinois  Cent,  R.  Co.,  88 

Cal.  119.  Wis,  453,  60  N.  W.  794. 

6T  People  V.  Delucchi,  118  P.  935,  17  72  Potter  v.  State,  45  S,  E.  37,  117 

Cal.  App.  96.  Ga.  693. 


§  24  INSTRUCTIONS  TO  JURIES  40 

§  24.     Effect  of  contradictory  statements  of  witness 
Necessity  and  sufficiency  of  instructions,  see  post,  §§  181,  182. 

It  is  for  the  jury  to  say  whether  the  credibility  of  a  witness  has  been 
impaired  by  the  making  of  contradictory  statements, '^^  and  instructions 
which  tend  to  withdraw  the  fact  of  such  contradiction  from  their 
consideration,^*  or  which  tell  the  jury  that  under  certain  circumstances 
such  fact  will  not  operate  to  impair  the  credibility  of  a  witness,^ ^  or 
which  minimize  its  effect,  as  by  telling  the  jury  that  evidence  of  such 
contradiction  is  generally  worthless,  or  of  little  weight,  are  erroneous.'^® 
Thus  an  instruction  that  the  normal  weight  of  testimony  as  to  contradic- 
tory statements  previously  made  out  of  court  by  a  witness  is  in  all 
cases  slight  invades  the  province  of  the  jury.^^  On  the  other  hand,  it 
is  equally  improper  to  instruct  that  proof  of  having  made  contradictory 
statements  should  weigh  heavily  against  a  witness,'^*  and  it  is  proper 
to  refuse  to  instruct  that  the  testimony  of  such  a  witness  should  be 
received  with  great  distrust.''® 

In  accordance  with  the  general  principle  stated  supra,  it  is  proper 
to  tell  the  jury  that,  in  weighing  the  testimony  of  a  witness,  they  may, 
or  should,  consider  the  fact  that  he  has  made  inconsistent  statements,**^ 
and  in  one  jurisdiction  it  is  held  not  error  to  instruct  that  the  jury 
may  disregard  the  entire  testimony  of  a  witness  who  has  made  such 
statements  as  to  a  material  fact,  unless  he  is  corroborated  by  other 

T3  u.  S.    (C.  C.  A.  Iowa)  Chicago  G.  74  Newberry  v.  State,  26  Fla.  334,  8 

W.  Ry.  Co.  V.  Price,  97  F.  423,  38  C.  So.  445. 

C.  A.  239.  Charge  as  to  presumptions.     In 

Ala.     Smith  v.  State,  92  Ala.  69,  9  a  prosecution  for  liomicide,  a  charge 

So.  622.  that,  even  though  defendant  may  have 

Cal.     People  v.  Avena.  168  P.  148.  made    statements    as    to    manner    of 

34  Cal.  App.  .500 :    People  v.  Chober,  (jeath  different  from  his  testimony  at 

l.")7  P.  533,  29  Cal.  App.  627;    People  ^he  trial,  there  is  no  presumption  of 

v^  Preston,  127  P.  660,  19  Cal.  App.  j^^,  ^hat  his  testimony  is  untrue,  is 

675.  properly  refused.     Kent  v.  State,  43 

111.     Raymond  v.  People,  80  N.  E.  g^    -j-j-s   53  pia    51 

996,  226  111.  43.3;    Chicago  City  Rj-.  ;,  ^^^^^       johnagen,  53  Iowa,  250, 

sIs'l'  r"a  270  ^  ^'-  ^^'-  ^^^i   ^^^^^  ''•  ^*''*^'  ^^^  ^'''• 

Micli".     Piehi  V.   Piehl,  101  N.  W.  "^'/S'  ^  ^^^^•^.^?; 

628.  138  Mich.  515.  ,  l!  Warder  v.   Fisher,  48   Wis.  338, 

Mo.     Cravens   v.    Hunter,   87   Mo.  *  N.  W.  4.0. 

\pp  4!i6  Bradley  v.  Gorham,  58  A,  698,  77 

Neb.   'Dixon  v.  State,  46  Neb.  298,  Conn.  211,  66  L.  R.  A.  934. 

64  N.  W    961.  ''^  Paul  v.   State,   100  Ala.  136,  14 

N.  Y.  '  Fosta  V.  New  York  City  Ry.  So.  634 ;  Barr  v.  Hack,  46  Iowa,  308. 

Co.  (Sup.)  95  N.  Y.  S.  595.  TOTarbell  v.  Forbes,  58  N.  E.  873, 

Pa.     Platz  V.   McKean  Tp.,  36  A.  177  Mass.  2.38. 

136,  178  Pa.  601.  so  Stevens  v.  Leonard,  56  N.  E.  27, 

Tex.    CTalveston.  H.  &  S.  A.  Ry.  Co.  154   Ind.    67.    77    Am.    St.    Rep.    446; 

V.  Butshek,  78  S.  W.  740,  34  Tex.  Civ.  Smith   v.   State,  142  Ind.  288,  41  N. 

App.  194.  E.  595. 


41  CREDIBILITY   OF   WITNESSES   AS   A  JURY   QUESTION  §  26 

credible  witnesses,^^  but  in  other  jurisdictions  such  an  instruction  is 
held  to  invade  the  province  of  the  jury.®^ 

Mandatory  instructions  that  the  jury  disregard  the  entire  testimony 
of.  a  witness  who  has  made  contradictory  statements  are  generally 
held  to  be  erroneous,^^  and  where  a  party's  testimony  relates  to  a 
subject  as  to  which  the  burden  of  proof  is  on  the  opposite  party,  seem- 
ing inconsistency  therein  will  not  ordinarily  warrant  the  court  in  in- 
structing the  jury  to  reject  those  parts  of  it  in  his  favor,  and  to  base 
their  verdict  on  those  parts  which  seem  to  make  against  him.^* 

§  25.     Station  in  life  of  witness 

Ordinarily  it  is  the  safer  practice  to  refrain  from  speaking  of  the 
particular  station  in  life  filled  by  a  witness,^'^  and  it  is  error  to  charge 
that  the  testimony  of  a  witness  derives  additional  weight  from  the 
fact  that  he  happens  to  be  a  clergyman.^  ^  An  instruction,  however, 
that  a  party  testifying  as  a  witness  is  a  reputable  lawyer  means  only 
that  he  is  a  regular  lawyer,  and  is  not  objectionable  as  a  charge  on 
his  character, ^'^  and  in  jurisdictions  where  the  court  may  comment 
on  the  evidence  it  is  not  error  for  the  court  to  characterize  a  witness 
as  a  well-known  and  capable  member  of  the  bar.*^ 

§  26.     Appearance  and  demeanor  of  witness 

The  court  ought  not  to  state  to  the  jury  its  estimate  of  the  appear- 
ance and  manner  of  a  witness,^"  but  it  is  not  error  to  tell  the  jury  that 
they  may  consider  the  demeanor  of  a  witness  while  on  the  stand  and 
his  manner  of  testifying  in  judging  of  his  credibility.'"'  The  rule  is 
otherwise  as  to  the  demeanor  and  conduct  of  a  witness  while  off  the 
stand,^^  these  being  no  part  of  the  evidence,^^ 

SI  White  V.  New  York,  Chicago  &  §4  Smith    v.    Jackson    Tp.,    26    Pa. 

St.  L.  R  Co.,  142  Ind.  648,  42  N.  B.  Super.  Ct.  234. 

456.  8  5  Sneed  v.  Creath,  S  N.  C.  309. 

8  2  Waycaster  v.  State,  70  S.  E.  883,  se  Sneed  v.  Creath,  8  N.  C.  309. 

136  Ga.  95;    Schmidt  v.  St.  Louis  R.  st  Lyon   v.    Freshour's   Estate,   140 

Co.,  50  S.  W.  921,  149  Mo.  2G9,  73  Am.  N.  W.  517,  174  Mich.  114,  45  L.  R.  A. 

St.  Rep.  380.  (N.  S.)  67,  Ann.  Cas.  1915A,  726. 

8  3  Blackington   v.    Sumner,   C9    Me,  ss  Hohues    v.    Montauk .  Steamhoat 

136;    Cleveland  v.  New  .Jersey  Steam-  Co..  93  F.  731,  35  C.  C.  A.  556. 

boat  Co.,  53  Hun.  638,  7  N.  Y.  S.  28;  80  Cnitchfiold  v.  Richmond  &  D.  R. 

Danko   v   Pittsburg   Rys.    Co.,    79   A.  Co.,  76  N.  C.  320. 

511,  230  Pa.  295  ;    Vance  v.  Ferguson,  eo  Turner  v.  State,  49  So.  828,  160 

85  S.  E.  241,  101  S.  C.  125.  Ala.  40;   Brown  v.  Stacy,  5  Ark.  403; 

Inconsistency  betAveen  testimony  Kirchner  v.  Collins,  53  S.  W.  1081,  152 

and  sworn  answer.    Where  the  main  Mo.  394  ;   People  v.  Seanlon,  117  N.  Y. 

facts  in   the    testimony  of  a  witness  S.  57,  132  App.  Div.  528. 

are  contradicted  by  his  swora  answer  oi  People   v.    Zoeller,   160   111.   App. 

to  a  bill  in  equity  in  another  case,  it  437;    Purdy  v.  People,  140  111.  46,  29 

is  not  error  to  charge  that  he  is  not  to  N.  E.  700. 

be  believed,  unless  corroborated.    Saul  "2  Cridland  v.  Crow,  70  A.  888,  221 

V.  Buck,  72  Ga.  254.  Pa.   618. 


§  27  INSTRUCTIONS  TO  JURIES  42 

§  27.     Instructions  directed  at  particular  witness  or  class  of  wit- 
nesses 
See,  also,  post,  §§  183,  184. 

It  is  error  to  single  out  a  particular  witness  by  name,  and  make  the 
jury  the  judges  of  his  credibility,  although  they  are  also  told  that  they 
are  the  judges  of  the  credibility  of  all  the  witnesses ;  ^"  this  rule  ap- 
plying to  an  instruction  as  to  the  effect  of  the  giving  of  false  testi- 
mony by  certain  witnesses.®* 

In  some  jurisdictions  an  instruction  which  is  couched  in  general 
terms  in  stating  the  matters  which  the  jury  may  consider  in  passing 
upon  the  credibility  of  a  witness,  but  which,  because  of  the  circum- 
stances of  the  case,  points  with  more  or  less  force  to  particular  witness- 
es, is  erroneous,®^  and  the  province  of  the  jury  is  invaded  by  an  in- 
struction giving  special  directions  as  to  how  the  evidence  of  a  particular 
class  of  witnesses  shall  be  weighed.^^ 

«3  Davidson  v.  Wallingford,  88  Tex.  95  Tyler  Ice  Co.  v.  Tyler  Water  Co., 

619,  32  S.  W.  1030.  95  S.  W.  649,  42  Tex.  Civ.  App.  210 ; 

In  Utah,  however,  it  lias  been  held  Houston,  E.  &  W.  T.  Ry.  Co.  v.  Run- 
that  a  judge  may,  if  nece.Scsary,  single  nels,  47  S.  W.  971,   92  Tex.  305,  re- 
out  a   particular  witness  and  charge  versing  judgment  (Civ.  App.)  46  S.  W. 
the  jury  as  to  his  credibility.    Lowe  v.  394. 
Herald  Co.,  6  Utah,  175,  21  P.  991.  »6  state  v.  Schnepel,  59  P.  927,  23 

94  Wastl  V.  Montana  Union  R.  Co.,  Mont.  523, 
17  Mont.  213,  42  P.  772. 


43  COMMENT  ON   PROBATIVE  EFFECT  OF   EVIDENCm 


CHAPTER  III 

COMMENT  BY  COURT  OR  EXPRESSION  OF  OPINION  ON  THE  WEIGHT 
OR  SUFFICIENCY  OF  THE  EVIDENCE 

A.     Rule  in  Absence  of  Constitutional  ob  Statutoky  Provisions 

§  28.     Statement  of  rule. 

29.  Limitations  of  rule. 

30.  Rule  in  particular  jurisdictions. 

B.     Rule  under  Constitutional  oe  Statutory  Provisions 

31.  General  considerations. 
•    32.     Limitations  of  rule. 

33.  Specilic  applications  of  rule  in  civil  cases. 

34.  Application  of  rule  in  negligence  cases. 

35.  Specific  applications  of  rule  in  criminal  cases. 

O.     Statement  by  the  Court  of  the  Contentions  of  the  Parties 

36.  Rule  that  such  a  statement  is  within  the  province  of  the  court. 

37.  Limitations  of  rule. 

D.     Statement  and  Review  of  Evidence  by  Court 

38.  Rule  that  court  may  review  the  evidence. 

39.  Effect  of  constitutional  or  statutory  provisions. 

40.  Manner  of  exercising  power. 

tj.    Reference  to,  or  Singling  Out  of,  Particular  Parts  of  the  Evidence, 
AND  Comment  Thereon 

41.  Confining  jury  to  part  of  evidence. 

42.  Reciting  parts  of  testimony  and  construing  testimony  of  particular  wit- 

nesses. 

43.  Instructions  as  to  weight  of  particular  evidence. 

44.  Instructions  on  right  or  duty  of  jury  to  consider  certain  factis. 

45.  Stating  purpose  of  evidence. 

F.     Instructions  on  Particular  Classes  of  Evidence 

46.  Admissions. 

47.  Effect  of  exculpatory  parts  of  statement  of  accused  given  in  evidence 

against  him. 

48.  Confessions — Fact  of  confession  and  weight  thereof. 

49.  Corroboration  of  confessions. 

50.  Dying  declarations. 

51.  Opinion  and  expert  evidence. 

52.  Parol  evidence. 

53.  Circumstantial  evidence  in  criminal  cases. 

54.  Instructions  as  to  effect  of  good  character  of  accused. 

G-.  Comparative  Values  of  Different  Kinds  or  Classes  of  Evidence 

55.  General  rule. 

56.  Opinion  and  expert  evidence. 

57.  Positive  and  negative  testimony. 

H.     Presumptions  of  Fact  and  Inferences  from  Evidence 

58.  Statement  of  rule. 

59.  Limitations  of  rule. 


§  28  INSTRUCTIONS  TO  JURIES  44 

§  60.     Specific  applications  of  rule. 

61.  Presumption  or  inferences  from  possession  of  fruits  of  crime. 

62.  Presumptions  or  inferences  from  fliglit  of  accused. 

I.     Degree  of  Peoof 

63.  In  general. 

64.  Preponderance  of  evidence. 

65.  Balancing  one  witness  against  another. 

66.  Instructions  on  reasonable  doubt  in  criminal  cases. 

J.       COEROBORATION    OF   WITNESSES   IN   CKIMINAL,   CaSES 

67.  Corroboration  of  prosecuting  witness. 

68.  Corroboration  of  accomplice. 

K.    Undisputed  Facts 

69.  In  general. 

70.  Stating  legal  effect  of  undisputed  facts. 

L.    Affirming  Existence)  oe  Nonexistence  of  Evidence   oe  Tendencies 

Thereof 

71.  Failure  or  absence  of  proof. 

72.  Declaring  tendency  of  evidence. 

73.  Declaring  that  there  is  some  evidence  of  particular  facts. 

A.  Rule  in  Absence  of  Constitutional  or  Statutory  Provi- 
sions 
§  28.     Statement  of  rule 

Where  there  are  no  constitutional  or  statutory  provisions  governing 
the  subject,  the  court  may,  both  in  civil,^  and  in  criminal  cases,^  subject 

1  U.  S.    (C.  C.  A.  Ark.)  United  Mine  In  Rhode  Island,  the  trial  judge 

Workers  of  America  v.  Coronado  Coal  is  empowered  to  make  such  comments 

Co..  258  F.  829,  169  C.  C.  A.  549.  on  the  evidence  as   he  believes  will 

Conn.     Stacy  v.   Brothers,  107  A.  direct  the  jury  to  right  conclusions; 

613,  93  Conn.  690;    Earley  v.  Hall,  95  the  jury  being  the  ultimate  arbiter  of 

A.  2,  89  Conn.  606;    Mercer  Electric  the   facts.     Desautelle   v.   Nasonville 

Mfg.  Co.  V.  Connecticut  Electric  Mfg.  Woolen  Co.,  66  Atl.  579,  28  R.  I.  261. 

Co.,    89    A.   909,    87    Conn.    691 ;     Mc-  Instructions  held  proper  within 

Laughlin    v.   Thomas,    85   A.   370,    86  nile.     In  an  action  of  assumpsit  for 

Conn.  252 ;    Barnes  v.  City  of  Water-  board  and  lodging,  where  the  defend- 

bury,  74  A.  902,  82  Conn.  518 ;   Appeal  ant  alleges  that  he  loaned  money  to 

of  turner,  44  A.  310,  72  Conn.  305.  the  husband   of  plaintiff  to  buy  the 

Minn.  Dobsloff  v.  Nichols-Chis-  farm  on  which  plaintiff  lived  with  her 
holm  Lumber  Co.  112  N.  W.  218,  101  husband,  and  that  a  part  of  the  trans- 
Minn.  267 ;  First  Nat.  Bank  of  Deco-  action  was  that  he  should  receive 
rah  v.  Ilolan,  65  N.  W.  952,  63  INIinn.  board  and  lodging  free  when  in  the 
525 ;  McArthur  v.  Craigie,  22  Minn.  nighborhood,  the  court  may,  in  its 
351.  charge,  call  the  jury's  attention  to  the 

Pa.     Katzenberg  v.   Qberndorf,  70  fact  that  when  the  loan  was  made  the 

Pa.  Super.  Ct.  567 ;   Krider  v.  City  of  husband  agreed  to  pay  interest  upon 

Philadelphia,  36  A.  405,  180  Pa.  78;  it.     Springer  v.  Stiver,  16  Pa.  Super. 

Porter  v.  Nelson,  121  Pa.  628,  15  A.  Ct.  184.     Where,  in  an  action  by  an 

852 ;     Wanger   v.   Hippie,   13   A.    81 ;  administrator  on  a  bond  given  for  the 

Schoneman  v.  Fegley,  14  Pa.  376.  maintenance  of  the  decedent  to  recover 


Vt.     Seviour  v.  Rutland  R.  Co.,  88 


Vt.  107,  91  A.  1039.  2  See  note  2  on  following  page. 


45 


COMMENT   ON   PROBATIVE   EFFECT   OF   EVIDENCE 


§28 


to  the  qualifications  and  restrictions  stated  supra  (section  4),  com- 
ment upon  the  evidence,  or  intimate  or  express  its  opinion  upon 
the  weight  thereof,  or  any  part  of  it,  or  emphasize  such  evidence 


for  support  and  medical  services  ren- 
dered to  decedent  after  she  liad  left  the 
defendant's  house,  it  appears  that  the 
medical  services  were  rendered  by  a 
son  of  the  decedent,  it  is  not  error  for 
the  court  to  say  in  its  charge  that  the 
jury  were  not  to  conclude  that  the 
medical  services  were  worth  what  the 
son  testified  they  were  worth  simply 
because  he  said  so,  but  that  they  were 
to  fix  what  would  be  a  reasonable  com- 
pensation from  all  the  evidence  in  the 
case.  Mills  v.  Plant,  IS  Pa.  Super. 
Ct.  80.  Where,  in  an  action  against 
defendant  for  rent,  as  assignee  of  a 
lease,  he  introduced  a  memorandum 
book  which  showed  that  charges  for 
rent  had  been  made  by  plaintiff 
against  the  assignor,  who  was  in  pos- 
session of  the  property,  the  fact  that 
the  court  charged  the  jury  that,  be- 
cause this  memorandum  book  is  so 
very  small  it  hardly  seems  to  make 
the  term  applicable,  it  does  not  follow 
that  it  is  not  a  book  of  original  entry, 
and,  of  course,  it  is  of  some  signifi- 
cance that  the  charges  of  rent  from 
mouth  to  month  were  entered  against 
the  assignor,  though  not  conclusive 
proof  that  they  were  charged  against 
him,  is  not  prejudicial  to  defendant, 
as  ridiculing  his  evidence.  Benedict 
V.  Everard,  46  A.  870,  73  Conn.  157. 
In  an  action  for  personal  injuries,  it 
is  proper  for  the  court  to  call  the  at- 
tention of  the  jury  to  the  number  of 
witnesses  testifying  to  facts  showing 
that  plaintiff  stepped  off  a  moving 
train,  and  the  court  should  refer  to  the 
number  of  witnesses  on  each  side,  their 
respective  interests,  opportunities  for 
obsei'\'ation,  and  other  matters  affect- 
ing the  weight  of  the  evidence.  Bockel- 
camp  v.  Lackawanna  &  W.  V.  R.  Co.,  81 
A.  93,  232  Pa.  66.  A  charge,  in  an  ac- 
tion to  recover  for  services  rendered 
defendant's  testate,  that  verbal  state- 
ments, repeated  a  long  time  after  by 
those  who  heard  them,  are  likely  to  be 
affected  by  a  failure  to  remember  ex- 
actly, etc.,  was  not  improper  where  the 
trial  court  also  stated  he  expressed  no 
opinion  concerning  the  weight  of  the 
evidence.     McCurley  v.  National  Sav- 


ings &  Trust  Co.  258  F.  154,  49  App. 
D.  C.  10.  Where  a  boy  nine  years  old, 
testifying  with  respect  to  an  accident 
occurring  a  year  before,  stated  that 
he  had  talked  the  matter  over  with 
his  mother,  that  she  had  told  him 
what  happened  at  the  time  of  the 
accident,  and  what  he  saw,  an  instnic- 
tion  directing  the  jury  to  give  such 
weight  to  the  testimony  of  the  boy  as 
in  their  judgment  it  was  worth,  and 
that  they  should  recall  his  youth  and 
liability  to  repeat  what  he  had  heard 
if  he  had  been  talked  to,  is  not  er- 
roneous as  invading  the  province  of 
the  jury.  Banks  v.  Connecticut  Ry.  & 
Lighting  Co.,  64  A.  14,  79  Conn.  116. 

2U.  S.  (C.  C.  A.  Ala.)  Turner  v. 
United  States,  66  F.  286,  13  C.  C.  A. 
442;  (C.  C.  Kan.)  Woodruff  v.  United 
States, -58  F.  766. 

Conn.  State  v.  Cabaudo,  76  A.  42, 
83  Conn.  160;  State  v.  Duffy,  57 
Conn.  525,  18  A.  791. 

D.  C.  United  States  v.  Schneider, 
21  D.   C.  381. 

Ind.  T.  Parris  v.  United  States, 
35  S.  W.  243,  1  Ind.  T.  43. 

N.  J.  State  V.  Fiore,  108  A.  363,  93 
N.  J.  Law,  362,  judgment  affirmed  110 
A.  909;  State  v.  Warady,  72  A.  37,  77 
N.  J.  Law,  348,  judgment  affirmed 
75  A.  977,  78  N  J.  Law,  687 ;  State  v. 
Valentina,  60  A.  177,  71  N.  J.  Law,  552 ; 
Engle  V.  State,  50  N.  J.  Law,  272,  13 
A.  604. 

N.  Y.  People  v.  Druse,  5  N.  Y.  Cr. 
R.  10;  People  v.  Cai-penter,  6  N.  E. 
584 ;  Done  v.  People,  5  Parker,  Cr.  R. 
364;  Jefterds  v.  Same,  Id.  522;  Con- 
raddy  v.  Same,  Id.  234;  Stephens  v. 
People,  4  Parker,  Cr.  R.  396 ;  People 
V.  Quinn,  1  Parker,  Cr.  R.  340. 

Pa.  Commonwealth  v.  McGowan, 
42  A.  365,  189  Pa.  641,  69  Am.  St.  Rep. 
836,  29  Pittsb.  Leg.  J-.  (N.  S.)  293,  42 
Wkly.  Notes  Cas.  459;  Common- 
wealth V.  Miller  (Pa.)  3  Lane.  Law 
Rep.  175. 

In  Minnesota,  while  the  defendant 
has  the  constitutional  right  to  have 
the  facts  in  issue  determined  by  the 
jury  uninfluenced  by  opinions  from  the 
bench  (State  v.  Yates,  99  Minn.  461, 


28 


INSTRUCTIONS   TO  JURIES 


46 


as  the  court  considers  most  important;^  how  far  the  discussion  of 
the  evidence  shall  proceed  being  committed  to  the  sound  discretion 
of  the  trial  court.*  Thus  instructions  warning  the  jury  that  photo- 
graphs introduced  in  evidence  may  be  misleading,^  or  speaking  of 
certain  statements  by  a  party  as  "loose  talk,"'^  or  stating  that  cer- 
tain evidence  adduced  by  a  party  to  establish  a  fact  was  over- 
whelmingly contradicted  by  the  evidence  of  the  other  side,'  or 
speaking  of  the  testimony  of  one  party  as  uncorroborated,* 
or  characterizing  certain  testimony  as  important  or  the 
material  testimony  in  the  case,®  or  stating  that  certain  evidence  was 
strong  evidence,^ °  have  been  held  proper.  Where  in  a  criminal  case 
a  state  of  facts  tending  to  incriminate  the  defendant  has  been  shown, 
and  he  undertakes  to  explain  it,  his  neglect  to  produce  existing  satis- 
factory proof  peculiarly  within  his  power  is  a  proper  subject  of  com- 
ment by  the  court,  if  none  is  made  on  his  own  failure  to  testify.^^ 


109  N.  W.  1070),  the  court  may,  in  a 
criminal  case,  comment  upon  the  testi- 
mony or  state  that  certain  evidence  is 
material,  or  that  it  tends  to  prove  cer- 
tain facts,  when  such  comment  is 
made  fairly,  and  the  jury  are  fully 
advised  that  they  are  the  exclusive 
judges  of  the  facts  and  of  the  cred- 
ibility of  the  witnesses  (State  v. 
Rose,  47  Minn.  47,  49  N.  W.  404). 

In  New  York,  it  is  not  legal  error 
for  a  trial  judge  to  indicate  his  opin- 
ion in  charges,  and  it  is  only  where 
the  evidence  of  bias  is  marked  and 
where,  in  the  opinion  of  the  appellate 
court,  the  balance  of  proof  is  only 
slight  in  favor  of  the  prosecution,  and 
where,  in  the  interest  of  justice,  ac- 
cused should  be  given  another  chance 
to  prove  his  innocence,  that  the  con- 
viction should  be  reversed  for  such 
cause.  People  v.  Fisher,  120  N.  Y.  S. 
659,  1.36  App.  Div.  57. 

Instmctions  held  proper  ^nritliin 
rule.  Where  the  court  instructed  aa 
to  the  bearing  of  evidence  of  de- 
fendant's good  character,  a  reference 
by  the  court  to  the  fact  that  those  who 
testified  to  defeuidant's  character  had 
known  him  but  a  short  time.  State 
V.  Totten,  47  A.  105,  72  Vt.  73.  A 
charge  to  the  jury  to  the  effect  that 
"the  evidence  .seems  to  point  to  the 
guilt  Of  defendant."    Johnson  v.  Com- 


monwealth, 115  Pa.  369,  9  A.  78.  An 
expression  of  opinion  that  there  is 
nothing  in  the  case  to  reduce  the 
crime  to  manslaughter.  McClain  v. 
Commonwealth,  110  Pa.  263,  1  A.  45. 

3  Desautelle  v.  Nasonville  Woolen 
Co.,  66  A.  579,  28  R.  I.  261. 

4  Brown  v.  United  States,  142  F. 
1,  73  C.  C.  A.  187 ;  Appeal  of  Wheeler, 
100  A.  13,  91  Conn.  388 ;  State  v.  Al- 
derman, 78  A.  331,  S3  Conn.  597;  Shu- 
pack  V.  Gordon,  64  A.  740,  79  Conn. 
298. 

5  McLean  v.  Erie  R.  Co.,  57  A.  1132, 
70  N.  J.  Law,  337,  affirming  judgment 
54  A.  238,  69  N.  J.  Law,  57. 

6  Harrold  v.  Harrold,  96  A.  745,  251 
Pa.  303. 

7  Church  V.  Delaware,  L.  &  W.  R. 
Co.,  95  A.  341,  250  Pa.  21. 

8  Lillibridge  v.  Barber,  55  Conn. 
366,  11  A.  850. 

9  Winther  v.  Second  &  Third  Sts. 
Pass.  Ry.  Co.,  1.59  Pa.  628,  28  A.  472; 
Grove  v.  Donaldson,  15  Pa.  128. 

10  Rosevear  v.  Borough  of  Osceola 
Mills,  169  Pa.  555,  32  A.  548;  Fry  v. 
Pennsylvania  R.  Co.,  24  Pa.  Super.  Ct. 
147. 

11  Spear  v.  United  States,  246  F. 
250,  158  C.  C.  A.  410,  certiorari  denied 
38  S.  Ct.  335,  246  U.  S.  667,  62  L.  Ed. 
929. 


47 


COMMENT  ON   PROBATIVE   EFFECT  OF   EVIDENCE 


§30 


§  29.     Limitations  of  rule 

As  has  already  been  stated,  the  above  rule  does  not  permit  the  court 
to  withdraw  the  ultimate  determination  of  the  weight  of  the  evidence 
from  the  jury,  and  instructions  which  have  this  effect,  or  which  may 
lead  them  to  think  that  they  are  deprived  of  this  power,  are  erroneous. ^- 

§  30.     Rule  in  particular  jurisdictions 

In  Michigan,  where  the  statute  provides  that  the  court  shall  instruct 
only  as  to  the  law,  there  is  some  variance  in  the  decisions  as  to  the 
power  of  the  court  to  comment  on  the  evidence.     Some  of  the  cases 


12  u.  S.  (Sup.)  Greenleaf  v.  Birth, 
9  Pet.  292,  9  L.  Ed.  132;  (C.  C.  A. 
N.  Y.)  Delaware,  L.  &  W.  Ry.  Co.  v, 
Tiiovinen,  240  F.  678,  153  C.  C.  A. 
476;  (C.  C.  A.  Wis.)  Nyback  v. 
Champagne  Lumber  Co.,  109  F.  732, 
48  C.   C.  A.  632. 

Conn.  Warner  v.  McLay,  103  A. 
113,  92  Conn.  427. 

Minn.  Rugland  v.  Tollefsen,  53 
Minn.  267,  55  N.  W.  123;  State  v. 
Kobe,  1  N.  W.  1051,  26  Minn.  150. 

N.  J.  New  Jersey  Traction  Co.  v. 
Gardner,  38  A.  669,  60  N.  J.  Law,  571. 

N.  Y.  Jolmston  v.  New  York  City 
Ry.  Co.,  104  N.  Y.  S.  1039,  120  App. 
Div.  456;  Corrigan  v.  Funk,  96  N.  Y. 
S.  .910,  109  App.  Div.  846;  Fox  v. 
Manhattan  Ry.  Co.,  73  N.  Y.  S.  896, 
67  App.  Div.  460 ;  People  v.  Brow,  90 
Hun,  509,  35  N.  Y.  S.  1009;  Mark- 
ham  V.  Jaudon,  49  Barb.  462,  3  Abb. 
Prac.  (N.  S.)  286. 

Pa.  Drexler  v.  Borough  of  Brad- 
dock,  86  A.  272,  238  Pa.  376 ;  Dietrich 
V.  City  of  Lancaster,  61  A.  1112,  212 
Pa.  566 ;  Heydrick  v.  Hutchinson,  165 
Pa.  208,  30  A.  819,  35  Wkly.  Notes 
Cas.  503 ;  Sellers  v.  Jones,  22  Pa.  423; 
Cadbury  v.  Nolen,  5  Pa.  320;  Zerger 
V.  Sailer,  6  Bin.  24;  Brown  v.  Camp- 
bell, 1  Serg.  &  R.  176. 

R.  I.  Mowry  v.  Saunders,  SO  A. 
421,  33  R.  I.  45,  Ann.  Cas.  1913A,  1344. 

Instructions  held  improper 
within  rule.  An  instruction  that, 
"if  the  law  is  as  laid  down  by  the 
court,  plaintiff  has  failed  in  making 
out  his  case,  and  is  not  entitled  to 
recover."  Spangler  v.  Hummer,  3 
Pen.  &  W.  (Pa.)  370.  A  charge  where 
the  evidence  on  an  issue  of  fact 
would  have  warranted  a  finding  either 
way,  that  it  seems  to  the  judge  the 
plaintiff  had  made  out  the  better  case. 


and  how  he  would  regard  it  if  he 
were  on  the  jury.  Samuel  v.  Knight, 
9  Pa.  Super.  Ct.  352,  43  Wkly.  Notes 
Cas.  392.  A  charge  in  an  action  by  a 
passenger  against  a  street  railway 
company,  treating  the  testimony  in 
the  case  as  positive  proof  that  the 
driver  had  been  dismissed  by  defend- 
ant because  his  negligence  had  pro- 
duced the  injuries  to  plaintiff',  where 
there  is  no  distinct  proof  to  that  ef- 
fect, and  it  might  have  been  inferred 
that  the  discharge  was  simply  due  to 
the  fact  that  the  accident  to  plaintiff 
occurred  while  he  was  driving.  Lom- 
bard &  S.  S.  Pass.  Ry.  Co.  v.  Chris- 
tian, 124  Pa.  114,  16  A.  628,  23  Wkly. 
Notes  Cas.  273.  An  instruction,  in 'an 
action  against  an  executrix  on  a  note 
given  by  testator,  where  defendant 
proved  her  appointment  as  executrix, 
publication  of  notice  to  creditors  to 
prove  their  claims  and  knowledge  by 
plaintiff  that  she  was  executrix,  to 
show  that  no  demand  was  made  by 
plaintiff"  for  payment,  that  there  was 
no  evidence  to  negative  a  demand. 
Walls  V.  Walls,  170  Pa.  48,  32  A.  649. 
An  instruction,  in  an  action  against 
a  railroad  company  to  recover  dam- 
ages for  personal  injuries  sustained 
through  the  negligence  of  the  driver 
of  a  hansom  cab,  whore  it  is  admitted 
by  the  defendant  that  tlie  name  of  the 
railroad  company  was  printed  on  the 
cab,  and  this  fact  is  the  only  evidence 
in  the  case  as  to  the  ownership  of 
the  cab,  which  charges  that  the  evi- 
dence is  sufficient  to  sustain  a  finding 
that  the  driver  was  the  servant  of  the 
defendant,  without  permitting  the 
jury  to  draw  the  inference,  from  the 
name  on  the  cab,  tliat  the  defendant 
was  its  owner.  Hershinger  v.  Penn- 
sylvania R.  Co.,  25  Pa.  Super.  Ct.  147. 


§  30  INSTRUCTIONS  TO  JURIES  48 

hold  that,  if  the  jury  are  explicitly  and  positively  informed  that 
they  have  the  exclusive  right  to  determine  the  facts,  it  will  not  be  im- 
proper for  the  court  to  make  such  remarks  upon  the  facts  as  are  not 
calculated  to  mislead  the  jury  as  to  their  rights  and  responsibilities,^^' 
or  to  intimate  its  opinion  as  to  the  weight  of  certain  evidence,^*  or 
to  caution  the  jury,  if  needful,  against  giving  undue  importance  to 
unimportant  things,^^  and  that  under  some  circumstances  it  may  be 
the  duty  of  the  court  to  charge  upon  the  weight  of  the  evidence.^® 

The  discussion  of  the  evidence,  however,  must  not  be  of  such  a 
character  as  to  create  prejudice  against  one  party  or  the  other,^'^  and 
some  of  the  decisions  hold  that  the  instructions  must  not  indicate  the 
trial  judge's  opinion  as  to  the  facts,  either  by  emphasizing  particular 
testimony,  or  calling  attention  to  the  lack  of  it,  or  giving  an  opinion 
as  to  its  interpretation,^^  or  by  unfavorable  comment  on  the  testimony 
presented  by  a  party. ^*  In  this  jurisdiction,  as  elsewhere,  instructions 
on  conflicting  evidence,  which  are  so  framed  as  to  withdraw  from  the 

jury  the  final  decision  as  to  the  facts  or  to  embarrass  it  in  the  making 
of  such  decision  are  erroneous,  and  properly  refused,^"  and  the  trial 
judge  should  exercise  great  care  to  avoid  impressing  his  own  view  of 
the  evidence  upon  the  jury,^^  and  an  expression  of  opinion  by  the 
judge  as  to  the  weight  of  certain  evidence,  which  is  of  such  a  charac- 

13  Hamilton  v.  People,  29  Mich.  173.  in   rule.      Where   there   is   evidence 

14  People  V.  Carey,  84  N.  W.  1087,  fairly  tending  to  establish  the  plain- 
125  Mich.  535.  tiff's  case,   it  is  reversible  error  for 

15  Welch  V.  Ware,  32  Mich.  77.  the  court  to  state,  in  the  presence  of 

16  Card  V.  Fowler,  79  N.  W.  925,  the  .iury,  that  the  testimony  is  so 
120  Mich.  646.  indefinite  and  unsatisfactory  that,  it 

17  Renaud  v.  City  of  Bay  City,  82  will  not  justify  a  verdict,  although 
N.  W.  617,  124  Mich.  29.  he  finally  permits  the  case  to  go  to 

18  McCain  v.  Smith,  137  N.  W.  616,  the  jury.  Burrows  v.  Delta  Transp. 
172  Mich.  1;  Preston  Nat.  Bank  v.  Co..  64  N.  W.  501,  106  Mich.  582.  29 
Michigan  Mut.  Fire  Ins.  Co.,  73  N.  W.  L.  R.  A.  468. 

815,  115  Mich.  511.  "        21  Valin  v.  McKerreghan,  104  Mich. 

iBPokriefka  v.  Mackurat,  91  Mich.  213,  62  N.  W.  340;    Sterling  v.  Calla- 

399,  51  N.  W.  1059.  han,  94  Mich.  536,  54  N.  W.  495. 

20  Mich.      Connor    v.    McRae,    160  Characterizing       testimony       as 

N.   W.   479.   193    Mie^.   682;     McCain  "strong  evidence."     It  is  error  for 

V.  Smith,  137  N.  W.  616,  172  Mich.  1 ;  the  trial  judge  to  point  out  particular 

Smith  V.  Hertz  &  Hosbach  Co.,   125  testimony,  and  tell  the  jury  that,  if 

N.  W.   368,   160  Mich.  431;    Dawson  they  believe  it,   it   is   "pretty   strong 

V.  Falls  Citv  Boat  Club,  84  N.  W.  618,  evidence,"  and  "very  strong  evidence," 

125  Mich.  433;    Lincoln  v.  City  of  De-  and  "evidence    *    *    *    that  I  should 

troit.   101  Mich.  245.  59  N.   W.  617;  not  fail  to  act  upon  if  I  was  on  the 

Bluniouo  V.  Grand  Rapids  &  I.  R.  Co.,  jury,"  where  he  does  not  caution  the 

101  Mich.  325,  59  N.  W.  594;    Letts  jury  not   to  bo  influenced  by  his  in- 

V.  Letts,  91  Mich.  596,  52  N.  W.  54;  dividual  opinion,  and  tell  them  that 

Webster  v.  Fowler,  89  Mich.  303,  50  they     are    exclusive    judges    of    the 

N.  W.  1074.  weight   of  the   testimony.     People  v. 

Instruction  held  improper  with-  Gastro,  75  Mich.  127,  42  N.  W.  937. 


49 


COMMENT   ON   PKOBATIVE   EFFECT   OF   EVIDENCE 


§31 


ter  as  to  be  likely  to  prevent  the  jury  from  acting  contrary  thereto^  is 
not  cured  by  telling  them  that  they  are  the  exclusive  judges  of  the 

facts.^- 

In  New  Hampshire,  it  is  not  the  ordinary  practice  for  the  court  to 
express  opinions  in  regard  to  the  weight  of  evidence  but  it  is  not  ir- 
regular for  it  to  make  such  suggestions  in  relation  to  the  facts  as  it 
may  suppose  will  be  useful  to  the  jury;  the  matter  being  left  to  them 
for  decision. ^^ 


B.  Rule  under  Constitutional  or  Statutory  Provisions 

§  31.     General  considerations 

In  those  jurisdictions  which,  as  above  stated,  have  constitutional  or 
statutory  provisions  forbidding  the  court,  in  varying  phraseology,  to 
charge  on  the  facts,  instructions  on  conflicting  evidence,  which  charge 
on  the  weight  thereof,  or  intimate  the  opinion  of  the  court  as  to  its 
weight  or  sufficiency,  are  erroneous  both  in  civil  ^*  and  in  criminal 


2  2  People  V.  Lyons,  49  Mich.  78,  13 
N.  W.  365. 

23  Cook  V.  Brown,  34  N.  H.  460; 
Patterson  v.  Colebrook,  29  N.  H.  94 ; 
Flanders  v.  Colby,  28  N.  H.  34. 

24  Ala.  O'Brien  v.  Birmingham  Ry., 
Light  &  Power  Co.,  72  So.  343.  197 
Ala.  97;  Louisville  &  N.  R.  Co.  v. 
Godwin..  67  So.  675,  191  Ala.  498; 
Louisville  &  N.  R.  Co.  v,  Sherrell,  44 
So.  631,  152  Ala.  213  ;  Tait  v.  Murphy, 
80  Ala.  440.  2  So.  317;  Newton  v. 
Jackson.  23  Ala.  335;  Mundine  v. 
Gold,  5  Port.  215. 

Ariz.  Southern  Pac.  Co.  v.  Hogan, 
108  P.  240,  13  Ariz.  34,  29  L.  R.  A. 
(N.   S.)  813. 

Ark.  Twist  v.  Mullinlx,  190  S.  W, 
851.  126  Ark.  427;  Karnopp  v.  Ft. 
Smith  Light  &  Traction  Co.,  178  S. 
W.  302,  119  Ark.  295;  Valentine  v. 
Edwards.  166  S.  W.  531,  112  Ark.  354 ; 
Kansas  City  Southern  Ry.  Co.  v.  Drew, 
147  S.  W  50,  103  Ark.  374 ;  Cameron 
V.  Vandegriff,  53  Ark.  381,  13  S.  W. 
1092. 

Cal.  Fisher  v.  Los  Angeles  Pacific 
Co..  132  P.  767,  21  Cal.  App.  677;  Mc- 
Neil V.  Barney,  51  Cal.  603 ;  Batters- 
bv  V.  Abbott.  9  Cal.  565 ;  Treadwell  v. 
Wells,  4  Cal.  260. 

Colo.  Denver  Omnibus  &  Cab  Co.  v. 
Cast,  129  P.  233,  54  Colo.  17. 

D.  C.  Woods  V.  Trinity  Parish,  21 
D.  C.  540. 

Inst. TO  Juries — 4 


ria.  Florida  East  Coast  Ry.  Co.  v. 
Carter,  65  So.  254,  67  Fla.  335,  Ann. 
Cas.  1913E,  1299;  Farnsworth  v.  Tam- 
pa Electric  Co.,  57  So.  233,  62  Fla. 
166;  Supreme  Lodge.  K.  P.,  v,  Lips- 
comb. 39  So.  637,  50  Fla.  406 ;  Hano- 
ver Fire  Ins.  Co.  v.  Lewis,  28  Fla.  209, 
10   So.   297. 

Ga.  De  Ment  v.  Rogers,  101  S.  E. 
197,  24  Ga.  App.  438 ;  Robinson  & 
Eason  v.  Register,  94  S.  E.  864,  21  Ga. 
App.  614;  Garbutt  Lumber  Co.  v. 
Prescott,  62  S.  E.  228.  131  Ga.  326; 
Owen  v.  Palmonr,  36  S.  E.  969,  111 
Ga.  885 ;  Augusta  Southern  R.  Co.  v. 
McDade,  31  S.  E.  420,  105  Ga.  134; 
King  v.  King,  37  Ga.  205;  Rushin 
V.  Shields,  11  Ga.  636,  56  Am.  Dec. 
436. 

Idaho.  State  v.  Shuff,  72  P.  664,  9 
Idaho,  115. 

111.  Mayville  v.  French,  92  N.  E. 
919,  246  111.  434;  Andrewzewski  v. 
Gallatin  Coal  &  Coke  Co.,  143  111.  App. 
418:  Supreme  Court  of  Honor  v. 
Barker.  96  111.  App.  490;  Merchants' 
I^an  &  Trust  Co.  v.  Lamson,  90  HI. 
App.  18;  Rice  &  Bnllen  Malting  Co. 
V.  International  Bank,  86  111.  App.  136, 
.judgment  affirmed  56  N.  E.  1062,  185 
111.  422;  Eastman  v.  West  Chicago 
St.  R.  Co.,  79  111.  App.  .585;  New  York, 
C.  &  St.  L.  R.  Co.  V.  Blumenthal,  160 
111.  40.  43  N.  E.  809;  Walsh  v.  Ayls- 
worth,    46    111.    App.    510;     Erasure 


§  31 


INSTRUCTIONS  TO  JURIES 


50 


ca§es,~^  and  it   is,   of  course,   proper  to  refuse   such   an   instruc- 
tion.26 


V.  Zimmerlv,  25  111.  202;  Eames  v. 
Blackhart,  12  111.  195. 

-nd.  Ft.  Wayne  &  N.  I.  Traction 
C^o.    V.   Smitli,  107  N.  E.  31,  57  Ind. 

PI).  304 ;  Deal  v.  State,  39  N.  E.  930, 
140  Ind.  354 ;  Guetig  v.  State,  63  Ind. 
27S ;  Cliamness  v.  Cbamness,  53  Ind. 
:.01;  Cain  v.  Hunt,  41  Ind.  466;  Rey- 
nolds V.  Cox,  11  Ind.  262 ;  Hackleman 
V.  Moat,  4  Blackf.  164. 

Iowa.  Carroll  v.  Chicago,  St.  P., 
M.  &  O.  Ry.  Co.,  84  N.  W.  1035 ;  Russ 
V.  The  War  Eagle,  9  Iowa,  374;  Woods 
V.  Mains,  1  G.  Greene,  275. 

Kan.  Tuttle  v.  Missouri  Pac.  Ry. 
Co.,  119  P.  370,  86.Kan.  28. 

Ky.  Richmond  &  L.  Turnpike  Road 
Co.  V.  Foley,  5  Ky.  Law  Rep.  (ab- 
stract) 425 ;  Smith's  Adm'x  v.  North- 
ern Bank,  1  Mete.  575 ;  Swigert  v. 
Graham,  7  B.  Mon.  661;  Salter  v. 
Myers,  5  B.  Mon.  280. 

La.  Hewes  v.  Barron,  7  Mart.  (N. 
S.)  134. 

Me.  Whitehouse  v.  Bolster,  50  A. 
240,  95  Me.  458;  Sawyer  v.  Nichols, 
40  Me.  212. 

Md.  W^estern  Maryland  R.  Co.  v. 
Shivers,  61  A.  618,  101  Md.  391; 
Maltby  v.  Northwestern  Virginia  B. 
Co.,  16  Md.  422;  Burtles  v.  State, 
4  Md.  273;  Tiffany  v.  Savage,  2  Gill, 
129. 

Mass.  Davis  v.  Jenney,  1  Mete. 
221. 

Miss.  Daniel  v.  Daniel,  4  So.  95; 
French  v.  Sale,  63  Miss.  386;  Thrasher 
V.  Gillespie,  52  Miss.  840. 

Mo.  Morrill  v.  Kansas  City  (App.) 
179  S.  W.  759 ;  Winter  v.  Supreme 
Lodge  K.  P.  of  the  World,  69  S.  W. 
662,  96  Mo.  App.  1 ;  Jones  v.  Roberts, 
37  Mo.  App.  163;  Nail  v.  St.  Louis, 
K.  C.  &  N.  Ry.  Co.,  59  Mo.  112 ;  Kin- 
man  V.  Cannefax,  34  Mo.  147 ;  Farrar 
V.  David,  33  Mo.  482;  Glasgow  v. 
Copeland,  8  Mo.  268. 

Mont.  O'Brien  v.  Corra-Rock  Is- 
land Mining  Co.,  105  P.  724,  40  Mont. 
212. 

Neb.  Kleutsch  v.  Security  Mut. 
Life  Ins.  Co.,  100  N.  W.  139,  72  Neb. 
75. 

N.  M.  C.  W.  Kettering  Mercantile 
Co.  v.  Sheppard,  142  P.   1128,   19  N. 


M.  330;  Chaves  v.  Chaves,  3  N.  M. 
(Johns.)  199,  5  P.  331;  Vasquez  v. 
Spiegelberg,  1  N.  M.  464. 

N.  C.  May  v.  Morganton  Mfg.  & 
Trading  Co.,  SO  S.  E.  380,  164  N.  C. 
262;  Universal  Metal  Co.  v.  Durham 
&  C.  R.  Co.,  59  S.  E.  50,  145  N.  C. 
293;  Dobson  &  Whitley  v.  Southern 
Ry.  Co.,  44  S.  E.  593,  132  N.  C.  900; 
Reed   v.   Schenck,  13  N.  C.  415. 

Okl.  Littlefield  Loan  &  Investment 
Co.  v.  Walkley  &  Chambers  (Sup.) 
166  P.  90;  Clarke  v.  Uihlein,  152  P. 
589,  52  Okl.  48;  'Leavitt  v.  Deich- 
mann,  120  P.  983,  30  Okl.  423. 

Or.  Meyer  v.  Thompson,  16  Or. 
194,  18  P.  16;  State  v.  Huffman,  16 
Or.  15,  16  P.  640. 

S.  D.  Fellows  v.  Christensen,  133 
N.  W.  814,  28  S.  D.  353. 

Tenn.  Jones  v.  Cherokee  Iron  Co., 
14  Lea,  157;  Ayres  v.  Moulton,  5 
Cold.  154;  Case  v.  Williams,  2  Cold. 
239;  Kirtland  v.  Montgomeiy,  1 
Swan,  452;  Ivey  v.  Hodges,  4  Humph. 
154. 

Tex.  Thornburg  v.  Moon  (Civ. 
App.)  180  S.  W.  959  ;  First  State  Bank 
of  Amarillo  v.  Cooper  (Civ.  App.)  179 
S.  W.  295;  G.  A.  Kelly  Plow  Co.  v. 
London,  125  S.  W.  974,  59  Tex.  Civ. 
App.  208;  Buckley  v.  Ruuge,  122  S.  W. 
596,  57  Tex.  Civ.  App.  322 ;  Thomson 
V.  Kelley  (Civ.  App.)  97  S.  W.  326; 
Texas  &  P.  Rv.  Co.  v.  Bailey,  96  S. 
W.  1089,  43  Tex.  Civ,  App.  553;  Gulf, 
C.  &  S.  F.  Ry.  Co.  v.  Bunn,  95  S.  W. 
640,  41  Tex.  Civ.  App.  503;  Fulcher 
v.  White  (Civ.  App.)  59  S.  W.  628; 
Missouri,  K.  &  T.  Ry.  Co.  v.  Brown 
(Civ.  App.)  39  S.  W.  326;  Texas  & 
P.  Ry.  Co.  V.  Murphy,  46  Tex.  356,  26 
Am.    Rep.    272. 

Va.  Mopsikov  v.  Cook,  95  S.  E. 
426,  122  Va.  579;  Whitelaw's  Ex'r  v. 
Whitelaw,  1  S.  E.  407,  83  Va.  40; 
Kincheloe  v.  Tracewelbs,  11  Grat.  587 ; 
McKinley  v.  Ensell,  2  Grat.  333 ;  Mc- 
Rae  v.  Scott,  4  Rand.  463;  Ross  v. 
Gill,  1  W^ish.  87. 

W.  "Va.  Cincinnati  Gas  Transp. 
Co.  V.  Kress,  73  S.  E.  309,  70  W.  Va. 
201;    Same  v.  Wilson,  73  S.  B.  306,  70 

2  5,  2  6  See  notes  25  and  26  on  pages 
54  to  58. 


51 


COMMENT   ON   PROBATIVE   EFFECT   OF   EVIDENCE 


31 


The  prohibition  contained  in  such  provisions  is  intended  to  prevent 


W.  Va.  157;  Harman  &  Crockett  v. 
Maddy  Bros.,  49  S.  E.  1009,  57  W. 
Va.  GG;  Winkler  v.  Chesapeake  &  O. 
R.  Co.,  12  W.  Va.  699. 

Wis.  Davis  v.  Dregne,  97  N.  W. 
512,  120  Wis.  G3;  Lampe  v.  Kennedy, 
60  Wis.  110,  IS  N.  W.  730. 

ninstrations  of  instructions  er- 
Toneous  \idtliin  mle.  A  ctiarge  that 
most  of  the  evidence  only  Indirectly 
bears  upon  the  issues  of  the  case.  El- 
lis V.  City  of  Hazelhurst,  75  S.  E.  99, 
138  Ga.  181.  An  instruction  that  if 
the  jury  believe,  from  the  evidence  of 
a  particular  witness,  that  all  his 
knowledge  of  a  fact  testified  about  by 
him  is  derived  from  the  books  of  the 
party  calling  him,  and  if  they  find 
that  the  testimony  of  such  witness  is 
all  the  evidence  on  that  subject,  then 
there  is  no  evidence  before  them  as  to 
that  fact.  Wolcott  v.  Heath,  78  111. 
433.  An  instruction  in  which  the 
court  undertakes  to  tell  the  jury  the 
effect  or  weight  of  portions  of  the  evi- 
dence, how  to  compare  them  one  with 
another,  and  what  portions  are  sup- 
ported by  other  portions.  Wood  v. 
Deutchman,  75  Ind.  148.  An  instruc- 
tion, in  an  action  for  assault  and  bat- 
tery, that,  if  the  jury  found  the  issues 
in  favor  of  plaintiff,  plaintiff  was  not 
entitled  to  exemplary  or  punitive 
damages.  Barlow  v.  Hamilton.  44  So. 
657,  151  Ala.  634.  An  instruction,  in 
an  action  for  compensation  by  an  at- 
torney, that  if  the  jury  find  from  the 
evidence  that  by  the  terms  of  the  con- 
tract of  employment  plaintiff  was  to 
give  his  entire  time  and  attention  to 
■  the  service  of  defendant,  the  evidence 
is  insufficient  to  warrant  the  jury  in 
finding  that  such  provision  of  the  con- 
tmct  was  waived  by  defendant. 
Greene  v.  Hereford,  95  P.  105.  12 
Ariz.  85.  A  charge  that  the  jury 
should  not  consider  the  fact  that  de- 
fendant's deed  made  calls  for  an  al- 
ley, the  existence  of  which  was  in 
controversy.  Perrow  v.  San  Antonio 
&  A.  P.  Ry.  Co.  (Tex.  Civ.  App.)  178 
S.  W.  973,  rehearing  denied  181  S.  W. 
496.  An  instruction,  in  an  action  for 
loss  from  defendant's  failure  to  fur- 
nish cars  as  agreed  for  transporting 
cattle  to  market,  in  which  plaintiff 
testified  that  defendant's  agent  made 


an  absolute  promise  to  furnish  the 
cars,  but  the  latter  testified  that  his 
promise  was  conditioned  upon  his 
ability  to  do  so,  that  if  defendant's 
agent  did  not  agree  to  furnish  cars, 
or  if  he  had  no  authority  to  do  so 
defendant  was  not  liable  for  the  de- 
lay, and  that  the  agent's  statement 
that  he  would  ti-y  to  furnish  the  cars 
was  not  an  agreement  to  do  so.  (Tex. 
Civ.  App.)  St.  Louis,  I.  M.  &  S.  Ry. 
Co.  V.  Boshear,  108  S.  W.  1032,  judg- 
ment affirmed  113  S.  W,  6,  102  Tex. 
76.  An  instruction  that  if  "defend- 
ant, or  he  and  his  wife,  contracted 
for  the  land  in  controversy  for  the 
purpose  of  making  it  a  homestead, 
and  caused  it  to  be  improved,  intend- 
ing to  live  thereon  and  own  no  other 
home,  it  became  their  homestead, 
whether  paid  for  or  not,  or  whether 
they  occupied  it  or  not ;  and,  if  the 
homestead  character  once  attached,  it 
remained  their  homestead  until  aban- 
doned with  the  intention  of  not  re- 
turning to  it."  Rockwell  Bros-.  &  Co. 
V.  Hudgens,  123  S.  W.  185,  57  Tex. 
Civ.  App.  504.  A  charge  in  an  action 
on  a  liquor  dealer's  bond,  that  to  be 
vulgar  or  obscene  within  the  meaning 
of  the  statute  the  pictures  must  be 
"something  more  than  nature  in  its 
simplicity  as  God  created  it."  Raley 
V.  State,  105  S.  W.  342,  47  Tex.  Civ. 
App.  426.  An  instruction,  in  an  action 
against  an  electric  light  company  for 
death  by  electric  shock  received  from 
a  broken  wire,  that  if  decedent  in 
getting  out  of  a  vehicle  after  he  was 
told  not  to  do  so  by  the  driver  was 
negligent,  and  his  act  in  so  doing  and 
going  on  the  wire  caused  his  injuries, 
and  it  was  not  his  duty  to  get  out  of 
the  vehicle,  and,  if  he  had  remained 
there,  he  would  not  have  been  injui'ed, 
and,  if  his  getting  out  of  the  vehicle 
contributed  proximately  to  his  death, 
there  could  be  no  recovery,  though 
the  company  was  guilty  of  negligence, 
was  properly  refused  as  on  the  weight 
of  the  evidence  for  failure  to  present 
to  the  jury  the  question  of  negligence 
in  going  to  where  the  wire  was  and 
coming  in  contact  with  it.  Jackson- 
ville Ice  &  Electric  Co.  v.  Moses,  134 
S.  W.  379,  63  Tex.  Civ.  App.  496.  An 
issue  being  whether  logs  received  by 


§31 


INSTRUCTIONS  TO  JURIES 


52 


the  court  from  expressing  its  own  opinion  upon  the  force  and  effect 


plaintiff  were  received  upon  a  certain 
contract,  and  there  being  evidence 
that  they  were  not  so  received,  but 
were  taken  \inder  a  subsequent  agree- 
ment, it  was  an  expression  of  opinion 
on  the  evidence  to  charge,  "I  conclude 
that  there  cannot  be  much  doubt  that 
what  logs  were  delivered  and  accept- 
ed by  plaintiffs  were  received  upon 
this  contract,"  and,  "If  plaintiffs  re- 
ceived the  logs,  it  strikes  me  that 
they  must  be  held,  in  the  absence  of 
any  evidence  to  the  contrary,  as  hav- 
ing received  them  under  the  con- 
tract." Ketchum  v.  Ebert,  33  Wis. 
611.  On  the  issue  of  the  fact  of  a 
common-law  marriage,  a  charge  that 
such  marriage  may  be  proved  by  tes- 
timony of  witnesses  to  the  agreement 
of  the  man  and  woman  at  the  time  "if 
such  testimony  satisfies  the  jury  of 
the  fact  of  marriage,"  or  by  the  ad- 
missions and  conduct  of  the  parties, 
"provided  the  jury  are  thereby  satis- 
fied of  the  fact  of  marriage,"  is  sub- 
ject to  the  objection  of  indicating  a 
disbelief  by  the  court  of  the  testimony 
offered  to  prove  the  fact  of  marriage. 
In  re  Imboden's  Estate,  86  S.  W.  263, 
111  Mo.  App.  220.  An  instruction,  in 
an  action  for  injury  to  a  miner,  that 
the  servant  assumed  the  risks  of 
which  he  had  actual  knowledge  and 
of  such  hazards  as  he  would  have 
learned  by  ordinary  inspection,  and 
cannot  shut  his  eyes  to  dangers  ob- 
vious to  an  ordinary  man,  or  to  an 
experienced  man,  if  he  is  experienced, 
was  properly  refused  because  the  rule 
as  to  assuming  risks  is  the  same 
whether  the  servant  is  an  ordinary  or 
an  experienced  man,  and  the  stress 
laid  in  the  requested  charge  on  the 
difference  between  such  men  made  it 
a  charge  on  the  weight  of  evidence. 
Consumers'  Lignite  Co.  v.  Cameron 
(Tex.  Civ.  App.)  134  S.  W.  283.  An  in- 
struction in  an  action  for  injuries  to 
the  conductor  on  a  train,  where  there 
was  evidence  that  the  failure  of  a 
brake  valve  to  lap  would  not  have 
caused  the  train  to  run  away  as  it  did, 
but  would  have  stopped  the  train  be- 
cause the  engineer  would  have  gotten 
a  greater  pressure  than  be  sought  to 
apply,  that  this  defense  is  entirely 
paradoxical  and  is  not  a  valid  defense 


to  the  action.  Louisville  &  N.  R.  Co. 
V.  Bohan,  94  S.  W.  84,  116  Tenn.  271. 
An  instruction,  in  suit  for  injuries  to 
a  servant,  received  by  caving  in  of 
unbraced  walls  of  a  trench,  that  any 
duty  of  defendant  to  brace  its  side 
was  partially  discharged  if  it  fur- 
nished materials  for  braces,  competent 
men  to  put  them  in,  and  a  competent 
man  to  see  it  was  done.  If  these  per- 
sons were  negligent  in  not  bracing  it, 
and  it  caved,  the  act  being  one  which 
it  was  the  employer's  duty  to  perform, 
defendant  company  was  responsible. 
Rvan  V.  Oakland  Gas,  Light  &  Heat 
Co.,  102  P.  558,  10  Cal.  App.  484. 
An  instruction,  where  the  evidence 
on  the  question  whether  a  purchaser 
of  school  land  had  abandoned  the 
same  was  conflicting,  that  mere  tem- 
porary absence,  for  business  or  pleas- 
ure, from  lands  settled  upon  would 
not  constitute  an  abandonment. 
Lewis  V.  Scharbauer,  76  S.  W.  225, 
33  Tex.  Civ.  App.  220.  An  instruction 
that,  in  determining  whether  the 
whistle  on  defendant's  locomotive  was 
sounded  or  the  bell  rung  at  the  cross- 
ing at  which  plaintiff  was  injured,  the 
jury  should  consider  the  testimony  of 
witnesses  who  testified  that  they  did 
not  hear  the  whistle  or  bell  as  well 
as  the  testimony  of  witnesses  who 
testified  that  they  did  hear  the  same, 
that  they  were  the  exclusive  judges  of 
the  weight  which  they  would  give  to 
the  testimony,  and  in  doing  so  might 
consider  that  a  person  might  hear  the 
sound  of  a  whistle  or  bell  and  not  be 
conscious  of  hearing  it.  Vandalia  R. 
Co.  v.  Baker,  97  N.  E.  16,  50  Ind.  App. 
184.  An  instruction  in  an  action 
against  a  fertilizer  factory,  in  which 
plaintiff  claimed  that  the  factory, 
which  was  situated  in  the  suburbs 
within  a  few  hundred  yards  of 
plaintiff's  home,  was  maintained  so 
as  to  amount  to  a  continuous  nui- 
sance, that  a  properly  conducted  fac- 
tory adjacent  to  residential  quarters 
may  cause  great  depreciation  in  value, 
but  that  in  such  cases  the  annoyance, 
the  inconvenience  occasioning  the  loss 
in  value,  was  not  actionable  because 
arising  from  an  unlawful  use,  and 
that  the  factory  owner  was  as  much 
entitled  to  the  use  of  his  property  as 


53 


COMMENT   OX    TKOBATIVE   EFFECT  OF   EVIDENCE 


31 


of  the  testimony,  or  of  any  part  of  it,  or  intimating  its  views  as  to  the 


the  owner  of  the  residence  property. 
Jones  y.  F.  S.  Royster  Guano  Co.,  65 
S.  E.  361,  6  Ga.  App.  506.  An  instruc- 
tion, in  an  action  against  a  railway 
company  for  injuries  to  property  in 
consequence  of  tlie  use  of  a  line  of 
road  and  depot  and  stocli  pens  in  ttie 
vicinity  of  the  property,  that  if  the 
property  had  been  injured  by  the  acts 
of  the  company,  the  measure  of  dam- 
ages was  the  actual  loss,  determined 
by  ascertaining  the  market  value  of 
the  property  immediately  before  and 
immediately  after  the  injury,  and  that 
the  jury  should  consider  all  the  evi- 
dence relating  to  the  use  of  the  prop- 
erty when  the  company  built  and 
operated  its  line,  depot  and  stock  pens 
and  all  the  surroundings,  was  objec- 
tionable as  leading  the  jury  to  infer 
that,  in  the  opinion  of  the  court,  the 
property  was  injuriously  affected  by 
the  construction  of  the  line,  depot 
and  pens.  Dallas,  C.  &  S.  W.  Ry.  Co. 
V.  Langston  (Tex.  Civ.  App.)  98  S.  W. 
425.  A  charge,  in  an  action  for  fire 
spreading  from  a  railroad  right  of 
way,  that  even  if  the  fire  was  com- 
municated to  the  right  of  way,  the 
plaintiff  cannot  recover,  since  the  en- 
gine was  in  good  repair  and  equipped 
with  an  improved  spark  arrester,  and 
was  managed  in  a  careful  manner  by 
a  competent  engineer,  and  the  evi- 
dence as  to  this  is  uncontroverted  and 
Tincontradicted.  Williams  v.  Atlantic 
Coast  Line  R.  Co.,  53  S.  E.  448,  140 
N.  C.  623.  Where,  in  an  action  for 
injuries  to  a  traveler  coming  in  con- 
tact with  a  railroad  trestle  over  the 
highway,  the  evidence  showed  that 
sand  had  been  washed  down  to  the 
road,  so  that  the  space  between  the 
road  and  the  timbers  of  the  trestle 
was  about  six  feet,  and  that  plaintiff 
was  injured  while  attempting  to  ride 
under  it  on  horseback  in  the  daytime, 
a  charge  that  plaintiff  could  assume 
that  the  railroad  company  had  per- 
formed its  duty  of  maintaining  the 
crossing  in  repair  for  the  ordinary 
safety  of  the  traveling  public  was 
erroneous  as  on  the  weight  of  the  evi- 
dence. Marshall  &  E.  T.  Rv.  Co.  v. 
Petty  (Tex.  Civ.  App.)  134  S.'  W.  406. 
Where  in  trespass  to  try  title  to  cer- 
tain school  land,  the  state's  evidence 


conflicted  with  that  of  defendant  as 
to  the  time  of  defendant's  settlement, 
and  tended  to  show  that  defendant 
had  not  settled  at  the  time  he  made 
his  application,  and  also  negatived 
the  bona  fides  of  his  settlement  and 
occupancy  of  the  land,  the  abandon- 
ment of  his  former  home  and  the  good 
faith  of  his  settlement  on  the  land 
in  controversy,  being  shai-ply  contest- 
ed, instructions  that  a  valid  settle- 
ment, on  school  land  might  be  made 
in  a  tent,  and  the  fact  that  de- 
fendant was  the  owner  of  a  large 
body  of  other  land  and  commodious 
improvements  thereon  would  not  pre- 
vent his  buying  the  land  in  question, 
if  in  purchasing  it,  he  complied  with 
the  law  as  to  settlement,  residence,  and 
improvements,  was  improper  as  on 
the  weight  of  the  evidence.  State  v. 
Haley  (Tex.  Civ.  App.)  142  S.  W. 
1003.  An  instruction,  in  an  action 
against  a  railway  company  for  kill- 
ing cattle  at  a  crossing,  that  there 
was  some  testimony  showing  that 
the  plaintiff  did  not  stop  the  cat- 
tle before  going  on  the  crossing 
until  he  could  ascertain  whether  a 
train  was  anproaching.  Kinyon  v. 
Chicago  &  N.  W.  Ry.  Co.,  92  N.  W. 
40.  ll.'S  Iowa,  349,  96  Am.  St.  Rep. 
382.  An  instruction,  in  an  action 
against  a  railroad  for  injuries  to 
property  in  consequence  of  the  use  of 
a  line  of  road,  depot  and  stock  pens 
in  the  vicinity  of  the  property,  that  if 
the  company  without  the  consent  of 
plaintiff,  used  the  road,  depot  and 
stock  pens  near  plaintiff's  property, 
and  the  company  reduced  the  market 
value  of  the  property,  as  alleged  in 
the  petition  and  shown  by  the  evi- 
dence, the  company  was  responsible 
therefor,  Dallas,  C.  &  S.  W.  Ry.  Co. 
V.  Langston  (Tex.  Civ.  App.)  98  S.  W. 
425.  An  instruction,  in  an  action  for 
trespass  to  land  by  cutting  timber 
thereon,  that,  if  plaintiff  could  not 
read,  the  jury  should  more  carefully 
scrutinize  the  transaction  in  which  a 
deed  to  the  timber  to  defendant  was 
signed  by  her  and  her  husband,  and 
if  false  representations  were  made  to 
her  as  to  the  nature  of  the  deed,  and 
such  representations  were  made  with 
knowledge  of  their  falsity,  and  plain- 


31 


INSTRUCTIONS  TO  JURIES 


54 


sufficiency  or  insufficiency  of  the  evidence,  in  whole  or  in  part,-^  or, 
in  other  words,  to  give  the  jury  the  exclusive  power  to  pass  on  the 


tiff  believed  them  to  be  true,  the  jury 
should  find  the  deed  was  obtained  by 
fraud.  Davis  v.  Miller  Brent  Lumber 
Co.,  44  So.  639,  151  Ala.  580.  An  in- 
struction, in  an  action  for  conversion, 
that  if  the  property  was  delivered  to 
defendant  by  plaintiff,  and,  after  A 
first  purchase  note  had  become  due, 
and  all  the  purchase  notes  had  been 
declared  due,  plaintiff  refused  to  pay 
the  notes,  and  told  defendant  to  do 
what  it  pleased  with  the  property,  to 
find  for  defendant.  Crouch  Hardware 
Co.  V.  Walker,  113  S.  W.  163,  51  Tex. 
Civ.  App.  571.  An  instruction,  in  an 
action  against  a  railroad  for  damages 
to  plaintiff's  land  caused  by  an  over- 
flow of  water  resulting  from  an  em- 
bankment, in  which  there  was  evi- 
dence tending  to  show  that  part  of 
the  embankment  was  on  defendant's 
right  of  way,  that  defendant  was  not 
liable  if  the  jury  believed  that  the 
embankment  was  not  on  the  right  of 
way,  for  the  reason  that,  if  the  jury 
so  believed,  there  was  no  evidence 
tending  to  show  that  defendant  either 
built  or  caused  the  same  to  be  built. 
Doke  V.  THnity  &  B.  V.  Ry.  Co.,  126 
S.  W.  1195,  60  Tex.  Civ.  App.  106. 
While  exhibition  of  high  temper,  ec- 
centricities, and  unreasonable  preju- 
dices would  not,  in  the  absence  of 
other  evidence,  establish  a  want  of 
testamentary  capacity,  yet  in  a  will 
contest  case  an  instruction  that  such 
exhibitions  were  not  alone  proof  of 
incompetency  or  testamentary  in- 
capacity was  properly  refused,  being 
on  the  weight  of  the  evidence.  Camp- 
bell V.  Campbell  (Tex.  Civ.  App.)  215 
S.  W.  1.34. 

Instruction  tiat  certain  evi- 
dence is  competent  to  establish 
certain  facts.  An  instruction  that 
evidence  of  the  declaration  of  a  testa- 
tor before  and  after  the  execution  of 
a  will  is  not  admissible  to  prove  the 
actual  fact  of  undue  influence  being 
exercised  upon  the  testator  in  making 
the  will,  but  comiietent  to  establish 
the  effect  of  external  acts  of  undue 
influence,  if  any  are  shown,  upon  the 
mind  of  the  testator,  is  improper  as  a 
charge  upon   the  weight   of  the  evi- 


dence, for  the  word  "competent" 
means  answering  to  all  requirements, 
adequate,  sufiicient;  and  the  word 
"establish"  means  "to-fix  or  settle  un- 
alterably." Hart  V.  Hart  (Tex.  Civ. 
App.)  110  S.  W.  91. 

Instruction  that  verdict  must 
be  either  not  guilty  or  for  sub- 
stantial damages.  In  an  action  for 
personal  injuries,  an  instruction  that 
the  jury  should  not  compromise  be- 
tween the  question  of  liability  and 
amount  of  damages,  and,  if,  after  due 
consideration  of  the  evidence  and  in- 
structions based  on  a  view  as  to  the 
preponderance  of  the  evidence,  some 
should  believe  the  defendant  not 
guilty,  and  others  believe  the  defend- 
ant guilty  and  plaintiff  entitled  to 
substantial  damages,  they  should  not 
merely,  as  a  matter  of  compromise, 
bring  in  a  verdict  for  some  unsub- 
stantial amount  against  the  plaintiff 
is  erroneous.  Guaranty  Const.  Co.  v. 
Broeker,  93  111.  App.  272. 

2  5  Ala.  Ogles  v.  State,  72  So.  598, 
15  Ala.  App.  Ill;  Hall  v.  State,  32 
So.  750,  134  Ala.  90. 

Ark.  Thomas  v.  State,  107  S.  W. 
390.  85  Ark.  138. 

Cal.  People  V.  Dufur,  168  P.  590, 
34  Cal.  App.  644 ;  People  v.  Goodrum, 
160  P.  690,  31  Cal.  App.  430;  People 
v.  Vereneseneckockockhoff,  62  P.  Ill, 
129  Cal.  497 ;  People  v.  Melendrez,  62^ 
P  109.  129  Cal.  549 ;  People  v.  Ellen- 
wood,  51  P.  553,  119  Cal.  166. 

Colo.  Dickens  v.  People,  186  P. 
277,  67  Colo.  409;  Ausmus  v.  People, 
107  P.  204,  47  Colo.  167,  19  Ann.  Cas. 
491. 

Fla.  Mathis  v.  State,  34  So.  287, 
45  Fla.  46. 

Ga.  Thomas  v.  State,  88  S.  E.  720. 
18  Ga.  App.  19;  Jeffers  v.  State,  85 
S.  E.  1005,  143  Ga.  849;  Strickland 
V.  State,  77  S.  E.  1070,  12  Ga.  App. 
640;  Scott  V.  State,  60  S.  E.  803,  4 
Ga.  App.  73;  Waters  v.  State,  60 
S.  E.  .335,  3  Ga.  App.  649 ;  Dorsey  v. 
State,  58  S.  E.  477,  2  Ga.  App.  228; 

27  Enlee  v.  Seaboard  Air  Line  Ry., 
96  S.  E.'  490,  110  S.  C.  137 ;  Norris  v. 
Clinkscales,  47  S.  C.  488,  25  S.  E.  797. 


55 


COMMENT  ON   PROBATIVE   EFFECT  OF   EVIDENCE 


31 


facts  without  any  interference  whatever  on  the  part  of  the  judge, -^ 
and  it  has  been  held  error  for  the  court  to  advise  the  jury  how  they 


Shuler  v.  State,  55  S.  E.  496,  126  Ga. 
630;  Brown  v.  State,  54  S.  E.  162,  125 
Ga.  2S1;  Dorsey  v.  State,  35  S.  E. 
651,  110  Ga.  331. 

111.  Hammond  v.  People,  64  N.  E. 
9S0,  199  111.  173;  Adams  v.  People,  54 
N.  E.  296,  179  111.  633;  Healey  v. 
People,  52  N.  E.  426,  177  111.  306. 

Iowa.  State  v.  Carter,  S3  N.  W. 
715,  112  Iowa,  15. 

I^a.  State  V.  Johnson,  72  So.  370, 
139  La.  829 ;  State  v.  Johnson,  48  La. 
Ann.  87,  19  So.  213. 

Mich.  People  V.  Durham,  136  N. 
W.  431,  170  Mich.  598. 

Miss.  Ashford  v.  State,  33  So.  174, 
81  Miss.  414;  Fore  v.  State,  23  So. 
710,  75  Miss.  727. 

Mo.  State  v.  Shelton,  122  S.  W. 
732,  223  Mo.  118 ;  State  v.  Smith,  53 
Mo.  267. 

Neb.  Clarence  v.  State,  125  N.  W. 
540,   86   Neb.   210. 

N.  C.  State  v.  McDowell,  39  S.  E. 
840,  129  N.  C.  523. 

N.  D.  State  v.  Peltier,  129  N.  W. 
451,  21  N.  D.  188 ;  State  v.  Barry,  92 
N.  W.  809,  11  N.  D.  428. 

Okl.  Collegenia  v.  State,  132  P. 
375,  9  Okl.  Cr.  425;  Havill  v.  State, 
121  P.  794,  7  Okl.  Cr.  22. 

Or.  State  v.  McAllister,  136  P.  354, 
67  Or.  480. 

S.  C.  State  V.  Nelson,  96  S.  E.  127, 
109  S.  C.  274 ;  State  v.  Riley,  82  S.  E. 
621,  98  S.  C.  386;  State  v.  Davis,  31 
S.  E.  62,  53  S.  C.  150,  69  Am.  St.  Rep. 
845 

Tex.  King  v.  State,  216  S.  W.  1091, 
86  Tex.  Cr.  R.  407;  Hunt  v.  State, 
214  S.  W.  983,  85  Tex.  Cr.  R.  622; 
Earnest  v.  State,  202  S.  W.  739,  83 
Tex.  Cr.  R.  257 ;  Hinton  v.  State,  144 
S.  W.  617,  65  Tex.  Cr.  R.  408 ;  Bradley 
V.  State,  132  S.  W.  484,  60  Tex.  Cr.  R. 
398;  Coker  v.  State,  128  S.  W.  187, 
59  Tex.  Cr.  R.  241 ;  Best  v.  State,  125 
S.  W.  909,  58  Tex.  Cr.  R.  327;  Mars- 
den  V.  State,  110  S.  W.  897,  53  Tex. 
Cr.  R.  458;  Ross  v.  State,  109  S. 
W.  152,  53  Tex.  Cr.  R.  295;  King  v. 
State,  101  S.  W.  237,  51  Tex.  Cr.  R, 
208,  123  Am.  St.  Rep.  881;  Nelson  v. 
State,  67  S.  W.  320,  43  Tex.  Cr.  R. 
553 ;    Renner  v.  State,  65  S.  W.  1102, 


43  Tex.  Cr.  R.  347 ;  Still  v.  State  (Cr. 
App.)  50  S.  W.  355. 

Utah.  State  v.  Greene,  94  P.  987,  33 
Utah,  497. 

Va.  Dejarnette  v.  Commonwealth, 
75  Va.  867. 

W.  Va.  State  V.  Allen,  30  S.  E. 
209,  45  W.  Va.  65;  State  v.  Che-sa- 
peake  &  O.  Ry.  Co.,  24  W.  Va.  809. 

Wis.  Benedict  v.  State,  14  Wis. 
423. 

Illustrations  of  instructions  er- 
roneous within  rule.  Where  the 
court  told  the  jury  that  the  evidence 
of  an  accomplice  must  be  received  and 
acted  upon  with  caution,  and  that  two 
or  more  accomplices  could  not  cor- 
roborate each  other,  a  further  instruc- 
tion that  the  source  of  such  evidence 
was  tainted,  and  the  danger  of  col- 
lusion and  temptation  to  exculpate 
themselves  was  so  strong  as  to  re- 
quire a  warning  against  the  danger 
of  convicting  upon  their  uncorroborat- 
ed testimony,  w-as  properly  refused, 
as  the  juiy  might  have  understood 
that  the  court  thought  the  testimony 
tainted  and  uncorroborated.  Hunt  v. 
Commonwealth,  101  S.  E.  896,  126  Va. 
815.  An  instruction  that  if  the  jury 
find  that  any  statements  of  the  de- 
fendant have  been  proven  by  the 
state,  and  not  denied  by  the  defend- 
ant, they  are  taken  as  admitted  to  be 
time,  is  erroneous,  as  equivalent  to 
charging  that  defendant  must  specif- 
ically deny  every  statement  attribut- 
ed to  him.  State  v.  HoUingsworth, 
56  S.  W.  1087,  156  Mo.  178.  A  charge 
on  a  trial  for  burglar3'  "that  the  evi- 
dence as  to  stolen  property — as  to 
recovering  possession  of  any  property 
— was  offered  by  the  state  to  show 
that  the  defendant  had  possession  of 
stolen  property,  and  is  only  to  fix  the 
crime  upon  him."  Scales  v.  State,  25 
S.  E.  388,  97  Ga.  692.  An  instniction, 
in  a  prosecution  for  homicide,  that 
if  the  defendant  received  a  blow  on 
his  head  which  affected  his  mind  to 
some  extent,  and  that,  when  under 
excitement   or   anger,    such   affection 

2  8  state  V.  Mitchell,  35  S.  E.  210,  56 
S.  C.  524. 


31 


INSTRUCTIONS  TO  JURIES 


5G 


may  weigh  the  testimony,^ ^  or  to  instruct  that  they  should  be  guided 
by  the  rules  which  chancellors  have  laid  down  for  their  own  guidance 


caused  him  to  lose  mental  control  of 
himself,  together  with  mental  control 
of '  his  power  to  distinguish  between 
right  and  wrong,  and  that,  at  the 
time  of  the  killing,  defendant  was 
laboring  under  great  mental  excite- 
ment, and  entertained  no  malice  to- 
wards deceased,  but  merely  wished  to 
protect  himself,  and  that  the  affection 
of  his  mind  produced  a  mental  delu- 
sion magnifying  the  extent  of  his  dan- 
ger, and  that,  while  laboring  under 
such  delusion,  and  without  malice,  he 
shot  and  killed  deceased,  or,  if  the 
jury  had  a  doubt  as  to  the  truth  of 
such  facts,  they  should  acquit  defend- 
ant. Tidwell  V.  State,  36  So.  .393,  84 
Miss.  475.  A  charge,  in  a  prosecution 
for  the  murder  of  a  man  and  his  wife, 
that  it  had  been  shown  that  certain 
witnesses,  also  indicted,  had  been  ac- 
quitted for  the  murder  of  the  hus- 
band, but  wore  still  under  indictment 
for  the  murder  of  the  wife,  and  that 
those  facts  could  not  be  considered  by 
the  jury  as  proof  of  the  guilt  or  in- 
nocence of  the  witnesses  or  of  defend- 
ants, but  only  on  the  issue  as  to  the 
credibility  of  said  witnesses  and  the 
weight  to  be  given  to  their  evidence. 
Crowson  v.  State,  100  S.  W.  782,  51 
Tex.  Cr.  R.  12.  An  instruction  in  a 
prosecution  for  murder,  discussing  the 
importance  of  the  proof  of  motive,  and 
stating  that  it  may  be  in  many  cases 
impossible  to  show  a  motive,  for  the 
reason  that  we  cannot  fathom  the 
mind  of  the  accused,  and,  though  the 
prosecution  might  not  be  able  to  prove 
it,  defendant  may  have  had  such  de- 
sire of  vengeance  or  passion  to  be 
gratified.  People  v.  Verenoseneckock- 
ockhoff,  58  P.  1.56,  129  Cal.  497  ;  Id.,  62 
P.  Ill,  129  Cal.  497.  An  instruction, 
in  a  prosecution  for  wife  murder,  that 
the  defense  of  in.'^anity  was  subject 
to  great  abuse  and  was  often  resort- 
ed to  as  the  only  means,  of  escape 
from  conviction,  and  that  the  evi- 
dence to  sustain  it  should  be  care- 
fully scrutinized,  and  that  an  ingen- 
ious countoi-fcit  of  insanity  should 
not  be  permitted  to  deceive  the  jury. 
State  V.  Shaw,  135  P.  20,  75  Wash. 
826.     A   charge   that   if   the   parties 


willingly  rushed  at  each  other  to  fight. 
and  ''in  pursuance  of  such  agreement" 
defendant  fired  the  shot,  then  the  law 
of  self-defense  does  not  apply.  Gard- 
ner V.  State,  125  S.  W.  13,  57  Tex. 
Cr.  R.  471.  Where,  on  a  trial  for 
keeping  intoxicating  liquors  for  un- 
lawful sale,  there  was  evidence  that 
accused  had  concealed  on  his  person 
intoxicating  liquor,  and  that  intoxi- 
cating liquor  had  been  found  in  his 
house  partially  concealed,  a  charge 
that  the  jury  must  determine  from 
the  circumstances  whether  accused 
had  liquor  in  his  possession  for  an 
unlawful  purpose,  and  that  if  a  prac- 
ticing physician  had  liquor  in  his  pos- 
session the  jury  would  naturally  infer 
that  he  was  going  to  use  the  same  for 
medicine,  while  if  a  notorious  blind 
tiger  traveled  around  with  liquor  they 
would  naturally  suppose  he  was  ply- 
ing the  trade,  was  objectionable  as 
a  charge  on  the  facts.  State  v.  Parris, 
71  S.  E.  808,  89  S.  O.  140. 

Matters  not  constituting  im- 
proper comment  on  the  evidence. 
An  instruction  in  a  prosecution  for 
criminal  assault  that,  where  an  in- 
jui*y  is  actually  caused  by  violence  to 
the  person  injured,  the  intent  to  in- 
jure is  presumed.  Miller  v.  State,  150 
S.  W.  &35,  67  Tex.  Cr.  R.  654.  An  in- 
struction that  circumstances,  substan- 
tially proven,  which  point  to  guilt  and 
are  irreconcilable  with  innocence,  and 
which  may  be  explained  by  defendant, 
if  innocent,  but  which  are  not  so  ex- 
plained, may  be  sufiicient.  Smith  v. 
State,  96  S.  E.  632,  14S  Ga.  332.  A 
chai'ge  that,  imder  definition  of  murder 
and  malice  connected  therewith,  jury 
should  say  whether  defendant  killed 
deceased  under  circumstances  making 
it  murder,  and  whether  he  acted  with 
malice  and  without  circumstances  of 
mitigation  or  justification,  and  that, 
if  he  did,  and  all  those  things  con- 
curred, the  jury  should  convict.  Webb 
V.  State,  99  S.  E.  630,  149  Ga.  211. 
A  charge  that  the  idea  of  prevention 
enters  into  cases  of  justifiable  homi- 

2  9  State  V.  MitcheU,  85  S.  E.  210,  56 
S.  C.  524. 


57 


COMMENT   ON   rUOBATIVE    EFFECT   OF   EVIDENCE 


31 


when  determining  the   facts.' °     Under   such  a  provision  the  judge 
should  not,  in  his  charge,  review  in  detail  each  fact  and  circumstance 


/ 

cide,  and  that  no  one  can  legally  slay 
another    when    it    is    apparent    that 
there  is  no  imminent  danger  at  time 
of  killing,  or  when  danger  is  over,  and 
that   it   is  not   justifiable  to   kill   in 
revenge  for  a  past  wrong,  and  that  to 
justify   killing   the    danger    must   be 
urgent,   or  apparently  so,   at  killing, 
was  not  erroneous,  as  expressing  opin- 
ion  that    deceased    was   killed   in    a 
spirit  of  revenge.     Gaillard  v.  State, 
<)9  S.  E.  629.  149  Ga.  190.     A  charge 
on  the  subject  of  murder,  and  in  de- 
fining   malice,    that    in    this    case    it 
would  be  an  indication  to  do  a  wrong- 
ful act  resulting  in  the  death  of  de- 
ceased without  sufficient  legal  provo- 
cation or  just  excui^e.     State  v.  Gall- 
man,  60  S.  E.  682,  79  S.  C.  229.     An 
instruction   on   self-defense,    that   "it 
Is  for  you  to  determine  from  all  the 
evidence    whether    such    defense    is 
made  in  good  faith  or  is  a  mere  pre- 
tense."    State  V.  Goodrich,  176  P.  813, 
24  N.  M.  660.     An  instruction,  where 
defendant,  in  a  prosecution  for  homi- 
cide, admitted  the  killing,  and  claim- 
ed that  deceased,  following  a  conver- 
sation as  to  the  act  of  deceased's  son  in 
stealing  defendant's  property,  sudden- 
ly became  enraged,   and   said   to  de- 
fendant.  "I  will  cut  your  heart  out 
for  calling  my  boy  a  thief,"  and  was 
in    pursuit    of    defendant    when    the 
fatal    shot    was    fired,    that,    "l)efore 
proceeding  to  instruct  you  upon  this 
issue   of    self-defense,    I    will   try    to 
simplify  this  issue  to  some  extent  by 
eliminating  such  other  considerations 
and  matters  as  do  not  have  anything 
to  do  with  the  issue  of  self-defense, 
and,    first,    I    instruct    you    that    the 
merits  or  demerits  of  the  controversy 
over  articles  of  property  have  nothing 
to  do  with  this  question."     State   v. 
Ware,  109  V.  359,  58  Wash.  526.     A 
charge,  where  the  defense  relied  on 
was  an  alibi,  that :    "I  apprehend  you 
will  have  little  trouble  in  coming  to  a 
conclusion  whether  there  was  murder 
or  not.    I  believe  it  was  conceded  by 
the  first  counsel  who  addressed  you 
that  the  killing  was  a  felonious  one." 
State  V.  AughtiT,  26  S.  E.  619,  49  S. 
C.  285;    Same  v.  Aughtrey,  27  S.  E. 


199,  49  S.  C.  285.  An  instruction, 
that  "this  case  is  one  of  murder 
against  defendant  beyond  all  question 
the  gravest  offense  known  to  tlie  law." 
State  V.  Mcintosh,  39  S.  C.  97,  17  S. 
E.  446.  In  a  prosecution  for  homicide, 
where  circumstantial  evidence  was  re- 
lied on,  an  instruction  that  the  evi- 
dence was  legal  and  competent,  and  if 
of  such  character  as  to  exclude  every 
reasonable  hypothesis  other  than 
guilt  the  jury  should  convict,  is  not 
objectionable  as  tantamount  to  telling 
the  jury  that  the  evidence  was  suffi- 
cient. People  V.  Tom  Woo,  184  P, 
389,  181  Cal.  315.  Where  evidence  in 
prosecution  for  murder,  considered 
with  defendant's  statement  at  trial, 
authorized  charge  on  mutual  combat, 
a  charge  that,  if  there  was  a  mutual 
intent  to  fight,  defendant  could  not 
justify  killing  without  showing  that 
it  was  absolutely  necessary,  and  that, 
if  absolutely  necessary  defendant 
should  be  acquitted,  was  not  errone- 
ous as  expressing  opinion  that  de- 
fendant was  at  fault.  Fitzpatriek  v. 
State,  99  S.  E.  128,  149  Ga.  75.  A 
charge,  in  prosecution  for  making 
alcoholic  liquor  in  violation  of  law. 
where  the  evidence  showed  that  a  sub- 
stance commonly  called  "beer,"  made 
out  of  corn  meal  and  water,  was 
found  on  defendant's  premises,  that 
jury  might  presume  that  he  was  in 
possession  of  the  "beer,"  and  that  he 
owned  and  made  it.  Williams  v. 
State,  99  S.  E.  711,  24  Ga.  App.  53. 
An  instruction,  in  a  prosecution  for 
violating  the  local  option  law,  that 
the  jury  to  convict  must  find  that  de- 
fendant kept  the  whisky  to  protect 
another.  State  v.  Galliton,  161  S.  W. 
848,  176  Mo.  App.  115.  An  instruction 
that,  in  determining  whether  a  pre- 
scription was  unlawfully  written,  the 
jury  might  consider  the  physical  con- 
dition of  the  person  for  whom  the 
whisk  V  was  prescribed.  State  v. 
Long,  173  S.  W.  722,  187  Mo.  App.  223. 
An  instruction  that,  if  the  defendant 
took  the  money  from  the  person  of  the 

8  0  Ferrall    v.   Broadway,   95    N.    C 
551. 


§31 


INSTRUCTIONS   TO  JURIES 


58 


in  testimony  in  such  a  way  as  tends  to  impress  the  jury  that  the  testi- 
mony has  established  the  contention  of  one  of  the  parties,  or  that  cer- 
tain testimony  is  entitled  to  more  weight  than  others.^^     ^ 


prosecuting  witness  under  sucli  cir- 
cumstances as  to  make  her  guilty  of 
theft,  the  fact  that  the  prosecuting 
witness  endeavored  to  make  up  with 
defendant  after  instituting  the  prose- 
cution would  not  have  any  effect  on 
the  guilt  of  defendant,  but  such  evi- 
dence should  be  considered  in  passing 
on  the  weight  to  be  given  to  his  evi- 
dence. Harris  v.  State  (Tex.  Cr.  App.) 
65  S.  W.  921.  A  charge  that  an  as- 
sault with  intent  to  commit  a  rape 
is  an  assault  made  with  the  intent  to 
have  carnal  knowledge  of  a  female, 
forcibly  and  against  her  will,  and 
that  an  assault  with  such  intent,  and 
a  seizing  of  the  woman  with  that 
intention,  and  a  desisting  from  fear 
or  an  inability  to  commit  the  offense, 
would  not  acquit  of  offense  of  assault 
with  intent  to  commit  a  rape,  did  not 
intimate  an  opinion  as  to  what  had 
been  proven.  Walton  v.  State,  100  S. 
E.  765,  24  Ga.  App.  326.  A  charge, 
in  a  prosecution  for  robbery  that  it 
is  not  necessary,  to  constitute  the 
stealing  or  carrying  away  from  the 
presence  of  deceased,  that  it  should 
have  been  done,  if  done,  in  his  imme- 
diate view,  but  if  the  jury  found  that 
defendant  made  a  violent  assault  on 
deceased  by  choking  him  and  causing 
him  to  fall,  and  then  took  from  his 
pockets  a  sum  of  money,  then  they 
should  find  him  guilty,  etc.  State  v. 
Mitchell,  72  P.  707,  32  Wash.  64.  An 
instruction  in  a  prosecution  for  rob- 
bery, detailing  merely  the  facts  charg- 
ed in  the  indictment,  and  stating  that 
such  matters  must  be  proved  beyond 
a  reasonable  doubt  to  justify  a  con- 
viction. Young  v.  State  (Tex.  Cr. 
App.)  79  S.  W.  34. 

Instrnction  on  alibi  held  not  ob- 
jectionable viritbin  rule.  An  in- 
struction as  to  alibi,  stating  that 
defendant  introduced  testimony  that 
at  or  about  the  time  the  alleged  rob- 
bery was  committed  he  was  at  an- 
other place  at  such  a  distance  from 
the  alleged  robliery  that  he  could  not 
be  guilty,  and  that,  although  the  alibi 
might  not  be  exact,  still,  if  it  raised  a 
reasonable  doubt  of  defendant's  guilt, 


he  could  not  be  convicted,  and  also 
that  the  court  did  not  intend  to  ex- 
press any  doubt  about  the  alibi,  or 
any  opinion  whatever  about  it,  as  its 
sufficiency  was  for  the  jui-y,  fully  ex- 
plained to  the  jury  that  they  alone 
were  to  decide  the  question  as  to 
alibi,  and  was  not  objectionable  as 
containing  any  intimation  as  to  the 
court's  opinion.  Graham  v.  State,  45 
So.  580,  153  Ala.  38. 

26  Ala.  Langston  v.  State,  75  So. 
715,  16  Ala.  App.  123;  Norman  v. 
State,  69  So.  362,  13  Ala.  App.  337; 
Aldrich  Mining  Co.  v.  Pearce,  68  So. 
900,  192  Ala.  195;  Crews  &  Green  v. 
Parker,  68  So.  287,  192  Ala.  383; 
Manley  v.  Birmingham  Ry.,  Light  & 
Power  Co.,  68  So.  60,  191  Ala.  531; 
Kirkwood  v.  State,  62  So.  1011,  8  Ala. 
App.  108,  certiorari  denied  63  So.  990, 
184  Ala.  9 ;  Nashville,  C.  &  St.  L.  Rv. 
V.  Hinds,  60  So.  409,  5  Ala.  App.  596 ; 
Louisville  &  N.  R.  Co.  v.  Young,  53 
So.  213.  168  Ala.  551 ;  Byrd  v.  Beall, 
50  So.  53,  161  Ala.  594;  Gillespie  v. 
Hester,  49  So.  580,  159  Ala.  444 ;  Da- 
vis V.  State,  44  So.  561,  152  Ala.  25; 
Kirby  v.  State,  44  So.  38,  151  Ala.  66 : 
Fletcher  v.  Prestwood,  43  So.  231,  150 
Ala.  135. 

Ariz.  Hurley  v.  Territory,  108  P. 
222,  13  Ariz.  2. 

Ark.  St.  Louis,  I.  M.  &  S.  Ry.  Co. 
V.  Coke,  175  S.  W.  1177,  118  Ark.  49 ; 
Western  Coal  &  Mining  Co.  v.  Buph- 
anan,  114  S.  W.  694,  88  Ark.  7. 

Cal.  Neff  V.  Mattern,  151  P.  382, 
28  Cal.  App.  99 ;  People  v.  Horn.  144 
P.  641,  25  Cal.  App.  583;  Estrella 
Vinevard  Co.  v.  Butler,  57  P.  980,  125 
Cal.  232.     ~ 

Ga.  Albany  &  N.  Ry.  Co.  v.  Mc- 
Arthy,  54  S.  E.  193,  125  Ga.  205. 

111.      Klofski    V.    Railroad    Supply 

81  Rouse  V.  State,  58  S.  E.  416,  2 
Ga.  App.  184. 

A  judge  sbould  refer  to  the  evi- 
dence only  so  far  as  is  necessary  to 
present  the  leading  issues,  and  should 
omit  reference  to  the  minor  details  of 
the  testimony.  Farkas  v.  Brown,  60 
S.  E.  1014,  4  Ga.  App.  130. 


59 


COMMENT   ON   PROBATIVE   EFFECT   OF   EVIDENCE 


§31 


The  trial  court  may  violate  the  above  rule  by  the  manner,  tone,  or 
emphasis  of  its  charge,^^  and  under  such  provisions  the  judge  should 
carefully  avoid  the  use  of  expressions  which,  while  not  so  intended, 
may  suggest  to  the  jury  that  he  has  formed  certain  views  with  regard 
to  the  evidence,  or  certain  phases  of  it.*^ 


Thus  a  suggestion  in  a  civil 


Co.,  85  N.  E.  274,  235  111.  146,  affirm- 
ing judgment  Railroad  Supply  Co.  v. 
Klofski,  138  111.  App.  468. 

Ind.  Marietta  Glass  Mfg.  Co.  v. 
Pruitt,  102  N.  E.  369,  180  Ind.  434; 
Indianapolis  Southern  R.  Co.  v.  Em- 
merson,  98  N.  E.  895,  52  Ind.  App.  403. 

Iowa.  Tarashonsky  v.  Illinois  Cent. 
R.  Co.,  117  N.  W.  1074,  139  Iowa,  709. 

LoL.  state  V.  Williams,  56  So.  891, 
129  La.  795 ;  State  v.  Hopkins,  24  So. 
188,  50  La.  Ann.  1171. 

Me.  Duplissy  v.  Maine  Cent,  R. 
Co.,  91  A.  983,  112  Me.  263 ;  Hotchkiss 
V.  Bon  Air  Coal  &  Iron  Co.,  78  A. 
1108,  108  Me.  34. 

Md.  Abell  v.  Harris,  11  Gill  &  J. 
'367. 

Mass.  McManus  v.  Thing,  88  N.  E. 
442,  202  Mass.  11;  Commonwealth  v. 
Lynes,  142  Mass.  577,  8  N.  E.  408,  56 
Am.  Rep.  709;  Delaney  v.  Hall,  130 
Mass.  524  ;  Commonwealth  v.  Brown, 
121  Mass.  69. 

Mich.  People  V.  Jones,  24  Mich. 
215. 

Mo.  State  v.  Stewart,  204  S.  W. 
10,  274  Mo.  649 :  State  v.  Rollins,  126 
S.  W.  478,  226  Mo.  524. 

Neb.  Hanika  v.  Lincoln  Traction 
Co.,  153  N.  W.  568,  98  Neb.  583. 

N.  M.  Victor  American  Fuel  Co. 
V.  Melkusch,  173  P.  198,  24  N.  M.  47. 

N.  Y.  Gombert  v.  New  York  Cent. 
&  H.  R.  R.  Co.,  88  N.  E.  382,  195  N. 
T.  273,  133  Am.  St.  Rep.  794,  reversing 
judgment  108  N.  Y.  S.  1133,  123  App. 
Div.  913 ;  Bernhard  v.  Brunner,  17  N. 
Y.  Super.  Ct.  528. 

N.  C.  Tillery  v.  Royal  Benefit  So- 
ciety, 80  S.  E.  1068,  165  N.  C.  262; 
Daniel  v.  Dixon,  77  S.  E.  305.  161  N. 
C.  377 ;  Thompson  v.  City  of  Winston, 
118  N.  C.  662,  24  S.  E.  421:  Ellis  v. 
Harris,  106  N.  C.  395,  11  S.  B.  248. 

Okl.  Missouri,  O.  &  G.  Rv.  Co.  v. 
Miller,  145  P.  367,  45  Okl.  173. 

S.  C.  Kennedy  v.  Kennedy,  68  S. 
E.  664,  86  S.  C.  483 ;  Toale  v.  Western 
Union  Telegraph  Co.,  57  S.  E.  117,  76 
S.  C.  248. 


S.  D.  Grissel  v.  Bank  of  Woon- 
socket,  80  N.  W.  161,  12  S.  D.  93. 

Tex.  Smith  v.  Bryan  (Civ.  App.) 
204  S.  W.  359;  Panhandle  &  S.  F.  Ry. 
Co.  V.  Vaughn  (Civ.  App.)  191  S.  W . 
142  ;  Glover  v.  Houston  Belt  &  Termi- 
nal Ry.  Co.  (Civ.  App.)  163  S.  W.  1063 ; 
Houston,  E,  &  W.  T.  Ry.  Co.  v.  Lacy 
(Civ.  App.)  153  S.  W.  414;  Kansas 
City,  M.  &  O.  Ry.  Co.  of  Texas  v. 
Florence  (Civ.  App.)  138  S.  W.  430; 
Weatherred  v.  Fiuley,  121  S.  W.  895, 
57  Tex.  Civ.  App.  50. 

Wis.  Hamann  v.  Milwaukee  Bridge 
Co.,  116  N.  W.  854,  136  Wis.  39. 

3  2  Johnson  v.  State,  62  So.  328,  8 
Ala.  App.  207 ;  State  v.  Howell,  28  S. 
G.  2.50,  5  S.  E.  617. 

3  3  Ala.  Lamar  v.  King,  53  So.  279, 
168  Ala.  285. 

Ga.  Procter  v.  Pointer,  56  S.  E. 
Ill,  127  Ga.  134;  Same  v.  Thompson, 
56  S.  E.  112,  127  Ga.  137. 

111.  Feitl  V.  Chicago  City  Ry.  Co., 
113  111.  App.  381,  judgment  affirmed 
71  N.  E.  991,  211  111.  279 ;  Franey  v. 
Illinois  Cent.  R.  Co.,  104  111.  App.  499. 

Iowa.  State  v.  Dorland,  72  N.  W. 
492,  103  Iowa,  168. 

Ky.  Milton  v.  Hunter,  13  Bush, 
163.- 

Mich.  Butler  v.  Detroit  Y.  &  A.  A. 
Ry.,  101  N.  W.  232,  138  Mich.  206. 

Use  of  word  "bogus."  Where  a 
material  question  in  a  proceeding  to 
set  aside  a  voluntary  conveyance  was 
as  to  the  amount  of  the  donor's  liabili- 
ties, as  compared  with  his  resources, 
at  the  time  the  conveyance  was  ex- 
ecuted, an  allusion  of  the  court  in  its 
charge  to  "bogus"  debts  or  claims  was 
objectionable,  Cleveland  v.  Cham- 
bliss,  64  Ga.  352. 

Use  of  phrase  "If  you  reach  the 
question  of  damages."  In  a  motor- 
cycle rider's  action  for  personal  in- 
juries against  an  automobile  driver, 
the  use  of  the  language,  "If  you  arrive 
at  the  point  when  damages  are  as- 
sessed," in  the  instructions,  was  not 
open  to  criticism,  as  giving  the  jury 


31 


INSTRUCTIONS   TO  JURIES 


ea 


suit  that  the  evidence  indicates  criminality  is  improper.^*  The  court 
should  not  describe  the  evidence  as  clear,  strong,  and  convincing,  or 
the  reverse, ^^  and  a  reference  in  an  instruction  to  a  sale  attacked  as  in 
fraud  of  creditors  as  the  "so-called  sale"  will  render  it  erroneous.^ ^ 

As  the  use  of  the  word  "even"  ordinarily  expresses  doubt,^^  an  in- 
struction that,  "even"  if  the  jury  should  find  certain  facts,  or  even 
though  they  should  find  for  the  plaintifif,  etc.,  is  objectionable,  as  an 
intimation  that  the  jury  will  not  so  find.'^  The  use  of  the  word  "even," 
or  "even  though,"  may,  however,  be  necessary  to  give  point  and  effect 
to  a  proposition  of  law  as  to  what  facts  may  be  inferred  from  certain 
evidence,  and  in  such  case  their  use  will  not  be  erroneous.^ ^ 

An  instruction  which  unduly  emphasizes  certain  issues  by  frequent 
repetition  may  incur  the  criticism  of  being  on  the  weight  of  evidence.'** 
An  instruction  that  places  the  evidence  of  one  party  in  an  unfavorable 
light  as  compared  with  that  of  the  other  is  erroneous,*^  and  in  a 
criminal  case  a  charge  on  the  weight  of  evidence  favorable  to  the 
accused  is  no  more  authorized  than  one  favorable  to  the  state.*-    That 


to  understand  it  was  questionable  if 
they  would  ever  arrive  at  that  point. 
Gardner  v.  Russell,  179  N,  W.  41,  211 
Mich.  647. 

34  Furhman  v.  City  of  Huntsville, 
54  Ala.  263. 

ssAla.  Bonner  v.  State,  107  Ala. 
97,  18  So.  226. 

Cal.  People  V.  Ah  Sing,  59  Cal. 
400. 

Micli.  People  V.  Gastro,  75  Mich. 
127,  42  X.  W.  937. 

N.  C.  Ray  v.  Patterson,  87  S.  E. 
212,  170  N.  C.  226 ;  Jones  v.  Warren, 
46  S.  E.  740,  134  N.  C.  .390;  Ray  v. 
Long,  44  S.  E.  652,  132  N.  C.  891. 

Tenn.  Bover  v.  State,  93  Tenn. 
216,  23  S.  W.  971. 

3  6  Kuhlenbeck  v.  Hotz,  53  111.  App. 
675. 

3  7Dowd  V.  Chicago  City  Ry.  Co., 
153  111.  App.  85. 

38  Birminiham  &  A.  Ry.  Co.  v. 
Campbell,  82  So.  546,  203  Ala.  296; 
Manistee  Mill  Co.  v.  Hobdy,  51  So. 
871,  165  Ala.  411,  138  Am.  St.  Rep.  73. 

"Even  though."  A  requested 
charge  directing  a  verdict  for  defend- 
ant, "even  though  the  jury  find  cer- 
tain facts  as  testified  by  plaintiff's 
witnesses,"  was  properly  refused  as 
tending  to  cast  suspicion  upon  the 
truth  of  plaintiff's  testimony.  Louis- 
ville &  N.  R.  Co.  V.  Abernathy,  73  So. 
103,  197  Ala.  512. 


Use  of  "even"  in  the  sense  of 
"although"  or  "if."  In  an  action 
against  a  railroad  company  for  dam- 
ages from  fire,  an  insti'uction  that 
"even"  if  the  jury  found  for  plaintiff 
they  should  not  return  a  verdict  for 
more  than  the  actual  cost  value  of  the 
property  destroyed  was  not  erroneous 
as  an  intimation  of  the  court's  opin- 
ion that  a  finding  for  plaintiff  was  not 
probable,  as  the  quoted  word  was  evi- 
dently used  in  its  popular  sense  as 
carrj-ing  the  same  meaning  as  "al- 
though" or  "if."  May  v.  Missouri 
Pac.  R.  Co.,  219  S.  W.  756,  143  Ark. 
75. 

3  9  Central  of  Georgia  Ry.  Co.  v.  El- 
lison, 75  So.  159.  199  Ala.  571. 

4  0  Galveston,  H.  &  N.  Rv.  Co.  v. 
Wallis,  104  S.  W.  418,  47  Tex.  Civ. 
App.  120 ;  Gulf,  C.  &  S.  F.  Rv.  Co.  v. 
Condra,  82  S.  W.  528,  36  Tex.  Civ. 
App.  556. 

It  is  error  in  a  criminal  case  to 
frequently  repeat  a  principle  of  law 
involved  so  as  to  create  an  impres- 
sion on  the  juroi'.s'  minds  as  to  the 
court's  opinion  of  the  facts  to  which 
the  principle  is  applicable.  Perrin  v. 
State,  78  S.  W.  930,  45  Tex.  Cr.  R.  560. 

41  Withers  v.  I-4Xue,  56  S.  E.  855, 
144  N.  C.  184. 

4  2  Bums  V.  State,  145  S.  W.  356,  65 
Tex.  Cr.  R.  175;  Carver  v.  State, 
148  S.  W.  746,  07  Tex.  Cr.  R.  110. 


Ql  COMMENT   ON   PROBATIVE   EFFECT   OF   EVIDENCE  §  32 

an  intimation  of  opinion  by  the  court  as  to  the  facts  is  unintentional 
does  not  take  it  out  of  the  ban  of  such  provisions." ^ 

The  fact  that  a  judge  may  have  personal  knowledge  of  certain  mat- 
ters of  fact  in  dispute  does  not  remove  him  from  the  scope  of  the 
rule  against  expressing  an  opinion  as  to  such  matters/*  and  it  is  error 
for  him  to  try  to  compel  the  jury  to  hamionize  their  views  of  the 
facts  with  such  knowledge.*^ 

The  rule  supported  by  reason  and  the  weight  of  authority  is  that 
error  in  charging  on  the  weight  of  the  evidence,  or  intimating  an  opin- 
ion thereon,  in  violation  of  the  above  provisions,  is  not  cured  by  telling 
the  juiy  that  they  are  the  exclusive  judges  of  the-  facts.*"  The  con- 
trary rule,  which  has  support  in  some  of  the  cases,*'  would  seem 
to  practically  nullify  the  effect  of  such  provisions. 

§  32.     Limitations  of  rule 

The  familiar  principle  that  a  statutory  provision  which  is  in  deroga- 
tion of  the  common  law  should  be  strictly  construed  has  been  recognized 
by  some  courts  as  applicable  to  the  above  provisions.*^  Remarks  of 
the  judge  during  the  progress  of  the  trial,  when  refusing  a  nonsuit, 
or  when  making  a  ruling  on  the  admissibility  of  evidence,  or  during 
the  examination  of  witnesses,  or  when  hearing  arguments,  do  not  as 

43  state  V.  Pascal,  85  So.  621,  147  error  is  not  cured  by  repeated  instriic- 

T  n     6S4  •     Starling   v.    Selma   Cotton  tions  to  the  jury  that  they  are  exclu- 

Miils    88    SE    242,   171   N.   C.  222;  sive  judges  of  the  weight  of  the  evi- 

Sta  e  V    Greene,  94  P.  987,  33  Utah,  dence  and  the  credibility  of  the  wit- 

49^  nesses.     Territory  v.  O  Hare,  1  iS.  !>• 

4*4  Andreas  v.  Ketcham,  77  111.  377.  30,    44   N.   W.    1003 

45  Shafer  v.  Citv  of  Eau  Claire,  81  47  state   v.    Streeter,   20  Nev.  403, 

N  W.  409,  105  Wis.  239.  22    P.    758;     White    v     Territory,    1 

■46Cal.     In  re  Hess'  Estate  (Sup.)  Wash.  St.  279,  24  P.  447 

192  P  35;   People  v.  Chew  Sing  Wing,  In  Nevada,  in  an  earlier  case  than 

88  Cal    "^es    25  P.  1099.  that    cited    for    the    contrary    rule, 

Micii.     People  v.  Lyons,  13  N.  W.  where,  on  a  trial  for  murder    it  ap- 

365   49  Mich  78  peared  that  defendant  had  kicked  de- 

N    D       State'  v    Barry,  92  N.  W.  ceased  in  the  face,  and  the  state  con- 

809   11  N    D  428.  tended  that  the  killing  was  by  a  kick 

Or      State  v"  Hatcher,  29  Or.  309,  on  the  breast,  a  remark  of  the  judge, 

44  P*5S4  iJi  overruUng  objections  to  testimony 

S    C      State  V.  White,  15  S.  C.  381.  as    to    bruises    on    the    breast,    that 

S     D       Fullerton    Lumlier    Co.    v.  "there  was  as  much  evidence  that  de- 

Hosford  176  N.  W.  1017,  42  S.  D.  642.  fendant  kicked  deceased  on  the  chest 

Tex.  ' Johnson  v.  State,  1  Tex.  App.  as  upon  the  face,"  was  held  reversible 

g()9  error,    though   the    court   afterwards 

Expression  of  disbelief  in  testi-  stated  that  no  expression  of  opinion 

mony  for  accused.    Where  the  court  was  intended  and  that  the  whole  evi- 

has   erred   in   making   argumentative  dence   was   for    the    jury.      State    v. 

comparisons  of  the  testimony  for  the  Harkin,  7  Nev.  377.                     ^^    o<o 

defense  and  prosecution,  indicating  his  48  state  v.  Baldwin,  100  S    E.  u48, 

disbelief  in  that  for  the  defense,  the  178  N.  C.  687,  10  A,  L.  R.  1112. 


32 


INSTRUCTIONS  TO  JURIES 


62 


a  general  rule  fall  within  the  scope  of  the  above  provisions. ^^  Such 
rule  does  not  prohibit  the  trial  judge,  either  in  civil  or  criminal  cases, 
from  stating  to  the  jury  the  questions  which  they  are  called  on  to 
determine,^"  and  instructing  them  as  to  what  evidence  may  be  looked 
to  in  such  determination;^^  nor  do  such  requirements  prohibit  such 
reference  to  the  undisputed  evidence  as  is  necessary  to  enable  the  jury 
to  comprehend  the  law  applicable  to  the  concrete  issues  of  fact  which 
they  are  to  decide,^^  and  it  is  not  a  comment  upon  the  facts  for  the 
court  to  state  the  reason  for  the  withdrawal  by  the  plaintiff  of  one  of 
the  causes  of  action  alleged  in  his  complaint.^^ 

A  statement  of  an  abstract  principle  of  law  cannot  be  regarded  as  a 
charge  on  the  facts,  on  the  theory  that  it  indicates  the  opinion  of  the 
court  that  there  are  facts  in  evidence  to  which  such  principle  is  ap- 
plicable.^* It  is  not  a  comment  upon  testimony  specially  to  refer  to 
the  fact  sought  to  be  established  by  such  testimony.^^     The  judge 


49  Zonker  v.  Cowan,  84  Ind.  3i,'5  •. 
State  V.  Whitaker,  87  S.  E.  1001,  103 
S.  C.  210;  Hunt  v.  Atlantic  Coast 
Lumber  Corporation,  85  S.  B.  229.  101 
S.  C.  64;  Goodwin  v.  Atlantic  Coast 
Line  R.  Co.,  64  S.  E.  242,  82  S.  C.  321; 
Latimer  v.  General  Electric  Co.,  62 
S.  E.  438,  81  S.  C.  374. 

Remarks  lield  not  to  constitute 
a  charge  on  tlie  facts.  A  remark, 
in  admitting  evidence  to  show  that  a 
life  insurance  soliciting  agent  had 
knowledge  of  the  facts  misrepresented 
in  an  application :  "I  don't  know 
much  about  life  insurance  companies. 
They  are  tbo  smartest  people  on  the 
face  of  the  globe.  Let  the  courts  pass 
one  rule  to-day,  and  they  will  frame 
a  rule  to  meet  it  the  next."  Rearden 
V.  State  Mut.  Life  Ins.  Co.,  60  S.  E. 
1106,  79  S.  C.  526.  The  judge  in 
giving  his  reason  for  a  ruling  on  evi- 
dence may  refer  to  testimony  already 
in  the  case.  State  v.  Thrailkill,  50  S. 
E.  551,  71  S.  C.  136. 

In  Utah,  however,  in  a  prosecu- 
tion for  adultery,  in  which  the  evi- 
dence that  defendant  was  a  married 
man  consisted  entirely  of  his  admis- 
sions that  the  woman  he  lived  with 
was  his  wife  and  their  reputation  in 
the  community,  remarks  of  the  court, 
on  overruling  a  motion  for  a  directed 
verdV't  of  not  guilty,  that  a  man 
should  not  be  permitted  to  live  in  a 
community  for  years  with  a  woman 


as  his  wife,  holding  her  out  to  be  so, 
and  then,  because  the  state  cannot 
produce  direct  evidence  of  the  mar- 
riage ceremony,  go  scot  free,  have 
been  held  an  expression  of  opinion  on 
the  weight  of  evidence,  and  prejudi- 
cial error.  State  v.  Greene,  94  P.  987, 
33  Utah,  497. 

soEubanks  v.  State,  56  So.  88,  2 
Ala.  App.  61;  State  v.  Lambert,  71  A. 
1092,  104  Me.  394,  15  Ann.  Cas.  1055 ; 
Crowley  v.  Taylor,  95  P.  1016,  49 
Wash.  511. 

Pointing  out  elements  of  dam- 
age. An  instruction  in  eminent  ■do- 
main proceedings  as  to  the  various 
elements  of  damages  to  be  considered 
in  estimating  the  damage  to  the  land 
is  not  objectionable  as  on  the  weight 
of  the  evidence.  Beaumont  &  G.  N. 
R.  R.  V.  Elliott  (Tex.  Civ.  App.)  148 
S.  W.  1125. 

51  Smyth  V.  Caswell,  67  Tex.  567, 
4  S.  W.  848. 

5  2  State  V.  Driggers,  66  S.  E.  1042, 
84  S.  C.  526,  137  Am.  St.  Rep.  855, 
19  Ann.  Cas.  1166. 

5  3  Lownsdale  v.  Gray's  Harbor 
Boom  Co..  78  P.  904,  36  Wash.  198. 

5  4  Welch  V.  Clifton  Mfg.  Co.,  33  S. 
E.  739,  55  S.  C.  568;  Atchison,  T.  & 
S.  F.  Ry.  Co,  V.  Bryant  (Tex.  Civ. 
App.)  162  S.  W.  400. 

5  5  Luchow  v.  Kansas  City  Breweries 
Co.  (Mo.  App.)  183  S.  W.  1123. 


63  COMMENT   ON   PROBATIVE   EFFECT  OF   EVIDENCE  §  33 

may  charge  facts  judicially  known  to  him/«  and  the  court  may  charge 
that  there  is  a  conflict  in  the  testimony  where  that  fact  is  not  in  dis- 
pute," and  an  inadvertent  misstatement  of  a  fact  in  evidence  is  not 
a  forbidden  expression  of  opinion  on  an  issue  of  fact.^^ 

The  use  of  an  illustration,  although  the  evidence  brings  the  case  of 
a  party  directly  under  it,  does  not  constitute  an  improper  comment  on 
the  evidence.^**  Thus  it  is  proper  to  use  illustrations,  not  referring 
to  the  facts  in  the  case,  for  the  purpose  of  pointing  out  the  distinction 
between  positive  and  circumstantial  evidence,®"  and  the  court  may 
properly  use  mathematical  computations  in  a  charge  on  the  measure  of 
damages,  if  he  tells  the  jury  that  they  are  used  merely  as  an  example, 
and  should  not  be  accepted,  as  they  may  not  be  correct."^ ^ 

§  33.     Specific  applications  of  rule  in  civil  cases 

The  above  rule  has  been  applied  in  civil  cases  to  instructions  char- 
acterizing the  nature  of  a  particular  transaction,*'^  as  that  the  drawing 
of  a  check  was  not  in  the  ordinary  course  of  business,®^  thai  the 
relation  of  master  and  servant,®*  of  fellow  servants,®^  of  carrier  and 
passenger,®®  or  of  partnership  existed,®^  that  contracts  made  by  a 
partner  were  not  within  the  scope  of  the  firm  business,® «  that  certain 
acts  or  omissions  of  a  tenant  in  common  would  or  would  not  constitute 
authority  to  his  cotenant  to  sign  his  name  to  a  contract  for  the  sale 

5  6Kocli  V  State,  22  So.  471,  115  dence  to  be  the  plaintiff's  age.  Cen- 
Ala.  99 ;  People  v.  Mayes,  113  Cal.  tral  of  Georgia  Ry.  Co.  v.  Duffy,  42  S. 
61S    45    P     S60;     Trustees   of   Little      E.  510,  116  Ga.  346. 

Cedar  Congregation  of  Adams  V.  Chi-  6  2  Idaho    Implement    Co.    y-    Lam- 

cago,  M.  &  St.  P.  Ry.  Co.,  137  N.  W.  bach,  101  P.  951,  16  Idaho,  49  r,    Co- 

970    119  Minn.  181 ;    State  v.  Nerzin-  tulla  State  Bank  v.  Herron  (Tex.  biv. 

gev,    119    S.    W.    379,    220    Mo.    36;  App.)  202   S.  W.  797. 

Turner  v   Lambeth,  2  Tex.  365.  cs  National  Bank  of  San  Mateo  v. 

6  7  Horn  V.  State,  102  Ala.  144,  15  Whitney,  183  P.  789,  181  Cal.  2C2,  8 
So.  278;  People  v.  Flynn,  73  Cal.  511,  A.  L.  R.  298.  .  „  ^  _  „  ^^  ^ 
15  P  102;  Wilson  v.  Moss,  60  S.  E.  64  San  Antonio,  U.  &  G.  K.  Co.  v. 
313,  79  S.  C.  120.  Dawson   (Tex.   Civ.   ApP.)   201    S.   W. 

58  Grows  V.  Maine  Cent.  R.  Co.,  69  .  247;  Houston  Chronicle  Pub.  Co.  v. 
Me   419  Murray   (Tex.   Civ.   App.)   185   b.    VV. 

59  State  V.  Smith,  50  So.  842,  124  407.  ,  «  ..  c  r^.i 
La    1035                                                             6  5  Ward  v.  Liverpool   Salt  &  Coal 

60  state  V.  Godfrey,  39  S.  B.  1,  60      Co.,  92  S.  E.  92,  79  W.  Va.  371. 

S   C   498  ®®  Georgia,  S.  &  F.  Ry.  Co.  v.  Over- 

6 1' Speight    v.    Seaboard    Air    Line  street,  87  S.  E.  909,  17  Ga.  App.  629 : 

Ry     76  S:  E.  684,  161  N.  C.  80.  Louisville   Ry.   Co.   v.   O '^°°'i,''o^r;     ?>^ 

Illustrating    metliod     of     using  S.  W.  305,  30  Ky.  Law  Rep    1329 ;    LI 

uxortaUty   tables.     It -is   not   error  Paso  Electric   Ky    Co^  v.  Boer  (Tex. 

for  the  trial  judge  in  an  action  for  Civ.  App.    108  S.  W.  19J. 

rtamaces  for  personal  injuries,  in  il-  67  Williams    v.   Carson,    191    S.  ^ . 

lusTiSing  to  the  jury  the  method  of  401,  126  Ark.  618;  Doggett  v.  Jordan, 

using     the     mortality     and     annuity  2  Fla.  541.                    ^a  o    i:^   qiq   -a 

tables,  to  use  for  example  a  figure  ap-  6  8  Wilson  v.  Moss,  60  S.  E.  313,  <9 

proximating  that  shown  by  the  evi-  S.  C.  120. 


§33 


INSTRUCTIONS  TO  JURIES 


04 


of  the  land  held  in  common,®'  that  a  servant  had  no  authority  to  do 
certain  things/"  that  certain  facts  failed  to  show  an  agency/^  that  the 
evidence  did  not  show  that  certain  acts  were  within  the  apparent  au- 
thority of  an  agent/ ^  that  the  evidence  showed  that  a  servant  assumed 
certain  risks/ ^  that  certain  facts  were  not  controlling  as  to  whether 
one  kept  a  private  boarding  house/*  that  one  signed  his  name  to  a 
contract/ °  that  certain  facts  constituted  the  procuring  cause  of  a 
sale/®  that  certain  facts  amounted  to  an  acceptance  of  work  done/^ 
that  a  certain  occurrence  or  event  was  or  was  not  the  proximate  cause 
of  an  injury/*  that  the  evidence  failed  to  show  that  certain  events 
produced  certain  results/^  as  to  whether  a  horse  race  was  fair/"  that 
if  the  jury  believed  the  evidence  they  must  find  that  there  was  fraud 
in  a  sale  of  goods/ ^  that  certain  facts  showed  that  one  did  not  use 
reasonable  diligence  in  relying  on  certain  false  representations/^  as  to 
matters  constituting  undue  influence/^  that  there  was  probable  cause 
for  a  prosecution/*  that  language  used  by  an  employee  of  a  carrier 
to  a  passenger  \vas  insulting/^  that  certain  facts  would  constitute 
malice/®  that  certain  facts  would  not  show  a  conversion  *''  that  certain 
facts  would  be  sufficient  to  show  the  delivery  of  goods  to  a  bailee  in 
good  condition/®  that  certain  facts  showed  that  the  duty  rested  on  a 


6  9  Naylor  v.  Parker  (Tex.  Civ.  App.) 
139  S.  W.  93. 

7  0  Missouri,  K.  &  T.  Ry.  Co.  of 
Texas  v.  Avis,  91  S.  W.  S77,  41  Tex. 
Civ.  App.  72,  .iudgment  affirmed  93  S. 
W.  424,  100  Tex.  33. 

71  McFarland  v.  Lynch  (Tex.  Civ. 
App.)  159  S.  W.  303. 

7  2  Milwaukee  Meclianics'  Ins.  Co.  v. 
Frosch  (Tex.  Civ.  App.)  130  S.  W.  600. 

7  3  Missouri,  K.  &  T.  Ry.  Co.  of 
Texas  v.  Steele,  110  S.  W.  171,  50  Tex. 
Civ.  App.  634. 

74  Hedrick  v.  Smith  (Tex.  Civ.  App.) 
146  S.  W.  305. 

7''.  Banner  v.  Walker-Smith  Co. 
(Tex.  Civ.  App.)  154  S.  W.  295. 

7  6  Andrew  v.  Mace  (Tex.  Civ.  App.) 
194  S.  W.  598. 

7  7  Stum  V.  Central  Oil  Co.,  156  111. 
App.  105, 

7  8  Ala.  Southern  Ry.  Co.  v.  Mc- 
Gowau,  43  So.  378,  149  Ala.  440. 

Ga.  Schaufele  v.  Central  of  Geor- 
gia Ry.  Co.,  65  S.  E.  708,  6  Ga.  App, 
660. 

Md.  Firor  v.  Taylor,  81  A,  389,  116 
Md.  69. 


Mich.  Jones  v.  McMillan,  88  N. 
W.  206,  129  Mich.  86. 

Miss.  Yazoo  &  M.  V.  R.  Co.  v. 
Smith,  60  So.  73,  103  Miss.  150. 

Tex.  Weatherford  Machine  & 
Foundry  Co.  v.  Pope  (Civ,  App.)  132 
S,  W.  503. 

7  9  Chobanian  v.  Washburn  Wire 
Co..  SO  A.  394,  33  R.  I,  289,  Ann,  Cas. 
1913D,  730. 

80  Armstrong  v.  Parchman,  42  Tex. 
185. 

81  Montgomery  Moore  Mfg.  Co.  v. 
Leeth,  50  So.  210.  162  Ala.  246, 

8  2  Yanelli  v.  Littlejohn,  137  N.  W. 
723,  172  Mich.  91, 

83  Rapp  v.  Becker,  26  Ohio  Cir.  Ct.' 
R,  321, 

8  4  Snead  v,  Jones,  53  So.  188,  169 
Ala.  143, 

85  Atlantic  Coast  Line  R.  Co.  v. 
Mead,  90  S.  E.  87,  18  Ga,  App.  621. 

8  6  Smith  v.  Brown,  81  S.  E.  633.  97 
S.  C.  239 ;  Webb  v.  J.  L.  Wiginton  & 
Co.,  118  S.  W.  856,  55  Tex.  Civ.  App. 
413. 

8  7  Buffalo  Pitts  Co,  v.  Stringfellow- 
Hume  Hardware  Co.,  129  S.  W.  1161, 
61  Tex.  Civ.  App.  49. 

8  8  DLsbrow  v.  People's  Ice,  Storage 


65 


COMMENT   ON   PROBATIVE   EFFECT   OF   EVIDENCE 


§33 


telegraph  company  to  deliver  a  telegram  promptly,*''  that  one  of  two 
colliding  vehicles  had  the  right  of  way,°°  as  to  weight  of  testimony  of 
one  injured  in  a  collision  with  respect  to  seeing  the  object  collided 
with,^^  as  to  assumptions  permissible  to  the  operator  of  an  automobile 
with  respect  to  the  movements  of  pedestrians,"-  that  one  used  more 
force  than  was  necessary  in  repelling  an  assault, ''^  as  to  effect  of  evi- 
dence bearing  on  question  of  knowledge,"*  that  certain  facts  would  not 
be  sufficient  to  show  constructive  notice  of  fraud,"^  that  certain  facts 
would  constitute  constructive  notice  of  defects  in  a  sidewalk,"^  as  to 
eftect  of  knowledge  by  traveler  of  defects  in  sidewalk,^'  as  to 
effect  of  certain  facts  as  showing  constructive  notice  of  lack  of  author- 
ity in  an  agent, "^  that  certain  facts  did  not  show  a  waiver,""  as  to  effect 
of  certain  facts  with  respect  to  showing  a  release  from  liability,^  as  to 
effect  of  testimony  bearing  on  the  validity  of  a  release,-  that  the  evi- 
dence if  believed  showed  payment  of  a  debt,^  as  to  ownership  of  prop- 
erty,* that  certain  facts  showed  an  abandonment  of  property,^  that  cer- 
tain acts  did  or  did  not  constitute  an  admission  of  ownership  in  anoth- 
er,® that  an  action  was  barred  by  the  statute  of  limitations,^  that  certain 
facts  did  or  did  not  show  adverse  possession,^  that  the  evidence  showed 
that  certain  lands  were  dedicated  to  public  use,"  that  certain  facts  show- 


&  Fuel  Co.,  119  S.  W.  1007,  138  Mo. 
App.  56. 

S9  Western  Union  Teleg^raph  Co.  v. 
White  (Tex.  Civ.  App.)  149  S.  W.  790. 

9  0  Boston  Ins.  Co.  v.  -Brooklyn 
Heights  R.  Co.,  169  N.  Y.  S.  251,  182 
App.  Div.  1. 

91  Zander  v.  St.  Ix)uis  Transit  Co., 
103  S.  W.  1006,  206  Mo.  445. 

9  2  MeCown  v.  Muldrow,  74  S.  E.  386, 
91  S.  C.  523. 

9  3  Morris  v.  McClellan,  45  So.  641, 
154  Ala.  639,  16  Ann.  Cas.  305.  " 

9  4  Spittle  V.  Charlotte  Electric  Ry, 
Co.,  95  S.  E.  910,  175  N.  C.  497. 

9  5  Parlin  &  Orendorff  Co.  v.  Glover, 
118  S.  W.  731,  55  Tex.  Civ.  App.  112. 

9  6  Diamond  Rubber  Co.  v.  Harry- 
man,  92  P.  922,  41  Colo.  415,  15  L. 
R.  A.  (N.  S.)  775. 

9  7  Town  of  Newcastle  v.  Grubbs, 
86  N.  E.  757,  171  Ind.  482. 

9  8  Garbutt  Lumber  Co.  v.  Prescott, 
62  S.  E.  228,  131  Ga.  326. 

9  9  Mutual  Life  Ins.  Ass'n  of  Texas, 
No.  1,  V.  Garvin  (Tex.  Civ.  App.)  141 
S.  W.  797;  Rice  v.  Ward  (Tex.  Civ. 
Inst. TO  Juries— 5 


App.)  54  S.  W.  318,  judgment  rever'sed 
56  S.  W.  747,  93  Tex.  532. 

1  Dotv  V.  Moore  (Tex.  Civ.  App.) 
113  S.  W.  955. 

2  Loveman  v.  Birmingham  Ry.,  L,  & 
P.  Co.,  43   So.  411,  149  Ala.  515. 

3  Speakman  v.  Vest,  44  So.  1021,  152 
Ala.  623. 

*  Postal  Telegraph  Cable  Co.  v. 
Brantley,  107  Ala.  683,  18  So.  321; 
Harris  v.  Murfree,  54  Ala.  161 ; 
Douthitt  v.  Farrar  (Tex.  Civ.  App.) 
159  S.  W.  182. 

5  Jones  V.  Wright  (Tex.  Civ.  App.) 
81  S.  W.  569,  reversed  84  S.  W.  1053, 
98  Tex.  457. 

6  Vidmer  v.  Lloyd,  63  So.  943,  184 
Ala.  153;  Halbert  v.  De  Bode,  40  S. 
W.  1011,  15  Tex.  Civ.  App.  615. 

7  Frizzell  v.  Woodman  I'ub.  Co. 
(Tex.  Civ.  App.)   130  S.  W.  659. 

8  Theodore  Land  Co.  v.  Lyon,  41  So. 
682, 148  Ala.  668  ;  Anniston  Citv  Land 
Co.  V.  Edmondson,  30  So.  61,  127  Ala. 
445 ;  Pittman  v.  Pittman,  27  So.  242, 
124  Ala.  306 ;  Burnham  v.  Hardv  Oil 
Co.  (Tex.  Civ.  App.)  147  S.  W.  330. 

9  Louisville  &  N.  R.  Co.  v.  Iliggin- 
botham,  44  So.  872,  153  Ala.  334. 


§  33  INSTRUCTIONS   TO  JURIES  66 

ed  an  estoppel/"  that  a  stream  was  not  a  natural  water  course/^  as  to 
the  period  of  gestation,^-  as  to  what  facts  show  mental  capacity  to  make 
a  will/^  that  certain  facts  were  insufficient  to  show  want  of  testamen- 
tary capacity/*  as  to  effect  of  evidence  as  to  value/^  as  to  amount 
of  recovery  by  a  plaintiff'/"  that  certain  elements  could  not  be  included 
in  an  award  of  damages/'  and  that  the  jury  should  allow  interest/* 

So  such  rule  has  been  applied  to  instructions  referring  to  a  con- 
troverted fact  "as  shown  by  the  evidence,"^^  to  instructions  to 
adopt  one  or  another  of  different  conflicting  theories/®  and  to  an 
instruction  that  cases  cited  by  counsel  are  like  the  case  on  trial 
with  respect  to  the  facts  involved/^ 

It  is  improper  for  the  court  to  call  the  attention  of  the  jury  to  the 
fact  that  certain  testimony  unfavorable  to  one  of  the  parties  has  been 
given  by  such  party's  own  witness/^  An  instruction  that  certain  mat- 
ters should  be  considered  in  mitigation  of  exemplary  damages,  with- 
out expressly  submitting  the  question  whether  any  exemplary  dam- 
ages should  be  found,  is  an  intimation  of  an  opinion  that  the  case  is 
one  for  the  allowance  of  such  damages,-^  and  since  the  jury  are  the 
arbiters  of  the  teachings  of  experience,  as  of  all  other  questions  of 
fact,  an  instruction  that  in  assessing  damages  in  a  personal  injury  ac- 
tion they  may  consider  the  satisfaction  of  life  which  only  those  having 
a  sound  body  and  the  full  use  of  all  their  members  may  enjoy  invades 
their  province.^* 

10  Blount  V.  Henry  (Tex.  Civ.  App.)  (Civ.  App.)  141  S.  W.  295;   Missouri, 
160  S.  W.  41S.  K.  &  T.  Ry.  Co.  of  Texas  v.  Rich  (Civ. 

11  Fleming  v.  Wilmington  &  W.  R.  App.)   112  S.  W.  114:    Lane  v.  Delta 
Co.,  115  N.  C.  676.  20  S.  E.  714.  County  (Civ.  App.)  109  S.  W.  866. 

12  B.  N.  E.  V.  State,  25  Fla.  268,  6  1 7  Birmingham  Ry.,  Light  &  Power 
So.    58.  Co.  V.  Bush.  56  So.  731,  175  Ala.  49. 

13  AUday  v.  Cage  (Tex.  Civ.  App.)  is  Anderson  v.  State,  2  Ga.  370. 
148  S.  W.  838.  19  Marble  v.  Lypes,  82  Ala.  322,  2 

14  Philpott  v.  Jones,  146  N.  W.  859,  So.  701;    Commercial  Fire  Ins.  Co.  v. 
164  Iowa,  730.  Morris,  105  Ala.  498,  18  So.  34;    Peo- 

15  Campbell  v,  Ludin  (Sup.)  104  N.  pie  v.  Casey,  65  Cal.  260,  3  P.  874; 
Y.  S.  372.  Weyburn   v.   Kipp's   Estate,  63   Mich. 

i"  Ala.      Citizens'    Light,    Heat    &  79,  29  N.  W.  517;    Hill  v.  Graham,  72 

Power  Co.  V.  Lee,  62  So.  199,  182  Ala.  Mich.  659,  40  N.  W.  779. 
561.  20  Nashville,    C.    &    St.    L.    Ry.    v. 

Iowa.     Chadima  v.  Kovar,  150  N.  Blackmon,  61  So.  468,  7  Ala.  App.  530. 
W.  r.'jl,  lOS  Iowa,  385.  21  Moore  v.  Robinson,  62  Ala.  537. 

Mo.     Stockwell  Co.  v.  Union  Pac.  22  Parks   v.    Central   Coal   &   Coke 

Ry.  Co.  (App.)  182  S.  W.  829 ;   Lederer  Co.  (Mo.)  183  S.  W.  560. 
v.   Morrow,   111   S.   W.   902,   132    Mo.  23  Holland    v.    Williams,    55    S.    E. 

App.  438.  1023,  126  Ga.  617. 

Okl.      Midland    Valley    R.    Co.    v.  24  Pittsburgh,   C,   C.   &   St.   L.   Rv. 

Feathorstono,  123  P.  1123,  32  Okl.  837.  Co.  v.  O'Conner,  85  N.  E.  969,  171  Ind. 

Tex.    Kirby  Lumber  Co.  v.  Stewart  GS6. 


67 


COMMENT   OX   PROBATIVE   EFFECT   OF   EVIDENCE 


34 


§  34.     Application  of  rule  in  negligence  cases 

An  instruction  addressed  to  the  particular  things  that  should  have 
been  done  rather  than  to  the  legal  standard  of  duty  is  often  unobjec- 
tionable because,  practically  viewed,  it  exacts  no  more  than  the  doing 
of  that  which  obviously  was  necessary  under  the  facts  to  constitute 
the  care  required,  and  therefore  does  not  invade  the  province  of  the 
jury,  but,  where  a  real  question  exists  whether  or  not  precautions 
should  have  been  taken  other  than  those  that  were,  the  question  is  for 
the  jury  to  decide  by  applying  the  standard  of  care  of  a  person  of 
ordinary  prudence,  and  it  should  be  left  to  the  jury  by  the  charge,"^ 
and  as  a  general  rule  it  is  an  invasion  of  the  province  of  the  jury 
to  give  an  instruction  that  the  doing  of  a  certain  specific  act  or  that  the 
failure  to  observe  a  certain  specified  precaution  under  a  given  state  of 
conditions  and  circumstances  constitutes  negligence,  unless  the  specific 
act  is  prescribed  by  some  statute,  order,  or  rule  which  gives  it  the  force 
of  law,  or  unless  the  specified  conditions  and  circumstances  are  of  such 
character  that  no  other  reasonable  inference  can  be  drawn  therefrom. -° 


2  5  San  Antonio  &  A.  P.  Ry.  Co.  v. 
Hodges,  120  S.  W.  848,  102  Tex.  524. 

2  6  Ala.  Southern  Ry.  Co.  v.  Ellis, 
60  So.  407,  6  Ala.  App.  441;  Merrill 
V.  Sheffield  Co.,  5.3  So.  219,  169  Ala. 
242 ;  Woodward  Iron  Co.  v.  Sheehan, 
52  So.  24,  166  Ala.  429. 

Ark.  St.  Louis  Southwestern  Ry. 
Co.  V.  Aydelott,  194  S.  W.  873,  128 
Ark.  479 ;  Wells  Fargo  &  Co.  Express 
V.  W.  B.  Baker  Lumber  Co.,  171  S. 
W.  132,  115  Ark.  142;  Bauschka  v. 
Western  Coal  &  Mining  Co.,  129  S.  W. 
1095,  95  Ark.  477;  Aluminum  Co.  of 
North  America  v.  Ramsey,  117  S.  W. 
568,  89  Ark.  522. 

Cal.  Pierce  v.  United  Gas  &  Elec- 
tric Co.,  118  P.  700,  161  Cal.  176;  Man- 
ning V.  App.  Cousol.  Gold  Min.  Co., 
84  P.  657,  149  Cal.  35;  Quint  v.  Di- 
mond,  82  P.  310,  147  Cal.  707;  Wei- 
derkind  v.  Tuolumne  County  Water 
Co.,  65  Cal.  431,  4  Pac.  415. 

Conn.  Kebbee  v.  Connecticut  Co., 
84  A.  329,  85  Conn.  641. 

Ga.  Western  &  A.  R,  Co.  v.  Jar- 
rett,  96  S.  E.  17,  22  Ga.  App.  313; 
An custa- Aiken,  Ry.  &  Electric  Corp. 
V.  Collins,  89  S.  E.  444,  18  Ga.  App. 
303 ;  Western  &  A.  R.  Co.  v.  Roberts. 
86  S.  E.  933,  144  Ga.  250;  Western 
«&;  A.  R.  Co.  V.  Summerour,  77  S.  E. 
802,  139  Ga.  545;  Seaboard  Air  Line 
Ry.  V.  Johnson,  77  S.  E.  632,  139  Ga. 
471 ;    Seaboard  Air  Line  Ry.  v.  Black- 


shear,  75  S.  E.  902,  11  Ga.  App.  579; 
Alabama  Great  Southern  R.  Co.  v. 
Brown.  75  S.  E.  330,  138  Ga.  328; 
Louisville  &  N.  R.  Co.  v.  Arp,  71  S.  E. 
867,  136  Ga.  489;  Central  of  Georgia 
Ry.  Co.  V.  Cole,  68  S.  E.  804,  1.35  Ga. 
72 ;  Southern  Ry.  Co.  v.  Freeman,  64 
S.  E.  129,  6  Ga.  App.  55;  Evans  v. 
Josephine  Mills,  52  S.  E.  538,  124  Ga. 
318;  Macon  Ry.  &  Light  Co.  v.  Vin- 
ing,  51  S.  B.  719,  123  Ga.  770;  Ala- 
bama Midland  Ry.  Co.  v.  Guilford,  46 
S.  E.  655,  119  Ga.  523. 

111.  Crisler  v.  Chicago  City  Ry. 
Co.,  204  111.  App.  491 ;  Hurst  v.  Madi- 
son Coal  Corp.,  201  111.  App.  205; 
Lenihan  v.  Chicago  Rys.  Co.,  195  111. 
App.  144;  De  Voney  v.  Chiappe,  192 
111.  App.  435 ;  Tracey  v.  Chicago  Ry. 
Co.,  185  111.  App.  125 ;  Engel  v.  Frank 
Parmalee  Co.,  169  111.  App.  410 ;  Chi- 
cago &  A.  Ry.  Co.  V.  Hill.  130  111. 
App.  218 ;  Harley  v.  Aurora,  E.  &  C. 
R.v.  Co.,  128  111.  App.  '343;  IMstal 
Telegraph  Cable  Co.  v.  Likes,  124  111. 
App.  459,  judgment  affirmed  SO  N.  E. 
136,  225  111.  249 ;  Illinois  Cent.  R.  Co. 
V.  Hicks,  122  111.  App.  .349;  Swift  & 
Co.  V.  Griffin.  109  111.  App.  414 ;  West 
Chicago  St.  Ry.  Co.  v.  Winters,  107 
111.  App.  221. 

Ind.  Pittsburgh,  C,  C.  &  St.  L.  Ry. 
Co.  V.  Arnott  (Sup.)  126  N.  E.  13; 
Beck  V.  Indianapolis  Traction  & 
Terminal  Co.,  119  N.  E.  528,  67  Ind. 


34 


INSTRUCTIONS   TO  JURIES 


68 


Thus  ordinarily  it  will  be  error  to  instruct  that  certain  facts  show 


App.  635  ;  Pennsylvania  Co.  v.  Hensil, 
70  Ind.  569,  36  Am.  Rep.  188. 

Mich.  Lamb  v.  Clam  Lake  Tp., 
140  N.  W.  1009,  175  Mich.  77. 

Mo.  Schwyhart  v.  Barrett,  130  S. 
W.  3S8,  145  Mo.  App.  332;  Blair  v. 
Mound  City  Ry.  Co..  31  Mo.  App.  224 ; 
Dowell  V.  Guthrie,  99  Mo.  653,  12  S. 
W.  900,  17  Am.  St.  Rep.  598. 

Mont.  Forquer  v.  Slater  Brick  Co., 
97  P.  843,  37  Mont.  426. 

N.  Y.  Olpp  V.  Interborough  Rapid 
Transit  Co.  (Sup.)  126  N.  Y.  S.  184, 
69  Misc.  Rep.  595 ;  Ward  v.  Metropoli- 
tan St.  Ry.  Co.,  90  N.  Y.  S.  897,  99 
App.  Div.  126 ;  Locke  v,  Waldron,  77 
N.  Y.  S.  405,  75  App.  Div.  152. 

N.  C.  Ware  v.  Southern  Ry.  Co., 
95  S.  E.  921,  175  N.  C.  501. 

S.  C.  Kelly  v.  Columbia  Ry.,  Gas 
&  Electric  Co.,  84  S.  E.  423,  100  S.  C. 
113 ;  Strauss  v.  Atlantic  Coast  Line 
R.  Co.,  77  S.  E.  1117,  94  S.  C.  324; 
Lundy  v.  Southern  Bell  Telephone  & 
Telegraph  Co.,  72  S.  E.  558,  90  S.  C. 
25;  Talbert  v.  Western  Union  Tele- 
graph Co.,  64  S.  E.  862,  rehearing  de- 
nied 64  S.  E.  916,  83  S.  C.  68;  Ander- 
son V.  South  Carolina  &  G.  R.  Co.,  61 
S.  E.  1096,  81  S.  C.  1;  Campbell  v. 
Western  Union  Telegraph  Co.,  54  S. 
E.  571.  74  S.  C.  300;  China  v.  City 
of  Sumter,  29  S.  E.  206,  51  S.  C.  453. 

Tex.  Abilene  Gas  &  Electric  Co.  v. 
Thomas  (Civ.  App.)  194  S.  W.  1016; 
St.  Louis  Southwestern  Ry.  Co.  of 
Texas  v.  Christian  (Civ.  App.)  169  S. 
W.  1102;  Galveston-Houston  Electric 
Ry.  Co.  V.  Stautz  (Civ.  App.)  166  S.  W. 
11;  Trinity  &  Brazos  Vallev  Ry.  Co. 
v.  Lunsford  (Civ.  App.)  160  S.  W.  677 ; 
Carter  v.  South  Texas  Lumber  Yard 
(Civ.  App.)  160  S.  W.  626;  Gulf,  C. 
&  S.  F.  Ry.  Co.  V.  Wafer,  130  S.  W. 
712.  62  Tex.  Civ.  App.  74;  Thompson 
V.  Galveston,  H.  &  S.  A.  Ry.  Co.,  106 
S.  W.  910,  48  Tex.  Civ.  App.  284;  Ft. 
Worth  &  R.  G.  R.  Co.  v.  Cage  Cattle 
Co.  (Civ.  App.)  95  S.  W.  705;  Hous- 
ton &  T.  C.  R,  Co.  V.  Strickel  (Civ. 
App.)  94  S.  W.  427 ;  City  of  Hillsboro 
v.  Jackson,  44  S.  W.  1010,  18  Tex.  Civ. 
App.  325 ;  St.  Louis  S.  W.  Ry.  Co.  of 
Texas  v.  Caseday  (Civ.  App.)  40  S. 
W.  198;  Spencer  v.  Shelbume,  33  S. 
W.  260,  11  Tex.  Civ.  App.  521 ;  Gulf, 
C.  &  S.  F.  Ry.  Co.  V.  Grubbs,  7  Tex. 


Civ.  App.  53,  26  S.  W.  326;  San  An-, 
tonio  &  A.  P.  Ry.  Co.  v.  Long,  4  Tex. 
Civ.  App.  497,  23  S.  W.  499 ;  Gulf,  C. 
&  S.  F.  Ry.  Co.  V.  Bagley,  3  Tex.  Civ. 
App.  207,  22  S.  W.  68. 

"Wash.  Underbill  v.  Stevenson,  170 
P.  354,  100  Wash.  129. 

Instructions  improper  -nritliin 
rule.  An  instruction  that  if  plaintiff 
had  stepped  down  onto  the  step  of  the 
car,  and  was  only  making  preparation 
to  leave  it  when  the  car  stopped,  and. 
if  while  in  this  attitude  the  car  sud- 
denly jerked,  and  caused  plaintiff  to 
be  thrown  from  the  car,  the  jury 
should  find  for  plaintiff.  Northern 
Texas  Traction  Co.  v.  Moberly  (Tex. 
Civ.  App.)  109  S.  W.  483.  A  charge, 
in  an  action  against  the  proprietors 
of  a  skating  rink  for  injuries  alleged 
to  have  been  sustained  by  plaintiff 
from  defendants'  negligence,  that  it 
would  be  defendants'  dut3'  to  exercise 
ordinary  care  to  enforce  their  rales 
for  protection  of  skaters,  since  what 
ordinary  care  would  require  defend- 
ants to  do  is  for  the  jury,  in  the  ab- 
sence of  a  statute  or  municipal  ordi- 
nance imposing  upon  them  the  duty  of 
doing  certain  specified  acts.  Stewart 
V.  Mynatt,  70  S.  E.  325,  135  Ga.  637. 
An  instruction,  in  an  action  against  a 
railroad  for  personal  injuries,  that  if 
defendant's  train  dashed  out  from 
behind  box  cars  on  the  track,  in  view 
of  plaintiff's  team,  and  made  unneces- 
sary noises  defendant  failed  to  exer- 
cise ordinary  care.  Missouri,  K.  &  T. 
Rv.  Co.  of  Texas  v.  Burk  (Tex.  Civ. 
App.)  146  S.  W.  600.  An  instruction 
that  if  plaintiff  knew,  or  ought  to 
have  known,  that  the  engine  was  ap- 
proaching and  was  dangerously  near, 
and  undertook  to  cross  the  track,  hS 
cannot  recover,  is  an  expression  of 
opinion  that  it  is  negligence  to  cross 
a  track  in  front  of  an  approaching 
engine  which  one  knows,  or  ought  to 
know,  is  dangerously  near.  Wright 
v.  Western  &  A.  R.  Co.,  77  S.  E.  161, 
139  Ga.  343.  A  requested  charge  that 
if  plaintiff's  husband  deliberately 
went  on  the  railroad  track  at  a  cross- 
ing in  front  of  an  approaching  train, 
thinking  that  he  could  cross  before  it 
reached  him,  and  miscalculating  its 
speed,  plaintiff  could  not  recover  for 


69 


COMMENT   ON   PROBATIVE   EFFECT   OF   EVIDENCE 


§34 


wanton  negligence,^^  or  that  certain  facts  constitute  contributory  neg- 
ligence,-^ or  that  certain  facts  do  not  show  negligence,-'*  or  that  certain 

jury,  was  made  the  test  of  liability. 
Houston  &  T.  C.  Ry.  Co.  v.  Burns 
(Tex  Civ.  App.)  63  S.  W.  1035. 

2  7  Southern  Ry.  Co.  v.  Hyde,  61  So. 
77,  183  Ala.  346. 

2  8  u.  S.  (C.  C.  A.  Ohio)  Harmon  v. 
Barber,  247  F.  1,  159  C.  C.  A.  219,. 
certiorari  denied  38  S.  Ct.  335,  246  U. 
S.  666,    62   L.   Ed.   929. 

Ala.  North  Alabama  Traction  Co. 
V.  Taylor,  57  So.  146,  3  Ala.  App.  456; 
Birmingham  Ry.,  Light  &  I'ower  Co. 
V.  Fox.  56  So.  1013,  174  Ala.  657; 
Louisville  &  N.  R.  Co.  v.  Johnson,  50 
So.  300,  162  Ala.  665;  Birmingham 
Ry.,  Light  &  Power  Co.  v.  Williams, 
48  So.  93,  158  Ala.  381 ;  Southern  Ry. 
Co.  V.  Hobbs.  43  So.  844.  151  Ala.  335. 

Ark.  E.  L.  Bruce  Co.  v.  Yax,  199 
S.  W.  535,  135  Ark.  480. 

Cal.  Worley  v.  Spreckels  Bros. 
Commercial  Co.,  124  P.  697,  163  Cal. 
60. 

111.  Jones  &  Adams  Co.  v.  George, 
81  N.  E.  4,  227  111.  64,  reversing  judg- 
ment 125  111.  App.  503;  Pittsburgh, 
C,  C.  &  St.  L.  Ry.  Co.  v.  Banfill,  69 
N.  E.  499,  206  111.  553.  affirming  judg- 
ment 107  111.  App.  254;  Vittum  v. 
Drury.  161  111.  App.  603;  Chicago  & 
A.  R.  Co.  V.  Truitt,  68  111.  App.  76. 

Ind.  Chicago  &  E.  R.  Co.  v.  Hun- 
ter, 113  N.  E.  772.  65  Ind.  App.  158; 
Cleveland,  C,  C.  &  St.  L.  Ry.  Co.  v. 
Schneider,  80  N.  E.  985,  40  Ind.  App. 
38;  Indiana  Steel  &  Wire  Co.  v. 
Studes,  119  N.  E.  2.  187  Ind.  469; 
American  Car  &  Foundiy  Co.  v. 
Adams,  99  N.  E.  993.  178  Ind.  607. 

Iowa.  Lunde  v.  Cudahy  Packing 
Co.,  117  N.  W.  1063.  139  Iowa.  688. 

N.  C.  Sanders  v.  Atlantic  Coast 
Line  R.  Co.,  76  S.  E.  553,  160  N.  C. 
526. 

Okl.  Pioneer  Hardwood  Co.  v. 
Thompson,  153  P.  137,  49  Okl.  502. 

Pa.  JNIusick  v.  Borough  of  Lat- 
r6be,  39  A.  226,  184  Pa.  375,  42  Wkly. 
Notes  Cas.  209. 

S.  C.  Martin  v.  Columbia  Electric 
St.  Rv.,  Light  &  Power  Co.,  60  S.  E. 
993,  84   S.   C.  568. 

Tex.  International  &  G.  N.  Ry. 
Co.  V.  Jones  (Civ.  App.)  175  S.  W.  488 ; 


his  death,  though  the  railroad  com- 
pany may  have  been  negligent  in 
running  at  a  high  speed  and  in  failing 
to  check  the  speed  of  the  train  at  the 
crossing,  was  properly  refused,  as  it 
would  have  been  in  effect  an  instruc- 
tion that  certain  facts  would  consti- 
tute negligence  of  the  husband. 
Southern  Ry.  Co.  v.  Grizzle,  62  S.  E. 
177,  131  Ga.  287.  An  instruction,  in 
an  action  against  a  railway  company 
for  killing  an  animal  on  its  track  at  a 
public  crossing  in  a  district  within 
which  stock  was  prohibited  from  run- 
ning at  large,  in  which  the  evidence 
showed  that  the  whistle  of  the  loco- 
motive was  not  blown  nor  the  bell 
rung  at  the  crossing,  that,  if  the  com- 
pany failed  to  sound  the  whistle  or 
ring  the  bell  before  passing  the  public 
crossing,  the  company  was  negligent 
per  se,  and,  if  the  company  was  guilty 
of  gross  negligence  in  failing  to  blow 
the  whistle  or  ring  the  bell^  or  in 
checking  the  speed  of  the  train  after 
discovering  the  animal's  peril,  a  ver- 
dict for  plaintiff  was  authorized.  Mis- 
souri, K.  &  T.  Ry.  Co.  of  Texas  v, 
Scofield  (Tex.  Civ.  App.)  98  S.  W.  435. 
An  instruction,  in  an  action  against 
a  railroad  company  for  killing  an 
animal  on  its  track  at  a  public  cross- 
ing, which  authorized  a  finding  that 
the  company's  employes  in  charge  of 
the  train  were  guilty  of  gross  negli- 
gence if,  in  approaching  the  crossing, 
they  failed  to  sound  the  whistle  or 
ring  the  bell,  is  erroneous.  Missouri, 
K.  &  T.  Ry.  Co.  of  Texas  v.  Scofield 
(Tex.  Civ.  App.)  98  S.  W.  435.  A 
charge  to  find  for  defendant  unless  the 
jury  believe  the  parties  in  charge  of 
the  empty  cars  used  more  force  than 
necessary  in  attaching  them  to  the 
caboose,  or  were  otherwise  negligent 
in  making  the  coupling,  is  a  charge 
on  the  weight  of  evidence,  making  the 
use  of  unnecessary  force  in  attaching 
the  cars  negligence  per  se,  though  in 
other  portions  of  the  charge  failure 
of  those  engaged  in  annexing  the 
empty  cars  "to  exercisfe  ordinary  cai*e 
to  avoid  injuring  those  in  the  ca- 
boose," if  on  account  of  such  failure 
"the  empty  cars  were  run  violently 
against  the  caboose,"  to  plaintiff's  in- 


2  9  See  note  29  on  following  page. 


34 


INSTRUCTIONS   TO   JURIES 


70 


facts  do  not  show  contributory  negligence,^"  or  that  certain  facts  show 
the  exercise  of  due  care."^ 


Missouri,  K.  &  T.  Ry.  Co.  of  Texas 
V.  Rogers,  128  S.  W.  711,  60  Tex.  Civ. 
App.  544 ;  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Dickens,  118  S.  W.  612,  54  Tex.  Civ. 
App.  637;  Missouri,  K.  &  T.  Ry.  Co. 
of  Texfis  V.  Balliet,  107  S.  W.  906,  48 
Tex.  Civ.  App.  641 ;  luternatioual  & 
G.  N.  R.  Co.  V.  Howell  (Civ.  App.)  105 
S.  W.  560;  City  of  San  Antonio  v. 
Porter,  59  S.  W.  922,  24  Tex.  Civ. 
App.  444;  Missouri,  K.  &  T.  Ry.  Co., 
of  Texas  v.  Rogers  (Civ.  App.)  40  S. 
W.  849,  reversed  40  S.  W.  956,  91 
Tex.  52. 

Instructions  improper  •witMn 
rule.  An  instruction  making  it  neg- 
ligence per  se  for  a  passenger  to  at- 
tempt to  alight  from  a  moving  train. 
Houston  &  "t.  C.  Ry.  Co.  v.  Moss 
iTex.  Civ.  App.)  63  S.  W.  894.  An  in- 
sti'uction,  in  an  action  for  injuries  to 
a  switchman  by  falling  between  two 
cars  which  had  been  uncoupled  to 
make  a  flying  switch,  that  if  plaintiff 
heard  one  of  his  fellow  servants  call 
that  he  would  uncouple  the  cars  he 
could  not  recover,  or  if  a  man  of  ordi- 
nary prudence,  before  attempting  to 
step  across  the  space  between  the 
cars,  would  have  looked  to  see  which 
car  was  to  be  uncoupled,  and  if  plain- 
tiff failed  to  look,  and  such  failure 
was  negligence  which  caused  or  con- 
tributed to  the  accident,  plaintitf 
could  not  recover.  Missouri,  K.  &  T. 
Ry.  Co.  of  Texas  v.  Stinson,  78  S.  W. 
986,  34  Tex.  Civ.  App.  285. 

2  9  Ala.  Southern  Ry.  Co.  v.  E.  L. 
Kendall  &  Co.,  G9  So.  328,  14  Ala. 
App.  242,  certiorari  denied  Ex  parte 
Southern  Ry.  Co.,  69  So.  1020 ;  Birm- 
ingham, E.  &  B.  R.  Co.  v.  Feast,  68 
So.  294,  192  Ala.  410;  Louisville  &  N. 
R.  Co.  V.  Holland,  55  So.  1001,  173 
Ala.  675;  Alabama  Great  Southern 
R.  Co.  V.  McWhorter,  47  So.  84,  156 
Ala.  269  ;  Duncan  v.  St.  Louis  &  S.-F. 
R.  Co.,  44  So.  418,  152  Ala.  118. 

Cal.  Wvckoff  V.  Southern  Pac. 
Co.,  87  P.  203,  4  Cal.  App.  94. 

Colo.  Independence  Coffee  & 
Spice  Co.  V.  Kalkman,  156  P.  135,  61 
Colo.  98. 

Ga.  Citv  of  Moultrie  v.  Land.  89 
S.  E.  485,  145  Ga.  479;    Southern  Ry. 


Co.  V.  Sheffield,  56  S.  E.  838,  127  Ga. 
569. 

111.  Pittsburg,  C.  C.  &  St.  L.  Ry. 
Co.  V.  Robson,  68  N.  E.  468,  204  111. 
254 ;  Chicago  &  E.  I.  R.  Co.  v.  Rains, 
67 'N.  E.  840,  203  111.  417;  Toledo,  P. 
&  W.  Ry.  Co.  V.  Parker,  73  111.  526; 
Strom  V.  Postal  Telegraph-Cable  Co., 
200  111.  App.  431,  transferring  back 
to  Appellate  Court  from  Supreme 
Court  111  N.  E.  555,  271  111.  544. 

Ind.  Pittsburgh,  C,  C.  &  St.  L. 
Ry.  Co.  V.  Pence,  113  N.  E.  7,  185  Ind. 
495. 

Md.  Hynner  v;  Stevenson,  89  A. 
418,  122  Md.  40. 

Mich.  Babbitt  v.  Bumpus,  73 
Mich.  331,  41  N.  W.  417,  10  Am.  St. 
Rep.  585. 

Mo.  Dutcher  v.  Wabash  R.  Co., 
145  S.  W.  63.  241  Mo.  137 ;  Crawford 
V.  Kansas  Citv  Stockyards  Co.,  114 
S.  W.  1057,  215  Mo.  394;  Zeis  v.  St. 
Louis  Brewing  Ass'n,  104  S.  W.  99, 
205   Mo.  638. 

N.  Y.     Cline  v.  Northern  Cent.  R. 

3  0  Ark.  St.  Louis  &  S.  F.  R.  Co. 
V.  Carr,  126  S.  W.  850,  94  Ark.  246. 

111.  Filers  v.  Peoria  Ry.  Co.,  200 
111.  App.  487;  Johnson  v.  Galesburg 
i^  Kewanee  Electric  Ry.  Co.,  193  111. 
App.  387. 

Ind.  Cleveland,  C,  C.  &  St.  L.  Ry. 
Co.  V.  Cloud,  110  N.  E.  81,  61  Ind. 
App.  256. 

Mass.  Rubinovitch  v.  Boston  Me- 
vated  Ry.  Co.,  77  N.  E.  895,  192  Mass. 
119. 

Mo.  Woodward  v.  Wabash  R.  Co., 
133  S.  W.  677,  152  Mo.  App.  468. 

N.  Y.  Cooke  v.  Union  Ry.  Co.  of 
New  York  City  (Sup.)  Ill  N.  Y.  S, 
708. 

Tex.  Ft.  Worth  &  D.  C.  Ry.  Co.  v. 
Watkins.  108  S.  W.  487,  48  Tex.  Civ. 
App.  568. 

Utah.  Loofborrow  v.  Utah  Light 
&  Ry.  Co.,  88  P.  19,  31  Utah,  355. 

Vt.  Place  V.  Grand  Trunk  Ry.  Co. 
in   Canada,   71  A.  836,   82   Vt.  42. 

31  City  of  Chicago  v.  Kubler,  133 
111.  App.  520;  City  of  Covington  v. 
Whitney.  99  S.  W.  337,  30  Ky.  Law 
Rep.  659. 


71 


COMMENT  ON   PROBATIVE   EFFECT  OF   EVIDENCE 


35 


§  35.     Specific  applications  of  rule  in  criminal  cases 

In  criminal  cases  the  above  rule  has  been  applied  to  instructions  with 
regard  to  the  presence  or  absence  of  a  motive,^-  to  an  instruction  that 


Co.,  168  N.  Y.  S.  303,  181  App.  Div. 
203;  Thomson  v.  Seaman,  73  N.  Y. 
S.  4S8,  67  App.  Div.  58. 

N.  C.  Sherrill  v.  Western  Union 
Tel.  Co.,  116  N.  C.  655,  21  S.  E.  429. 

R.  I.  Chobanian  v.  Washburn 
Wire  Co.,  80  A.  394,  33  R.  I.  289,  Ann. 
Cas.  1913D,  730;  Blackwell  v.  O'Gor- 
man  Co.,  49  A.  28,  22  R.  I.  638. 

S.  C.  Carolina  Rice  Co.  v.  West 
Point'  Mill  Co.,  82  S.  E.  679,  98  S.  C. 
476;  Bamberg  v.  South- Carolina  R. 
Co.,  9  S.  C.  61,  30  Am.  Rep.  13. 

Tex.  Gulf,  T.  &  W.  Ry.  Co.  v. 
Dickey  (Civ.  App.)  171  S.  W.  1097; 
Pecos  &  N.  T.  Ry.  Co.  v.  Welshimer 
(Civ.  App.)  170  S.  W.  263;  Texas  & 
P.  Ry.  Co.  V.  Wiley  (Civ.  App.)  155 
S.  W.  356;  Texas  &  P.  Ry.  Co.  v. 
Tuck  (Civ.  App.)  116  S.  W.  620; 
Houston  &  T.  C.  R.  Co.  v.  Grych,  103 
S.  W.  703,  46  Tex.  Civ.  App.  439; 
Houston  &  T.  C.  R.  Co.  v.  O'Donnell 
(Civ.  App.)  90  S.  W.  886,  judgment 
reversed  92  S.  W.  409,  99  Tex.  636; 
International  &  G.  N.  R.  Co.  v.  McVey 
(Civ.  App.)  81  S.  W.  991,  rehearing 
denied  83  S.  W.  34  and  reversed  87 
S.  W.  328,  99  Tex.  28;  Johnson  v. 
Gulf,  C.  &  S.  F.  Ry.  Co.,  2  Tex.  Civ. 
App.  139,  21  S.  W.  274. 

Instructions  improper  ivithin 
rule.  An  instruction,  in  an  action 
for  the  death  of  a  street-  car  passen- 
ger falling  from  a  car  while  riding 
on  the  platform  when  intoxicated, 
that  the  company  was  not  justified 
under  the  evidence  in  refusing  to  ac- 
cept decedent  as  a  passenger,  and  it 
was  not  the  company's  duty  to  place 
a  watch  over  him,  but  simply  to  use 
such  ca,ution  for  his  safety  as  his 
conduct  or  appearance  would  indi- 
cate to  a  man  of  ordinary  prudence 
to  be  necessary  under  the  circum- 
stances, etc.  Benson  v.  Tacoma  Ry. 
&  Power  Co.,  98  P.  605,  51  Wash.  216. 
A  charge,  in  an  action  for  death  of  a 
fireman  killed  by  reason  of  a  derail- 
ing switch  being  left  open,  "that,  if 
you  believe  the  engine  was  caused 
to  leave  the  track  on  account  of  de- 
fects in  the  dei*ailing  appliances,  and 
those  defects  were  caused  by  the  re- 


pair man  having  taken  some  pipes, 
rods,  and  connections  out  temporarily 
to  repair  them,  and  said  repairs  were 
necessary  to  maintain  the  appliance 
in  proper  condition,  and  they  were  to 
be  kept  out  only  a  short  time,  then 
you  cannot  find  that  such  act  was  an 
act  of  negligence."  Hines  v.  Mills 
(Tex.  Civ.  App.)  218  S.  W.  777.  An 
instruction  that  employes,  operating 
a  hand  car  by  which  plaintiff,  a  co- 
employe,  was  struck,  were  entitled  to 
act  on  the  presumption  that  plaintift, 
who  was  walking  on  the  track,  would 
leave  the  same  in  time  to  prevent  in- 
jury, unless  he  did  or  said  something 
to  indicate  that  he  would  not  get  out 
of  the  way.  Chicago,  R.  I.  &  T.  Ry. 
Co.  V.  Long,  74  S.  W.  59,  32  Tex.  Civ. 
App.  40,  writ  of  error  denied  75  S.  W. 
483,  97  Tex.  69.  A  charge,  in  an 
action  against  a  railroad  company, 
that  if  the  jury  should  find  and  be- 
lieve from  the  facts  that  the  alleged 
defective  condition  of  the  track,  if 
any,  was  of  a  hidden  and  concealed 
character,  which  could  not  and  would 
not  have  been  discovered  by  the  exer- 
cise of  ordinary  care,  then  plaintiff 
cannot  recover  in  this  case,  and  in 
that  event  it  is  immaterial  whether 
the  track  at  the  place  in  question  had 
been  pi'operly  inspected  or  not.  Gal- 
veston, H.  &.  S.  A.  Ry.  Co.  v.  Roberts 
(Tex.  Civ.  App.)  91  S.  W.  375.  An 
instruction,  in  an  action  for  injuries 
in  a  crossing  accident,  that  if  de- 
fendant's employes  on  the  engine  did 
all  they  could  to  make  plaintiff  leave 
the  track  and  avoid  injuring  him, 
and  that  the  means  they  used  were 
such  as  a  person  of  ordinary  care 
would  have  used  under  the  same  cir- 
cumstances, then  to  find  for  defend- 
ant, though  they  did  not  apply  the 
air  on  the  engine  or  attempt  to  stop 

3  2  Reeves  v.  State,  95  Ala.  31,  11 
So.  158;  People  v.  Muhlv,  114  P. 
1017,  15  Cal.  A.pp.  416;  Harris  v. 
State,  88  S.  E.  121,  17  Ga.  App.  723 ; 
State  V.  Johnson,  72  So.  370,  139  La. 
829 ;  Commonwealth  v.  Dower,  4  Al- 
len   (Mass.)    297. 


35 


INSTRUCTIONS  TO  JURIES 


72 


the  failure  to  show  a  motive  for  the  alleged  crime  is  a  circumstance  in 
favor  of  the  defendant,-''^  to  instructions  with  regard  to  intent  or 
malice,^*  to  an  instruction  that  the  defense  of  alibi  should  be  received 
with  caution,^ ^  to  an  instruction  that  the  proof  of  one  single  fact  in- 
consistent with  the  guilt  of  the  defendant  will  require  an  acquit- 
tal,^*^  and  an  instruction  will  ordinarily  be  erroneous,  as  on  the 
weight  of  the  evidence,  if  it  takes  from  the  jury  the  right  to  deter- 
mine the  degree  of  the  crime  charged.^' 


it.  Missouri,  K.  &  T.  Ry.  Co.  of 
Texas  v.  Reynolds  (Tex.  Civ.  App.) 
115  S.  W.  340.  A  charge  that,  though 
plaintiff  was  knocked  down  by  de- 
fendant's street  car,  and  was  seen  by 
the  di'iver  in  time  to  stop  the  ear 
before  it  ran  over  him,  yet  if  the 
emergency  was  sudden,  it  must  ap- 
pear that  the  negligence  of  the  driver 
in  failing  to  stop  the  car  was  more 
than  slight  to  make  him  negligent. 
Costley  V.  Galveston  City  R.  Co.,  70 
Tex.  112,  8  S.  W.  114. 

Instructions  not  improper  with- 
in mle.  In  action  for  injury  from 
negligence  in  starting  a  train  which 
struck  plaintiff  while  he  was  at- 
tempting to  place  a  child  aboard,  a 
statement  in  a  charge  that,  if  train 
had  started  in  the  usual  course  with- 
out negligence,  plaintiff  could  not 
recover,  in  view  of  a  charge  that,  if 
train  started  without  defendant's 
negligence,  there  could  be  no  recov- 
ery, was  not  an  expression  of  opinion 
on  facts  as  to  what  would  constitute 
defendant's  negligence,  but  was  fair- 
ly adjusted  to  issue,  since  jury  might 
infer  that,  if  train  stopped,  as  claim- 
ed by  plaintiff,  it  was  started  in  usual 
course.  Howard  v.  Georgia  Railroad 
(Ga.  App.)  104  S.  E.  26. 

33  Ark.  Ince  v.  State,  88  S.  W. 
81S,  77  Ark.  418. 

Cal.  People  v.  Wilkins,  111  P. 
612,  158  Cal.  530;  People  v.  McGee, 
111  P.  264.  14  Cal.  App.  99;  People 
V.  Glaze,  72  P.  965,  139  Cal.  154. 

Mont.  State  V.  Lu  Sing,  85  P.  521, 
34   Mont.   31. 

Neb.     Clough  v.  State,  7  Neb.  320. 

31  Cal.  People  v.  Yereneseneckock- 
ockhoff,  58  P.  156,  129  Cal.  497;  Peo- 
ple V.  Johnson,  106  Cal.  289,  39  P.  622. 

Fla.  McNair  v.  State,  55  So.  401, 
Gl    Fla.  35. 

Ga.  Cosper  v.  State,  79  S.  E.  94, 
13  Ga.  App.  301. 


Ky.  Watkins  v.  Commonwealth, 
142  S.  W.  1035,  146  Ky.  449,  38  L. 
R.  A.  (N.  S.)  1052;  Burks  v.  Common- 
wealth, 7  Ky.  Law  Rep.  (abstract) 
826 ;  Crittenden  v.  Commonwealth,  3 
Ky.  Law  Rep.  (abstract)  56. 

Neb.  Carson  v.  State,  114  N.  W. 
938,  80  Neb.  619. 

N.  Y.  People  v.  Webster,  59  Hun, 
398,  13  N.  Y.  S.  414;  People  v.  Utter, 
44  Barb.  170. 

Tex.  Thomas  v.  State,  125  S.  W. 
35,  57  Tex.  Cr.  R.  452;  White  v. 
State,  79  S.  W.  523,  45  Tex.  Cr.  R. 
602. 

W.  Va.  State  v.  Hertzog,  46  S. 
E.  792,  55  W.  Va.  74. 

3  5  Spencer  v.  State,  50  Ala.  124; 
State  V.  Smalls,  82  S.  E.  421,  98  S.  C. 
297. 

In  Iowa  it  is  permissible  for  the 
trial  judge  to  disparage,  within  lim- 
its, a  defense  of  alibi.  State  v.  Me- 
nilla,  158  N.  W.  645,  177  Iowa,  283. 

36  Johnson  v.  State,  69  So.  396,  13 
Ala.  App.  140,  certiorari  denied  Ex 
parte  State,  69  So.  1020,  193  Ala.  682  ; 
Ex  parte  Davis,  63  So.  1010,  184  Ala. 
26,  denving  certiorari  Davis  v.  State, 
62  So.  1027,  8  Ala.  App.  147. 

3  7  Ala.  Burkett  v.  State.  45  So. 
682,  154  x\.la.  19;  Thomas  v.  State,  43 
So.  371,  150  Ala.  31;  Washington  v. 
State.  28  So.  78,  125  Ala.  40. 

Ariz.  Vincent  v.  State,  145  P.  241, 
16    Ariz.    297. 

Cal.  People  V.  Mahatch,  82  P.  779, 
148  Cal.  200. 

111.  Lynn  v.  People,  48  N.  E.  964, 
170  111.  527. 

Iowa.  State  v.  Cafer,  69  N.  W. 
880,   100  Iowa,   501. 

Ky.  Speaks  v.  Commonwealth,  149 
S.  W.  850,  149  Ky.  393;  Burgess  v. 
Commonwealth,  11  S.  W.  88. 

Me.  State  v.  Oakes,  50  A.  28,  95 
Me.  369. 


73 


COMMENT  ON  PROBATIVE   EFFECT  OF   EVIDENCE 


§35 


The  question  of  the  insanity  of  a  defendant  in  a  criminal  case  is 
ordinarily  a  question  for  the  jury,^^  as  all  symptoms  and  all  tests  of 


N.  C.     State  v.  Barrett,  43   S.   E. 

S32.  132  N.  C.  1005. 

Ohio.  Lindsay  v.  State,  24  Ohio 
Cir.   Ct.  R.  1. 

Okl.  Fooshee  v.  State,  108  P.  554, 
3  Okl.  Cr.  66G;  Lawson  v.  Territory, 
56  P.  69S,  S  Okl.  1. 

Pa.  Commonwealth  v.  Marcinko, 
89  A.  457,  242  Pa.  388;  Common- 
wealth V.  Fellow.^,  61  A.  922,  212  Pa. 
297 ;  Commonwealth  v.  Kovovic,  58 
A.  857,  209  Pa.  465. 

Tex.  Gatlin  v.  State  (Cr,  App.) 
217  S.  W.  698 ;  Bibb  v.  State,  205  S. 
W.  135,  S3  Tex.  Cr.  R.  616;  French 
V.  State,  117  S.  W.  848,  55  Tex.  Cr. 
R.  538;  Brown  v.  State  (Cr.  App.) 
53  S.  W.  639. 

Va.  Gwatkin  v.  Commonwealth,  9 
Leigh,  678,  33  Am.  Dec.  264. 

Instructions  not  improper  ivith- 
in  rule.  On  a  murder  trial,  an  in- 
stniction  that  the  judge  deemed  it 
his  duty  to  charge  on  the  law  of 
voluntary  manslaughter,  and  a  sub- 
sequent statement  that  he  would 
later  instruct  in  regard  to  the  grades 
of  voluntary  manslaughter,  if  neces- 
sary, did  not  amount  to  an  expi-ession 
of  opinion  that  a  verdict  of  man- 
slaughter should  be  rendered,  though 
such  other  gi'ades  of  voluntary  man- 
slaughter were  not  submitted.  Gunn 
v.  State.  99  S.  E.  62,  23  Ga.  App.  545. 
An  instruction  that  if  the  jury  be- 
lieved from  the  evidence,  beyond  a 
reasonable  doubt,  that  defendant, 
with  malice  aforethought,  express  or 
implied,  inflicted  on  deceased  a  mor- 
tal wound  in  the  manner  charged, 
not  in  self-defense,  as  the  same  was 
defined  in  the  instructions,  and  not 
on  the  sudden  heat  of  passion  caused 
by  a  provocation  apparently  sufficient 
to  make  the  passion  in-esistible,  and 
that  deceased  thereafter  died  from 
such  wound  in  the  manner  charged  in 
the  indictment,  the  jury  should  find 
defendant  guilty  of  murder.  Carle 
V.  People.  66  N.  E.  32,  200  111.  494, 
93  Am.  St.  Rep.  208.  An  instruction 
that,  if  the  jury  believe  that  a  shoot- 
ing occurred  as  described  by  accus- 
ed without  any  intent  to  kill,  they 
should  acquit,  and,  if  not,  they  should 


consider  whether   accused   shot   with 
intent  to  kill,  and  which  then  explain- 

3  8  Ala.  Parsons  v.  State,  81  Ala. 
577,  2   So.  854,  60  Am.  Rep.  193. 

111.     Myatt  V.  Walker,  44  111.  485. 

Ind.  Plake  v.  State,  121  Ind.  433, 
23  N.  E.  273,  16  Am.  St.  Rep.  408; 
McDougal  V.  State,  88  Ind.  24. 

Iowa.  State  v.  Wegener,  162  N.  W. 
1040,  ISO  Iowa,  102;  State  v.  Gren- 
dahl,  109  N.  W.  121,  131  Iowa,  602. 

Ky.  Davidson  v.  Commonwealth. 
188  S.  W.  631,  171  Ky.  488. 

lia.  State  v.  Mcintosh,  68  So.  104, 
136   La.   1000. 

Mo.     State  v.  Holme,  54  Mo.  153. 

Mont.  State  v.  Howard,  77  P.  50. 
30  Mont.  518;  State  v.  Keerl,  75  P. 
362,  29  Mont.  508,  101  Am.  St.  Rep. 
579. 

Neb.  Philbrick  v.  State,  179  N. 
W.  398;  Larson  v.  State,  137  N.  W. 
894.  92  Neb.  24. 

N.  H.  State  v.  Jones,  50  N.  H. 
369,   9  Am.    Rep.  242. 

Okl.  Bell  V.  State  (Cr.  App.)  168 
P.  827;  Baker  v.  State,  130  P.  524. 
9  Okl.  Cr.  47 ;  Litchfield  v.  State,  126 
P.  707,  8  Okl.  Cr.  164,  45  L.  R.  A.  (IS. 
S.)  153;  Adair  v.  State,  118  P.  416. 
6  Okl.  Cr.  284,  44  L.  R.  A.  (N.  S.)  119. 

S.  C.     State  v.  Stark,  1  Strob.  479. 

Tex.  Harkness  v.  State  (Cr.  App.) 
28  S.  W.  476. 

Temporary  insanity.  An  in- 
struction, in  a  prosecution  for  homi- 
cide, that  if  defendant's  mind  was 
measurably  impaired  by  a  blow  on 
his  head,  and,  while  ordinarily  sane, 
his  mind  would  become  so  disordered 
under  excitement  as  to  cause  him  to 
lose  power  to  distinguish  between 
right  and  wrong,  and  was  laboring 
under  such  disorder  at  the  time  of 
firing  the  fatal  shot,  and  magnified 
through  a  delusion  the  danger  to 
which  he  was  exposed,  and  without 
malice,  and  with  a  perfectly  sincere 
belief  that  he  was  in  immediate  dan- 
ger of  death  at  the  hands  of  deceas- 
ed, fired  the  fatal  shot,  he  should  be 
acquitted,  was  properly  refused  as  on 
the  weight  of  the  evidence.  Tidwell 
V.  State,  36  So.  393,  84  Miss.  475. 


35 


INSTRUCTIONS  TO  JURIES 


74 


mental  disease  are  purely  matters  of  fact.^^  Thus  matters  of  science 
in  regard  to  insane  delusions,  and  the  possibility  of  one  being  possessed 
of  a  monomania,  such  as  to  excuse  him  from  punishment  for  the  com- 
mission of  a  crime,  are  matters  of  fact,*°  and  the  court  should  not 
charge  as  a  matter  of  law  that  one  possessed  of  an  insane  delusion  is 
incapable  of  reasoning  upon  that  subject.*^  So  whether  a  deaf  mute 
is  mentally  incapable  of  committing  a  crime  is,  on  conflicting  evidence, 
peculiarly  a  question  for  the  jury,*^  and  it  is  for  the  jury  to  say  wheth- 
er the  accused  was  so  far  intoxicated  as  to  be  unable  to  form  a  guilty 
intent.'*^ 


ed  to  the  jury  what  constituted  murder 
in  the  first  degree,  second  degree,  and 
voluntary  manshiughter,  and  added 
that  there  would  seem  to  be  no  mid- 
dle ground  which  would  reduce  the 
case  from  second-degree  murder  to 
manslaughter,  is  not  objectionable  as 
coercing  the  jury  to  find  a  verdict  of 
murder  by  preventing  them  from  con- 
sidering the  question  of  manslaught- 
er. State  v.  Pulley,  S2  A.  857,  82  N. 
J.  T^aw,  579.  A  charge  that  it  is  pos- 
sible, under  the  evidence,  for  the  jury 
to  find  the  defendants  guilty  of  an  as- 
sault with  intent  to  do  bodily  harm, 
•or  to  find  the  defendants  guilty  of  a 
5;imple  assault.  State  v.  Montgomery, 
S3  N.  W.  873,  9  N.  D.  405.  Instruc- 
tion that  the  theoi-y  of  the  common- 
wealth is  that  the  homicide  was  a 
willful,  premeditated  killing,  follow- 
ed by  instructions  on  the  siiliject  and 
a  charge  that  the  jury  should  fix  the 
degree.  Commonwealth  v.  Harris,  85 
A.  875,  237  Pa.  597.  An  instruction 
that  evidence  of  insanity  could  not 
reduce  the  degree  of  the  murder ; 
that,  if  defendant  committed  the 
murder  willfully,  deliberately,  and 
l>r'>meditately,  he  was  guilty  of  mur- 
der in  the  first  degree,  unless  found 
to  have  been  in  an  irresponsible  state 
of  mind,  in  which  case  he  should  be 
acquitted.  Commonwealth  v.  Hollin- 
ger,  42  A.  548.  190  Pa.  155.  A  charge, 
in  a  horn'ride  case,  that  if  the  jury 
are  satisfied  beyond  a  reasonable 
doubt  that  accused  is  guilty  of  mur- 
der, but  have  a  reasonable  doubt  as 
to  the  flegree,  they  will  give  him  the 
benefit  of  the  doubt  and  convict  of 
murder  in  the  second  degree,  is  not 
an  indication  that  the  court  believes 


that  accused  is  guilty  of  murder  in 
the  second  degree.  Tinsley  v.  State, 
106  S.  W.  347,  52  Tex.  Cr.  R.  91.  An 
instruction  that,  if  accused  unlawful- 
ly and  intentionally  hit  deceased  in 
the  head  with  a  pistol  and  killed 
him,  though  he  did  not  intend  to  kill, 
yet  he  is  prima  facie  guilty  of  mur- 
der in  the  second  degree,  is  not  bind- 
ing on  the  jury  to  find  that  degree  of 
murder,  and  does  not  prevent  them 
from  finding  voluntary  manslaughter 
or  self-defense.  State  v.  Stover,  63 
S.  E.  315,  64  W.  Va.  668. 

Expressing  disbelief  in  guilt  of 
higher  grade  of  offense.  An  in- 
struction that  the  court  is  satisfied 
that  the  defendant  is  not  gTiilty  of 
anything  more  than  a  specified  grade 
of  the  offense  charged  does  not  ex- 
press the  opinion  that  the  state  has 
established  the  commission  by  de- 
fendant of  the  specified  degree  of  the 
offense  of  which  he  is  accused.  State 
v.   Little,   6  Nev.  281. 

3  9  Smith  V.  State,  62  So.  184,  182 
Ala.  38;  Porter  v.  State,  33  So.  694, 
135  Ala.  51 ;  State  v.  Jones,  50  N.  H. 
369,  9  Am.  Rep.  242 ;  Oborn  v.  State, 
126  N.  W.  737,  143  Wis.  249,  31  L.  R. 
A.  (N.  S.)  966;  Steward  v.  State,  102 
N.   W.    1079,    124   Wis.   623. 

*o  People  V.  Hubert,  51  P.  329,  119 
Cal.  216,  63  Am.  St.  Rep.  72. 

41  People  v".  Hubert.  51  P.  .329,  119 
Cal.  216,  63  Am.  St.  Rep.  72. 

*2  Belcher  v.  Commonwealth,  177 
S.  W.  4.55,  165  Ky.  649,  Ann.  Cas. 
1917B,  238. 

4  3  Keeton  v.  Commonwealth,  92 
Ky.  522,  IS  S.  W.  359;  Common- 
wealth V.  Hagenlock,  140  Mass.  125, 
3  N.  E.  36. 


COMMENT   ON   PROBATIVE   EFFECT   OF   EVIDENCE 


36 


C.  Statement  by  the  Court  of  the  Contentions  of  the  Parties 
S  36  Rule  that  such  a  statement  is  within  the  province  of  the  court 
^  An  instruction  stating  the  contentions  of  the  parties,  without  ex- 
pressing any  opinion  as  to  their  justice  or  legality,  is  withm  the  province 
of  the  couit,  and  is  everywhere  held  not  to  be  objectionable^  Such 
an  instruction,  if  it  sets  out  the  respective  positions  o^  the  parties 
fairly  is  not  faulty  as  an  intimation  of  an  opinion  as  to  what  has  been 
proved,-  and  does  not  consttute  a  charge  on  the  facts  or  a  conunent 
on  the  evidence  within  the  prohibition  stated  supra.-     This  rule  ap- 


4  4  Coim.  Temple  v.  Gilbert,  85  A. 
380,  86  Conn.  335;  Sackett  v.  Car- 
roll, 68  A.  442,  80  Conn.  374 ;  Dexte^r 
V.  McCi-eady,  54  Conn.  171,  5  A.  boo. 

Del.  Richards  v.  Richman,  64  A. 
238,  5  Pennewill,  558,  562. 

Ga.  Brookman  v.  Reunolds,  98  b. 
E.  543,  148  Ga.  721 ;    De  Graffeimed 

V  Menard,  30  S.  E.  560,  103  Ga.  6ol ; 
Weekes  v.  Cottingham,  58  Ga.  5o9. 

Iowa.  Hawley  v.  Chicago,  B.  cV:  Q- 
R.  Co.,  71  Iowa,  717,  29  N.  W.  787 ; 
Reid  V.  Mason,  14  Iowa,  541. 

Mioli.  Rogers  v.  Ferris,  64  N.  W. 
1048,  107  Mich.  126. 

Mo.  Price  v.  Metropolitan  bt.  Ky. 
Co.,  119  S.  W.  932,  220  Mo.  435,  132 
Am'.    St.   Rep.   588. 

N    Y.    Polvkranas  v.  Krausz,  77  iN. 

V  S.  46,  73  App.  Div.  583 ;  West  v. 
Banigan,  64  N.  Y.  S.  884,  51  App.  Div. 
328,  motion  to  dismiss  appeal  denied 
63  N  B.  1123,  171  N.  Y.  632,  and  af- 
firmed 65  N.  E.  1123,  172  N.  Y.  622. 

N.  C.  Bradley  v.  Camp  Mfg.  Co., 
98  S.  E.  318,  177  N.  C.  153;    Patillo 

V  Same.  98  S.  E.  323,  177  N.  C.  156. 
Pa.      Gilchrist    v.    Hartley,    47    A. 

972,  198  Pa.  132;  Avery  v.  Layton. 
119  Pa.  604,  13  A.  528. 

Tex.  Atchison,  T.  &  S.  F.  Ry.  Co. 
V.  Cuniffe  (Civ.  App.)  57  S.  W.  692. 

Wis.  McCann  v.  UHman,  85  N.  W. 
493,   109   Wis.   574. 

45  Brewer  v.  Barnett  Nat.  Bank, 
85  S.  E.  928,  16  Ga.  App.  593;  Sea- 
board Air  Line  Ry.  Co.  v.  Hunt,  73 
S.  E.  588,  10  Ga.  App.  273 ;  Chambers 
V  Walker,  80  Ga.  642,  6  S.  E.  165; 
Walker  v.  Southern  Bell  Telephone  & 
Telegraph  Co.,  75  S.  E.  1024,  92  S.  C. 

4  0  Cal.  Hart  v.  Fresno  Traction 
Co.,  167  P.  885,  175  Cal.  489. 


Ga.  American  Trust  &  Banking 
Co.  V.  Harris,  89  S.  E.  1095,  18  Ga. 
App.   610. 

Ind.  Public  Utilities  Co.  v.  Han- 
dorf,  112  N.  E.  775,  185  Ind.  254. 

Me.     McLellan  v.  Wheeler,  70  Me. 

285 

Mass.  Hadlock  v.  Brooks,  59  N.  E. 
1009,  178  Mass.  425. 

N.  C.  Fourth  Nat.  Bank  of  Fay- 
etteville  v.  Wilson,  84  S.  E.  866,  168 
N    C     557. 

S.  C.  Holcombe  v.  Spartanburg 
Ry.,  Gas  &  Electric  Co.,  78  S.  E.  231, 
94  S.  C.  435 ;  Berry  v.  City  of  Green- 
ville, 65  S.  E.  1030,  84  S.  C.  122,  19 
Ann.  Cas.  978;  Rice  v.  Lockhart 
Mills,  55  S.  E.  160,  75  S.  C.  150: 
Bryce  v.  Cayce,  40  S.  E.  948,  62  S. 
C.  546 ;  Westbury  v.  Simmons,  35  S. 
E.  764,  57  S.  C.  467. 

Tenn.  Nashville  Ry.  v.  Norman, 
67  S.  W.  479,  108  Tenn.  324. 

Tex.  Jones  v.  Missouri,  K.  &  T. 
Ry.  Co.  of  Texas  (Civ.  App.)  157  S. 
W  213;  Davis  v.  Mills,  133  S.  W. 
1064,  63  Tex.  Civ.  App.  359;  Dudley 
V.  Strain  (Civ.  App.)  130  S.  W.  778; 
Gulf,  C  &  S.  F.  Ry.  Co.  v.  Shults, 
129  S.  W.  845,  61  Tex.  Civ.  App.  93. 

Wasli.  Di-umheller  v.  American 
Surety  Co.,  71  P.  25,  30  Wash.  530._ 

Instructions  held  proper  within 
rule.  An  instruction  in  an  action 
on  an  account  for  goods  sold  and  de- 
livered, that  the  only  issue  in  the 
case  was  who  made  the  contract,  to 
whom  did  plaintiff  intend  to  sell,  and 
who  intended  to  buy.  C  B.  Crosland 
Co.  V.  Pearson,  68  S.  E.  625,  86  S.  C. 
313  A  charge  in  an  action  for  in- 
jury to  land  that  the  plaintiff  seeks 
to  recover  from  the  defendant  dam- 
ages in  a  specific  sum  "resulting  from 


§  36  INSTRUCTIONS  TO  JURIES  76 

plies  to  the  statement  of  the  claims  of  the  prosecution  and  the  defense 
in  a  criminal  case.*'^  A  party  is  entitled  to  have  his  theory  of  the 
case  presented  to  the  jury  in  connection  with  the  very  facts  on  which 
he  relies  to  support  it/®  and  it  is  the  province  of  the  court,  as  shown  in 
a  subsequent  chapter,  to  determine  and  define  the  issues,  and  the  duty 
of  the  jury  to  accept  the  interpretation  of  the  pleadings  made  by  the 
court.*'' 

Under  the  above  rule  an  instruction  is  proper  which  limits  the 
amount  of  the  recovery  to  the  amount  claimed  in  the  petition  or 
complaint,^"'  and  an  instruction  that,  if  the  evidence  warrants,  a  plain- 
tiff may  recover  in  an  amount  not  exceeding  the  sum  claimed  in  the 
complaint,  is  not  open  to  the  objection  of  intimating  that  there  is  evi- 
dence sufficient  to  authorize  a  fi.nding  for  the  amount  so  alleged. ^^ 
It  is  held,  however,  in  some  jurisdictions,  that  it  is  error  for  the  court 
to  read  to  the  jury,  in  a  personal  injury  action,  the  averments  of  dam- 
ages in  the  pleading  of  the  plaintiff,  on  the  ground  that  it  tends  to  get 
figures  and  amounts  into  the  minds  of  the  jurors  independent  of  the 
evidence. ^- 

§  37.     Limitations  of  rule 

As  indicated  by  the  foregoing  statement  of  the  general  rule,  where 
the  trial  judge  undertakes  to  express  the  contentions  of  the  parties,  he 
should  do  so  in  a  manner  not  likely  to  weaken  their  force  with  the 
jyj-y  53  ^j^(j  ^jj  instruction  which,  by  reason  of  not  fairly  stating  the 
position  of  one  party  or  the  other,  amounts  to  a  practical  direction  of 
a  verdict  for  the  opposite  party,  is  of  course  erroneous.^* 

the   negligence   of   defendant   in    tlie  man,  107  S.  W.  1158,  49  Tex.  Civ.  App. 

construction   and  maintenance  of  its  45. 

railroad   track   over   and    across   his  *9  Stevens  v.   Maxwell,   70  P.   873, 

premises   by    failure   to    put   in    and  65  Kan.  835;    Coleman  v.  Drane,  lltj 

maintain    the    necessary    culverts    or  Mo.  387,  22  S.  W.  801. 

sluices,"  and  that  the  defendant  an-  eo  Oglesby  v.  Missouri  Pac.  Ry.  Co.. 

swered    by    general    denial    and    the  150  Mo.  137,  37  S.  W.  829,  reversed 

statute  of  limitation  of  two  years  and  on  rehearing  51  S.  W.  758,  150  Mo. 

contributory      negligence.        Interna-  137. 

tional  &  G.  N.  R.  Co.  v.  Glover  (Tex.  ^^  Cole  v.  Seattle,  R.  &  S.  Ry.  Co., 

Civ.  App.)  84  S.  W.  604.  ^KY-J\f  ^'^'^-  4^";     t,         n        .x 

47Hawes    v     State    88    Ala     ^^7    7  ^^  Hollmger   v.    York    Rys.    Co..    74 

4T  Hawes   V    btate,   hh   Ala.   61,   l      ^  g^^  ^25  Pa.  419,  17  Ann.  Cas.  .571; 

S«Q  Q?  i  oo«  T^-  ,^°^^*\,^f  ^^fl-  Reese  v.  Hershey,  29  A.  907,  163  I'a. 
H?3.  31  A    206 ;    Linder  v.  State   86  S.      253,  43  Am.  St.  Rep.  795. 

?:  J^^JJ  S'^:.J^'^'^.-.?}^\  "'\^  :^-  s3Edmondson    v.    State,    57    S.    E. 

State,  78  S.  E.  1013.  13  Ga.  App.  170;  947    1  ^a    App    116 

Pritchett  V.  State,  92  Ga.  65,  18  S.  E.  5V Wells   v.   Cumberland   Telephone 

536.  &  Tolegrapli  Co.,  198  S.  W.  721,  178 

*8  EI  Paso  Electric  Ry.  Co.  v.  Ruck-  Ky.  261. 


77  COMMENT   ON   PROBATIVE   EFFECT   OF   EVIDENCE  §  39 

D.  Statement  and  Review  oe  Evidence  by  Court 
Duty  of  court  and  sufficiency  of  summary,  see  post,  §§  281,  282.  . 

§  38.     Rule  that  court  may  review  the  evidence 

The  general  rule  is  that  the  trial  judge  may,  following  the  practice 
at  comn^on  law,  both  in  civil  ^^  and  in  criminal  cases,"  state  the  testi- 
mony, or  summarize  the  facts  in  evidence,  for  the  purpose  of  aiding 
the  jury  in  comprehending  the  issues  and  applying  the  instructions  in 
matters  of  law.^^ 

§  39.     Effect  of  constitutional  or  statutory  provisions 

The  restrictive  provisions  referred  to  supra  ^®  have  not  had  the 
effect  in  most  jurisdictions  of  taking  away  such  power  of  the  court 
to  state  the  testimony  or  sum  up  the  evidence.^®  In  Massachusetts 
such  a  statutory  provision  is  expressly  accompanied  by  a  declaration 
that  judges  may  state  the  evidence  and  the  law.*'"  But  in  South  Caro- 
lina, although  under  a  former  constitutional  provision  forbidding 
judges  to  charge  on  the  facts,  courts  could  state  the  testimony,®^  the 
rule  is  otherwise  under  the  present  Constitution  of  1895,  providing 
that  judges  shall  not  charge  juries  in  respect  to  matters  of  fact,  but 
shall  declare  the  law;^^  and  in  Arkansas  there  is  a  constitutional 
provision  forbidding  judges  from  summing  up  the  evidence  as  under 
the  practice  at  common  law.®^ 

5  5  District   of   Columbia   v.    Robin-  5  7  Moseley  v.  Washburn,  167  Mass. 

son,  21  S.  Ct.  283,  180  U.  S.  92,  45  L.  345,  45  N.  E.  753. 

Ed.  440,   affirming  judgment  14  App.  BSAnte,  §§  5,  31. 

D  C.  512:    Lazenby  V.  Citizens'  Bank,  5  9  Shiels    v.    Stark,    14     Ga.    429; 

92  S.  E.  391.  20  Ga.  App.  53;    Dulli-  Hamlin  v.  Treat,  87  Me.  310,  32  A.  909  ; 

gan  V.  Barber  Asphalt  Pav.  Co.,  87  N.  Kelley  v.  City  of  Boston,  87  N.  E.  494, 

E.  567,  201  Mass.  227 ;   Eddy  v.  Gray,  201   Mass.  86. 

4  Allen,  435;    Massev  v.  Wallace,  32  go  piummer  v.  Boston  Elevated  Ry. 

5  C    149    10  S.  E.  937.  Co.,    84    N.    E.    849,    198    Mass.    499 ; 
'  56  Driskill  V.  State,  7  Ind.  338;  Peo-      ^^"^ney   v.   Wellesley  &   B.   S_t.   Ry. 

pie  V.  Clarkson,  22  N.  W.  258,  56  Mich.      Co.,  84  N.  E.  9o    197  Mass.  49o. 

164;   Mimms  v.  State,  16  Ohio  St.  221.  „  ^l^^^}^  1;.^°?^^^?.'.  ^^  ^-  ^I'^l'  5. 

^     ^.  ^.  .,  ,     •     .V    .  •.  •  S.  C.  23;    Hiott  v.  Pierson,  3o  S.  C. 

In  Michigan  the  rule  is  that  it  is  g^^  -^^  g  ^  ggg .  -^alker  v.  Laney, 
not  error  for  the  court  in  a  criminal  27  S  C  150  3  S.  E.  63'  State  v. 
case  to  recite  the  conceded  facts  in  jones,  21  S  C.  596. 
his  charge  to  the  jury,  and  to  refuse  02  BaUentine  v.  Hammond,  46  S.  E. 
an  instruction  that  the  ultimate  de-  loOO,  68  S.  C.  153 ;  Burnett  v.  Craw- 
termination  of  such  questions  rests  ford,  27  S.  E.  645,  50  S.  C.  161;  Nor- 
with  them,  and  that  they  are  not  ab-  ris  v.  Clinkscales,  25  S.  E.  797,  47  S. 
solutely  bound  by  the  opinion  of  the  C.  488. 

court    thereon.     People   v.    Hawkins,  fi3  Fitzpatrick    v.    State,    37    Ark. 

64  N.  W.  736,  106  Mich.  479.  238. 


§  40  INSTRUCTIONS  TO  JURIES  78 

§  40.     Manner  of  exercising  power 

Where  the  court  exercises  its  power  to  recapitulate  the  evidence,  it 
should  be  done  in  such  manner  as  not  to  influence  the  verdict  or  to 
intimate  the  opinion  of  the  court  as  to  the  truth  of  the  evidence,^*  and 
in  some  jurisdictions  the  jury  must  be  informed,  after  such  a  state- 
ment of  the  evidence,  that  they  are  the  exclusive  judges  of  ^11  ques- 
tions of  fact.®^  Where,  however,  an  unbiased  analytical  statement  of 
the  testimony  and  the  law  distinctly  indicate  the  party  entitled  to  pre- 
vail, it  is  held  that  the  defeated  party  may  not  complain  of  such  a 
statement  or  of  the  adverse  verdict.®'^ 

E.  Rkference  to,  or  Singling  Out  of,  Particular  Parts  of  the 
Evidence,  and  Comment  Thereon 

Effect  of  singling  out  particular  facts  as  misleading,  by  giving  undue  promi- 
nence to  them,  see  post,  §§  431-436. 

§  41.     Confining  jury  to  part  of  evidence 

Instructions  should  be  based  upon  the  whole  evidence, ^'^  and  are 
an  infringement  of  the  province  of  the  jury,  if  they  have  a  tendency 
to  restrict  them  in  their  deliberations  to  a  part  of  the  evidence,  or 
to  isolated  facts  to  the  exclusion  of  other  facts  in  evidence,^^  and 
such  instructions  are  properly  refused. "^^ 

6  4  Ala.     Andrews  v.   State,  48  So.  ee  Whitney   v.   "Wellesley  &   B.    St. 

858,  159  Ala.  14.  Ry.  Co.,  84  N.  E.  95,  197  Mass.  495. 

Colo.     Rose  V.  Otis,   5  Colo.  App.  ez  Barker  v.  State,  48  Ind.  163. 

472,  39  P.  77.  ^^  Perrj-  v.  Same,  78  Ala.  22;    Car- 

Ind.    McCorkle  v.  Simpson,  42  Ind.  ter  v.  Same,  33  Ala.  429 ;    Holmes  v. 

453.  State,  23  Ala.  17 ;    Pound  v.  State,  43 

£a.    Hewes  v.  Barron,  7  Mart.  (N.  Ga.  88 ;    Evans  v.  State  (Miss.)  4  So. 

S.)  134.  344. 

Ohio.      Morgan   v.    State,    48    Ohio  Instructions     improper     within 

St   371    27  N    B    710  rule.      On    a    prosecution    for   liomi- 

'^'„.'     '        ',,           o/%o./-,  cide,   where  the   facts   that  deceased 

OQ?*  <f «  ?^*^'?n?^  '^'  ^^^^°'  "^  ^-  ^'  bad     followed     defendant    and     had 

_o4,  9  h.  ti.  108.  whistled  at  his  horse  were  but  two  of 

Instru,ctioiis  sufficient  within  the  facts  which  led  up  to  the  main 
rule.  Where,  in  order  to  make  clear  facts  of  the  trouble,  a  charge  on  self- 
to  the  jury  the  questions  they  have  defense,  that  specially  mentioned 
to  determine,  it  is  necessary  for  the  those  facts  as  not  justifying  defend- 
court  to  present  the  testimony  by  ant  in  taking  the  life  of  deceased,  is 
way  of  summing  it  up,  but  he  ad-  erroneous,  under  the  statute  express- 
monishes  the  jury,  from  time  to  time,  ly  prohibiting  the  court  from  giving 
during  the  charge,  that  all  questions  a  charge  on  the  weight  of  testimony, 
of  fact  must  be  solved  by  them,  and  Craiger  v.  State,  88  S.  W.  208,  48 
that  he  could  not  legally  do  so,  the  Tex.  Cr.  R.  500.  A  charge  singling 
manner  of  .stating  the  testimony  will  out  one  or  more  facts  in  the  evidence' 
not  he  considered  error.  Moore  v.  and  limiting  motive  or  interest  there- 
Columbia  &  G.  R.  Co.,  38  S.  C.  1,  16  by  is  on  the  weight  of  the  evidence. 
S.  E.  781.  Ballard  v.    State,   160   S.  W.  716,  71 

6  5  Gately   v.    Campbell,   57   P.    567,  Tex.   Cr.   R.  587. 

124  Cal.  520;    Home  v.  State,  1  Kan.  6  9  Murray  v.   State,  69  So.  354,  13 

42,  81  Am.  Dec.  499.  Ala.    App.    175;     Thompson    v.    State, 


79 


COMMENT  ON   PROBATIVE   EFFECT  OF  EVIDENCE 


42 


§  42.  Reciting  parts  of  testimony  and  construing  testimony  of  par- 
ticular witnesses 

The  rule  is,  in  some  jurisdictions,  that  the  trial  judge  can  tell  the 
jury  that  certain  testimony  has  been  given,  or  state  that  a  particu- 
lar witness  has  testified  to  certain  facts ; '"  the  statement  by  the 
judge  of  his  recollection  of  the  testimony  not  being  regaided  as 
an  expression  of  opinion  on  an  issue  of  fact,''^  and  the  extent  to 
which  he  shall  go  in  stating  portions  of  the  evidence  being  com- 
mitted to  his  discretion.'^  But  in  other  jurisdictions  it  is  not 
proper  for  the  court  to  assist  the  jury  in  a  recollection  of  whether 
certain   testimony  was   presented. '^^ 

In  Georgia  there  are  decisions  that  a  statement  by  the  court  m  a 
criminal  case  to  the  jury  as  to  what  a  witness  has  testified,  where 
such  testimony  is  material  and  prejudicial  to  accused,  is  reversible 
error,^*  on  the  theory  that  such  a  statement  is  in  effect  an  expres- 
sion of  opinion  as  to  what  has  been  proved ; '®  but  there  are  other 
decisions  in  this  jurisdiction  that  such  a  statement  is  permissible  if 
the  judge  does  not  intimate  any  opinion  as  to  the  weight  to  be  at- 
tached to  the  testimony  recited  or  that  it  is  true.'^'' 

In  Indiana  it  is  error  to  state  that  particular  witnesses  have  testi- 
fied to  certain  facts,"  unless  the  jury  is  at  the  same  time  informed 
that  they  are  the  exclusive  judges  of  the  facts,  in  which  case  such  a 
statement  will  be  proper."^  In  one  jurisdiction  there  is  a  constitu- 
tional provision  which  is  construed  to  forbid  such  a  recital  of  the 
testimony  of  particular  witnesses.''^ 


106  Ala.  67,  17  So.  512;  State  v. 
Summers,  92  S.  E.  328,  173  N.  C.  775. 

ToFolmar  v.  Siler,  31  So.  719,  132 
Ala.  297;  Bruce  v.  Western  Pipe  & 
Steel  Co.,  169  P.  660,  177  Cal.  25; 
State  V.  Freeman,  lOO  N.  C.  429,  5  S. 
E.  921;  Hannon  v.  State,  70  Wis. 
448,  36  N.  W.  1. 

In  Nevada,  the  district  judge,  up- 
on the  trial  of  a  criminal  case,  has 
the  right  to  state  to  the  jury,  upon 
their  request,  the  testimony  of  any 
witness.    State  v.  Smith,  10  Nev.  106. 

Statement  ■where  evidence  con- 
flicting. Where,  in  an  action  against 
a  railroad  company  for  assault  by 
the  conductor,  the  evidence  was  con- 
flicting as  to  whether  plaintiff  actual- 
ly strucli  the  conductor,  or  only  at- 
tempted to  do  so,  at  the  time  the  con- 
ductor assaulted  him,  the  court  may 
instruct  in  submitting  the  case  that 
"it    appears    in    this    case    that    the 


plaintiff  either  struck  or  attempted 
to  strike  the  conductor."  Louisville 
Ry.  Co.  V.  Frick,  165  S.  W.  649,  158 
Ky.  450. 

71  Coombs  V.  Mason,  54  A.  728,  97 
Me.  270. 

7  2  Shaw  V.  Tompson,  105  Mass. 
345. 

7  3  (Gen.  Sess.  189S)  State  v.  Foster, 
40  A.  939,  1  Pennewill,  2S9.  aftinnod 
(Sup.  1899)  43  A.  265,  2  Pennewill, 
111. 

7  4  Edwards  v.  State,  60  S.  E.  1033, 
4  Ga.  App.  167. 

7  5  Nelson  v.  State,  52  S.  B.  20,  124 
Ga.  8. 

7  6  Saffold  V.  State,  75  S.  E.  338,  11 
Ga.  App.  329:  Tift  v.  Jones,  77  Ga. 
181,  3  S.  E.  399. 

7  7  Killian  v.  Eigenmann,  57  Ind. 
480. 

7  8  Jones  V.  State,  53  Ind.  235. 

7  9  state  V.  Stello,  27  S.  E.  659,  49 


42 


INSTRUCTIONS  TO  JURIES 


80 


It  is  not  for  the  court  to  interpret  the  meaning  of  the  testimony 
of  a  particular  witness,**^  although  it  is  held  that  a  manifestly  cor- 
rect verdict  will  not  be  disturbed  because  of  such  an  interpreta- 
tion.^^ 

§  43.     Instructions  as  to  weight  of  particular  evidence 

In  accordance  with  principles  already  stated,  the  court  should 
not,  either  in  civil  or  criminal  cases,  single  out  particular  facts  or 
parts  of  the  evidence  and  charge  as  to  their  weight.^^    The  province 


S.  C.  488:  State  v.  Atkins,  27  S.  E. 
484,  49  S.  C.  481. 

The  rule  \nras  otlierivise  under  a 
former  Constitution.  Bradley  v, 
Drayton,  26  S.  E.  613,  48  S.  C.  234; 
Davis  V.  Elmore,  40  S.  C.  533,  19  S.  E. 
204  ;  State  v.  Ezzard,  40  S.  C.  312,  18 
S.  E.  1025;  State  v.  Glover,  27  S.  C. 
602,  4  S.  E.  564;  State  v.  Moorman, 
27  S.  C.  22,  2  S.  E.  621. 

8  0  Southern  R.  Co.  v.  Kendrick,  40 
Miss.  374,  90  Am.  Dec.  332;  Simp- 
son V.  McBeth,  4  Watts  (Pa.)  409; 
Drevis  v.  Woods,  71  Wis.  329,  37  JN. 
W.  256. 

81  Duff  V.  Snider,  54  Miss.  245. 

8  2, Ala.  Thomas  v.  State,  68  So. 
799,  13  Ala.  App.  246,  certiorari  de- 
nied Ex  parte  Thomas,  69  So.  1020, 
193  Ala.  682. 

Cal.  People  v.  Grimes,  64  P.  101, 
132  Cal.  30. 

111.  Atterbury  v.  Chicago,  I.  &  St. 
L.  Short  Line  Ry.  Co.,  134  111.  App. 
330. 

Ind.  Cunningham  v.  State,  65  Ind. 
377. 

La.  State  v.  Watkins,  31  So.  10, 
106  La.  380. 

Mich.  Grand  Rapids  &  I.  R.  Co. 
V.  Judson,  34  Mich.  506. 

N.  Y.  People  v.  O'Neil,  48  Hun, 
36,  affirmed  in  109  N.  Y.  251,  16  N. 
E.  68. 

Okl.     Bilby  v.  Owen,  181  P.  724. 

Utah.  Valiotis  v,  Utah-Apex  Min- 
ing Co.,  184   P.  802. 

Instructions  held  improper 
within  rule.  A  charge  to  acquit  if 
there  is  a  single  fact,  proved  by  the 
pi-eponderance  of  the  evidence,  which 
is  inconsistent  with  defendant's 
guilt.  Walker  v.  State,  23  So.  149, 
117  Ala.  42.  A  charge,  in  an  action 
against  connecting  carriers  for  in- 
juries to  cattle  in  transit,  where  the 


question  of  when  the  cattle  were  re- 
ceived from  the  initial  carrier  by  the 
next  connecting  carrier  was  one  of 
fact  under  all  the  circumstances, 
that  executing  the  contract  of  ship- 
ment by  the  connecting  cax-rier  would 
not  constitute  a  receipt  of  the  cattle. 
Texas  &  P.  Ry.  Co.  v.  Scoggm  & 
Brown,  90  S.  W.  521,  40  Tex.  Civ. 
App.  526.  A  charge,  on  a  trial  for 
murder  committed  with  a  pistol,  that 
the  fact,  if  it  was  a  fact,  that  accused 
had  a  pistol,  would  not  alone  author- 
ize the  jury  to  find  that  he  was  at 
fault  in  bringing  on  the  difficulty. 
Hays  V.  State,  46  So.  471,  155  Ala.  40. 
A  charge,  which  states  the  things 
done  by  accused  in  approaching  de- 
cedent, which  would  not  justify  de- 
cedent in  defending  himself.  Cooper 
V.  State,  138  S.  W.  826,  123  Tenn.  37. 
A  charge,  in  a  homicide  case,  that, 
as  a  matter  of  law,  the  stopping  by 
the  accused  and  securing  a  dog  at  a 
certain  place  was  not  evidence 
against  him  that  he  was  not  free 
from  fault  in  bringing  on  the  diffi- 
culty, and  that  the  evidence  was  such 
that,  under  the  law,  accused  was  free 
from  fault  in  causing  the  trouble. 
Smith  v.  State,  51  So.  632,  165  Ala. 
74.  Instructions,  in  a  prosecution  of 
a  mayor  for  failure  to  disperse 
riotous  assemblage,  that  testimony  to 
the  effect  that  defendant  was  advised 
of  other  acts  of  violence  than  those 
charged  in  the  indictment  would  not 
be  sufficient  to  charge  him  with 
knowledge  of  the  purpose  of  the  as- 
semblage. Wright  v.  State,  201  S. 
Wv  1107,  133  Ark.  16.  An  instruction 
on  a  prosecution  for  carrying  con- 
cealed weapons,  in  which  the  evi- 
dence showed  defendant's  casual 
employment  at  a  certain  saloon,  to 
the   effect  that  if  he  worked   at   all 


81 


COMMENT  ON  PROBATIVE   EFFECT  OF  EVIDENCE 


§43 


of  the  jury  is  invaded  by  the  court  whenever  it  instructs  that  any 
particular  evidence  is  or  is  not  entitled  to  receive  weight  or  consid- 
eration from  them.«=^  It  is  therefore  error  to  specify  certain  evi- 
dence as  being  strong,  or  weighty,  or  as  of  such  a  character  that  it 
.hould  receive  great  consideration  by  the  jury,-  or  to  depreciate 
particular  evidence,  or  characterize  it  as  of  ^Httle  value  or  weight, 
and  such  instructions  are  properly  refused.«°        _         .    ,      • 

Instructions  withdrawing  from  the  consideration  of  the  jury,  or 
tendino-  entirely  to  discredit  or  render  of  no  effect,  certam  facts  or 
testimony  properly  admitted  in  evidence  and  material  to  the  issue 
are  erroneous,  as  on  the  weight  of  the  evidence,-  and  a  requested 


times  at  the  saloon  when  he  could 
get  time  from  other  business,  and 
had  his  clothes  there,  or  a  part  of 
them,  and  that  such  place  was  his 
headquarters,  and  that  he  worked 
there  ahnost  every  day,  it  would  be 
his  place  of  business.  Hutchms  v.. 
State,  101  S.  W.  795,  51  Tex.  Cr.  R. 
339. 

Instructions  lield  not  objection- 
able witbin  rule.  An  instruction 
that  the  fact  of  prosecutrix  having 
made  complaint  soon  after  the  alleg- 
ed assault  was  evidence,  if  proven, 
but  the  details  of  her  complaint  could 
not  be  gone  into.  Hamilton  v.  State, 
84  S.  E.  583,  143  Ga.  265.  An  in- 
stniction  that  it  is  not  necessary  that 
the  prosecutmg  witness  testify  that  a 
false  pretense  induced  him  to  act  as 
he  did,  but  such  fact  may  be  proved 
by  the  testimony  of  other  witnesses, 
and  from  all  the  facts  in  the  case. 
People  V.  Bowman,  142  P.  495,  24  Cal. 
App.    7S1.  ^         , 

Effect  of  marks  and  brands  as 
evidence  of  ownership  of  animals. 
The  court,  in  submitting  a  case  m 
which  the  effect  of  marks  or  brands 
of  animals  is  involved,  should  not 
single  out  any  particular  mark  or 
brand  and  tell  the  jury  what  its  ef- 
fect as  evidence  is,  but  should  sub- 
mit to  them  all  the  marks  and 
brands,  whether  recorded  or  not,  to 
be  considered  in  connection  with  all 
the  other  evidence  of  ownership 
and  of  identification,  to  be  given  such 
weisht  as  in  their  judgment  they 
deem  them  entitled  to.  Smith  v.  Cum- 
mings,  117  P.  38,  39  Utah,  306,  Ann. 
Cas.   191SE,  129. 

Inst. TO  Juries— 6 


8  3  Kauffman  v.  Maier,  29  P.  481,  94 
Cal.  269,  18  L.  R.  A.  124. 

8  4  Ark.     Jenkins  v.  Tobin,  31  Ark. 

306.  ^^   ^  , 

Cal.     People   v.  Ah   Sing,  59  Cal. 

400. 

Fla.      Williams    v.    Dickenson,    28 

Fla.  90,  9  So.  847.  ^     ^ 

Ga.      Shingler  v.  Bailey.  70  S.   t.. 

563,  135  Ga.  666;    Bourquin  v.  Bour- 

quin,  35  S.  E.  710,  110  Ga.  440. 

111.  Kozlowski  v.  City  of  Chicago, 
113  111.  App.  513. 

Iowa.  State  v.  Kehr,  110  N.  W. 
149,  133  Iowa,  35. 

Tenn.  Boyer  v.  State,  93  Tenn. 
216,  23  S.  W.  971. 

8  5  Strickland  v.  State,  69  S.  E.  313, 
8  Ga.  App.  421 ;  Wannack  v.  City  of 
Macon,  53  Ga.  162  ;  Spalding  v.  Lowe, 
56  Mich.  366,  23  N.  W.  46;  State  v. 
Hundley,  46  Mo.  414. 

sG  Ala.  Spivey  v.  State,  61  So. 
607,  7  Ala.  App.  36 ;  Bonner  v.  State, 
107  Ala.  97,  IS  So.  226 ;  Davenport  v. 
State,  85  Ala.  336,  5  So.  152;  Steele 
V.  State,  83  Ala.  20,  3  So.  547. 

Ga.  Gardner  v.  Lamback,  47  Ga. 
133. 

Neb.  Smith  v.  Meyers,  71  N.  W. 
1006,  52  Neb.  70. 

N.  Y.  People  v.  Kemmler,  119  N. 
Y.  580,  24  N.  E.  9. 

Pa.  Bickley's  Adm'r  v.  Biddle,  33 
Pa.  276. 

8  7  Ala.  Louisville  &  N.  R.  Co.  v. 
Lancaster,  25  So.  733,  121  Ala.  471; 
Anderson  v.  Timberlake,  22  So.  431, 
114  Ala.  377,  62  Am.  St.  Rep.  105. 

111.  Dornfeld-Kunert  Co.  v.  Volk- 
mann,  138  111.  App.  421. 

Ind.     Jones  v.  State,  64  Ind.  473. 


§43 


INSTRUCTIONS  TO  JURIES 


82 


instruction,  which,  in  seeking  to  explain  the  meaning  of  certain 
words  or  phrases,  overlooks  or  ignores  all  the  proof  offered  by  the 
other  side,  and  calls  the  jury's  attention  only  to  the  strong  features 
cf  the  evidence  in  favor  of  the  party  making  such  request,  should 
be  refused  as  a  charge  on  the  weight  of  the  testimony.^*  An  in- 
struction in  a  criminal  case,  under  which  the  jury  may  look  alone 
to,  and  base  a  conviction  upon,  the  isolated  testimony  of  the  prose- 
cuting witness,  without  reference  to  the  other  evidence  in  the  case, 
is  erroneous. ^^ 


Miss.  Leverett  v.  State,  73  So. 
27o,  112  Miss.  394. 

Neb.  Zimmermann  v.  Kearney 
Cuuiity  Bank,  78  N.  W.  366,  57  Neb. 
."-OO,  reversed  on  rehearing  Zimmer- 
man V.  Same,  SO  N.  W.  54,  59  Neb.  23. 

N.  Y.  Norden  v.  Duke,  113  N.  Y. 
S.  494,  129  App.  Div.  158,  judgment 
affirmed  92  N.  E.  1094,  198  N.  Y.  562. 

Tex.  McCullough  Hardware  Co.  v. 
Burdctt  (Civ.  App.)  142  S.  W.  612; 
Orient  Ins.  Co.  v.  Wingfield,  108  S. 
W.  788,  49  Tex.  Civ.  App.  202;  Clau- 
sen V.  Jones,  45  S.  W.  183,  18  Tex. 
Civ.   App.   376. 

Vt.  Taplin  &  Rowell  v.  Marcy,  71 
A.  72,  81  Vt.  428. 

Illustrations  of  instructions  im- 
proper within  rule.  A  charge  that 
I  lie  defendant  cannot  be  convicted  if 
the  jury  disl>elieves  the  evidence  of  a 
certain  witness,  where  there  was  evi- 
dence other  than  the  testimony  of 
that  witness  upon  which  they  could 
convict.  Tennison  v.  State,  62  So. 
7.'-0.  183  Ala.  1.  A  charge,  in  an  ac- 
tion against  a  railroad  company  for 
injury  to  live  stock  en  route,  which 
assumed  that  the  written  contract  of 
■shipment  should  be  considered  in  de- 
termining the  measure  of  liability, 
though  there  was  evidence  tending  to 
show  its  invalidity.  Galveston,  H. 
&  S.  A.  Ry.  Co.  V.  Sparks  (Tex.  Civ. 
^pp.)  162  S.  W.  943.  A  charge,  in 
an  action  agjiinst  a  railroad  to  re- 
cover damages  for  loss  of  weight  and 
d'preciation  in  market  value  of  plain- 
tiff's cattle,  alleged  to  have  resulted 
from  defendant's  negligence  in  fail- 
ing to  furnish  cars  for  shipping  them 
within  a  reasonable  time  after  de- 
mand therefor,  directing  the  jury  to 
ignore  the  nish  of  business  and 
scarcity  of  cars,  set  up  in  defense,  in 
determining  whether  or  not  such  cars 


were  furnished  within  a  reasonable 
time ;  the  action  being  based  on  neg- 
ligence, and  not  upon  the  statute. 
Texas  &  P.  Ry.  Co.  v.  Nelson,  86  S. 
W.  616,  38  Tex.  Civ.  App.  605.  An 
instruction,  in  a  suit  for  '  injuries 
caused  by  falling  into  a  pit  in  a  store 
basement,  in  which  tlie  evidence 
showed  the  degree  of  light  was  so 
small  as  to  prevent  an  ordinarily 
prudent  person  discovering  the  pit, 
that  there  was  no  evidence  to  sus-' 
tain  the  charge  that  defendant  left 
the  basement  without  light  was 
erroneous,  as  withdrawing  from  con- 
sideration evidence  of  negligence 
charged  arising  from  failure  to  suf- 
ficiently light  the  basement.  Gla- 
ser  V.  Rothschild,  120  S.  W.  1,  221, 
Mo.  180,  22  L.  R.  A.  (N.  S.)  1045,  17 
Ann.  Cas.  576,  affirming  judgment 
SO  S.  W.  332,  106  Mo.  App.  418.  A 
charge,  in  an  action  for  the  negli- 
gent death  of  a  pedestrian  on  the 
track  at  a  passway,  in  which  the  evi- 
dence showed  that  the  company's 
agents  at  a  station  knew  that  the 
public  used  the  passway,  that  dece- 
dent was  not  a  licensee  on  the  track 
unless  the  track  at  that  place  was 
habitually  used  by  pedestrians  as  a 
common  pathway  for  such  a  length 
of  time  that  the  employes  of  the  com- 
pany knew,  or  ought  to  have  known, 
of  such  common  use,  etc. ;  such 
charge  negativing  the  giving  of  any 
effect  to  the  fact  that  the  agents 
knew  that  the  public  use  of  the  pass- 
wav  had  been  maintained.  Interna- 
tional &  G.  N.  R.  Co.  V.  Howell  (Tex. 
Civ.  App.)  105  S.  W.  560. 

8  8  Behr  v.  Connecticut  Mut.  Life 
Ins.  Co.  (C.  C.)  4  Fed.  357,  2  Flip. 
692. 

8  0  Tipton  V.  State,  30  Tex.  App, 
530,  17  S.  W.  1097. 


S3  COMMENT  ON  PROBATIVE  EFFECT  OF  EVIDENCE  §  43 

rt  is  error  to  state  that  the  testimony  of  a  particular  witness  is  at 
var  ance  vhh  other  testimony  in  the  case,»«  or  to  smgle  out  a  por- 
tion of  the  testimony,  which  may  have  some  probative  force  and 
mtaimize  its  effect  by  charging  that  it  is  insufficient,  standmg  alone, 
^  nrnve  the  fact  in  issue  "  or  to  instruct  that  a  certam  inference  may 
or  marnot  be  draw^tom  a  particular  fact  or  condition,  when  such 
infrrence  mu  t  be  drawn  from  all  the  facts  and  circumstances  in  he 
case  relating  theretoT-  It  has  been  held,  however,  that  it  is  not  im- 
orooer  fo    a  judge  to  analyze  the  testimony  of  a  witness,  and  direct 

Stiont: 'dubious  incidents  of  it,  a-'-^gV'o'rSTucl  t  l- 
charge  may  be  susceptible  of  an  inference,  unfavorable  to  such  tes 


"t"s  error,  where  the  testimony  is  conflicting,  to  smgle  out  w   - 
nes     s,  and  iell  the  jury  that,  if  they  believe  those  -  nesse      he 
verdict  shall  be  so  and  so,"  unless  the  court  also  ^^--g"  «^^^'  '' 
the  jury  do  not  believe  such  witnesses,  but  believe  the    acts  are 

estified  to  by  other  witnesses,  they  shall  «"<!  -cordmgly^ 

Unless  the  question  is  one  as  to  the  legal  ^^'-^  .°*  <=;:'^"  '"  „™ 
ments  in  writing  such  as  deeds  or  contracts,  in  which  case  the  ques 
STs  f";  the  court,"  the  court  should  not  charge  as^to  the  weight 

to  be  attached  to  documents  admitted  m  ^^'-i^""'  .  \"'='^;^^,;"f  ™ee 
tion  bein.'  just  as  improper  as  one  upon  any  other  circumstance 
endintto  prove  or  disprove  the  contention  of  a  P".ty.";"d  fn  n- 
structfon  having  the  effect  to  cause  the  jury  to  discredit,  lightly 
value!  or  gi«  wdght  to  a  particular  document  properly  in  evidence. 
is  erroneous.^® 

..Saogster  ,.  Hato.,  184  111.  App.  -  Arf..^    H.^^tluT^^^'^S. 

'^V  PWlpott  V.  Jones,  149  N.  W.  859,      !«  f  >^-,^f  •/-'Saen"!  Tb. 
'^.SagS?  V.   Nellon   (Tex.    Civ.      515  2  «-^^«';  317  ^  ,_  ^^ 

"^^    ;  S;a^?50  A.  30,  95  Me      N.".^.    54o!   190    lU.    S40,    reversing 

S.  E.  56;    State  v.  Rogers,  93  N.  C.      ^a  .^-(.fPJt  ,f  biilf,  C    &   S.  F.   Ry. 
523.  o«  c    F    70S       Co     137  T  W.  109.  104  Tex.  2S0.  af- 

oocWsv.  Gulf  C.&S^F   Ry.Co.  ^  ■^^^^.  where,    in    an    action 

(Tex.  Civ.  App.)  127  S.  W.  1098.  „„^fJ;.    tife    initial    and    connecting 

97  In  re  Everts'  Estate,  125  P- lO^S-  against    tbe    "^^^^^j  sliipment, 

163    'Cal.    449;     Knowles    v.    Massey  ^J^^-^Vblfonlv  for  damages  done  on 

(Del.)  81  A.  470.         _     „    .     ^     r„  S   own   line,   it   was   shown   that    it 

CJ^SS'CW    APP)  127^S.  W.Vsf-  wL   the   custom    for    the    connecting 


§  44  INSTRUCTIONS  TO  JURIES  84 

§  44.     Instructions  on  right  or  duty  of  jury  to  consider  certain  facts 

The  authorities  are  conflicting  as  to  whether  the  court  may  single 
out  a  certain  part  of  the  evidence  and  tell  the  jury  that  they  may 
consider  it  along  with  the  rest  of  the  evidence  in  determining  a 
particular  issue  of  fact.  In  jurisdictions  where  the  court  is  allowed 
to  comment  on  the  evidence,  such  an  instruction  is  proper;  *  and  in  a 
considerable  number  of  other  jurisdictions,  where  the  court  is  pro- 
hibited from  charging  on  the  facts,  such  an  instruction  is  not 
deemed  a  violation  of  such  a  prohibition  or  an  improper  comment 
on  the  evidence.^  In  another  jurisdiction,  such  an  instruction  is 
proper,  if  it  does  not  single  out  facts  favorable  to  one  party  or  the 
other,  but  impartially  states  the  facts  to  be  considered,  regardless 
of  their  bearing  for  or  against  either  party.^  But  in  this  jurisdic- 
tion, and  in  others,  such  an  instruction  is  improper  if  it  exalts  a  par- 
ticular circumstance  as  a  piece  of  evidence,  or  makes  it  the  subject 
of  special  commendation,  or  tends  to  convey  to  the  jury  the  im- 
pression that  the  court  regards  the  fact  so  specified  as  of  great  im- 
portance ;  *  and  in  Texas  such  an  instruction  has  been  unqualifiedly 
condemned,  the  view  being  taken  that  it  must  necessarily  give  the 
evidence  pointed  out  undue  weight,  and  lead  the  jury  to  believe  that 
the  court  looks  upon  it  as  entitled  to  special  consideration,  and  that, 
it  is  therefore  a  charge  upon  the  weight  of  the  evidence  or  an  im- 
proper comment  thereon,^  and  in  Missouri  such  an  instruction  is  held 

carrier  to  inspect  goods  received  from  2  Shea  v.  City  of  Muncie  (Ind.  Sup.) 

the  initial  carrier,  and  give  a  receipt  46  N.  E.  138,  148  Ind.  14;    Colvin  v. 

for  the    shipment,   reciting   that   the  Warford,  20  Md.  357;    Missouri,   O. 

goods   were   received   in   good   order,  &  G.  Ry.  Co.  v.  Collins,  150  P.  142, 

an   instruction    that   the   jury   might  47  Okl.  761;    Norris  v.  Hartford  Fire 

give  such  weight  to  the  receipt  as  it  Ins.  Co.,  35  S.  E.  572,  57  S.  C.  358. 

was  entitled  to,  and  were  not  requir-  3  Dow  v.  Des  Moines  City  Ry.  Co., 

ed  to  accept  it  as  conclusive,  and  if  126  N.  W.  918,  148  Iowa,  429.    In  an 

they  believed  that  the  evidence  pre-  early  case  in  this  jurisdiction  the  court 

ponderated  against  the  fact  stated  in  held  that,  while  the  practice  of  em- 

the  receipt  they  might  so  find,   was  phasizing  evidence  by  an  instruction 

prejudicial  to  the  initial  carrier,  be-  was    not    to    be    commended,    yet    it 

cause  discrediting  the  receipt  in  the  would  not  reverse  because   the  jury 

minds  of  the  jury.     Connelly  v.  Illi-  were  told  to  regard  as  evidence  what 

nois  Cent.  R.  Co.,  97  S.  W.  616,  120  in  fact  was  evidence.     West  v.  Chi- 
Mo.  App.  652.     It  is  a  charge  on  the  .    cago  &  N.  W.  Ry.  Co.,  77  Iowa,  654, 

facts  for  the  court,  relative  to  the  re-  35  N.  W.  479,  42  N.  W.  512. 

ceipt   in    evidence  being   legible   and  *  Gehrig  v.   Chicago  &  A.    R.   Co., 

intelligible    and    so    constituting    the  201  111.  App.  287;    Wabash  Ry.  Co.  v. 

contract,    to    say    that   he    could    not  Perkins,  137  111.  App.  514,  judgment 

read  it  and  find  the  provision  claim-  affirmed    Perkins   v.   Wabash   R.    Co., 

ed,  without  the  aid  of  the  attorneys.  84    N.    E.    677,    233   111.    458:     In    re 

Irby  V.  Southern  Express  Co.,  80  S.  Knox's  Will,  98  N.  W.  468,  123  Iowa, 

E.  613,  96  S.  C.  .354.  24 :    Galveston,  H.  &  S.  A.  Ry.  Co.  v. 

1  Flick  V.  Ellis-Hall  Co.,  165  N.  W.  Knippa  (Tex.  Civ.  App.)  27  S.  W.  730. 

135,  138  Minn.  364 ;   Cathcart  v.  Com-  s  Glenn  Lumber  Co.  v.  Quinn  (Tex. 

monwealth,    37    Pa.    108:     Speer    v.  Civ.  App.)  140  S.  W.  863;    Dupree  v. 

Rowley,  32  I.eg.  Int.  100.  Texas,  etc.,   Ry.  Co.  (Tex.  Civ.  App.) 


85 


COMMENT  ON   PROBATIVE   EFFECT  OF   EVIDENCE 


§44 


by  the  latest  decisions  to  give  undue  prominence  to  the  facts  recit- 
ed, and  to  be  therefore  an  improper  comment  on  the  evidence.^ 

By  the  weight  of  authority  an  instruction  which  informs  the  jury 
that  they  must  or  should,  in  determining  a  particular  issue,  consider 
certain  facts  or  evidence  specifically  pointed  out,  is  an  invasion  of 
the  province  of  the  jury  as  a  charge  on  the  weight  of  the  evidence." 
Where  there  is  a  conflict  in  the  evidence,  it  is  not  proper  for  the 
court  to  select  any  particular  line  of  evidence  and  tell  the  jury  that 
it  should  be  considered  by  them.^  Thus,  where  one  party  relies  on 
circumstantial  evidence  and  the  other  on  direct  evidence,  it  is  error 
to  instruct  that  the  facts  must  be  determined  by  the  circumstances  at 
the  time  of  their  supposed  occurrence.^  An  instruction,  however, 
stating  that  the  jury  must  consider  all  the  facts  and  circumstances 
surrounding  the  transaction  in  question,  and  which  mentions  par- 
ticular facts  which  the  evidence  tends  to  prove,  but  without  isolat- 


96  S.  W.  647;  Western  Union  Tele- 
graph Co.  V.  Campbell,  91  S.  W.  312, 
41  Tex.  Civ.  App.  204 ;  Galveston,  H. 
&  S.  A.  Rv.  Co.  V.  Knippa  (Tex.  Civ. 
App.)  27  S.  W.  730;  Galveston,  H.  & 
S.  A.  R.  Co.  V.  Kutac,  13  S.  W.  327, 
76  Tex.  473. 

An  instruction  wliicli  collates 
the  evidence  presented  as  a  de- 
fense and  directs  the  •  attention  of 
the  jui"y  thereto  is  erroneous  as  im- 
pressing the  jury  with  the  court's 
view  of  the  importance  of  the  evi- 
dence. Rainey  v.  Kemp,  118  S.  W. 
630,  54  Tex.  Civ.  App.  486. 

6  Andrew  v.  Linebaugh,  169  S.  W. 
135,  260  Mo.  623 ;  Swink  v.  Anthony, 
70  S.  W.  272,  96  Mo.  App.  420. 

In  this  jurisdiction  it  was  held 
in  an  early  case  that  simply  telling 
the  jury  that  they  might  consider 
certain  evidence  as  tending  to  prove 
a  particular  fact,  no  comment  being 
made  as  to  its  weight  or  effect,  was 
not  for  that  reason  improper.  Beat- 
tie  V.  Hill,  60  Mo.  72.  In  another 
early  case  it  was  held  that  such  an 
instruction  was  not  a  comment  on 
the  weight  of  the  evidence,  although 
it  might  be  objectionable  as  giving 
undue  prominence  to  the  facts  recit- 
ed. Bertram  v.  People's  Ry.  Co,,  55 
S.  W.  1040,  154  Mo.  639,  affirming 
judgment  52  S.  W.  1119. 

7  E.  E.  Forbes  Piano  Co.  v.  H.  C. 
&  W,  B.  Reynolds,  56  So.  270,  1  Ala. 
App.     501;      Devine     v.     Brunswick- 


Balke-Collender  Co.,  110  N.  E.  780, 
270  111.  504,  Ann.  Cas.  1917B,  887; 
Christ  V.  Chicago  Rys.  Co.,  191  111. 
App.  69;  Potera  v.  City  of  Brook- 
haven,  49  So.  617,  95  Miss.  774; 
Louisiana  &  Texas  Lumber  Co.  v. 
Stewart  (Tex.  Civ.  App.)  148  S.  W. 
1193. 

Declarations  of  innocence.  It 
is  not  error  to  refuse  to  charge  that 
defendant's  statements  of  innocence, 
brought  out  by  the  state  on  the  ex- 
amination of  its  witnesses,  are  evi- 
dence to  be  considered  as  any  other 
evidence  in  the  case.  Childress  v. 
State,  86  Ala.  77,  5  So.  775. 

But  in  Indiana  such  an  instruc- 
tion may  be  given.  White  v.  State, 
99  N.  E.  417,  178  Ind.  317;  Indian- 
apolis St.  Ry.  Co.  V.  O'Donnell,  73  N. 
E.  163,  35  Ind.  App.  312,  rehearing 
denied  74  N.  E.  253,  35  Ind.  App.  312. 

In  Wisconsin,  the  trial  court  is 
permitted  to  instruct  the  jury  as  to 
a  particular  matter,  calling  attention 
to  the  evidence  on  each  side,  and 
coupling  the  same  with  an  admoni- 
tion that  the  pai-ticular  evidence  re- 
ferred to  and  all  other  evidence  bear- 
ing on  the  question  should  be  con- 
sidered. Schwantos  v.  State,  106  N. 
W.  237,  127  Wis,  160, 

8  San  Antonio,  etc.,  Ry.  Co.  v.  Mc- 
Gill  (Tex.  Civ.   App.)  202  S.  W.  338. 

8  San  Antonio  &  A.  P.  Ry,  Co,  v. 
McGill  (Tex,  Civ,  App.)  202  S.  W. 
338. 


45 


INSTRUCTIONS  TO  JURIES 


8& 


ing  the  particular  facts,  so  as  to  give  special  emphasis  or  importance 
to  them  over  any  other  facts,  is  not  objectionable  as  on  the  weight 
of  the  evidence. ^"^ 

§  45.     Stating  purpose  of  evidence 

Where  evidence  in  the  case  is  not  admissible  for  the  general  pur- 
poses of  the  suit,  but  only  for  a  particular  purpose,  the  rule  is  that 
an  instruction  limiting  such  evidence  to  the  purpose  for  which  it  is 
competent  and  relevant  is  not  erroneous,  as  on  the  weight  of  the 
evidence.^^     Such  a  charge  will  be  erroneous,  however,  as  on  the 


ioTx)we  V.  Hart,  125  S.  W.  1030, 
93  Ark.  548. 

11  Ind.  Smith  v.  State,  142  Ind. 
288.  41  N.  E.  595. 

Mo.  State  v.  Bersch,  207  S.  W. 
809,   276   Mo.   397. 

N.  M.  Trujillo  v.  Territory,  7  N. 
M.   43,   32   P.   154. 

Tex.  Hammock  v.  State,  93  S.  W. 
549,  49  Tex.  Cr.  R.  471;  Byrd  v. 
State,  93  S.  W.  114,  49  Tex.  Cr.  R. 
279;  Kipper  v.  State,  77  S.  W.  611, 
45  Tex.  Cr.  R.  377;  Houston  &  T.  C. 
R.  Co.  V.  Harris,  70  S.  W.  335,  30 
Tex.  Civ.  App.  179;  Galveston,  H.  & 
N.  Ry.  Co.  V.  Newport,  65  S.  W.  657, 
26  Tex.  Civ.  App.  583;  Ledbetter  v. 
State,  35  Tex.  Cr.  R.  195,  32  S.  W. 
903. 

Instrnctions  proper  ^vithin  rule. 
A  cliarge  in  a  criminal  prosecution, 
that  the  jury  should  not  consider  tes- 
timony as  to  other  offenses  for  any 
other  purpose  than  in  passing  on  the 
credibility  of  the  defendant  as  a  wit- 
ness, if  they  believed  there  was  tes- 
timony showing  or  tending  to  show 
that  the  defendant  had  been  charged 
with  other  offenses.  Overstreet  v. 
State,  150  S.  W.  899,  68  Tex.  Cr.  R. 
238.  A  charge  as  to  why  the  plead- 
ings and  judgment  in  an  action  in 
which  perjury  was  charged  to  have 
been  committed  were  inti'oduced,  and 
the  purpose  for  which  they  could  ,be 
considered.  Speannan  v.  State,  152 
S.  W.  915,  68  Tex.  Cr.  R.  449,  44  L. 
R.  A.'(N.  S.)  243.  An  instruction, 
at  the  request  of  a  prosecuting  at- 
torney in  a  prosecution  for  burglary, 
that  evidence  of  defendant  having 
been  convicted  of  another  crime  and 
sent  to  the  penitentiary  was  only  ad- 
mitted for  impeaching  purposes,  and 
could  not  be  considered  for  any  other 


purpose.  Bruno  v.  State  (Tex.  Cr. 
R.)  58  S.  W.  85.  An  instruction  that 
the  evidence  on  cro.ss-examination  of 
defendant  with  reference  to  former 
charges  against  her  could  be  con- 
sidered only  as  affecting  her  cred- 
ibility, and  not  as  tending  to  show 
that  she  committed  the  theft  for 
which  she  was  on  trial.  Jasi^er  v. 
State  (Tex.  Cr.  R.)  61  S.  W.  392.  A 
charge  that  the  evidence  of  certain 
witnesses,  tending  to  contradict  the 
evidence  of  defendant's  wife,  was  in- 
troduced solely  as  going  to  her  cred- 
ibility as  a  witness,  and  not  as  evi- 
dence of  defendant's  guilt,  and  can 
be  considered  only  for  the  purpose 
for  which  it  was  introduced.  Messer 
V.  State,  63  S.  W.  643,  43  Tex.  Cr.  R. 
97.  A  charge  that  the  testimony  of 
a  witness  as  to  what  he  heard  an- 
other witness  testify  to  before  the 
examining  court  was  not  criminative 
evidence  against  defendant,  and  must 
be  considered  only  as  it  might  bear 
on  the  credibility  of  that  witness. 
Banks  v.  State,  108  S.  W.  693,  52 
Tex.  Cr.  R.  480.  In  a  prosecution  for 
indecent  exposure,  where  evidence 
was  admitted  of  complaints  of  other 
similar  acts  by  accused,  a  charge  that 
the  evidence  of  slich  other  acts  should 
not  be  considered  as  substantive  tes- 
timony of  guilt,  but  only  as  bearing 
on  accused's  intent,  was  not  on  the 
weight  of  the  evidence,  on  the  ground 
that  the  word  "substantive,"  as  used, 
was  calculated  to  mislead  the  jury  to 
believe  that  the  court  believed  that 
the  evidence  was  sufficient  to  author- 
ize a  conviction  without  such  evi- 
dence. Harvey  v.  State,  121  S.  W. 
501,  57  Tex.  Cr.  R.  5,  136  Am.  St.  R'ep. 
971.  An  instruction  which  advises 
the  jury  that  a  certain  class  of  tes- 


87 


COMMENT   ON   PROBATIVE   EFFECT  OF   EVIDENCE 


46 


weight  of  the  evidence,  unless  it  is  essential  to  protect  one  of  the 
parties  from  the  illegitimate  consequences  of  testimony  otherwise 
material  and  relevant/^  and  such  instruction  will  be  erroneous,  if  it 
assumes  that  the  evidence  in  question  will  operate  unfavorably  as  to 
the  party  against  whom  it  is  adduced, ^^  and  in  one  jurisdiction  it  is 
held  that,  if  the  court  once  decides  that  certain  evidence  is  compe- 
tent and  admissible,  it  caiinot  thereafter  limit  its  effect,  and  that  an 
instruction  purporting  to  do  this  will  be  on  the  weight  of  evidence.^* 


F.  Instructions  on  Particular  Classes  of  Evidi^nce 

§  46.     Admissions 

Necessity  and  sufficiency  of  instructions,  see  post,  §§  213,  214. 

As  a  general  rule  it  is  error  to  instruct,  and  proper  to  refuse  to  in- 
struct, as  to  the  weight  and  effect  of  the  admissions  of  a  party  in  a 
civil  case,^^  or  of  a  defendant  in  a  criminal  prosecution,^"  and  in- 
structions discrediting  testimony  as  to  the  oral  admissions  of  a  par- 
ty/'^ or  charging  that  it  should  be  received  with  caution/^  or,  on  the 


timony  may  be  properly  weigbocl  by 
them  in  determining  a  fact  in  issue 
is  in  fact  explaining  to  them  the  pur- 
pose for  which  it  was  admitted,  and 
that  it  may  be  considered  by  them  in 
the  formation  of  their  verdict.  Wood 
V.  Samuels,  1  White  &  W.  Civ.  Cas. 
Ct.  App.  §  922.  Where  evidence  of 
other  similar  offenses  was  admitted 
to  show  system  and  intent,  a  charge 
that  the  jury  should  not  consider 
such  evidence  for  any,  other  purpose 
was  not  objectionable,  as  on  the 
weight  of'  tlie  testimony,  in  that  it 
called  the  minds  of  the  jury  to  such 
other  transactions  and  laid  undue 
stress  on  such  testimony.  Melton  v. 
State,  140  S.  W.  230,  63  Tex.  Cr.  R. 
362. 

12  Texarkana  Gas  &  Electric  Co.  v. 
Lanier,  126  S.  W.  67,  59  Tex.  Civ. 
App.  198 ;  Kansas  City  Southern  Ry. 
Co.  v.  Williams  (Tex.  Civ.  App.)  Ill 
S.  W.  196. 

13  Stull  V.  State,  84  S.  W.  1059,  47 
Tex.  Cr.  R.  547. 

i4Maston  v.  State,  36  So.  70,  83 
Miss.  647. 

15  Tobin  v.  Young,  124  Ind.  507,  24 
N.  E.  121 ;  Lewis  v.  Christie,  99  Ind. 
377 ;  Linderman  v.  Carmin,  255  Mo. 
€2,  164  S.  W.  614 ;  Linderman  v.  Car- 
min,   127    S.    W.    124,    142    Mo.    App. 


519 ;      Brown  v.  Atlantic  Coast  Line 
R.  Co.,  64  S.  E.  1012,  S3  S.  C.  53. 

16  .Johnson  v.  Stone,  69  Miss.  826, 
13    So.    858. 

17  State  V.  Fisk,  S3  N.  E.  995,  170 
Ind.  166. 

18  Cal.  Goss  V.  Steiger  Terra  Cot- 
ta  &  PotteiT  Works,  82  P.  6S1,  148 
Cal.  155 ;  People  v.  Buckley,  77  P.  169, 
143  Cal.  375 ;  Kauffman  v.  Maier,  94 
Cal.  269,  29  P.  481,  18  L.  R.  A,  124. 

111.  Wickersham  v.  Beers,  20  111. 
App.    243. 

Ind.  Newman  v.  Hazelrigg,  96 
Ind.  73. 

Mass.  Rumrill  v.  Ash,  47  N.  E. 
1017,  169  Mass.  341. 

Mont.  Wastl  v.  Montana  Union 
R.  Co.,  17  Mont.  213,  42  P.  772; 
Knowles  v.  Nixon,  17  Mont.  473,  48 
P.  628. 

N.  M.  Douglas  v.  Territory,  124 
P.  339,  17  N.  M.  108. 

Tex.  Castleman  v.  Sherry,  42  Tex. 
59. 

Uncorroborated  verbal  admis- 
sions. A  charge  that  verbal  admis- 
sions, uncorroborated  by  other  facts 
or  evidence,  should  be  weighed  with 
great  caution,  invades  the  province 
of  the  jury,  as  it  is  for  them  to  de- 
termine whether  the  admission  in 
question    was    uncorroborated.      Bos- 


§46 


INSTRUCTIONS  TO  JURIES 


88 


other  hand,  that  it  constitutes  satisfactory  or  strong^ °  or  conclu- 
sive^" evidence,  are  erroneous,  and  properly  refused.  An  instruc- 
tion in  a  criminal  case  that  the  law  presumes  that  what  accused 
said  against  himself  is  true,  while  what  he  said  for  himself  the  jury 
are  not  bound  to  believe,  is  erroneous  as  on  the  weight  of  the  evi- 
dence.-^ In  one  jurisdiction,  however,  it  is  held  that  when,  in  a 
criminal  prosecution,  evidence  introduced  is  entitled  to  less  or  more 
weight  than  ordinary  evidence,  such  as  extrajudicial  statements  of 


well  V.  Thompson,  49  So.  73,  160  Ala. 
306. 

Instruction  correct  as  abstract 
proposition.  An  instruction  that  if 
a  person  making  an  admission  may 
not  have  expressed  his  own  meaning 
clearly,  or  if  the  witnesses  may  have 
misunderstood  him,  or  if  the  witnesses 
had  no  reason  for  remembering  the 
exact  language  used,  or  if,  from  lapse 
of  time,  it  is  seen  that  the  witnesses 
are  liable  to  be  mistaken,  or  if,  from 
interest  or  prejudice,  the  admissions 
appear  to  be  unreasonable  or  colored, 
then  as  a  matter  of  law  but  little  re- 
liance should  be  placed  upon  the  tes- 
timony of  such  admission,  is  errone- 
ous, though  it  contains  a  correct  ab- 
stract proposition  of  law.  Unruh  v. 
State,  4  N.  E.  453,  105  Ind.  117. 

Casual  statements  or  admis- 
sions. An  instruction  that,  as  to 
casual  statements  or  admissions  of  a 
party,  made  in  casual  conversations 
to  disinterested  persons,  the  jury 
should  consider  the  liability  of  wit- 
nesses to  misunderstand  or  forget 
just  what  was  said,  depending  on  the 
circumstances,  and  that  such  evi- 
dence is  very  weak,  or  even  the 
sveakest  kind  of  evidence  that  can  be 
produced,  is  proper.  Emery  v.  State, 
78  N.  W.  145,  101  Wis.  627. 

In  Missouri,  a  cautionary  instruc- 
tion, not  referring  to  any  statements 
which  the  jury  may  believe  a  party 
to  have  made,  but  simply  warning 
the  jury  to  consider  with  care  the 
testimony  of  witnesses  who  have  un- 
dertaken to  narrate  what  it  was 
claimed  a  party  said,  off  the  witness 
stand  and  before  the  trial,  may  some- 
times be  proper.  Pace  v.  American 
Cent.  Ins.  Co.,  158  S.  W.  892,  173  Mo. 
App.  485. 

19  Phoenix  Ins.  Co.  v.  Gray,  38  S. 
E.   992,   113   Ga.  424;    Westbrook   v. 


Howell,  34  111.  App.  571;  State  v. 
Gleim,  17  Mont.  17,  41  P.  998,  31 
L.  R.  A.  294,  52  Am.  St.  Rep.  655; 
Earp  V.  Edgington,  64  S.  W  40,  107 
Tenn.  23. 

Illustrations  of  improper  in- 
structions. A  charge  that  a  man  is 
not  going  to  make  an  admission 
against  himself  imless  it  is  true  is 
erroneous,  as  invading  the  province 
of  the  jury.  State  v.  Shorter,  67  S. 
E.   131,   85   S.   C.    170. 

Instructions  held  not  objection- 
able. An  instruction  on  evidence  of 
admissions  made  by  the  accused  out 
of  court,  which  carefully  warns  the 
jury  as  to  the  dangers  they  should 
guard  against  in  considering  such  tes- 
timony, and  concludes,  "If  the  admis- 
sions were  freely,  voluntarily,  with- 
out fear,  hope  of  reward,  understand- 
ingly  and  deliberately  made,  and 
clearly  proved,  the  jury  may,  in  their 
discretion,  and  are  at  liberty  to,  give 
them  great  weight  in  their  delibera- 
tions."    Koerher  v.  State,  98  Ind.  7. 

In  tbe  federal  courts  it  is  not  er- 
ror for  a  judge  in  his  charge  to  the 
jury  to  state  that  the  action  of  a 
former  owner  of  land  in  pointing  out 
a  line  as  its  boundaiy,  and  in  making 
a  deed  conveying  it  by  reference  to 
such  boundary  constitutes  "strong  evi- 
dence" of  the  true  boundai*>'  against 
a  party  who  claims  through  such 
deed.  (C.  C.  A.  Pa.)  Martin  v. 
Hughes,  98  F.  550,  39  C.  C.  A.  160. 

2  0  Collins  V.  Tootle  Estate,  137  S. 
W.  273,  156  Mo.  App.  221;  Gardner 
V.  Standfield's  Heirs,  12  Heisk.  150; 
Carlton  v.  Krueger,  115  S.  W.  619,  54 
Tex.  Civ.  App.  48,  judgment  modified 
on  motion,  115  S.  W.  1178,  54  Tex. 
Civ.  App.  48. 

21  Clay  v.  State,  86  P.  17,  15  Wyo. 
42. 


89  pOMMENT  ON   PROBATIVE   EFFECT  OP  EVIDENCE  §  48 

defendant  tending  to  establish  his  guilt,  an  instruction  as  to  how 
such  evidence  must  be  weighed  is  proper  as  one  on  a  point  of  law,-- 
and  in  this  jurisdiction,  if  the  state  puts  in  evidence  such  a  state- 
ment by  the  defendant,  an  instruction  that  what  he  said  against 
himself  the  law  presumes  to  be  true,  because  said  against  himself, 
and  what  he  said  for  himself  the  jury  are  not  bound  to  believe,  be- 
cause it  was  said  in  a  statement  proved  by  .the  state,  but  they  may 
believe  or  disbelieve  it  as  it  is  shown  to  be  true  or  false  by  the  evi- 
dence, is  not  a  comment  on  the  evidence,  but  a  proper  enunciation 
of  the  law  as  to  statements  made  by  defendant.^^  In  North  Dakota 
a  charge  in  a  criminal  case  that,  if  the  jury  believe  that  defendant 
has  made  statements  out  of  court  against  himself,  they  have  the 
right  to  assume  that  such  statements  are  true,  because  against  him- 
self, is  not  an  unwarranted  invasion  of  the  province  of  the  jury.-* 

§  47.  Effect  of  exculpatory  parts  of  statement  of  accused  given  in 
evidence  against  him 
Where  statements  of  a  defendant  in  a  criminal  case  are  given  in 
evidence  against  him,  the  exculpatory  parts  thereof,  as  well  as 
those  which  import  guilt,  are  to  be  received  as  evidence,  and  it  is 
the  province  of  the  jury,  in  the  light  of  all  the  evidence  in  the  case, 
to  decide  upon  the  truth  or  falsehood  of  such  exculpatory  parts,  and 
in  some  jurisdictions  the  court  may  properly  instruct  them  that  they 
iiave  no  right  to  reject  or  disregard  such  parts  favorable  to  the 
defendant,  unless  there  is  some  other  evidence  in  the  case  showing 
them  to  be  false,  or  unless  they  are  so  unreasonable  or  absurd  as 
to  be  in  the  opinion  of  the  jury  unworthy  of  belief.^^  On  the  other 
hand,  it  is  held  in  some  jurisdictions  that  an  instruction  to  give  the 
parts  of  the  defendant's  statement  favorable  to  him  as  much  con- 
sideration, if  not  apparently  improbable  or  untrue,  as  the  parts  un- 
favorable to  him,  invades  the  province  of  the  jury."* 

§  48.     Confessions — Fact  of  confession  and  weight  thereof 

Necessity  and  sufficiency  of  instructions,  see  post,  §§  215-221. 

The  question  whether,  in  a  criminal  prosecution,  certain  state- 
ments of  the  defendant  amount  to  a  confession,  is  for  the  jury,^'^ 
as  is  the  question  of  the  weight  and  credibility  of  a  confession  of  an 

22  state  V.  Creeley,  162  S.  W.  737,  25  Blackburn  v.  State,  23  Ohio  St. 

254   Mo.   3S2.  146. 

2  3  state  V.  Coats,  74  S.  W.  864,  174  26  state  v.  Ausplund,  167   P.  1019, 

Mo.  396.  86  Or.  121,  judgment  aflirmcd  on  re- 

24  state  V.  Hazlet,  113  N.  W.  374,  hearing,   171  P.  395,  87  Or.  649. 

16  N.  D.  426.  2  7  Roszczyniala  v.  State,  104  N.  W. 

113,  125  Wis.  414. 


48 


INSTRUCTIONS  TO  JURIES 


90 


accused  person.^*  The  court,  therefore,  in  those  jurisdictions  in 
which  the  restrictions  referred  to  supra  prevail,  should  express  no 
opinion  on  the  weight  of  such  a  confession,-^  and  it  is  not  proper, 
to  instruct  that  the  confession  of  defendant  received  in  evidence 
•must  or  should  be  weighed  with  caution,-"  or  that  evidence  of  con- 
fessions is  the  weakest  or  most  dangerous  kind,^^  and  instructions 
that  the  law  does  not  favor  confessions,^^  or  that  a  strong  presump- 
tion arises  that  an  uncorroborated  confession  is  untrue,^^  or  that  if 
confessions  are  so  contradictory  in  themselves  that  they  can  not 
be  reconciled  they  may  be  disregarded,^*  are  on  the  weight  of  evi- 


2  8  Ala.  Clemmons  v.  State,  52  So. 
467,  167  Ala.  20,  140  Am.  St.  Kep.  21 ; 
Goodwin  v.  State,  102  Ala.  87,  15  So. 
571;  Long  v.  State,  86  Ala.  36,  5 
So.  443. 

Del.  State  v.  Smith  (Gen.  Sess.)  9 
Houst.  588,  33  A.  441. 

Kan.  State  v.  Hayes,  187  P.  675, 
106    Kan.    253. 

Mich.  People  v.  Taylor,  93  Mich. 
638,  53  N.  W;  777. 

2  9  Faltin  v.  State,  151  P.  952,  17 
Ariz.  278. 

Instmctions  objectionable  ■with- 
in rule.  A  charge  that  the  jury 
should  find  from  the  evidence  wheth- 
er accused  confessed  after  being  prop- 
erly warned,  and,  if  they  so  found, 
convict  defendant.  McVeigh  v.  State, 
62  S.  W.  757,  43   Tex.  Cr.  R.  17. 

Instructions  not  improper  with- 
in rule.  A  charge  that,  if  the  jury 
found  confessions  were  not  voluntary, 
they  should  acquit,  unless  they  believ- 
ed from  the  other  evidence  that  the 
defendant's  guilt  had  been  establish- 
ed beyond  a  reasonable  doubt.  Mor- 
ris V.  State,  46  S.  W.  253,  39  Tex.  Cr. 
R.  371.  A  charge  that  the  confession 
of  defendant  may  be  used  in  evidence 
against  him  if  it  appears  that  the 
same  was  freely  made  without  com- 
pulsion or  persiiasion.  *  *  *  ipj^g 
court  charges  you  to  wholly  disregard 
the  alleged  confession  of  defendant, 
unless  you  believe  from  the  evidence 
that  the  same,  if  any,  was  freely  and 
voluntarily  made.  If  you  believe 
from  the  evidence  that  the  confes- 
sion, if  any,  was  made  on  compulsion 
or  promise  on  the  part  of  the  officer  or 
officers  in  question,  you  will  wholly  dis- 
regard the  alleged  confession.  The 
only  way  in  which  you  can  consider 
the  confession,  if  any,  in  evidence,  Is 


for  you  to  believe  from  the  evidence 
that  the  same,  if  any,  was  freely  and 
voluntarily  made.  Griffin  v.  State,  93 
S.  W.  732,  49  Tex.  Cr.  R.  440. 

3  0  Ark.  Owens  v.  State,  179  S.  W. 
1014,  120  Arli.  562 ;  Dewein  v.  State, 
170  S.  W.  582,  114  Ark.  472. 

Ind..  Keith  v.  State,  61  N.  E.  716, 
157  Ind.  376. 

Ky.  Blackburn  v.  Commonwealth, 
12  Bush,  181. 

Nev.  State  v.  Simas,  62  P.  242,  25 
Nev.  432. 

S.  C.  State  V.  Cannon,  30  S.  E. 
589,   52    S.   C.    452. 

Instructions  erroneous  •within 
rule.  A  charge  that  any  confession 
verbally  made  by  defendant,  and 
written  down  by  another,  is  subject 
to  mistakes  that  may  arise  from  mis- 
understanding the  meaning  of  de- 
fendant's words,  or  by  using  words 
not  used  by  defendant,  or  by  substitut- 
ing the  language  of  the  person  writing 
it  for  that  of  defendant.  Hauk  v. 
State,  46  N.  E.  127,  148  Ind.  238 ;  Id., 
47  N.  E.  465,  148  Ind.  238.  An  in- 
struction that  confessions,  when  sat- 
isfactorily established  by  credible 
evidence,  are  the  strongest  character 
of  testimony,  but  they  should  be  scan- 
ned with  great  caution,  and  unless 
the  jury  are  satisfied  of  the  honesty 
and  veracity  of  the  witnesses  by 
whom  the  confessions  are  attempted 
to  be  proven  such  evidence  is  most 
unsatisfactory.  Blackburn  v.  Com- 
monwealth, 12  Bush  (Ky.)  181. 

31  State  v.  Fleming,  106  P.  305,  17 
Idaho.  471;    State  v.  Bell,  70  Mo.  0.33. 

3  2  Becker  v.  State,  136  N.  W.  17,  91 
Neb.  352. 

33  Rice  V.  State,  47  Ala.  .38. 

3  4  Goode  V.  State,  123  S.  W.  597,  57 
Tex.  Cr.  R.  220. 


91 


COMMENT  ON   PROBATIVE   EFFECT  OF   EVIDENCE 


49 


dence,  and  erroneous.  On  the  other  hand,  instructions  that  confes- 
sions are  the  strongest  and  most  satisfactory  kind  of  evidence,^* 
or  that  the  law  presumes  that  statements  made  by  an  accused 
against  his  own  interest  are  true,^®  are  equally  erroneous. 

§  49.     Corroboration  of  confessions 

Sufficiency  of  instructions,  see  post,  §  218. 

The  sufficiency  of  the  corroboration  of  a  confession  apparently 
made  without  improper  inducement  is  for  the  jury,^'  and  the  court 
should  not  charge  that  proof  of  certain  facts  is  sufficient  to  show 
such  corroboration,^*  and  in  an  instruction  that  a  conviction  may  be 
had  where  a  voluntary  confession  is  corroborated  only  by  proof  of 
the  corpus  delicti,  the  judge  should  not  use  language  from  which  the 
jury  may  infer  that  such  a  confession,  thus  corroborated,  will  re- 
quire a  conviction,  but  he  should  leave  them  free  to  pass  upon  the 
question  whether  or  not  the  corroborative  evidence,  together  with 
that  relating  to'  the  confession,  is  sufficient  to  satisfy  them  beyond 
a  reasonable  doubt  of  the  sfuilt  of  the  accused. ^'^ 


3  5  Ledbetter  v.  State,  21  Tex.  App. 
544,  17  S.  W.  427 ;  Harris  v.  State,  1 
Tex.  App.  74 ;  Morrison  v.  State,  41 
Tex.  516. 

Instructions  improper  ivithin 
rule.  An  instruction,  as  to  alleged 
confessions  of  defendant  that,  if  they 
were  shown  to  have  been  understand- 
ingly  made  and  correctly  remembered 
by  the  witnesses  and  substantially  re- 
peated by  them  on  the  witness  stand, 
they  were  "entitled  to  great  weight." 
State  V.  Willing,  105  N.  W.  355,  129 
Iowa,   72. 

3  6  McLemore  v.  State,  1G4  S.  W. 
119,  111  Ark.  457. 

Charge  as  to  conduct  of  inno- 
cent men.  In  a  prosecution  for  mur- 
der, it  is  a  usuiTpation  of  the  province 
of  the  jury  to  instruct  that  sane  men 
who  are  innocent  as  a  rule  do  not 
make  confession  of  crime,  as  it  is 
within  the  exclusive  province  of  the 
jury,  and  not  for  the  court,  to  say 
what  its  experience  of  men  is  in  cer- 
tain matters.  Knapp  v.  State,  25 
Ohio  Cir.  Ct.  R.  571. 

3  7  Peterson  v.  State,  91  S.  E.  223, 
19  Ga.  App.  144. 

3  8  Coley  V.  State,  34  S.  E.  845,  110 
Ga.  271. 


Instructions  not  improper  with- 
in rule.  An  instruction  that  proof 
beyond  a  reasonable  doubt  of  the  cor- 
pus delicti  might  be,  but  was  not 
necessarily,  sufiicient  corroboration  of 
a  confession,  that  the  law  did  not  fix 
the  amount  of  corroboration  neces- 
sary, and  that  the  jury  were  the 
judges  whether  other  evidence  suffi- 
ciently corroborated  a  confession  to 
justify  a  conviction,  if  the  jury  found 
the  proper  confession  was  made. 
Dotson  V.  State,  71  S.  E.  164,  136  Ga. 
243.  An  instruction  that,  if  the  jury 
believed  a  burglary  had  been  commit- 
ted by  somebody  as  charged  in  the 
indictment,  then  "that  would  be  a 
sufficient  corroboration  of  the  confes- 
sion to  justify  a  conviction,  if  the 
jury  believe  that  it  was  suthcient 
corroboration ;  that  is,  it  might  be  a 
form  of  corroboration,  but  the  jury 
in  every  case  are  the  judges  of  what 
corroborations  are  sufficient" — will 
not  be  construed  as  charging,  as  a 
matter  of  law,  that  proof  of  the  crime 
having  been  committed  was  sufficient 
corroboration  of  the  confession.  Da- 
vis V.  State,  32  S.  E.  158,  105  Ga.  808. 

sowimberly  v.  State,  31  S.  E.  162, 
105  Ga.  188. 


§  50  INSTRUCTIONS  TO  JURIES  92 

§  50.     Dying  declarations 

Necessity  and  sufficiency  of  instructions  on  credibility  and  weiglit  of  dying 
declarations,  see  post,  §  158. 

The  weight  and  credibil'ity  of  the  dying  declarations  of  the  vic- 
tim of  a  crime  are  for  the  jury  in  a  criminal  prosecution  of  the  al- 
leged criminal.*''  The  court  cannot,  therefore,  properly  give  an  in- 
struction as  to  the  weight  and  conclusiveness  of  such  declara- 
tions,*^ and  instructions  which  caution  the  jury  that  they  should 
be  received  with  caution,  or  which  disparage  the  value  of  evidence 
of  them,*^  as  by  calling  the  attention  of  the  jury  to  the  fact  that 
such  declarations  are  not  made  under  oath  with  opportunity  for 
cross-examination,*^  are  erroneous,  as  invading  the  province  of  the 
jury.  Equally  erroneous  are  instructions  which  state  that  dying 
declarations  are  entitled  to  receive  the  same  weight  and  credit  as 
testimony  taken  under  the  sanction  of  an  oath,**  and  it  is  proper 
to  refuse  the  negative  of  such  a  proposition.*^  It  is  proper,  how- 
ever, to  tell  the  jury  that  an  alleged  dying  declaration  is  admitted 
merely  on  prima  facie  evidence  of  its  verity,  and  that  the  jury 
must  determine  whether  it  is,  as  a  matter  of  fact,  a  dying  declara- 
tion, such  instruction  not  being  .open  to  the  objection  that  it  ex- 
presses the  opinion  of  the  court  that  there  is  prima  facie  evidence 
as  to  the  truth  of  such  declaration.*^ 

40  Postell  V.  Commonwealtli,  192  S.      State  v.  McCanon,  51  Mo.  160;    State 
W.  39,  174  Ky.  272 ;    Gurley  v.  State,      v.  Scott,  142  P.  105.3.  37  Nev.  412. 

57  So.  565,  101  Miss.  190.  .     In  Georgia,  an  instruction  telling 

41  People  V.  Amaya,  66  P.  794,  134      the   jury  that  dying  declarations  stand 
Cal.  531.  on  the  same  plane  as  testimony  given 

4  2  Shenkenberger  v.  State,  57  N.  E.  under   oath   is   not   objectionable,   as 

519,  1.54  Ind.  630 ;    State  v.  McLaugh-  dealing  with  the  weight  of  the  testi- 

lin,  70  So.  925,  1.38  La.  9.58.  mony.     Josey  v.  State,  74  S.  E.  282, 

43  People  V.  Dallen,  132  P.  1064,  21  137  Ga.  769 ;   Robinson  v.  State,  88  S. 

Cal.  App.  770;    State  v.  Clark,  63  S.  E.    410,    17    Ga.    App.    751.      But    in 

E.  402    64  W.  Va.  625.  t^i*^   jurisdiction   an   instruction   that 

",    "'    .     .     .      .    ~,  .  dying      declarations      are      admitted 

In  Mississippi,  however  an  in-  ^^  ^j^^  ^^  ^^^^^  ^  ^.^on  is  as 
struction  that  the  dying  declarations  ..g^j.^.,  ^^  4^,^  ^^^  ^^^^^  ^.j^e^  in  ^he 
of  the  deceased,  made  to  his  wife,  are  articles  of  death  as  when  under 
not  entitled  to  the  same  credit  as  if  oath  is  held  erroneous;  the  use  of  the 
the  deceased  was  still  alive  and  testi-  word  "sure"  being  considered  to  in- 
fying  under  oath,  that  it  is  a  species  dicate  tlie  judge's  opinion  as  to  the 
of  hearsay  evidence,  and  is  iutrinsi-  weight  and  value  of  dying  statements 
cally  weaker  than  if  the  defendant  as  compared  with  testimony  in  con- 
was  present,  and  the  jury  alone  are  flict  with  them.  Darby  v.  State,  84 
the  judges  of  its  weight  and  force,  S.  E.  724,  16  Ga.  App.  171. 
has  been  held  not  objectionable,  as  on  45  gims  v.  State,  36  So.  138,  139 
the  weight  of  evidence.  Lipscomb  v.  Ala.  74,  101  Am.  St.  Rep.  17;  State 
State,  23  So.  210,  75  Miss.  559.  v.  Reed,  1.37  Mo.  125,  38  S.  W.  574. 

4  4  People  v.  Warren,  102  "N.  E.  201,  4  6  Waters  v.   State,  104  S.  E.   626, 

259   111.   213,   Ann.   Gas.   1914C,  219;  150  Ga.  023. 


93 


Comment  on  probative  effect  of  evidence 


§  51 


§  51.     Opinion  and  expert  evidence 

Comparative  values  of  opinion  evidence  and  other  evidence,  see  post,  §  56. 
Sufficiency  of  instructions,  see  post,  §§  208-210. 

The  question  of  the  weight  to  be  given  to  the  opinions  of  experts 
is  for  the  jury/^  and,  except  in  those  jurisdictions  where  the  com- 
mon-law rule  of  allowing  the  court  to  comment  on  the  evidence 
prevails,**  the  general  rule  is  that  instructions  which  place  a  value 
upon  such  testimony,  or  indicate  its  worth,**  or  which,  on  the  one 
hand,  commend,  exalt,  or  attach  conclusive  effect  to  the  opinions 
of  experts,^"  or,  on  the  other  hand,  discredit  or  depreciate  such  evi- 
dence, or  permit  the  jury  to  disregard  it,^^  invade  the  province  of 


47  In  re  Anderson's  Appeal,  66  A. 
7,  79  Conn.  535 ;  Colee  v.  State,  75 
Ind.  511;  Snyder  v.  State,  70  Ind. 
349;  Davis  v.  State,  35  Ind.  496,  9 
Am.  Rep.  760. 

4s  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v. 
Phillips  (C.  C.  A.  Ark.)  66  F.  35,  13 
C.  C.  A.  315 :  Brower  v.  Emerson,  10 
N.  J.  Law,  279. 

49  Ci-ump  V.  Knox,  89  S.  E.  586,  18 
Ga.  App.  437 ;  Indianapolis  Traction 
&  Terminal  Co.  v,  Taylor,  103  N.  E. 
812,  55  lud.  App.  309;  Louisville  & 
S.  I.  Traction  Co.  v.  AYorrell,  86  N, 
E.  78,  44  Ind.  App.  480;  Eggers  v. 
Eggers,  57  Ind.  461;  Rivard  v.  Ri- 
vard,  109  Mich.  98,  66  N.  W.  681,  63 
Am.    St.    Rep.    566. 

5  0  Ala.  Birmingham  Ry.,  Light  & 
Power  Co.  v.  Drennen,  67  So.  386,  190 
Ala.  176 ;  Holloway  v.  Cotten,  33  Ala. 
529. 

Ga.  Rouse  v.  State,  69  S.  E.  180, 
135  Ga.  227;  Smith  v.  State,  56  S. 
E.  116,  127  Ga.  56 ;  Wall  v.  State,  37 
S.  E.  371,  112  Ga.  336;  Merritt  v. 
State,  34  S.  E.  361,  107  Ga.  675 ;  Ry- 
der V.  State,  28  S.  E.  246,  100  Ga.  528, 
38  L.  R.  A.  721,  62  Am.  St.  Rep.  334. 

Ind.     Cuneo  v.  Bessoni,  63  Ind.  524. 

Mich.  Stone  v.  Chicago  &  W.  M. 
Ry.  Co.,  60  Mich.  76,  33  N.  W.  24. 

Mo.  Hampton  v.  Massey,  53  Mo. 
App.   501. 

N.  C.  Hancock  v.  Western  Union 
Telegraph  Co.,  55  S.  E.  82,  142  N.  C. 
163. 

51  Ala.  Burney  v.  Torrev,  100 
Ala.  157.  14  So.  685,  46  Am.  St.  Rep. 
33;  Gunter  v.  State,  S3  Ala.  96,  3 
So.  600. 

Cal.    In  re  Hess'  Estate,  192  P.  35. 


ni.  People  v.  Harvey,  122  N.  E. 
138,  286  111.  593. 

Iowa.  Long  v.  Travelers'  Ins.  Co., 
85  N.  W.  24,  113  Iowa,  259;  Brush 
v.  Smith,  82  N.  W.  467,  111  Iowa, 
217;  State  v.  Townsend,  66  Iowa, 
741,  24  N.  W.  535. 

Kan.  Ball  V.  Hardesty,  16  P.  808, 
38  Kan.  540. 

Mich.  People  v.  Seaman,  107 
Mich.  348,  65  N.  W,  203,  61  Am.  St. 
Rep.  326. 

Mo.  Wheeler  v.  Chestnut,  69  S. 
W.  621,  95  Mo.  App.  546;  Hull  v.  City 
of  St.  Louis  (Sup.)  39  S.  W.  446; 
Kansas  City,  N.  &  Ft.  S.  R,  Co.  v. 
Dawley,  50  Mo.  App.  480. 

N.  Y.  People  v.  Webster.  59  Hun, 
398,  13  N.  Y.  S.  414;  Templeton  v. 
People,  3  Hun,  357,  6  Thomp.  &  C. 
81. 

N.  C.  Ferebee  v.  Norfolk  South- 
ern R.  Co.,  83  S.  E.  360,  167  N.  C. 
290. 

Pa.  Pannell  v.  Commonwealth,  86 
Pa.  260. 

Instructions  held  improper  \7i th- 
in rule.  An  instruction,  in  proceed- 
ings to  probate  a  will,  contested  on 
the  ground  that  dec(>deiit  was  not  of 
sound  mind,  where  physicians,  with- 
out objection,  testified  as  experts,  in 
the  form  of  answering  hypothetical 
questions,  that  the  testimony  of  ex- 
perts, dependent  on  hypothetical 
questions,  was  unsatisfactory,  be- 
cause it  could  not  convey  the  precise 
reasons  why  the  conclusions  were 
reached,  and  was  unreliable,  because 
frequently  based  on  speculations,  and 
that  such  opinions  were  not  entitled 
to  as  much  weight  as  facts,  and  that 


51 


INSTRUCTIONS  TO  JURIES 


94 


the  jury,  and  are  therefore  erroneous,  and  properly  refused,  both  in 
civil  actions  and  criminal  prosecutions. 

Within  this  rule  are  instructions  that  the  testimony  of  experts  is 
supposed  to  be  the  best  that  can  be  furnished,^-  that  such  testimony 
is  to  be  received  with  caution,  or  scrutinized  with  the  utmost  care,^^ 


opinions  based  on  the  same  facts  were 
often  diametrically  opposed  to  each 
other.  In  re  Blake's  Estate,  68  P. 
827,  136  Cal.  306,  89  Am.  St.  Rep.  135. 
An  instrnction  that  the  abstract  opin- 
ion of  any  witness,  medical  or  of  any 
other  profession,  is  of  no  importance, 
but  that  it  was  a  juror's  duty  to  ar- 
rive at  his  conclusion  on  his  own 
judgment,  exercised  in  a  reasonable 
way  after  carefully  weighing  all  the 
evidence,  and  that  no  judical  tribunal 
would  be  justified  in  deciding  for  or 
against  the  legal  responsibility  of  one 
charged  with  insanity  on  the  opinion 
of  witnesses,  however  numerous  or 
respectable,  was  properly  refused. 
People  V.  Buck,  91  P.  529,  151  Cal. 
667. 

Rule  in  Iowa.  A  statement,  in  an 
instruction  on  expert  testimony  in  a 
criminal  prosecution,  that,  while  the 
profession  of  law  has  not  fully  kept 
pace  with  that  of  medicine  on  the 
subject  of  insanity,  medical  authori- 
ties have  propounded  doctrines  re- 
specting it  as  an  excuse  for  criminal 
acts  which  a  due  regard  for  the  safe- 
ty of  the  community  and  an  enlight- 
ened public  policy  must  prevent  ju- 
ries from  adopting  as  the  law  of  the 
land  has  been  held  improper  criti- 
cism, State  V.  McCullough,  87  N.  W. 
503,  114  Iowa,  532,  55  L.  R.  A.  378, 
89  Am.  St.  Rep.  382 ;  although  a  simi- 
lar instruction  was  approved  in  an 
earlier  case,  State  v.  Hockett,  70 
Iowa,  442,  30  N.  W.  742;  a  distinc- 
tion being  made  between  the  two 
cases  on  the  ground  that  in  the  earlier 
case  the  testimony  was  given  in  re- 
sponse to  hypothetical  questions  while 
in  the  distinguishing  case  the  experts 
testified  on  the  basis  of  personal 
knowledge. 

Instructions  lield  not  erroneous 
witliin  rule.  An  instruction,  in  an  ac- 
tion on  accident  policy,  in  which  the 
evidence  as  to  the  cause  of  ins?ured's 
death  was  conflicting,  that  the  opinions 
of  experts  as  to  the  cause  of  insured's 


death  were  not  binding  on  the  jury, 
but  it  was  for  them  to  determine 
from  all  the  facts,  including  the  opin- 
ion of  such  experts,  what  was  the 
cause  of  his  death,  and  that  the  jury 
should  give  to  the  expert  evidence 
such  weight  as  they  deemed  it  en- 
titled to  after  considering  the  wit- 
ness' knowledge  and  skill  as  disclosed, 
and  all  the  other  facts  shown  in  their 
testimony,  was  not  objectionable  as 
belittling  the  testimony  of  the  physi- 
cians. Morrow  v.  National  Masonic 
Ace.  Ass'n,  101  N.  W.  468,  125  Iowa, 
633.  An  instruction  that  the  jury 
should  consider  expert  testimony  with 
great  caution;  that  they  should  make 
a  iDainstaking  investigation  of  all  the 
facts,  to  reach  the  truth,  and  must 
not  be  confused  or  misled  by  such  tes- 
timony, because,  while  such  testimony 
is  sometimes  the  only  means  or  the 
best  way  to  reach  the  truth,  yet  it  is 
largely  a  field  of  speculation,  beset 
with  pitfalls  and  uncertainties,  and 
requires  patient  and  intelligent  in- 
vestigation, was  not  erroneous,  as  dis- 
criminating too  strongly  against  such 
evidence,  and  because  it  warned  the 
jury  not  to  be  misled  or  confused 
thereby.  Fisher  v.  Travelers'  Ins. 
Co.,  138  S.  W.  316,  124  Tenn.  450, 
Ann.  Cas.  1912D,  1246. 

5  2  Kansas  City,  W.  &  N.  W.  R.  Co. 
V.  Ryan,  49  Kan.  1,  30  P.  108. 

5  3  Cal.  People  v.  Wilkins,  111  P. 
612,  158  Cal.  530. 

Iowa.  Madden  v.  Saylor  Coal  Co., 
Ill  N.  W.  57,  133  Iowa,  099. 

Kan.  Atchison,  T.  &  S.  F.  R.  Co. 
V.  Thul,  32  Kan.  255,  4  P.  352,  49 
Am.  Rep.  484. 

Miss.  Coleman  v.  Adair,  23  So. 
369.  75  Miss.  660 ;  Louisville.  N.  O.  & 
T.  Ry.  Co.  v.  Whitehead,  71  Miss.  451, 
15  So.  890,  42  Am.  St.  Rep.  472. 

Neb.  Weston  v.  Brown,  30  Neb. 
609,  46  N.  W.  826. 

Wash.  Gustafson  v.  Seattle  Trac- 
tion Co.,  68  P.  721,  28  Wash.  227. 

In  Michigan  it  has  been  held  that. 


95 


COMMENT   ON   PROBATIVE   EFFECT  OF   EVIDENCE 


§51 


that  such  evidence  is  usually  of  very  little  value,^  or  that  it  is  gen- 
erally regarded  as  of  a  weak  and  unsatisfactor}'-  character.^ ^  The 
court  may,  however,  instruct  in  general  terms  that  the  jury  is  not 
bound  to  accept  as  true  the  opinions  of  expert  witnesses,^  nor  to  act 
upon  them  to  the  entire  exclusion  of  other  testimony,"^  and  that  the 
jury  should  disregard  the  opinions  of  expert  witnesses,  if  they  be- 
lieve them  to  be  unreasonable.^^  In  other  words,  the  jury  may  be 
told  that  they  are  to  apply  the  same  general  rules  to  the  testimony 
of  experts  that  govern  in  determining  the  weight  of  other  testi- 
mony.^^ 

A  general  instruction  on  expert  testimony  that  this  kind  of  evi- 
dence is  competent,  and  should  be  given  such  weight  as  in  the  judg- 
ment of  the  jury  it.is  entitled  to  receive,  is  proper,' and  does  not  take 
from  the  jury  the  right  to  determine  the  weight  of  such  evidence,^'' 
and  where  the  testimony  consists  of  the  opinion  of  experts,  which  is 
uncontradicted,  the  court  may  direct  a  verdict  in  case  the  jury  be- 
lieve such  testimony. ^^  In  some  jurisdictions  it  is  proper  for  the 
court  to  charge  that,  in  considering  the  weight  to  be  attached  to  the 


where  the  issue  is  as  to  the  insanity 
of  an  accused  and  the  evidence  of  in- 
sanity is  slight,  it  is  not  error  to 
charge  that  expert  testimony  is  to  be 
weiglied  with  great  caution,  and  is 
exposed  to  a  reasonable  degi'ee  of 
suspicion,  which  in  many  instances 
results  from  employment.  People  v. 
Perriman,  72  Mich.  184,  40  N.  W. 
425. 

5  4  Eggers  V.  Eggers,  57  Ind.  461. 

5  5  Davis  V.  Lambert,  95  N.  W.  592, 
69  Neb.  242 ;  Hayden  v.  Frederickson, 
80  N.   W.  494,   59  Neb.   141. 

5  6  Wiley  V.  St.  Joseph  Gas  Co.,  Ill 
S.  W.  1185,  132  Mo.  App.  380;  Com- 
monwealth V.  Shults,  70  A.  823,  221 
Pa.  466. 

5  7  Wagner  v.  State,  116  Ind.  181, 
18  N.  E.  833. 

58  Hull  V.  City  of  St.  Louis,  138  Mo. 
618,   40  S.  W.  89,  42  L.  R.   A.  753. 

5  9  Epps  V.  State,  102  Ind.  539,  1 
X.  E.  491;  State  v.  Malloy,  78  S.  B. 
995,  95  S.  C.  441,  Ann.  Cas.  1915C, 
1053,  judgment  affirmed  Malloy  v. 
State  of  South  Carolina.  35  S.  Ct.  507, 
237  U.  S.  180.  59  L.  Ed.  905 ;  Atkins 
V.  State,  105  S.  W.  353,  119  Tenn.  458, 
13  L.  R.  A.  (N.  S.)  1031. 

Instructions  held  proper  xidtli- 
in  rule.  An  instruction  that  expert 
testimony  must  be  weighed  as  other 


testimony,  taking  into  consideration 
the  knowledge  possessed  by  the  wit- 
nesses testifying  as  experts,  the  mat- 
ters testified  to  by  them,  and  the 
other  evidence  in  the  case,  that  the 
jury  should  give  to  expert  testimony 
such  credit  only  as  they  deem  it  just- 
ly entitled  to  receive,  etc.,  does  not 
disparage  expert  testimony,  but  cau- 
tions the  jury  against  blindly  accept- 
ing what  experts  have  testified  to. 
Reynolds  v.  Smith.  127  N.  W.  192,  148 
Iowa,  264.  An  instniction  on  a  trial 
for  murder,  where  the  defense  was 
insanity,  that  the  opinions  of  nonex- 
perts— acquaintances  of  defendant, 
who  testified  to  facts  from  which  they 
concluded  he  was  insane — as  to  de- 
fendant's insanity  were  to  be  received 
and  weighed  only  in  the  light  of  the 
facts  related  by  them,  and  that  the  ju- 
ry must  judge  of  tbe  reasonableness  of 
those  opinions  from  such  facts,  and 
give  them  such  weight  as  they  might 
deem  proper,  and  that  both  the  ex- 
pert and  nonexpert  testimony  should 
be  subjected  to  a  careful  and  pains- 
taking investigation.  Wilcox  v. 
State.  94  Tenn.  106,  28  S.  W.  312. 

GO  Powell  V.  Chittick,  89  Iowa.  513. 
56  N.  W.  G52;  Jameson  v.  Weld,  45 
A.  299,  93  Me.  345. 

61  Lawson  v.  Mobile  Electric  Co., 
85  So.  257.  204  Ala.  318. 


§  51  INSTRUCTIONS  TO  JURIES  96 

testimony  of  experts,  the  jury  should  not  overlook  their  profession- 
al standing  and  experience,  the  view  being  taken  that  jurors  should 
not  be  left  without  any  direction  whatever  in  passing  upon  the  force 
of  such  testimony.^^ 

It  is  for  the  court  to  say  whether  a  hypothetical  case  on  which 
the  opinions  of  experts  are  based  corresponds  to,  and  coincides  with, 
the  facts,  and  it  is  error  to  submit  that  question  to  the  jury.®^ 

§  52.     Parol  evidence 

The  rule  against  the  expression  of  an  opinion  by  the  court  as  to 
the  weight  or  sufficiency  of  the  evidence  has  peculiar  application 
where  the  evidence  is  entirely  oral,^*  and  in  such  a  case,  although 
the  evidence  is  all  on  one  side,  the  court  cannot  instruct  the  jury 
that  a  certain  fact  is  actually  proved  thereby. ^^ 

§  53.     Circumstantial  evidence  in  criminal  cases 

Necessity  and  sufficiency  of  instructions  and  propriety  of  particular  instruc- 
tions, see  post,  §§  224-235, 

In  a  criminal  case  it  is  an  invasion  of  the  province  of  the  jury  for 
the  court  to  tell  the  jury  that  all  the  evidence  against  the  defendant 
is  purely  circumstantial,^  or  to  erect  a  standard  by  which  to  estimate 
the  weight  of  circumstantial  evidence,®^  or  to  instruct  that  under 
stated  circumstances  the  requirements  of  the  law  as  to  the  sufficien- 
cy of  circumstantial  evidence  will  be  satisfied,®*  or  to  lay  emphasis 
upon  circumstantial  evidence  as  being  legal  evidence  and  sufficient 
to  sustain  a  conviction.''^  But  it  does  not  invade  the  jury's  province 
to  charge  that  the  guilt  of  the  defendant,  or  certain  matters  looking 

6  2  Co.?grove  v.  Burton,  78  S.  W.  667,  C.  R.  Co.,  91  S.  W.  446,  115  Mo.  App. 

104  Mo.  App.  698.  676;    Richmond  &  Danville  R.  R.  Co. 

In  North  Carolina,  upon  an  issue  v.  Noell,  86  Va.  19,  9  S.  E.  473. 

involving  the  mental  condition  of  a  6  5  Charleston   Ins.   &  Trust  Co.   v. 

party  to  a  contract,  a  charge,  in  re-  Corner,  2  Gill  (Md.)  410. 

gard  to   the  evidence  of  a  physician  ee  state  v.  Aughtry,  26  S.  E.  619. 

of   thirty   years'   standing,   "that  the  49  S.  C.  285 ;    Same  v.  Aughtrey,  27 

law  attaches  peculiar  importance  to  S.  E.  199,  49  S.  C.  285. 

the  opinion  of  medical  men  who  have  It  is  not  prejudicial  error,  how- 

the  opportunity  of  observation  upon  ever,  for  a  court,  in  its  charge,  to  say 

a  question  of  mental  capacity,  as  by  to  the  jury  that  the  evidence  before 

study  and  experience  they  become  ex-  them  is  both  direct  and  circumstan- 

perts  in  the  matter  of  bodily  and  men-  tial.     Davis  v.   State,   70  N.  W.  984, 

tal  ailments,"  was  held  to  be  no  in-  51  Neb.  801. 

vasion  of  the  province  of  the  jury ;  67  Bixidy     v.     Commonwealth,     11 

the  appellate  court  saying  that  such  Bush  (Ky.)  282. 

instruction    was   merely    the    dictate  es  Harris  v.   State,  137  P.  365,  10 

of  common  reason.     Flynt  v.  Boden-  Okl.    Cr.   417.    judgment    affirmed    on 

hamer.  80  N.  C.  205.  rehearing  139  P.  846,  10  Okl.  Cr.  417, 

6  3  State  V.  Wertz,  90  S,  W.  838,  191  6  9  McCleskey   v.    State   (Tex.   App.) 

Mo,  569.  13   S.  W.  997;    Harrison  v.  State,  9 

6*McReynolds  v.  Quincy,  O.  &  K.  Tex.  App.  407. 


97 


COMMENT  ON  PROBATIVE  EFFECT  OF   EVIDENCE 


54 


towards  his  guilt,  may  be  shown  by  circumstantial  evidence/**  and 
the  court  may  instruct  that  circumstantial  evidence  should  be  re- 
ceived and  considered  as  other  evidence/^  or  that  there  is  nothing 
in  the  nature  of  circumstantial  evidence  that  renders  it  any  less  re- 
liable than  any  other  class  of  evidence/^  or,  in  a  proper  case,  that  it 
is  entitled  to  the  same  weight  as  direct  evidence,'^  and  it  is  not  im- 
proper to  charge  that  prejudice  against  a  conviction  on  circumstan- 
tial evidence  is  wrong,''* 

§  54.     Instructions  as  to  effect  o£  good  character  of  accused 

Necessity  and  sufficiency  of  instructions  on  tliis  head,  see  post,  §§  237-242. 

The  general  rule  is  that  it  is  error  to  instruct  as  to  the  weight  to 
be  attached  to  evidence  of  the  general  good  character  of  the  defend- 
ant in  a  criminal  prosecution,^^  it  being  for  the  jury  to  determine 
such  weight.'*'  Thus  it  is  ordinarily  error  to  instruct  that  evidence 
of  good  character  will  not  furnish  ground  for  an  acquittal, ^^  or  that 


7  0McArthur  v.  State,  92  S.  E.  234, 
19  Ga.  App.  747;  Brown  v.  State,  169 
S.  W.  437,  74  Tex.  Cr.  R.  356 ;  Suggs 
V.  State,  143  S.  W.  1S6,  65  Tex.  Cr.  R. 
67. 

Instructions  proper  vrithin  rule. 
An  instruction,  in  a  prosecution  of  a 
physician  for  soliciting  patients  by 
means  of  a  drummer  or  solicitor,  that 
it  was  not  necessary  to  prove  accused 
guilty  by  the  testimony  of  witnesses 
who  had  heard  him  employ  a  drum- 
mer or  solicitor  to  solicit  patients  for 
him,  but  such  guilt  may  be  establish- 
ed by  proof  of  facts  and  circum- 
stances upon  which  his  guilt  might 
reasonably  and  substantially  be  im- 
plied beyond  a  reasonable  doubt; 
Burrow  v.  City  of  Hot  Springs,  108 
S.  W.  823.  85  Ark.  396.  It  is  not 
error  for  the  court  in  giving  instruc- 
tions to  the  jury,  in  a  criminal  case, 
to  group  together  many  facts  legiti- 
mately provable  in  such  a  case,  and 
which  the  evidence  tends  to  establish, 
and  then  state  that  "such  facts  as 
these,  if  shown  by  the  testimony,  con- 
stitute circumstantial  evidence.  Cir- 
cumstantial evidence  is  legal  evidence, 
and  convictions  had  upon  it  are  legal 
convictions.  In  the  case  before  them 
the  jury  will  look  at  all  the  evidence, 
and  from  it  make  up  their  minds  as 
to  the  guilt  or  innocence  of  the  de- 
fendant." State  V.  Canaahan,  17 
Iowa,  256. 

INST.TO  Jt7RIES— 7 


71  State  V.  Johnson,  44  S,  E,  58,  66 
S,  C.  23, 

7  2  People  V.  Simmons,  95  P.  48,  7 
Cal.  App.  559;  Id.,  95  P.  51,  7  Cal. 
App.  xiii;  People  v.  Howard,  67  P. 
148,  135  Cal.  266. 

7  3  Roberts  v.  State,  149  P,  3S0,  17 
Ariz.    159. 

7  4  State  V,  Aughtry,  26  S,  E.  619, 
49  S.  C.  285;  Same  v.  Aughtrey,  27  S. 
E.   199,   49  S.   C.  285, 

7  5  Whitley  v.  State,  169  S.  W.  952, 
114  Ark.  243;  Lockhart  v.  State,  3 
Tex.  App.  567. 

7  6  State  V.  Long,  108  A,  36,  7  Boyce 
(Del.)  397;  State  v.  Northrup,  48 
Iowa,  583,  30  Am.  Rep.  408 ;  Vincent 
V,  State,  37  Neb.  672,  56  N.  W.  320. 

7  7  State  V.  Horning,  49  Iowa,  158; 
People  V.  Wileman,  44  Hun  (N.  Y.) 
187;  Hall  v.  State,  151  P.  487,  12  Okl, 
Cr,  20. 

Instruction  tliat  evidence  of 
good  character  not  a  convincing 
matter.  Where  defendant  introduc- 
ed evidence  of  good  character,  and 
the  court  instructed  that  such  evi- 
dence was  a  circumstance  to  be  con- 
sidered in  determining  the  defend- 
ant's guilt  or  innocence,  but  that  it 
"was  not  a  convincing  matter,"  but 
it  was  evident,  from  other  portions 
of  the  chai'ge,  that  the  reference  to 
the  convincing  character  of  tlie  evi- 
dence was  meant  merely  to  indicate 
that  evidence  of  good  character  was 


§  54  INSTRUCTIONS   TO  JURIES  98 

'such  evidence  should  weigh  strongly  in  favor  of  the  defendant,''* 
and,  in  some  jurisdictions,  a  charge  that  such  evidence  may  be 
sufficient,  or  may  be  relied  on,  to  raise  a  reasonable  doubt  of  the 
guilt  of  the  defendant,  is  considered  to  invade  the  province  oi 
the  jury.'^ 

But  where  the  evidence  is  conflicting  it  is  proper  for  the  court  to 
charge  that  evidence  of  good  character  should  be  considered  by  the 
jury  in  connection  with  the  other  facts  in  the  case,®'^  and  the  accused 
is  entitled  to  such  an  instruction,^^  instead  of  one  merely  to  the  ef- 
fect that  the  jury  may  consider  evidence  of  good  character.*^ 

G.  Comparative  Value:s  of  Diffe:rknt  Kinds  or  Classes  of  Evi- 
dence 

Instructions  as  to  comparative  credibility  of  different  classes  of  witnesses,  see 
ante,  §  12. 

§  55.     General  rule 

The  court  cannot  state  to  the  jury  the  relative  importance  of 
different  kinds  of  evidence,  except  as  that  is  settled  by  some  rule  of 
law,**-^  and  as  a  general  rule  it  is  error  to  instruct  and  proper  to  re- 
fuse to  instruct  that  one  kind  of  evidence  is  to  be  preferred  to  an- 
other, or  is  of  greater  or  less  value  than  another.^*     Thus  an  in- 

not  sufficient  to  acquit  where  the  jury  S.  E.  S29,  126  Va.  707.     A  requested 

believed  from  the  evidence  as  a  whole  instruction,  that  "it  was  more  prob- 

that  defendant  was  guilty,  such  refer-  able    that    a    man    of    bad    character 

ence  was  not  cause  for  reversal  as  a  would  commit  a  crime  than  a  man  of 

comment  on  the  facts.     State  v.  New-  good  character,"  is  properlv  refused, 

ton,  70  P.  31,  29  Wash.  373.  Long  v.  State,  91   S.  W.  20,  76  Ark. 

7  8  State   V.   Jones,    SO   P.    1095,    32  493,    denying    petition    for   rehearing 

Mont.  442 ;    Burns  v.  State.  79  N.  E.  89  S.  W.  93,  76  Ark.  493. 

929,  75  Ohio   St.   407;    State  v.  Tar-  7  9  Maclin    v.    State,    44    Ark.    115; 

rant.  24   S.  C.  593.  State  v.    Snow,  51  A.   607,  3  Penne- 

Instructions        held       improper  will   (Del.)  259 :    People  v.   Goodman, 

within    rule.      The    refusal    of    re-  119  N.  E.  429,  283  111.  414 ;    Anderson 

quested  instruction  that  the  character  v.    State,    53    So.   393,   97    Miss.   658 ; 

of  the  accused  when  proven  is  a  fact  Flege  v.  State,  133  N.  W.  431,  90  Neb. 

to  be  considered,  and  if  the  jury  have  390. 

any  doubt  as  to  the  guilt  of  accused,  so  State  v.  Leppere,  66  Wis.  355,  28 

evidence  of  his  good  character  should  N.  W.  376. 

"resolve"  that  doubt  in  his  favor,  was  si  People  v.  Hoagland,  69  P.   1063, 

propel-;    the  court  correctly  substltut-  137  Cal.  218. 

ing  an  instruction  charging  that  the  s  2  People  v.    McGraw,  72  N.  Y.   S. 

character  of  accused  is  a  fact  to  be  679.  66  App.  Div.  372. 

considered,  and  if  the  jury  have  any  83  People  v.   Howland,   109   P.   S94, 

reasonable    doubt    as    to    guilt    thoy  13   Cal.   App.   363. 

should  acquit,  the  requested  instruc-  84  u.  S.    (C.  C.  A.  Tenn.)  Coulter  v. 

tion  practically  taking  the  case  from  B.  F.   Thompson   Lumber  Co.,  142  F. 

the   jury,    by    use    of    the   word    "re-  706.  74  C.  C.  A.  38. 

solve."     Lufty  v.  Commonwealth,  100  Fla.      Wheeler   v.   Baars,   33   Fla. 


99 


COMMENT   ON   PROBATIVE   EFFECT   OF   EVIDENCE 


55 


struction  that  the  testimony  of  witnesses,  whose  opportunities  for 
acquiring  knowledge  of  the  facts  in  dispute  are  greater  than  those 
of  ether  witnesses,  is  entitled  to  greater  weight  than  the  testimony 
of  such  other  witnesses,  invades  the  province  of  the  jury,^''  as  does 
an  instruction  that  the  direct  and  positive  knowledge  of  one  is  bet- 
ter than  the  doubtful  recollection  of  many,*^  or  an  instruction  that 
the  jury  should  give  greater  weight  to  the  testimony  of  a  witness 
who  testified  certainly  to  a  transaction  than  to  a  witness  who  tes- 
tified vaguely,  uncertainly,  and  indefinitely,^'  nor  should  the  court 
charge  as  to  the  comparative  weight  of  circumstantial  and  direct 


696,  15  So.  584;  Williams  v.  La  Pe- 
notiere,  32  Fla.  491,  14  So.  157. 

Ga.  Smalls  v.  State,  65  S.  E.  295, 
6  Ga.  App.  502;  Wilkinson  v.  Wooten, 
59  Ga.  584. 

111.  Toledo,  W.  &  W.  Ry.  Co.  v. 
Brooks,  81  111.  245;  Indiana,  I.  &  I. 
R.  Co.  V.  Otstot,  113  111.  App.  37, 
judgment  affinned  72  N.  E.  387,  212 
ill.    429. 

Ind.     State  V.  Sutton,  99  Ind.  300. 

N.  J.  State  V.  Skillman,  70  A.  83, 
76  N.  J.  Law,  464,  judgment  affirmed 
76  A.  1073,  77  N.  J.  Law,  804. 

N.  Y.  Hutchinson  v.  Market  Bank, 
48  Barb.  302. 

Evidence  as  to  boundaries. 
Wbere,  in  an  action  involving  a  dis- 
puted boundary  line,  the  true  loca- 
tion of  the  corner  is  for  the  jury 
on  conflicting  evidence,  an  instruction 
that  a  call  for  an  unmarked  prairie 
line  is  not  such  a  call  for  an  artifl- 
cial  object  as  will  control  a  course 
and  distance  tends  to  mislead  the 
jiiry  to  believe  that  a  call  for  dis- 
tance is  of  greater  weight,  and  pre- 
vails over  a  call  for  the  corner  to  be 
at  a  certain  designated  line,  and  is 
therefore  objeetional)le  as  on  the 
weight  of  the  evidence.  Clawson  v. 
Wilkins  (Tex.  Civ.  App.)  93  S.  W. 
1086. 

Variance  between  testimony  and 
documents.  When  there  is  a  vari- 
ance between  the  testimony  of  a  wit- 
ness and  statements  made  by  him  in 
letters  at  the  time  of  the  transaction 
in  question,  and  the  letters  are  in 
evidence,  it  is  error  to  instruct  that 
greater  weight  must  be  given  to  the 


testimony  than  to  the  statements  in 
the  letters.  Mutual  Life  Ins.  Co.  v. 
Logan  (C.  C.  A.  Or.)  87  F.  637,  31  C. 
C.  A.  172. 

Statements  made  when  drunk 
and  when  sober.  The  relative  cred- 
ilnlity  of  statements  made  by  a  de- 
fendant, in  a  criminal  action,  when 
drunk  and  when  sober  is  for  the  jury, 
and  there  is  no  I'ule  of  law  giving 
the  preference  to  those  made  when 
sober.  Finch  v.  State,  81  Ala.  41,  1 
So.    565. 

8  5  Himrod  Coal  Co.  v.  Clingan,,  114 
111.  App.  568;  Muncie  Pulp  Co.  v. 
Ken  sling,  76  X.  E.  1002,  166  Ind.  479. 
9  Ann.  Cas.  530. 

In  Pennsylvania,  the  question 
turning  on  the  accuracy  of  certain 
measurements  made  on  the  one  hand 
by  trained  surveyors,  and  on  the 
other  by  unskilled  persons,  it  was  not 
error  for  the  court  to  call  the  atten- 
tion of  the  jury  to  the  fact  that  de- 
fendant's measurements  were  made 
by  "a  baker,  attended  by  a  tinsmith, 
under  the  supervision  of  a  lawyer." 
Omensetter  v.  Kemper,  6  Pa.  Super. 
Ct.  309,  41  Wkly.  Notes  Cas.  501. 

8  0  Dunlap   v.  Hearn,  37  Miss.  471. 

8  7  B.  F.  Roden  Grocery  Co.  v.  Les- 
lie, 53  So.  815,  1G9  Ala.  579. 

Comparative  positiveness  of 
testimony.  It  has  been  held  that 
it  is  not  error  for  the  court  to  state 
to  the  jury  that  a  witness  Vv^ho  swears 
that  "to  the  best  of  my  recollection" 
an  act  was  done  testifies  less  positive- 
ly than  one  who  testifies  that  "it  was 
done."  Gable  v.  Ranch,  27  S.  E.  555, 
50  S.  C.  95. 


§55 


INSTRUCTIONS   TO  JURIES 


100 


evidence,**  and  it  is  proper  to  refuse  to  instruct  as  to  the  relative 
importance  of  surrounding  circumstances  and  inferences.*^ 

It  is  error  to  instruct  that,  where  the  testimony  of  witnesses  is 
irreconcilably  conflicting,  the  jury,  in  determining  which  is  entitled 
to  credit,  should  give  great  weight  to  the  surrounding  circum- 
stances ;  ^^  but  an  instruction  that,  in  case  of  such  conflicting  tes- 
timony, the  credit  to  be  given  to  the  different  witnesses  is  to  be  test- 
ed by  the  circumstances  and  probabilities,  no  opinion  being  ex- 
pressed as  to  the  degree  of  weight  to  be  attached  to  such  circum- 
stances, is  proper.^^ 

No  general  or  inexorable  rule  can  be  laid  down  with  respect  to 
the  comparative  weight  of  testimony  in  open  court  and  depositions, 
and  it  is  error  to  tell  the  jury  that  the  former  class  of  evidence  is  en- 
titled to  the  greater  weight,®^  and  where  a  statute  permits,  to  avoid 
a  continuance  of  an  action  on  account  of  the  absence  of  witnesses, 
the  reading  in  evidence  of  a  statement  of  what  it  is  expected  to 
prove  by  such  witnesses,  the  court  should  not  distinguish  between 
the  testimony  of  present  witnesses  and  the  substitute  for  the  testi- 


8  8  Cal.  People  V.  Vereneseneckock- 
ockboff,  58  P.  156,  129  Cal.  497;  Id., 
62  P.  Ill,  129  Cal.  497. 

Ga.  Armstrong  v.  Penn,  31  S.  E. 
15S,  105  Ga.  229 ;  Hudson  v.  Best,  30 
S.  E.  688,  104  Ga.  131. 

Idaho.  State  v.  Marren,  107  P. 
993,  17  Idaho,  766. 

Iowa.  State  v.  CrofEord,  96  N.  W. 
889,  121  Iowa,  395. 

Instruction  objectionable  ivitli- 
in  rule.  An  instruction  in  a  crimi- 
nal prosecution  that,  though  error 
has  sometimes  been  committed  by  a 
reliance  on  circumstantial  evidence, 
yet  this  species  of  evidence  is  not 
only  proper  and  necessary,  but  is 
sometimes  even  more  satisfactory 
than  the  testimony  of  -a  single  eye- 
witness, as  eyewitnesses  may  speak 
falsely.  People  v.  O'Brien,  62  P.  297, 
130  Cal.  1.  A  charge  "that  law  writ- 
ers say  that  a  chain  of  circumstances 
cannot  lie.  whilst  a  witness  may,"  be- 
cause it  is  calculated  to  impress  on 
the  minds  of  the  jury  that  the  de- 
fendant's witnesses  have  sworn  false- 
ly. Cicero  v.  State.  54  Ga.  156.  An 
instruction,  on  a  trial  for  murder,  in 
effect  announcing  to  the  jury  that 
they  need  not  be  alarmed  at  the  idea 


of  finding  one  guilty  on  circumstantial 
evidence,  because  it  was  not  only  le- 
gal and  competent  but  frequently 
more  convincing  than  positive  testi- 
mony, even  though  the  facts  consti- 
tuting the  chain  were  testified  to  by 
witnesses  of  doubtful  credibility,  and 
that  they  were  as  likely  to  make  a 
mistake  and  convict  an  innocent  man 
on  positive  testimony  as  on  circum- 
stantial. Harrison  v.  State,  8  Tex. 
App.  183.  An  instniction  in  a  case, 
where  the  evidence  is  entii'ely  cir- 
cumstantial, that  circumstantial  evi- 
dence is  often  more  reliable  than  the 
direct  testimony  of  eyewitnesses,  and 
that  a  verdict  of  guilty  in  such  cases 
may  rest  on  a  surer  basis  than  when 
rendered  upon  the  testimony  of  eye- 
witnesses whose  memory  must  be  re- 
lied upon,  and  whose  passions  and 
prejudices  may  have  influenced  them. 
State  V.  Musgrave,  28  S.  E.  813,  43 
W.  Va.  672. 

8  9  Perez  v.  Maverick  (Tex.  Civ. 
App.)  202  S.  W.  199. 

8  0  Skow  V.  Locks,  91  N.  W.  204,  3 
Neb.   (Unof.)  176. 

01  Shepard  v.  Davis,  59  N.  Y,  S. 
456,  42  App.  Div.  462. 

8  2  Millner  v.  Eglin,  64  Ind.  197,  31 
Am.  Rep.  121. 


101  COMMENT   ON    PROBATIVE   EFFECT  OF   EVIDENCE  §  56 

niony  of  those  absent.^^  It  is  error  to  instruct  that  the  testimony 
of  witnesses  not  produced  would  be  superior  to  that  of  those  testi- 
fying in  the  case.^*  It  is  proper,  however,  for  the  court  to  give  to 
the  jury  a  statutory  rule  that  a  deposition  is  as  good  evidence  as 
if  the  deponent  had  testified  orally  in  court.^^ 

§  56.     Opinion  and  expert  evidence 

It  is  generally  considered  that  it  is  an  invasion  of  the  province  of 
the  jury  to  instruct  that  the  opinions  of  one  class  of  witnesses  are  of 
more  or  less  weight  than  the  opinions  of  another  class,®^  or  that  the 
opinions  of  expert  witnesses  must  yield  to  some  other  class  of  evi- 
dence/^ or  that  such  opinions  are  not  entitled  to  greater  weight  than 
any  other  evidence/^  or  that  the  testimony  of  one  class  of  experts  is 
superior  to  that  of  another.^''  In  one  jurisdiction,  however,  it  has  been 
held  that,  while  it  is  always  dangerous  for  a  court  to  attempt  to  say 
that  one  class  of  testimony  or  one  class  of  witnesses  ought,  under  all 
circumstances,  to  be  given  more  credit  or  weight  than  another,^  and 
that  it  is  error  for  the  trial  court  to  single  out  a  class  of  witnesses  or 
testimony,  and  give  the  jury  an  opportunity  to  magnify  the  impor- 
tance of  such  testimony,^  and  that  it  is  proper  to  refuse  to  charge,  as 
a  matter  of  law,  that  the  testimony  of  experts  based  on  personal  knowl- 
edge is  entitled  to  greater  weight  than  that  of  those  who  found  their 
opinions  on  hypothetical  questions,^  yet  the  trial  court  may,  in  a  prop- 
er case,  advise  the  jury  with  reference  to  the  relative  value  of  certain 
species  or  classes  of  evidence;  *  and  in  this  jurisdiction  it  is  held  that 
an  instruction  that  the  testimony  of  medical  experts  having  personal 
knowledge  of  a  case  may  be  entitled  to  greater  weight  than  the  opin- 
ions of  experts  based  upon  hypothetical  questions,  while  not  commend- 
able, may  sometimes  be  justifiable,^  and  that  an  instruction  that  ex- 
pert testimony  on  the  genuineness  of  a  signature  ought  not  to  over- 

93  state  V.  Underwood,  75  Mo.  230.  os  Ryan  v.  People,   114  P.   306.   50 

94  Brothers  v.  Home,  79  S.  E.  468,  Colo.  99,  Ann.  Cas.  1912B,  1232 ; 
140  Ga.  617.  People  v.  Ferraro,  55  N.  E.  931,  161 

95  Olcese  V.  Mobile  Fruit  &  Trad-  n.  Y    365 

ing  Co.,  71  N.  E.  1084,  211  111.  539,  ,,  g^.^^j.  ^    ^^^^^   2  O.  C.  D   477,  2 

affirming  judgment  112  111.  App    281.  ^^.^    ^^^.     ^j.     j.     ^g^      Persons    v. 

9  6  Smith    V.    Chicago    &    W.    I.    R.  g,    .      qq  ^          091    ig  s    W    7'>6 

Co.,  105  111.  511;    Durham  v.   Smith,  ^^^^^^  ^"   -^^"°-  -'^^'   ^"^  *•   '^ '   '"''• 

120  Ind.  463,  22  N.  E.  333;    Cline  v.  1  Bever  v.   Spangler,  93  Iowa,  576, 

Lindsey,  110  Ind.  337,  11  N.  E.  441 ;  61  N.  W.  1072. 

Fulwider  v.  Ingels,  87  Ind.  414.     In  2  Simons  v.  Mason  City  &  Ft.  D.  R. 

re  Byrne's  Will,  172  N.  W.  655,  186  Co.,  103  N.  W.  129,  128  Iowa,  139. 

^T.^m^^,^'          r.         -.ro    T„     ooA    00  3  Bever  V.   Spangler,  93  Iowa,  576. 

0  7  Taylor   v.   Cox,   153    111.   220,   38  ri    xr    w    1070 

N.  E.  6.56;    Starett  v.  Chesapeake  &  ^'       \t       ,    „..  ,    ^„  ^.    „.    ,^„ 

O.  Ry.  Co.,  110  S.  W.  282,  33  Ky.  Law  ^  ^^  ^^'  I^nox's  Will,  98  Is.  W.  468, 

Rep.  309:    Nelson  v.  McLellan,  71  F.  ^23  Iowa,  24. 

747,  31  Wash.  208.  60  L.   R.  A.  793,  s  Hofacre  v.  City  of  Monticello,  103 

96  Am.  St.  Rep.  902.  N.  W.  488,  128  Iowa,  239. 


57 


INSTRUCTIONS   TO   JURIES 


102 


throw  the  positive  and  direct  evidence  of  credible  witnesses,  who  tes- 
tify from  their  personal  knowledge,  is  proper.® 

§  57.     Positive  and  negative  testimony 

Necessity  and  sufficiency  of  instructions,  see  post,  §§  211,  212. 

The  jury  should  not  be  told  to  attach  no  weight  to  negative  testi- 
mony,'' and  a  charge  that,  where  one  witness  testifies  positively  to  the 
existence  of  a  fact  and  another  witness  testifies  positively  to  the  non- 
existence of  the  supposed  fact,  the  former  testimony  must  prevail,  is 
error,  since,  while  the  latter  testimony  is  negative  in  form,  it  is  af- 
firmative in  effect,^  and  while,  as  a  general  rule,  positive  testimony  will 
outweigh  evidence  purely  negative  in  character,  'it  is  for  the  jury  to 
determine  in  any  particular  case  the  comparative  values  of  such  evi- 
dence,^ and,  except  in  jurisdictions  where  the  court  is  allowed  to  com- 
ment on  the  evidence  or  express  its  opinion  thereon,^ °  the  general  rule 
is,  both  in  civil  and  in  criminal  cases,  that  it  is  error,  as  invading  the 
province  of  the  jury,  to  instruct  that  more  weight  should  be  given  to 
positive  testimony  than  to  testimony  essentially  negative,^ ^  and  such 
instructions  are  properly  refused.'-^ 


6  Ayrliart  v.  Wilhelmy,  112  N.  W. 
782,  135  Iowa,  290:  Bruner  v.  Wade, 
84  Iowa,  698.  51  N.  W.  251. 

7  Louisville  &  N.  R.  Co.  v.  York,  30 
So.  676.  128  Ala.  305. 

s  State  V.  Gates,  20  Mo.  400 :  Ros- 
ser  V.  Bynum  &  Snipes.  84  S.  E.  .393, 
168  X.  C.  340:  Williams  v.  Kirkmau, 
3   Lea   (Tenu.)   510. 

Objection  to  instruction  as  ab- 
stract, as  \Fell  as  invading  prov- 
ince of  jury.  In  an  action  for  an 
accident  at  a  crossing?,  it  is  proper  to 
refuse  to  instruct  the  jury  tliat  "'the 
affirmative  testimony  of  witnesses 
that  the  hell  was  rung  and  whistle 
sounded  at  a  given  time  and  place  is 
of  greater  force  and  weight  than  the 
negative  testimony  of  witnesses  of  no 
greater  credibility,  and  who  had  no 
i>etter  opportunity  of  hearing,  that 
the  hell  was  not  rung,  or  the  whistle 
sounded,  or  that  they  did  not  hear 
them"  ;  such  instruction  being  a  mere 
abstract  proposition,  and  calcidated 
to  influence  the  .iui"j-  as  to  the  credit 
to  Ite  given  to  particular  witnesses. 
Atchison.  T.  &  S.  F.  R,  Co.  v.  Feehan, 
149  111.  202,  .30  X.  E.  1036,  affirming 
47   111.   App.   66. 

9  State  V.  Gee.  85  Mo.  047. 

10  Sevior's  Adm'r  v.  Rutland  R. 
€o.,  91  A.  1039,  88  Yt.  107. 


11  Ala.  Birmingham  Ry.,  Light  & 
Power  Co.  v.  Seaborn, -53  So.  241,  168 
Ala.   658. 

Ariz.  Babb  v.  State.  163  P.  259, 
18  Ariz.  505.  Ann.  Cas.  1918B,  925. 

Ark.  Keith  v.  State,  49  Ark.  439, 
5  S.  W.  880. 

Fla.  Sumpter  v.  State,  .33  So.  9S1, 
45  Fla.  106. 

Ga.  Georgia  Ry.  &  Electric  Co.  v. 
Wheeler,  80  S.  E.  993.  141  Ga.  363; 
Alabama   Great    Southern   R.    Co.   v. 

1^  Ark.  Sibley  v.  Ratliffe,  50  Ark. 
477.  8  S.  W.  686. 

Ind.  Cleveland,  C,  C.  &  St.  L.  Ry. 
Co.  V.  Schneider.  82  N.  E.  538,  40 
Ind.  App.  524 ;  Louisville,  N.  A.  <& 
C.  Rv.  Co.  V.  Stommel,  126  Ind.  35, 
25  N.  E.  863. 

La.  State  v.  Chevallier,  36  La. 
Ann.  81. 

Mo.  Johnson  v.  Springfield  Trac- 
tion Co.,  161  S.  W.  1193,  176  Mo.  App. 
174. 

Mont.  Kansier  v.  City  of  Billings, 
184  P.  630,  56  Mont.  250. 

Neb.  Crabtree  v.  Missouri  Pac.  R. 
Co.,  124  N.  W.  932,  86  Neb.  33,  136 
Am.    St.    Rep.   663. 

Okl.  Ayers  v.  Macoughtry,  117  P. 
loss,  29  Okl.  399,  37  L.  R.  A.  (X.  S.) 
865. 


103 


COMMENT   ON   PROBATIVE   EFFECT   OF   EVIDENCE 


§57 


In  some  jurisdictions  such  an  instruction  is  not  rendered  proper  by 
the  requirement  that  the  witnesses  giving  positive  testimony  shall  be 
equal  .in  credibility  and  opportunity  for  knowing  the  facts  in  dispute 
with  the  witnesses  giving  the  negative  testimony.^ ^  In  Utah  such  an. 
instruction  is  error,  where  the  negative  testimony  is  strong  enough  to- 
support  a  verdict  rendered  in  accordance  with  such  testimony.^*  Con- 
versely, it  is  error  to  instruct  that  testimony  of  persons  that  they  did 
not  hear  a  signal  is  positive  testimony,  and  of  equal  weight  with  that 
of  those  who  say  they  heard  such  signal,^^  or  that  negative  testimony 
by  one  witness  for  a  party  will  exactly  balance  positive  testimony  by 
another  witness  for  the  opposite  party.^^ 


Brock,  77  S.  E.  20,  139  Ga.  248; 
Wright  V.  We.steni  &  A.  R.  Co.,  77  S. 
E.  161,  139  Ga.  343;  Peak  v.  State, 
62  S.  E.  665,  5  Ga.  App.  56;  Central 
of  Georgia  Ry.  Co.  v.  vSowell,  59  S. 
E.  323,  3  Ga.  App.  14Q;  Central  of 
Georgia  Ry  Co.  v.  Orr,  57  S.  E.  89. 
128  Ga.  76 ;  Cowart  v.  State,  48  S.  E. 
198,  120  Ga.  510. 

111.  Sheppelman  v.  People,  1.34  111. 
App.  556;  Chicago  &  A.  Ry.  Co.  v. 
Louderback,  125  111.  App.  323. 

Ind.  Vandalia  R.  Co.  v.  Baker,  97 
N.  E.  16,  50  Ind.  App.  184  ;  Muncie 
Pulp  Co.  V.  Keesling,  76  N.-E.  1002, 
166  Ind.  479,  9  Ann.  Cas.  530. 

Mo.  State  ex  rel.  Essex  v.  Kansas 
City,  Ft.  S.  &  M.  Ry.  Co.,  70  Mo.  App. 
634. 

Okl.  Ft.  Smith  &  W.  R.  Co.  v. 
Moore  (Sup.)  169  P.  904. 

Or.  Russell  v  Oregon  R.  &  Nav. 
Co.,  102  P.  619,  54  Or.  128. 

Utah.  Haun  v.  Rio  Grande  W. 
Ry.  Co.,  62  P.  908,  22  Utah,  340. 

Testimony  as  to  signals  by  loco- 
motive. In  an  action  against  a  rail- 
road company  to  recover  for  the 
death  of  a  wox'kraan  who  was  run 
over  by  one  of  its  trains  while  work- 
ing on  the  track,  an  instruction  that 
the  testimony  of  witnesses  to  the  ef- 
fect that  the  bell  and  whistle  were 
rung  and  blown  was  entitled  to  more 
v.-eight  than  the  testimony  of  persons 
who  testified  that  they  did  not  hear 
the  bell  or  whistle  is  prejudicial  er- 


ror, as,  in  effect,  it  tells  the  jury  to 
believe  defendant's  witnesses.  Chica- 
go &  N.  W.  Ry.  Co.  V.  Dunleavy,  27 
111.  App.  438,  afhi-med  129  111.  132,  22 
N.  E.  15. 

In  Wisconsin,  as  will  be  more  ful- 
ly showia  in  a  subsequent  chapter, 
where  evidence  positive  in  character 
is  arrayed  against  purely  negative 
evidence,  a  party  will  be  entitled,  in 
a  proper  case,  to  an  instruction  as- 
signing superior  weight  to  the  former 
evidence.  Eggett  v.  Allen,  82  N.  W. 
566,  100  Wis.  033. 

In  North.  Carolina  it  is  not  re- 
versible error  in  a  proper  case  to  de- 
clare that  positive  evidence  is  en- 
titled to  more  weight  than  negative. 
State  V.  Murray.  51  S.  E.  775,  139 
N.   C.  540. 

isMilligan  v.  Chicago,  B.  &  Q.  R. 
Co.,  79  Mo.  App.  .393 ;  Haskew  v. 
State,   7  Tex.   App.   107. 

In  Georgia  it  is  not  error  to  in- 
sti-uct  that  positive  testimony  is 
rather  to  be  believed  than  negative 
testimony,  with  the  qualification  of 
other  things  being  equal  and  the  wit- 
nesses being  of  equal  credibility. 
Southern  Ry.  Co.  v.  O'Bryau,  45  S- 
E.  1000,  119  Ga.  147. 

1*  Haun  V.  Rio  Grande  W.  Ry.  Co., 
62  P.  90S,  22  I'^tah,  346. 

15  Grav  V.  Chicago,  R.  I.  &  P.  R. 
Co.,  121  N.  W.  1097,  143  Iowa.  268. 

ic  Beckstrom  v.  Krone,  125  111. 
App.  376. 


58 


INSTRUCTIONS  TO  JURIES 


104 


H.    Presumptions  of  Fact  and  Inferences  from  Evidence 

Necessity  and  sufficiency  of  instructions,  see  post,  §§  185-202. 

§  58.     Statement  of  rule 

Presumptions  or  inferences  of  fact,  excluding  those  presumptions  or 
inferences  which  arise  so  inevitably  and  necessarily  by  processes  of 
logic  or  law  from  a  given  state  of  facts  as  to  be  called  legal  presump- 
tions,^^ and  excluding  presumptions  of  fact  required  by  positive  law, 
but  rebuttable,^^  fall  within  the  exclusive  province  of  the  jury,^^  the 
chief  function  of  which  is  to  draw  their  own  conclusions  from  the  tes- 
timony.^" Instructions  which  restrict  the  right  of  the  jury  to  draw 
any  reasonable  inference  from  facts  in  evidence,  or  direct  them  as  to 
what  inferences  of  fact  they  shall  draw  from  the  evidence,  are  er- 


17  Cal.  People  V.  Jones,  55  P.  698, 
123  Cal.  65;  Hill  v.  Finigan,  77  Cal. 
267,  19  Pac.  494,  11  Am.  St.  Rep.  279. 

Ga.  Hunt  v.  State,  81  Ga.  140,  7 
S.  E.  142. 

Mo.  State  v.  Pyscher,  77  S.  W. 
836,  179  Mo.  140. 

S.  C.  State  V.  Hardin,  103  S.  E. 
557,  114  S.  C.  280. 

Tex.  Mitchell  v.  Stanton  (Civ. 
App.)  139  S.  W.  1033. 

In  California  it  is  held  that,  not- 
withstanding the  constitutional  man- 
date that  courts  shall  not  charge  as 
to  matters  of  fact,  an  instniction 
correctly  stating  a  rule  of  law  ap- 
plicable to  the  effect  of  evidence,  such 
as  the  probative  effect  of  the  posses- 
sion of  goods  recently  stolen,  is  not 
ground  for  reversal,  unless  some  cir- 
cumstances peculiar  to  the  particular 
case  would  make  it  tend  to  mislead 
or  confuse  the  jury.  People  v.  Far- 
rington,   74   P.   288,   140  Cal.   656. 

Fire  cansed  by  sparks  from  loco- 
motive. In  Texas,  in  an  action 
against  a  railroad  company  for  in- 
jui'ies  caused  by  a  fire,  an  instruction 
that,  if  the  jury  find  that  the  fire  was 
caused  by  sparks  escaping  from  a  lo- 
comotive, the  defendant  is  prima 
facie  negligent,  is  not  on  the  weight 
of  the  evidence.  Houston  &  T.  C.  R. 
Co.  v.  Washington,  127  S.  W.  1126, 
60  Tex.  Civ.  App.  391;  St.  Louis 
Southwestern  Ry.  Co.  of  Texas  v. 
Ross,    119    S.   W.   725,   55   Tex.    Civ. 


App,  622;  St.  Louis  Southwestern 
Ry.  Co.  of  Texas  v.  McLeod  (Civ. 
App.)  115  S.  W.  85;  Texas  &  P.  Ry. 
Co.  V.  Prude,  86  S.  W.  1046,  39  Tex. 
Civ.  App.  144;  Missouri,  K.  &  T.  Ry. 
Co.  of  Texas  v.  Florence  (Civ.  App.) 
74  S.  W.  802;  Gulf,  C.  &  S.  F.  Ry. 
Co.  V.  Jordan,  60  S.  W.  784,  25  Tex. 
Civ.  App.  82 ;  Texas  &  P.  Ry.  Co.  v. 
Rice,  59  S.  W.  833,  24  Tex.  Civ.  App. 
374 ;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  John- 
son, 50  S.  W.  563,  92  Tex.  591,  94 
Tex.  649. 

18  Bulen  V.  Granger,  22  N.  W.  306, 
56  Mich.  207;  Wood  v.  Dean  (Tex. 
Civ.  App.)  155  S.  W.  363;  White  v. 
McCullough,  120  S.  W.  1093,  56  Tex. 
Civ.  App.  383;  Gibson  v.  Hill,  21 
Tex.  225. 

19  Cal.  Pacific  Imp.  Co.  v. 
well,  146  P.  900,  26  Cal.  App. 
People  V.  Walden,  51  Cal.  588. 

D.  C.  Metropolitan  R.  Co.  v.  Mar- 
tin, 15  App.  D.  C.  552. 

ni.     Brant  v.   Gallup,   5  111. 
262;    Fames  v.  Blackhart,  12  111.  195. 

Md.  Coffin  V.  Brown,  50  A.  567, 
94  Md.  190,  55  L.  R.  A.  732,  89  Am. 
St.  Rep.  422. 

Mo.  Winter  v.  Supreme  Lodge  K. 
P.  of  the  World,  69  S.  W.  662,  96  Mo. 
App.  1. 

S.  C.  Lowry  v.  Atlantic  Coast 
Line  R.  Co.,  75  S.  E.  278,  92  S.  C.  33. 

Vt.  In  re  Hathaway's  Will,  53  A. 
996,  75  Vt.  137. 

2  0  Richards  v.  Fuller,  38  Mich.  653. 


Max- 
265; 


App. 


105 


COMMENT   ON   PROBATIVE   EFFECT   OF   EVIDENCE 


§58 


roneous,  both  in  civil  ^^  and  in  criminal  cases,"  and  are  properly  re- 


2  1  Ala.  Alverson  v.  Little  Cahaba 
Coal  Co.,  77  So.  547,  201  Ala.  123; 
Amzi  Godden  Seed  Co.  v.  Smith,  64 
So.  100,  185  Ala.  296 ;  Alabama  Great 
Soutbern  R.  Co.  v.  Demoville,  52  So. 
406,  167  Ala.  292;  King  v.  Pope,  28 
Ala.  601. 

Ark.  Missouri  Pac.  Ry.  Co.  v. 
Byars,  58  Ark.  108,  23  S.  W.  583. 

Cal.  Langford  v.  San  Diego  Elec- 
tric Ry.  Co.,  164  P.  398,  174  Cal.  729. 

Fla.  Southern  Pine  Co.  v.  Powell, 
37  So.  570,  48  Fla.  154. 

Idaho.  Park  v.  Brandt,  119  P.  877, 
20  Idaho,  660. 

111.  Pridmore  v.  Chicago,  R.  I. 
&  P.  Ry.  Co.,  114  N.  E.  176,  275  111. 
386,  affirming  judgment  192  111.  App. 
446;  Elston  &  W.  Gravel  Road  Co. 
V.  People,  96  111.  584 ;  Graves  v.  Col- 
well,  90  111.  612;  Bartholomew  v. 
Bartholomew,  18  111.  326;  Wood  v. 
Olson,  117  111.  App.  128. 

Ind.  Louisville,  N.  A.  &  C.  Ry. 
Co.  V.  Falvey,  3  N.  E.  389,  104  Ind. 
409,  rehearing  denied  4  N.  E.  908.  104 
Ind  409 ;  Union  Mut.  Life  Ins.  Co.  v. 
Buchanan,  100   Ind.  63. 

Iowa.  Leiber  v.  Chicago,  M.  &  St. 
P.  Ry.  Co.,  84  Iowa,  97,  50  N.  W.  547. 

La.  Gove  v.  Beedlove,  5  Rob.  78; 
Hewes  v.  Barron,  7  Mart.  (N.  S.)  134. 

Md.     Wilson  v.  Smith,  10  Md.  67. 

Micb.  Wood  V.  Standard  Drug 
Store,  157  X.  W.  403,  190  Mich.  654. 

N.  Y.  Panama  R.  Co.  v.  Charlies, 
54  Hun,  637,  7  N.  Y.  S.  528. 

Or.  Saratoga  Inv.  Co.  v.  Kern, 
148    P.    1125,    76    Or.   243. 

Pa.  Laml)  v,  Prettyman,  33  Pa. 
Super.  Ct.  190. 

S.  C.  Hursey  v.  Surles,  74  S.  E. 
618,  91  S.  C.  284;  Yarborough  v. 
Southern  Ry.,  58  S.  E.  936,  78  S.  C. 
103. 

Tex.  Noblett  v.  Harper  (Civ.  App.) 
136  S.  W.  519 :  White  v.  McCullough, 
120  S.  W.  1093,  56  Tex.  Civ.  App. 
383 ;  Western  Union  Tel.  Co.  v.  Bur- 
gess (Civ.  App.)  56  S.  W.  237;  Rey- 
nolds V.  Weinman  (Civ.  App.)  33  S. 
W.  302. 

Va.  Torbert  v.  Atlantic  Coast 
Line  R.  Co.,  95  S.  E.  635,  122  Va.  682. 

Wis.  Hawkins  v.  Costigan,  21  Wis. 
545. 

Expression  of  opinion.     In   some 


jurisdictions,  in  accordance  with  a 
rule  already  stated,  the  expression 
by  a  judge  in  his  charge  to  the  jury 
of  his  opinion  as  to  an  inference  of 
a  fact  from  evidence  affords,  in  gen- 
eral, no  ground  for  exception ;  but  he 
must  not  instruct  them  as  to  such  an 
inference,  in  such  manner  that  they 
might  well  understand  that  the  in- 
ference is  matter  of  law  which  they 
are  not  at  liberty  to  disregard.  State 
V.  Lynott,  5  R.  I.  295. 

Instructions  held  improper  ^vith- 
in  rule.  An  instruction  that  if, 
after  considering  all  the  evidence, 
they  believe  the  testimony  of  any 
witness  as  to  certain  facts,  then  they 
should  find  accordingly.  Chicago  Un- 
ion Traction  Co.  v.  Shedd,  110  111.  App. 
400.  A  charge,  in  an  action  for  injuries 
to  a  passenger,  when  defendant  has 
introduced  evidence  tending  to  show 
that  it  has  used  all  proper  care  in 
avoiding  an  accident,  that  the  fact  of 
the  injury  is  prima  facie  evidence  of 
negligence,  which  defendant  must  re- 
but by  showing  that  it  has  used  due 
care.  St.  Louis  Southwestern  Ry.  Co. 
of  Texas  v.  Parks,  76  S.  W.  740.  97 
Tex.  131,  reversing  judgment  Parks 
V.  St.  Louis  Southwestern  Ry.  Co.  of 
Texas,  69  S.  W.  125,  29  Tex.  Civ.  App. 
551.  A  charge,  in  an  action  for  in- 
juries received  in  a  railway  collision, 
that  where  "an  injury  was  received 
by  reason  of,  and  as  the  direct  re- 
sult of,  an  unusual  occurrence,  then 
the  law  presumes  the  occurrence  so 
causing  the  injury  to  have  happened 
by  reason  of  negligence,  unless  it  fur- 
ther appears  by  the  proof  that  such 
unusual  occurrence  was  not  the  re- 
sult of  negligence,  but,  on  the  contra- 
ry, was  caused  by  some  circumstance 
or  cause  which  the  exercise  of  the 
greatest  care  and  prudence  could  not 
have  prevented."  Texas  Cent.  Ry. 
Co.  V.  Burnett,  80  Tex.  536,  16  S.  W. 
320.  A  charge  that  if  deceased  did 
not  fall  off  the  car,  but  voluntarily 
jumped  off,  then  he  was  guilty  of  con- 
tributory negligence  or  suicide,  and 
plaintiff  could  not  recover.  Perez  v. 
San  Antonio  &  A.  P.  Ry.  Co.,  67  S.  W. 
137,  28  Tex.   Civ.  App.  255.     An   in- 

2  2  See  note  22  on  page  108. 


58 


INSTRUCTIONS   TO   JURIES 


106 


fused.-^     An  instruction  which  advises  the  jury  as  to  the  proper  pro- 


struction,  in  an  action  for  injury  to 
a  building  by  an  explosion  of  gas, 
that  if  defendant's  piiies,  meters,  and 
connections  weve  free  from  any  leak 
in  a  week,  or  less,  before  the  explosion, 
the  presumption  is  that  they  were 
in  such  condition  at  the  time  of  the 
accident,  and  unless  this  presumption 
is  removed,  the  jury  must  find  for  de- 
fendant. Linforth  v.  San  Francisco 
Gas  &  Electric  Co.,  103  P.  320,  156 
Cal.  58,  19  Ann.  Cas.  1230.  An  in- 
struction, in  an  action  on  a  policy  in- 
suring against  loss  by  fire  and  light- 
ning, but  not  against  loss  from  winds, 
where  the  testimony  showed  that  the 
building  fell  when  struck  by  light- 
ning, which  preceded  a  wind,  that  if 
the  jui-j-  from  their  experience  deem- 
ed it  incredible  that  such  a  building 
could  fall  by  reason  of  being  struck 
by  lightning,  and  if  they  found  that 
at  or  about  the  time  the  building  was 
struck  by  lightning  there  was  a  heavy 
wind  sufficient  to  cause  the  fall  of  the 
building,  they  might  by  applying  their 
■own  knowledge  hnd  that  the  fall  of 
the  building  was  occasioned  by  wind, 
was  objectionable.  Home  Ins.  Co.  v. 
<Gagen,  76  N.  E.  927,  88  Ind.  App.  680. 
An  instruction  that,  if  the  accident 
was  caused  by  the  failure  of  the  city 
to  provide  proper  lights  on  its  streets 
near  the  station  grounds  of  the  de- 
fendant, then  the  jury  must  find  for 
the  defendant  railway  company.  Iz- 
lar  v.  Manchester  &  A.  R.  Co.,  35  S. 
E.  583,  57  S.  C.  332.  An  instruction, 
in  an  action  for  falling  down  a  stair- 
way, where  it-  was  disputed  whether 
the^  place  was  light  or  dark,  that  if 
the  place  was  dark  it  was  plaintiffs 
dutv  to  get  a  light  if  he  was  not 
familiar  with  it.  Bingham  v.  Mar- 
ootte,  Cote  &  Co.,  99  A.  439,  115  Me. 
4.")9.  An  instructi<m  that  assorts  that 
"when  it  has  l)eeu  established  that 
the  funds  or  property  has  reached  the 
hands  of  the  officer,  and  that  the 
same  was  not  forthcoming  when  prop- 
erly or  legally  demanded,  the  law 
presumes  an  illegal  conversion  of 
such  funds  or  property,  and  the  bur- 
den of  proving  the  legal  use  of  such 
property  or  money  is  upon  the  of- 
ficer." State  V.  Smith,  13  Kan.  274. 
A  charge,  in  an  action  against  a  rail- 


road company  for  killing  a  dog  on  the 
track,  that  a  dog  is  an  animal  of 
superior  intelligence,  possessing  great- 
er ability  to  avert  injury  than  live 
stock,    and    that   the   presumption    is 

2  3  Ala.  Lawson  v.  State,  76  So. 
411,  16  Ala.  App.  174;  Central  of 
Georgia  Ry,  Co.,  v.  Dothan  Mule  Co., 
49  So.  243,  159  Ala.  225. 

Ark.  Jenkins  v.  Midland  Valley 
R.  Co.,  203  S.  W.  1,  134  Ark.  1. 

Cal.  People  v.  Williams,  142  P. 
124,  24  Cal.  App.  646 ;  Wise  v.  Wake- 
field, 50  P.  310,  118  Cal.  107. 

111.  People  V.  Arnold,  93  N.  E.  786, 
248   111.   169. 

Ind.  Schillinger  v.  Savage,  115  N. 
E.  321,  186  Ind.  189, 

La.  State  v.  Rideau,  42  So.  973, 
118  La.  385. 

Md.  City  &  Suburban  Ry.  of 
Washington  v.  Clark,  97  A.  996,  128 
Md.  281. 

Mass.  United  Shoe  Machinery  Co. 
V.  Bresnahan  Shoe  Machinerv  Co.,  83 
N.  E.  412,  197  Mass.  206;  White  v. 
McPherson,  67  N.  E.  643,  183  Mass. 
533. 

Mich.  Lincoln  v.  Felt,  92  N.  W. 
780,  132  Mich.  49;  Chisholm  v.  Pre- 
ferred Bankers'  Life  Assur.  Co.,  70  N. 
W.  415,  112  Mich.  50. 

Minn.  Kellogg  v.  Village  of  Janes- 
ville,  34»Miun.  132,  24  N.  W.  ,3.59. 

Mo.  State  v.  Patton,  164  S,  W, 
223,  2.55  Mo.  245;  Schliuski  v.  Citv  of 
St.  Joseph,  156  S.  W.  823,  170  Mo. 
App.  380. 

Mont.  State  V.  Mahoney,  61  P. 
647,  24  Mont.  281. 

N.  Y.  People  v.  Bartholf,  66  Hun, 
626,  20  N.  Y.  Supp.  782. 

N.  C.  McQuay  v.  Richmond  &  D. 
R.  Co.,  109  N.  C.  585,  13  S.  E.  944. 

Or.  De  War  v.  First  Nat.  Bank, 
171  P.  1106,  88  Or.  541. 

S.  C.  Lewis  V.  Pope,  68  S.  E.  680. 
86  S.  C.  285 ;  Weaver  v.  Southern  Rv. 
Co.,  56  S.  E.  657,  76  S.  C.  49,  121  Am. 
St.  Rep.  9.34. 

Tex.  City  of  Dallas  v.  Beeman,  55 
S.  W.  762,  23  Tex.  Civ.  App.  315. 

Vt.  Taplin  &  Rowell  v.  Marcy.  71 
A,  72,  81  Vt,  428 ;  In  re  White's  Will, 
63  A.  878,  78  Vt.  479. 


107 


COMMENT  ON   PROBATIVE   EFFECT   OP   EVIDENCE 


58 


cess  of  reasoning  on  the  facts  is  erroneous,  as  invading  their  province.-'' 


that  he  has  the  iustiuet  aud  ability 
to  go  out  of  the  way  of  danger,  un- 
less his  freedom  of  action  is  inter- 
fered with,  and  that  the  diligence 
which  an  engineer  owes  to  the  owner 
of  a  dog  is  the  same  as  that  which  he 
owes  to  a  man  walking  upon  or  near 
the  track  apparently  in  possession  of 
his  faculties,  and  that  the  engineer 
would  be  warranted  in  acting  upon 
the  belief  that  the  dog  would  be 
aware  of  the  approaching  danger  and 
get  out  of  the  way  in  time  to  avoid 
injury.  St.  I^ouis,  I.  M.  &  S.  Ry.  Co. 
V.  Rhoden,  123  S.  W.  798,  93  Ark.  29, 
20  Ann.  Cas.  915,  137  Am.  St.  Rep.  73. 
A  charge  that  if  a  railroad  is  running 
its  train  very  fast,  and  a  person  on  a 
streefiu  a  safe  place  knows  that  fact, 
and  suddenly  and  negligently  ci'osses 
in  front  of  the  train,  and  this,  con- 
curring with  the  rapidly  moving  train, 
is  the  proximate  cause  of  the  injury, 
there  can  be  no  recovery.  Turbyfill  v. 
Atlanta  &  C.  Air  Line  Ry.  Co.,  65 
S.  E.  278,  S3  S.  C.  325.  An  instruc- 
tion that,  if  plaintiff's  animal  was 
killed  by  a  train,  then  the  presump- 
tion that  the  injury  was  the  result 
of  defendant's  negligence  arises,  and 
tends  to  contradict  the  testimony  of 
employes  that  proper  lookout  was 
kept.  Mahor  v.  Kansas  City  South- 
ern Ry.  Co.  (Ark.)  223  S.  W.  388.  An 
instruction  that  the  charging  of  goods 
sold  to  another  against  the  person 
wlio  told  the  merchant  to  so  charge 
them  is  a  strong  circumstance  show- 
ing the  undertaking  of  such  person 
to  be  merely  a  collateral  promise  and 
void  under  the  statute  of  frauds. 
Clark  V.  Smith,  87  111.  App.  409.  An 
instruction  which  stated  that  the 
existence  of  influence  must  generally 
be  gathered  from  circumstances,  such 
as  whether  testatrix  formerly  intend- 
ed a  ditferent  disposition  of  her 
property,  whether  she  was  surround- 
ed by  those  who  had  an  object  to  ac-  , 
complish,  whether  she  was  of  weak 
mind  subject  to  influence,  and  wheth- 
er the  proposed  will  was  such  as 
vrould  be  urged  by  the  persons  sur- 
rounding her.  In  re  Kendrick's  Es- 
tate, 62  P.  605,  130  Cal.  360. 

Instructions  erroneous  as  direct- 
ing that  certain  facts  do  not  ivar- 


rant  certain  inferences.  A  charge 
that,  if  the  south  line  of  the  P.  county 
school  land  can  be  identitied  on  the 
ground,  it  will  not  be  presumed,  in 
the  absence  of  evidence,  that  the  sur- 
veyor who  located  the  A  county 
school  land  was  ignorant  of  such  line, 
nor  that  he  intended  his  lines  to  con- 
flict with  the  lines  of  the  P.  county 
school  land.  Clay  County  Land  & 
Cattle  Co.  V.  Montague  County,  8  Tex. 
Civ.  App.  575,  28  S.  W.  704.  In  an 
action  against  connecting  carriers  for 
injuries  to  cattle,  a  charge  that  there 
was  no  evidence  warranting  a  finding 
that  the  cattle  were  roughly  handled 
by  the  first  carrier,  where  there  was 
evidence  from  which  that  fact  might 
have  been  inferred,  was  a  charge 
upon  the  weight  of  testimony.  Hous-- 
ton  &  T.  C.  R.  Co.  V.  Hawkins  & 
Nance  (Tex.  Civ.  App.)  167  S.  W.  190. 
An  instruction  that  the  invitation  of 
a  conductor,  when  nearing  a  station, 
to  the  passenger,  to  "get  ready  to  get 
off,"  was  too  remote  a  cause  of  an 
injury  received  from  alighting  from, 
the  moving  train  at  a  station.  Cooper 
V.  Georgia,  C.  &  N.  Ry.  Co.,  39  S.  E. 
543,  01  S.  C.  345.  A  charge,  in  an 
action  for  injury  to  a  passenger  ini 
a  street  car,  alleged  to  be  due  to  neg- 
ligence in  colliding  with  a  water  cart, 
to  the  effect  that  the  company  was 
not  an  insurer  of  the  safety  of  its 
passengers,  and  the  mere  fact  that 
the  car  collided  with  the  wagon  did 
not  in  itself  establish  liability  against 
defendant.  Houston  Electric  Co.  v. 
Nelson,  77  S.  W.  978,  34  Tex.  Civ. 
App.  72.  An  instruction,  in  an  action 
by  a  passenger  against  a  street  rail- 
road company  for  personal  injuries 
alleged  to  be  due  to  defendant's  neg- 
ligence, in  which  it  was  conceded  that 
plaintiff  was  not  at  fault,  and  in  which 
there  was  substantial  evidence,  though 
conflicting,  to  show  that  the  injury 
was  incurred  through  the  negligence 
of  a  motorman,  that,  under  the  case 
and  proofs,  no  presumption  of  negli- 
gence arose  against  defendant  from 
the  mere  fact  that  an  accident  had  oc- 
curred. Sullivan  v.  Market  St.  Ry. 
Co.,  69  P.  143,  136  Cal.  479.     An  in- 

2  4  Brown  v.  State,  23  Tex.  195. 


58 


INSTRUCTIONS  TO  JURIES 


108 


As  a  rule,  the  fact  that  the  conclusions  of  the  jury  from  the  evidence 


struction  that  tlie  mere  fact  that  a 
deed  was  carried  and  placed  iu  bank 
by  parties  would  not  of  itself  be  evi- 
dence, whether  it  was  placed  in  es- 
crow or  delivered  to  grantees.  Gi'ay- 
son  V.  Damme,  158  P.  387,  59  Okl.  214. 
An  instruction,  in  an  action  by  an 
employ^  for  personal  injuries,  that  he 
must  prove  negligence  in  the  defend- 
ant, and  that  proof  of  the  accident 
and  injury  alone  will  not  suflice. 
Smith  V.  Gulf,  W.  T.  &  P.  Ry.  Co. 
(Tex.  Civ.  App.)  65  S.  W.  S3.  Instruc- 
tions, in  an  action  against  a  railway 
company  for  injuries  to  a  fireman, 
that  the  mere  fact  an  injury  occurs 
is  not  of  itself  proof  of  negligence, 
and  that  the  mere  fact  that  the  tire- 
man  was  injured  by  the  giving  way 
of  the  shaker  bar  attachment  is  no 
proof  of  negligence.  Missouri,  K.  & 
T.  Ptv.  Co.  of  Texas  v.  Lynch,  90  S. 
W.  511,  40  Tex.  Civ.  App.  543.  An 
instruction,  in  freight  conductor's  ac- 
tion for  injuries,  that,  if  plaintifC 
stumbled  over  a  stake  in  the  yards 
while  at  work,  that  alone  would  not 
warrant  affirmative  answer  to  a  spe- 
cial interrogatoi-y-  Galveston,  H.  & 
S.  A.  Ry.  Co.  V.  Miller  (Tex.  Civ. 
App.)  192  S.  W.  593.  An  instruction 
that  the  fact  that  a  member  of  the 
firm  sued  was  not  called  to  prove  that 
certain  defendants  were  not  partners 
would  not  authorize  the  jury  to  infer 
that  thev  were  partners.  Wallis  v. 
Wood  (Tex.  Sup.)  7  S.  W.  852.  An 
insti-uction  that  a  railroad  company 
is  presumed  to  keep  its  bridges  in 
proper  condition,  and  to  make  the 
necessary  repairs  before  they  are 
dangerous,  and  the  fact  that  repairs 
are  made  is  not  evidence  that  they 
were  not  previously  in  good  condition. 
Missouri,  K.  &  T.  Ry.  Co.  of  Texas 
V.  Parker,  49  S.  W.  717,  20  Tex.  Civ. 
App.  470;  Id.,  50  S.  W.  606,  20  Tex. 
Civ.  App.  470.  A  charge  that  as  the 
engineer  had  testified  that  the  engine 
was  properly  equipped  and  handled, 
no  inference  could  be  drawn  from 
proof  that  the  goods  were  buraed  by 
fire  from  the  engine,  but  that  the  bur- 
den was  thereby  thrown  on  plaintiff 
to  prove  negligence  on  defendant's 
part.  Missouri  Pac.  Ry.  Co.  v.  Bart- 
lett,  81  Tex.  42,  10  S.  W.   638.     An 


instruction  which,  as  a  matter  of  law, 
advises  a  jury  that  the  placing  of 
cinders  alongside  of  a  track  and  on  it 
would  not  indicate  to  a  person  of  or- 
dinary intelligence  that  the  track  had 
been  made  solid,  so  that  it  would  not 
sink.  Louisville  &  N.  R.  Co.  v.  Kemper, 
53  N.  E.  931.  153  Ind.  618.  A  charge, 
where  a  will  when  received  from  an 
express  company  was  found  to  have 
been  mutilated,  that  the  evidence  that 
the  package  containing  the  will  was 
abstracted  from  the  company's  safe 
in  the  evening,  and  restored  the  next 
morning,  after  having '  been  opened 
and  resealed,  did  not  prove  that  the 
will  was  mutilated  by  the  person  so 
abstracting  or  returning  it.  Webster 
V.  Yorty,  62  N.  E.  907,  194  111.  408.  A 
charge,  on  the  issue  of  vmdue  influ- 
ence in  the  execution  of  a  will,  that 
there  is  no  evidence  authorizing  the 
finding  that  fraud  and  deceit  were 
practiced,  or  that  any  of  the  bene- 
ficiaries used  coercion,  there  being 
evidence  to  show  the  existence  of  con- 
fidential relations  and-  activity  in  the 
preparation  and  execution  of  the  will. 
Coghill  V.  Kennedy,  24  So.  459,  119 
Ala.  641. 

2  2  Ala.  Easterling  v.  State,  30  Ala. 
46. 

Ariz.  Barrow  v.  Territory,  114  P. 
975,  13  Ariz.  302. 

Cal.     People  v,  Carrillo,  54  Cal.  63. 

Colo.  Horton  v.  People,  107  P.  257, 
47  Colo.  252. 

Fla.  Curington  v.  State,  86  So. 
344;  Gunn  v.  State,  83  So.  511,  78 
Fla.  599. 

Ind.     Allison  v.  State,  42  Ind.  354. 

Ky*.  Tines  v.  Commonwealth,  77  S. 
W.  363,  25  Ky.  Law  Rep.  1233. 

Mo.  State  v.  Stewart,  212  S.  W. 
8.53,  278  Mo.  177;  State  v.  Stanley, 
100  S.  W.  678,  123  Mo.  App.  294. 

Neb.  Williams  v.  State,  46  Neb. 
704.  05  N.  W.  783. 

Tex.  Owens  v.  State,  46  S.  W.  240, 
39  Tex.  Cr.  R.  391;  Brann  v.  State 
(Cr.  App.)  39  S.  W.  940 ;  Williams  v. 
State,  11  Tex.  App.  275 ;  Hull  v.  State, 
7  Tex.  App.  593. 

Illustrations  of  instructions 
held  erroneous  xidtliin  rule.  An  in- 
struction iu  a  prosecution  for  embez- 


109 


COMMENT   ON   PROBATIVE   EFFECT   OF   EVIDENCE 


58 


in  a  criminal  case  differ  from  those  of  the  accused  or  the  state  does 
not  affect  its  power  to  make  them.-^ 


zlement,  that  the  mere  failure  ou  the 
part  of  defendant,  without  explana- 
tion, to  turn  over  to  his  employer  the 
funds  in  his  hands  belonging  to  it,  es- 
tablished guilt.  Hampton  v.  State,  54 
So.  722,  99  Miss.  176.  An  instruction 
that  mere  uttering  of  a  forgery  is  a  cir- 
cumstance from  which  knowledge  of 
the  falsity  may  be  presumed,  that  the 
jury  could  presume  that  accused  knew 
that  a  deed  passed  by  him  was  forged, 
if  it  was  forged,  but  that  he  could 
contradict  or  explain  away  the  pre- 
sumptiou,  etc.  State  v,  Hatfield,  118 
P.  735,  65  Wash.  550,  Ann.  Cas.  1913B, 
S95.  An  instruction  that  the  mere  ut- 
tering of  a  forged  instrument  is  a  cir- 
cumstance from  which  knowledge  of 
its  falsity  may  be  presumed,  and  that, 
if  the  jury  found  that  a  mortgage  was 
forged,  and  that  it  was  uttered  by 
the  defendant,  a  rebutta'ble  presump- 
tion arose  that  the  accused  knew  of 
its  character  at  the  time  of  passing  it, 
etc.  State  v.  Peeples,  118  P.  906,  65 
Wash.  673.  An  instruction  that  if  ac- 
cused had  possession  of  a  forged  check 
and  obtained  money  upon  it  his  pos- 
session raised  a  presumption  of  guilt, 
unless  rebutted.  State  v.  McBride, 
130  P.  486,  72  Wash.  390.  A  charge  re- 
quested by  defendants  that  certain 
language  of  one  of  them  to  the  other 
would  not  justify  a  finding  that  the 
speaker  intended  the  other  to  assail  or 
kill  deceased.  Wilkinson  v.  State,  106 
Ala.  23,  17  So.  458.  A  charge,  in 
a  prosecution  for  assault  to  murder, 
that,  "if  there  was  a  sufficient  provo- 
cation to  excite  suddeu  passion,  then 
the  presumption  is  that  passion  dis- 
turbed the  sway  of  reason,  and  made 
him  regardless  of  his  act."  Wigerfall 
V.  State,  82  So.  635,  17  Ala.  App.  145. 
An  Instruction,  on  a  prosecution  for 
murder,  in  which  it  appeared  that  de- 
fendant was  present  when  hounds 
were  put  on  the  trail  of  the  murderer, 
to  the  effect  that  the  only  purpose  for 
which  the  jury  should  consider  the 
fact  that  defendant  was  with  the 
hounds,  was  a  mere  circumstance 
tending  to  show  an  absence  of  con- 
scious guilt.  Shelton  v.  State,  42  So. 
30,  144  Ala.  106.    An  instruction,  on  a 


trial  for  homicide  committed  by  the 
son  of  accused,  that  no  presumption 
was  to  be  indulged  in  against  accused 
because  he  was  present  at  the  place  of 
the  killing  and  had  an  altercation 
with  decedent  just  prior  thereto. 
Morris  v.  State,  41  So.  274,  146  Ala. 
66.  A  charge  that  the  fact  that  a 
human  body  was  buried  beneath  the 
body  of  a  mule  would  justify  a  find- 
ing that  a  murder  had  been  commit- 
ted, and  that  those  who  undertook  to 
conceal  the  body  were  criminally  con- 
cerned with  the  murder.  Sutherlin  v. 
State,  48  N.  E.  246,  148  Ind.  695.  An 
instruction,  in  a  prosecution  for  homi- 
cide, in  which  the  deceased's  clothing 
was  exhibited  to  the  jury,  that  the 
jury  cannot  draw  any  conclusion  from 
their  inspection  of  the  pockets  of  the 
deceased  that  the  defendant  commit- 
ted any  robbery  on  the  deceased,  or 
that  he  at  any  time  placed  his  hand 
or  fingers  in  such  pockets  notwith- 
standing they  may  have  been  turned, 
and  blood-stains  may  have  existed  in 
the  shape  of  fingermarks.  Story  v. 
State,  99  Ind.  413.  A  charge,  in  a 
murder  case,  that  defendant  did  not 
provoke  or  bring  on  the  difliculty,  and 
that,  if  deceased  turned  towards  him 
and  put  his  right  hand  in  his  hip 
pocket  so  as  to  indicate  to  a  reason- 
able man  his  purpose  to  draw  a  weap- 
on and  use  it,  defendant  was  author- 
ized to  anticipate  him  and  shoot  first. 
Crumpton  v.  State,  52  So.  605,  167 
Ala.  4.  An  instruction  that  if,  when 
the  defendant's  possession  of  the  ani- 
mals was  questioned,  he  stated  where 
he  got  them  "and  if  such  statement  is 
reasonably  and  probably  true,  then, 
unless  the  state  has  shown  such  ex- 
planation of  possession  to  be  false, 
you  will  acquit  the  defendant."  Jor- 
dan V.  State,  104  S.  W.  900,  51  Tex.  Or. 
R.  646. 

Prima  facie  indication  of  guilt. 
In  Iowa  an  instruction  that  a  certain 
fact  if  found  by  the  jury,  will  be  a 
"prima  facie  indication"  of  guilt,  has 
been  sustained  ;   the  court  saying  that 

2  5  Brunaugh  v.  State,  90  N.  E.  1019, 
173  Ind.  483. 


58 


INSTRUCTIONS  TO  JURIES 


110 


Under  the  above  rule  it  is  error  to  instruct  and  proper  to  refuse  to 
instruct  as  to  the  strength  or  weakness  of  a  presumption  of  fact,-® 
or  as  to  the  amount  of  proof  required  to  overcome  a  rebuttable  pre- 
sumption.-^ 

§  59.     Limitations  of  rule 

In  some  jurisdictions  it  is  not  error  to  instruct  that  the  jury  should 
consider  certain  facts,  inferences  from  which  are  likely  to  be  drawn 
to  the  prejudice  of  one  party  or  the  advantage  of  another,^®  and  while 
in  a  few  jurisdictions  it  is  an  invasion  of  the  province  of  the  jury  to 
instruct  that  they  may  draw  certain  inferences  of  fact  from  the  evi- 


the  quoted  phrase  does  not  mean  pre- 
sumptive evidence  of  guilt,  but  merely 
that,  at  first  view,  the  circumstances, 
whose  effect  is  being  considered,  sug- 
gest guilt.  State  v.  Richards,  102  N. 
W.  439,  126  Iowa,  497.  Where  a  wit- 
ness who  had  testified  for  accused  on 
a  former  trial  testified  on  retrial  that 
he  and  another  witness  had  been 
bribed  by  accused  to  so  testify,  and 
that  the  testimony  was  false,  an  in- 
struction that  if  the  jurors  believed 
that  defendant,  after  being  charged 
with  the  commission  of  the  larceny  in 
question  and  before  the  former  trial, 
knowingly  induced  certain  witnesses 
to  testify  falsely  concerning  any  ma- 
terial facts  in  the  case,  such  conduct 
would  be  a  circumstance  to  be  consid- 
ered with  all  the  other  facts  and  cir- 
cumstances in  determining  the  defend- 
ant's guilt  or  innocence,  and  such  fact, 
if  found,  was  a  circumstance  which 
prima  facie  indicated  guilt,  and 
should  receive  such  consideration  and 
weight  as  the  jurj'  deemed  it  entitled 
to,  was  proper.  State  v.  Kimes,  132 
N.  W.  ISO,  152  Iowa,  240. 

2G  Cal.  People  v.  Cline,  74  Cal, 
575,  16  P.  391. 

Colo.  A'an  Straaten  v.  People,  56 
P.  905,  26  Colo.  184. 

111.  Leiserowitz  v.  Fogarty,  135 
111.  App.  609. 

Kan.  State  v.  Jewell,  127  P.  60S, 
88  Kan.  130. 

Micli.  Wilcox  V.  Young,  66  Mich. 
687,  33  N.  W.  765. 

Utah.  Schuyler  v.  Southern  Pae. 
Co.,  109  P.  458,  37  Utah,  581,  rehear- 
ing denied  109  P.  1025,  37  Utah,  612. 


Wash.  State  v.  Bliss,  6S  P.  87,  27 
Wash.  463. 

Wis.  Baker  v.  State,  SO  Wis.  416, 
50  X.  W.  518. 

2  7  Vickers  v.  Hawkins,  58  S.  E.  44, 
128  Ga.  794. 

2  8  State  V.  Witten,  100  Mo.  525,  13 
S.  W.  871. 

Contradictory  statements.  It  is 
not  error  to  refer  to  the  consideration 
of  the  jury  the  alleged  untrue  or  con- 
tradictory statements  of  an  accused 
criminal,  in  relation  to  his  connection 
with  the  offense  charged  against  him, 
as  matters  from  which  a  presumption 
of  guilt  might  be  inferred.  Cathcart 
V.  Commonwealth,  37  Pa.  108. 

In  Texas,  however,  it  has  been  held 
that  an  instruction,  in  a  civil  action 
for  rape,  that,  if  plaintiff  was  silent  as 
to  the  matter  after  the  alleged  assault, 
this  was  a  circumstance  which  should 
be  considered  by  the  jury,  is  errone- 
ous as  on  the  weight  of  evidence. 
Munk  V.  Stanfield  (Civ.  App.)  100  S. 
W.  213.  And  for  the  same  reason 
a  charge  that  the  mere  silence  of 
accused  at  the  time  of  being  arre.st- 
ed  should  not  be  considered  as  a 
circumstance  against  him  was  proper- 
Iv  refused.  Clark  v.  State  (Tex.  Cr. 
App.)  59  S.  W.  887. 

In  Missouri  it  has  been  held,  seem- 
ingly in  conflict  with  the  text  case, 
that  in  a  criminal  case  it  is  error  to 
instruct  the  jury  that  defendant's  at- 
tempts to  escape  from  custody  and  to 
procure  false  testimony  are,  if  proved, 
circumstances  to  be  considered  in  de- 
termining his  guilt  or  innocence. 
State  V.  Sivils,  105  Mo.  530,  16  S.  W. 
880. 


Ill 


COMMENT   ON   PROBATIVE   EFFECT   OF   EVIDENCE 


§60 


dence,-*^  it  being  considered  that  to  sa)^  to  the  jury  that  they  will  be 
authorized  to  find  a  fact  because  of  the  existence  of  another  fact  is 
equivalent  to  stating  that  the  existence  of  the  latter  raises  the  reason- 
able presumption  of  the  existence  of  the  former, ^°  the  weight  of  au- 
thority supports  such  an  instruction  as  one  not  on  the  weight  of  the 
evidence.^ ^  In  some  jurisdictions  such  an  instruction  is  proper,  if  the 
testimony  as  to  the  facts  from  which  inferences  are  sought  to  be  de- 
duced is  undisputed,^  ^  and  but  a  single  inference  can  be  drawn  there- 
from.'^ An  instruction  that  certain  inferences  may  be  drawn  by  the 
jury  from  the  testimony  of  a  witness,  which  merely  states  such  testi- 
mony in  another  form,  is  not  objectionable,  although  such  an  instruc- 
tion cannot  be  of  much  value. ^* 

§  60.     Specific  applications  of  rule 

The  above  rule  has  been  applied,  in  civil  cases,  to  inferences  of  or 
concerning  willfulness,^^  or  malice,^*'  or  fraud,'^'  or  adultery, ^^  or  tes- 
tamentary capacity,^  ^  or  that  a  railroad  pass  was  issued  without  con- 
sideration,^°  or  to  inferences  of  negligence  from  the  derailment  of  a 
train,*!  or  of  knowledge  of  a  train  schedule,*^  or  of  knowledge  of  a 


29  Smith  V.  Jackson,  202  S.  W.  227, 
133  Ark.  334 ;  Union  Seed  &  Fertilizer 
Co.  V.  St.  Louis,  I.  M.  &  S.  Ey.  Co.,  181 
S.  W.  898,  121  Ark.  585;  Standard 
Cotton  Mills  V.  Cheatham,  54  S.  B. 
650,  125  Ga.  649;  Snowden  v.  Water- 
man, 31  S.  E.  110,  105  Ga.  384. 

Contra,  Mangham  v.  State.  75  S.  E. 
512.  11  Ga.  Apji.  427;  Radford  v. 
State,  67  S.  E.  707,  7  Ga.  App.  600. 

so  Stone  V.  Geyser,  etc.,  Min.  Co.,  52 
Cal.  315. 

31  Colo.  Newby  v.  People,  62  P. 
1035,  28  Colo.  16. 

Ind.  Johnson  v.  Brady  (Ind.  App.) 
126  N.  E.  250;  Vandalia  Coal  Co.  v. 
Moore,  121  N.  E.  685,  69  Ind.  App. 
311 ;  Talge  Mahogany  Co.  v.  Hockett, 
103  N.  E.  815,  55  Ind.  App.  303. 

Md.  Newman  v.  McComas,  43  Md. 
70. 

Mass.  Common\Yealth  v.  Walsh, 
162  Mass.  242,  38  N.  E.  436. 

Vt.     Carrigan  v.  Hull,  5  Vt.  22. 

It  is  the  province  of  tie  court  to 
Instruct  the  jury  as  to  what  Inferences 
of  fact  they  would  be  warranted  in 
drawing  from  the  evidence  and  facts 
proved;  and,  if  the  court  should  not 
err  as  to  the  kind  and  extent  of  such 
inferences,  exception  could  not  be  sus- 
tained, even  though  the  matter  shoidd 
be  so  plain  as  to  render  it  needless  to 


say  anything  about  it  to  the  jury. 
Brewin  v.  FarrelFs  Estate,  39  Vt.  206. 

3  2  Lynn  v.  Thomson,  17  S.  C.  129. 

3  3  Bluedorn  v.  Missouri  Pac.  Ry.  Co. 
(Mo.)  24  S.  W.  57. 

3i  Holmes  v.  Cook,  50  Wis.  172,  6 
N.  W.  507. 

3  5  Gwyun  v.  Citizens'  Telephone  Co., 
48  S.  E.  460,  69  S.  C.  434,  67  L.  R.  A. 
Ill,  104  Am.  St.  Rep.  819. 

3  0  L.  B.  Price  Mercantile  Co.  v.  Cuil- 
la,  141  S.  W.  194,  100  Ark.  316 ;  Clif- 
ford V.  Lee  (Tex.  Civ.  App.)  23  S.  W. 
843. 

3  7  Heckelman  v.  Rupp,  85  Ind.  286; 
Warfleld  v.  Clark,  91  N.  W.  833,  118 
Iowa,  69 ;  Freiberg  v.  Freiberg,  74 
Tex.  122,  11  S.  W.  1123;  Ross  v.  W. 
D.  Cleveland  &  Sons  (Tex.  Civ.  App.) 
133  S.  W.  315. 

38  Stanley  v.  Montgomery,  102  Ind. 
102,  26  N.  E.  213. 

39  McBride  v.  Sullivan,  45  So.  902, 
155  Ala.  166. 

4  0  Nickles  v.  Seaboard  Air  Line  Ry., 
54  S.  E.  255,  74  S.  C.  102. 

41  Abilene  &  S.  Ry.  Co.  v.  Burleson 
(Tex.  Civ.  App.)  157  S.  W.  1177;  Da- 
vis V.  Galveston,  H.  &  S.  A.  Ry.  Co., 
93   S.  W.  222,  42  Tex.  Civ.  App.  55; 

4  2  Western  Union  Telegraph  Co.  v. 
Taylor  (Tex.  Civ.  App.)  167  S.  W.  289. 


60 


INSTRUCTIONS  TO  JURIES 


112 


town  officer  of  defects  in  a  highway/^  or  of  authority  of  agent,** 
or  of  payment,*^  or  that  an  officer  having  custody  of  a  person  will 
protect  him  in  his  lawful  rights,*^  or  a  presumption  in  favor  of  the 
proceedings  of  an  administrator,*'''  or  to  an  instruction  that  certain 
acts  did  not  raise  a  presumption  of  dedication,**  or  to  inferences 
from  failure  to  call  a  witness  having  knowledge  concerning  facts 
in   dispute.*® 

It  is  error  to  instruct,  and  proper  to  refuse  to  instruct,  that  the  pres- 
ence of  certain  circumstances  will  make  it  incumbent  upon  one  to  exer- 
cise more  care  than  if  such  circumstances  were  absent,^"  or  that  great- 
er care  is  required  to  be  exercised  under  given  circumstances  than  un- 
der others.^^ 

In  criminal  cases  such  rule  has  been  applied  to  inferences  of 
or  concerning  intent,  or  malice,^^  or  identity ,^^  or  inferences 
arising  from  the  failure  to  call  witnesses  or  to  cross-examine  them,^* 
or  from  making  contradictory  statements,^ ^  or  from  failure  to  prove 
an  alibi. ^®  In  a  criminal  case  it  is  proper  to  refuse  an  instruction  that 
if  the  evidence  is  susceptible  of  two  constructions,  one  of  which  is 


Houston  E.  &  W.  T.  Ry.  Co.  v.  Rich- 
ards. 49  S.  W.  687,  20  Tex.  Civ.  App. 
203. 

4  3  Bredlau  v.  Town  of  Yorlj,  92  N. 
W.  261,  115  Wis.  554. 

*4  Gulf  port  Fertilizer  Co.  v.  Jones, 
73  So.  145,  15  Ala.  App.  280. 

•is  Cole  V.  Waters,  147  S.  W.  552, 
164  Mo.  App.  567. 

4  0  Southwestern  Portland  Cement 
Co.  V.  Reitzer  (Tex.  Civ,  App.)  135  S. 
W.  237. 

4  7  Doolittle  V.  Holton,  26  Vt.  588. 

48  Earle  v.  Poat,  41  S.  E.  525,  63  S. 
C.  439. 

49  Edwards  v.  St.  Louis  &  S.  F.  R. 
Co.,  149  S.  W.  321,  166  Mo.  App.  428. 

5  0  Waggoner  v.  Missouri,  K.  &  T. 
Ry.  Co.  (Tex.  Civ.  App.)  92  S.  W.  1028  ; 
Ryan  v.  Union  Pac.  R.  Co.,  151  P.  71, 
46  Utah,  530. 

51  Texas  &  P.  Ry.  Co.  v.  Durrett,  63 
S.  W.  904,  26  Tex.  Civ.  App.  268; 
Meadows  v.  Truesdell  (Tex.  Civ.  App.) 
56  S.  W.  932;  Citizens'  Ry.  Co.  v. 
Plolmes,  46  S.  W.  116,  19  Tex.  Civ. 
App.  206;  Galveston,  H.  &  S,  A.  Ry. 
Co.  V.  Eaten  (Tex.  Civ.  App.)  44  S.  W. 
562;  St.  Louis,  A.  &  T.  Rv.  Co.  v. 
Burns,  71  Tex.  479,  9  S.  W.  467. 

In  an  action  for  injuries  to  one 
rnn  doivn  by  a  street  car,   an  in- 


struction that  greater  care  in  operat- 
ing cars  is  required  in  populous  cities 
and  crowded  streets  than  in  sparsely 
settled  districts  and  streets  or  high- 
ways upon  which  there  are  few  trav- 
elers, is  erroneous,  as  invading  the 
province  of  the  jury.  Indianapolis  St. 
Ry.  Co.  v.  Taylor,  72  N.  E.  1045,  164 
Ind.  155. 

5  2  Ala.  Austin  v.  State,  40  So.  989, 
145  Ala.  37;  Thayer  v.  State,  35  So. 
406,  138  Ala.  39;  Smith  v.  State,  29 
So.  699,  129  Ala.  89,  87  Am.  St.  Rep. 
47. 

Cal.  People  V.  Barker,  70  P.  617. 
137  Cal.  557. 

Colo.  Nilan  v.  People,  60  P.  485,  27 
Colo.  206. 

Neb.  Flege  v.  State,  133  N.  W.  431, 
90  Neb.  390. 

Wash.  State  V.  Dolan,  50  P.  472, 
17  Wash.  499. 

5  3  People  V.  Wong  Sang  Lung,  84  P. 
843,  3  Cal.  App.  221. 

5  4  Frank  v.  State,  80  S.  E.  1016,  141 
Ga.  243;  Rhea  v.  Territory,  105  P.  314, 
3  Okl.  Cr.  230. 

5  5  People  V.  Stewart,  75  ^Mich.  21, 
42  N.  W.  662 ;  Massey  v.  State,  1  Tex. 
App.  563. 

5  6  Adams  v.  State,  28  Fla.  511,  10 
South.  106. 


113 


COMMENT  ON  PROBATIVE  EFFECT  OF  EVIDENCE 


61 


consistent  with  the  defendant's  innocence  and  the  other  is  not,  the  jury 
should  adopt  the  former  construction." 

§  61.     Presumption  or  inferences  from  possession  of  fruits  of  crime 
Necessity  and  sufficiency  of  instructions,  see  post,  §  195. 

An  instruction  that  the  unexplained  possession  of  the  fruits  of  a 
crime  recently  after  its  commission  affords  ground  for  the  presumption 
that  the  possessor  is  the  real  criminal,^^  or  that  the  fact  of  such  pos- 
session, in  a  prosecution  for  larceny,  burglary,  or  kindred  offenses, 
will  be  sufficient  to  support  a  conviction,^®  is,  except  in  those  jurisdic- 
tions where  a  legal  presumption  of  guilt  arises  from  such  possession,^" 
erroneous,  as  on  the  weight  of  the  evidence,  as  is  an  instruction,  in 
a  prosecution  for  larceny,  that  such  unexplained  possession,  if  cor- 
roborated by  other  evidence,  will  authorize  a  conviction,®^  or  an  in- 


5  7  Ala.  Pippin  v.  State,  73  So.  340, 
197  Ala.  613;  Harvey  v.  State,  73  So. 
200,  15  Ala.  App.  311 ;  Jones  v.  State, 
68  So.  690,  13  Ala.  App.  10;  Kelly  v. 
State,  68  So.  675,  13  Ala.  App.  39; 
Key  V.  State,  58  So.  946,  4  Ala.  App. 
76;  Harrell  v.  State,  52  So.  345,  166 
Ala.  14 ;  Medley  v.  State,  47  So.  218, 
156  Ala.  78;  Burkett  v.  State,  45  So. 
682,  154  Ala.  19;  Kennedy  v.  State, 
40  So.  658,  147  Ala.  687;  Thomas  v. 
State,  103  Ala.  18,  16  So.  4 ;  Mitchell 
V.  State,  94  Ala.  68,  10  So.  518;  Toli- 
ver  V.  State,  94  Ala.  Ill,  10  So.  428 ; 
Fonville  v.  State,  91  Ala.  39,  8  So.  688. 

Wis.  State  V.  Dunn,  102  N.  W.  935, 
125  Wis.  181. 

5  8  Ark.  Long  v.  State,  216  S.  W. 
306,  140  Ark.  413. 

Cal.  People  v.  Mitchell,  55  Cal. 
236. 

Minn.  State  v.  Hoshaw,  94  N.  W. 
873,  89  Minn.  307. 

Okl.  Cox  V.  Territory,  104  P.  378, 
2  Okl.  Cr.  668;  Slater  v.  United 
States,  98  P.  110,  1  Okl.  Cr.  275;  Pick- 
ering V.  Same,  101  P.  123,  2  Okl.  Cr. 
197. 

S.  D.  State  v.  Guflfey,  163  N.  W. 
679.  39  S.  D.  84. 

Tex.  Willey  v.  State,  22  Tex.  App. 
408,  3  S.  W.  570 ;  McCoy  v.  State,  44 
Tex.  616 ;  Foster  v.  State,  1  Tex.  App. 
.363. 

Utah.  State  v.  Overson,  185  P. 
364. 

Va.  Kibler  v.  Commonwealth,  26 
S.  E.  858,  94  Va.  804. 

W.  Va.  State  v.  Heaton,  23  W.  Va. 
773. 

Inst.to  Juries — 8 


5  9  Ark.  Mitchell  v.  State,  188  S. 
W.  805,  125  Ark.  260 ;  Sons  v.  State, 
172  S.  W.  1029,  116  Ark.  357 ;  Reeder 
V.  State,  111  S.  W.  272,  86  Ark.  341. 

Neb.  Williams  v.  State,  83  N.  W. 
681,  60  Neb.  526. 

Tex.  Lee  v.  State,  122  S.  W.  389, 
57  Tex.  Cr.  R.  177 ;  Gilford  v.  State, 
87  S.  W.  698,  48  Tex.  Cr.  R.  312; 
Carson  v.  State,  86  S.  W.  1011,  48 
Tex.  Cr.  R.  157;  Neblett  v.  State 
(Cr.  App.)  85  S.  W.  17;  Stewart  v. 
State  (Cr.  App.)  77  S.  W.  791 ;  Dver  v. 
State  (Cr.  App.)  77  S.  W.  456;  Ballow 
V.  State,  (Cr.  App.)  69  S.  W.  513; 
Berry  v.  State,  38  S.  W.  812,  37  Tex. 
Cr.  R.  44. 

6  0  State  V.  Hay  ward,  133  N.  W.  667, 
153  Iowa,  265 ;  State  v.  Kelly,  23  So. 
543,  50  La.  Ann.  597 ;  State  v.  Stanley, 
100  S.  W.  678,  123  Mo.  App.  294 ;  State 
V.  Givens,  70  S.  E.  162,  87  S.  C.  525. 

In  Illinois  an  instruction,  on  a 
prosecution  for  burglary,  that  the  pos- 
session of  the  property  stolen  at  the 
time  of  the  burglary  was  prima  facie 
evidence  of  guilt,  sufficient  to  warrant 
a  conviction,  "unless  satisfactorily  ex- 
plained, or  unless  there  appears,  from 
all  the  evidence,  a  reasonable  doubt" 
of  defendant's  guilt,  is  not  objection- 
able as  encroaching  on  the  functions 
of  the  jury.  Williams  v.  People,  63 
N.  E.  681.  196  111.  173. 

61  Duckworth  v.  State,  103  S.  W. 
601,  83  Ark.  192. 

"Strong  criminating  circum- 
stances." In  a  prosecution  for  cattle 
theft,  an  instruction  that  possession  of 
recently  stolen  property  is  a  circum- 


62 


INSTRUCTIONS   TO   JURIES 


114 


struction  that  a  conviction  will  be  warranted  by  proof  of  the  falsity 
of  the  explanation  by  defendant  of  his  possession  of  stolen  property.®- 
On  the  other  hand,  an  instruction  negativing-  any  presumptions 
from  the  possession  of  stolen  property,®^  or  stating  that  such  pos- 
session is  not  in  itself  sufficient  to  support  a  conviction,®^  or  char- 
acterizing the  presumption  arising  from  such  possession  as  a  weak 
one,^^  are  properly  refused.  So  it  is  error  to  charge  that,  if  the  ex- 
planation by  defendant  of  his  possession  of  recently  stolen  prop- 
erty appears  reasonably  true,  the  jury  cannot  convict,  unless  they 
are  satisfied  that  the  other  evidence  in  the  case  establishes  the 
falsity  of  such  explanation. ®® 

§  62.     Presumptions  or  inferences  from  flight  of  accused 
SufBciency  of  instructions  and  correctness  as  statements  of  legal  propositions, 
see  post,  §  196. 

No  legal  presumption  of  guilt  arises  from  the  flight  of  an  accused 
person.*''  Accordingly  an  instruction,  in  a  criminal  prosecution,  that 
the  unexplained  flight  of  the  defendant  makes  a  prima  facie  case  for 
the  state,  or  is  strong  presumptive  evidence  of  guilt,  or  is  a  circumstance 
pointing  to  guilt,  is  erroneous,  as  invading  the  province  of  the 
jury;  ®*  and,  on  the  other  hand,  an  instruction  that  the  flight  of  the 


stance  to  be  considered,  and,  when 
taken  in  connection  with  the  branding 
of  the  animals  or  diliterating  the 
brand  on  them,  if  such  facts  were 
proved  beyond  a  reasonable  doubt, 
such  possession  and  the  circumstances 
are  strong  criminating  circumstances 
tending  to  prove  defendant's  guilt,  is 
objectionable,  as  a  charge  on  the 
weight  of  the  evidence.  Roberts  v. 
State,  70  P.  803,  11  Wyo.  66. 

C2  McCarty  v.  State,  36  Tex.  Cr.  R. 
13.5,  35  S.  W.  994. 

EflFect  of  showring  falsity  of  ex- 
planation. A  charge  that  if  the 
property  was  stolen,  and  recently 
thereafter  was  found  in  defendant's 
possession,  and  he  gave  a  reasonable 
explanation  thereof,  the  jury  could 
not  convict  unless  satisfied  of  the 
falsity  of  his  explanation,  is  on  the 
weight  of  evidence,  and  in  effect  states 
that  the  jury  could  convict  on  recent 
possession  alone,  if  the  state  had 
shown  defendant's  explanation  there- 
of false.  Hopperwood  v.  State,  44  S. 
W.  &41.  39  Tex.  Cr.  R.  15. 

0  3  Edmonds  v.  State  (Tex.  Cr.  App.) 
51  S.  W.  393. 


6  4  Mav  V.  State  (Tex.  Cr.  App.)  51 
S.  W.  242. 

G-5  Alexander  v.  State.  193  S.  W.  78, 
128  Ark.  35:  Reed  v.  State,  54  Ark. 
621,  16  S.  W.  819. 

6  6  Wilson  V.  State  (Tex.  Cr.  App.) 
34  S.  W.  284. 

6  7  People  V.  Wong  Ah  Ngow.  54  Cal. 
151,  35  Am.  Rep.  69. 

6  8  u.  S.  Starr  v.  United  States,  17 
S.  Ct.  223.  164  U.  S.  627.  41  L.  Ed.  577. 

Ark.  Adkisson  v.  State,  218  S.  W. 
165.  142  Ark.  15. 

Ga.  Kettles  v.  State.  88  S.  E.  197, 
145  Ga.  6. 

Iowa.  State  v.  Poe.  98  N.  W.  587, 
123  Iowa,  118.  101  Am.  St.  Rep.  .307. 

R.  I.  State  V.  Papa,  80  A.  12,  32 
R.  I.  4.53. 

Tex.  Seeley  v.  State,  63  S.  W.  309, 
43  Tex.  Cr.  R.  66. 

Instructions  held  improper 
•within  rule.  A  charge:  "The  law 
recognizees  another  proposition  as  true, 
and  it  is  that  'the  wicked  flee  when  no 
man  pursueth,  but  the  innocent  are  as 
l)old  as  a  lion.'  Tliat  is  a  self-evident 
proposition  that  has  l)een  recognized 
so  often  by  mankind  that  we  can  take 


115 


COMMENT   ON   PROBATIVE   EFFECT   OF   EVIDENCE 


§62 


accused  shall  not  be  weighed  against  him,  where  the  circumstances 
are  such  as  not  apparently  to  require  flight,  or  are  such  as  may  ex- 
plain the  flight,  is  properly  refused.^^  But  an  instruction  that  the 
jury,  in  determining  the  question  of  the  guilt  of  the  defendant, 
may  consider  evidence  that  he  fled  from  the  scene  of  the  crime,'^" 
if  such  flight  is  not  explained,'^  is  proper.  There  must  be  evidence 
of  the  fact  of  flight  to  warrant  a  charge  that  it  may  be  consid- 
ered.'^ Slight  evidence,  however,  of  an  attempt  to  escape,  will 
render  an  instruction  as  to  flight  proper.'^ 


it  as  an  axiom,  and  apply  it  to  this 
case."  Hickory  v.  United  States,  160 
U.  S.  408,  16  Sup.  Ct.  327,  40  L.  Ed. 
474.  A  cliarge,  on  a  trial  for  defacing 
a  public  building:  "The  flight  of  a 
person  suspected  of  a  crime  is  a  cir- 
cumstance to  be  weighed  by  the  jury 
as  tending  to  prove  a  consciousness  of 
guilt,  *  *  *  jnot  as  a  part  of  the 
doing  of  the  act  itself,  but  as  indica- 
tive of  a  guilty  mind.  At  most  it  is 
but  a  circumstance  tending  to  estab- 
lish a  consciousness  of  guilt  in  the 
person  fleeing."  Cleavenger  v.  State, 
65  S.  W.  89,  43  Tex.  Cr.  R.  273. 

Instructions  held  not  obnoxious 
to  rule.  An  instruction,  "Evidence 
of  flight  is  received,  not  as  part  of  the 
things  done  in  connection  with  the 
criminal  act  itself,  but  as  indicative 
of  a  guilty  mind,"  and  if  the  jury  be- 
lieve a  crime  was  committed,  and  im- 
mediately thereafter  defendant  took 
flight,  it  is  a  circumstance  to  be  weigh- 
ed as  tending  in  some  degree  to  prove 
a  consciousness  of  guilt,  that  it  is  not 
suflficient  of  itself  to  establish  guilt  of 
defendant,  but  its  weight  is  for  them 
to  determine  in  connection  with  all 
the  other  facts  in  evidence,  is  not  ob- 
jectionable as  equivalent  to  telling 
the  jury  that  flight  indicates  a  guilty 
mind,  and  as  a  charge  on  a  question  of 
fact.  People  v.  Gee  Gong.  114  P.  81, 
15  Cal.  App.  28,  denying  rehearing  114 
P.  78,  15  Cal.  App.  28. 

6  9  Green  v.  State,  51  So.  734,  165 
Ala.  79;  Miller  v.  State.  107  Ala.  40, 
19  So.  37 ;  Thomas  v.  State,  107  Ala. 
13,  18  So.  229. 

7  0  People  V.  Petruzo,  110  P.  .324,  13 
Cal.  App.  .569:  State  v.  Deatherage, 
77  P.  504,  35  Wash.  326. 

Instructions  proper  \iritliin  rule. 
An  instruction  that  defendant's  flight 


with  his  codefendant  from  the  place 
of  the  murder  was  evidence  of  guilt 
and  a  fact  for  the  jury's  consideration 
was  not  objectionable  as  an  instruc- 
tion, as  a  matter  of  law,  that  defend- 
ant was  guilty  if  he  fled.  Stewart  v. 
United  States,  211  F.  41,  127  C.  C.  A. 
477. 

71  Shannon  v.  Vincent,  76  Ga.  837. 

'Where  defendant  has  given  a 
full  explanation  of  his  flight,  it  is 
for  the  jury  to  say  whether  or  not 
that  explanation  is  true,  untrammeled 
by  any  instructions  that  the  evidence 
of  flight  is  to  be  weighed  by  the  jury 
as  indicative  of  consciousness  of  guilt. 
People  v.  Jones,  117  P.  176,  160  Cal. 
358.  The  fact  that  a  defendant  has 
explained  his  flight,  however,  does  not 
pi'eveut  the  court  from  instructing  on 
the  subject  of  flight,  so  long  as  such 
instruction  does  not  constitute  a 
charge  on  the  facts.  People  v.  Gibson, 
178  P.  338,  39  Cal.  App.  202. 

7  2  McBride  v.  People,  5  Colo.  App. 
91,  37  P.  953. 

Evidence  sufficient  to  sustain  in- 
struction. An  instruction  that  the 
jury  may  consider  the  flight  of  defend- 
ant after  intimation  of  a  prosecution 
against  him  is  sufficiently  warranted 
by  evidence  of  an  interview  with  him 
by  the  brother  of  prosecutrix,  in  which 
the  latter  said  that  he  would  have 
trouble  if  the  matter  was  not  fixed  up, 
and  that  defendant  fled  the  state  next 
day.  State  v.  Heatherton,  60  Iowa, 
175,  14  N.  W.  230.  Where  accused  left 
county  four  days  after  killing  of  de- 
ceased and  was  found  under  circum- 
stances indicating  concealment,  an  in- 
struction upon  inferences  from  flight 
bv  accused  was  justified.  State  v. 
Mills,  199  S.  W.  131,  272  Mo.  526. 

7  3  State  V.  Lem  Woon,  107  P.  974, 


§  63  INSTRUCTIONS  TO  JURIES  116 

I.  Degree  oe  Proof 
§  63.     In  general 

Instructions  that  the  proof  must  be  clear  and  convincing  should  or- 
dinarily not  be  given,'^*  and  it  is  error  to  instruct  that  evidence  raising 
a  mere  probability  of  the  existence  of  certain  facts  in  issue  is  not  suf- 
ficient to  enable  the  jury  to  find  their  existence/ °  or  to  intimate  that  the 
uncontradicted  testimony  of  a  party  will  not  authorize  a  verdict  in  his 
favor,  if,  from  the  nature  of  the  facts  to  be  proved,  it  appears  to  the 
jury  that  he  might  have  adduced  other  testimony  in  proof  of  such 
facts,'^^  or  to  tell  the  jury  that  if  they  are  in  doubt  as  to  whether  or 
not  the  plaintiff  is  entitled  to  recover,  or  as  to  where  the  preponder- 
ance of  evidence  lies,  they  shall  find  for  the  defendant.'^ 

§  64.     Preponderance  of  evidence 

Necessity  and  sufficiency  of  instructions  and  correctness  as  statements  of  legal 
propositions,  see  post,  §§  245-256. 

It  is  proper  to  instruct  that,  if  the  jury  find  from  the  evidence  that 
the  plaintiff  has  established  the  material  allegations  of  his  complaint 
by  a  preponderance  of  the  evidence,  they  shall  find  for  him,''^  and 
the  court  may  '^^  and  should  ®°  lay  down  general  rules  for  determining 
the  preponderance  of  the  evidence.  Thus  it  is  proper  to  instruct  the 
jury  that  it  is  not  bound  to  consider  the  evidence  evenly  balanced  when 
two  witnesses  contradict  each  other,  but  may  consider  the  surrounding 
facts  for  the  purpose  of  determining  whether  the  truth  may  not  lie 
with  one  rather  than  with  another.^  ^ 

57  Or.  482,  rehearing  denied  112  P.  ~  uecke    v.    Chicago    Consol.    Traction 

427,  57  Or.  482,  and  judgment  affirmed  Co.,  190  111.  App.  179. 

Lem  Woon  v.  State  of  Oregon,  33  S.  Ind.     Lafayette  Telephone   Co.    v. 

(It.  783,  229  U.  S.  586,  57  L.  Ed.  1340;  Cunningham,  114  N.  E.  227,  63   Ind. 

State  V.  James,  45  Iowa,  412.  App.  186 ;    Indianapolis   St.   Ry.   Co. 

74  Iglehart  v.  Jernegan,  16  111.  513.  v.  Schomberg  (App.)  71  N.  E.  237. 

7  6  Stanton  v.  Southern  Ry.  Co.,  34  Mich.     Barkow   v.    Donovan   Wire 

S.  E.  695,  56  S.  C.  398.  &  Iron  Co.,  157  N.  W.  55,  190  Mich. 

7  0  Baines  v.  UUmann,  71  Tex.  529,  563. 

9  S.  W.  543.  S.     C.    Montgomery    v.     Seaboard 

7  7  Birmingham  Ry.,  Light  &  Power  Air  Line  Ry.,  53  S.  E.  987,  73  S.  C. 

Co.  V.  I»ng,  59  So.  3S2,  5  Ala..  App.  503. 

510;      Shattuck     v.     McCartney,     1  8o,Meunier   v.    Chicago  &   C.    Coal 

White  &  W.  Civ.  Cas.  Ct.  App.  (Tex.)  Co..   180  111.  App.   114. 

§  557.  An     instruction     is      erroneous 

7  8  City  of  Chicago  v.  Carlson,  138  which  tells  the  jury  to  determine  the 

111.    App.    582;     Springfield    Consol.  preponderance    of    the   evidence    "in 

Ry.  Co.  v.  Farrant,  121  111.  App.  416;  accordance  with  the  way  in  which  it 

North  Chicago  St.   R.  Co.  v.  Zeiger,  appears  to  their  minds."     Meuuierv. 

78   111.   App.   463,    affirmed  54  N.  E.  Chicago  &  Carterville  Coal  Co.,  180 

1006,  182  111.  9,  74  Am.  St.  Rep.  157.  111.  App.  114. 

7  9  III.     Deoring    Harvester    Co.    v.  si  jarnecke     v.     Chicago     Consol. 

Barzak,  81  N.  E.  1.  227  111.  71;    Jar-  Traction  Co.,  190  111.  App.  179. 


117  COMMENT   ON   PROBATIVE   EFFECT   OP   EVIDENCE  §  64 

Ordinarily  it  is  proper  to  instruct  in  the  abstract  that  the  pre- 
ponderance of  evidence  does  not  necessarily  lie  with  the  party  pro- 
ducing the  greater  number  of  witnesses.*^  The  circumstances  of 
the  case  may  be  such,  however,  that  such  an  instruction  will  be 
erroneous,  as  constituting  a  comment  on  the  weight  of  the  evi- 
dence,^^  and  it  is  error  to  instruct  that,  if  the  testimony  of  the 
smaller  number  of  witnesses  is  of  better  quality  than  that  of  the 
greater  number,  the  former  testimony  shall  be  accorded  the  great- 
er weight,**  or  to  instruct  that  the  jury  may  decide,  or  that  it  is 
their  duty  to  decide,  that  the  preponderance  of  evidence  lies  on  the 
side  on  which,  in  their  judgment,  the  more  intelligent  and  bet- 
ter informed  witnesses  have  testified,*^  and  an  instruction  which 
in  effect  tells  the  jury  that  they  need  not  consider  the  number  of  wit- 
nesses by  which  a  fact  may  be  established  invades  the  province  of  the 
jury,  as  on  the  weight  of  evidence,^''  as  does  an  instruction  that  the 
preponderance  of  evidence  in  the  instant  case,  as  a  matter  of  law,  does 
not  depend  alone  upon  the  number  of  witnesses, ^^  or  an  instruction  that 
the  jury-  cannot  take  the  testimony  of  the  smaller  number  of  witnesses 
in  preference  to  that  of  the  larger  number,  unless  they  can  say  under 
their  oaths  that  the  former  testimony  is  more  reasonable,  more  truth- 
ful, more  disinterested,  and  more  creditable.®* 

Ordinarily  it  will  be  error  to  tell  the  jury  that  certain  facts  or  tes- 
timony is  sufficient  to  create  as  a  matter  of  law  a  preponderance  of 

82  Perkins    v.   Wabash    R.    C?o..    84  ss  Barnes  v.  Chicago  City  Ry.  Co., 

N.  E.  677,  233  Til.  458,  affirming  judg-  147    III.    App.    601 ;     Chicago    Union 

ment  Wabash  Ry.  Co.  v.  Perkins,  137  Traction  Co.  v.  Wirkus.  131  111.  App. 

111.  App.  514;    kozlowski  v.  City  of  485;    W.  H.  Stubbings  Co.  v.  World's 

Chicago,    113    111.    App.    513;     Ham-  Columbian    Etsposition    Co.,    110    111. 

mond,  W.  &  E.  C.  Electric  Ry.  Co.  v.  App.   210 ;    Chicago  City  Ry.   Co.   v. 

Antonia,  83  N.   E.  766,  41  Ind.  App.  Keenan.  85  111.  App.  367 ;    Eastman  v. 

335.  West  Chicago  St.  R.  Co.,  79  111.  App. 

Number    of   •witnesses    not    con-  ^^^• 

trolling.     ^^Tiere     plaintiff     testifies  *°  Langan  v.  Chicago  City  Ry.  Co., 

to  a  given  state  of  facts  and  is  con-  1^5    111.    App.    249 ;     Dallas    Cotton 

tradicted  by  a  number  of  witnesses,  ^^^^^^  ^'-   Ashley    (Tex.   Civ.  App.)  63 

it  is  not   error   to   instruct  that   the  ^-  ^-  1^^- 

testimony  of  one  witness  may  be  en-  "  Pennsylvania  Co.  v.  minsley,  54 

titled  to  more  weight  than  the  testi-  ^-  ^-  l^"^!'  ^3  Ind.  App.  37. 

mony  of  many  others,  if  the  jury  be-  ^  ®^  ^ewcomb    v.    Chicago    City    Ry. 

lieve  that  such  other  witnesses  have  ^  \^-  P^-  ^PP;  '^\ 

Itnowingly  testified  untruthfully  and  .  ^®  ^^  criminal  cases.    The  .in- 

are    not   corroborated.      Strickler    v.  Zr^'^^Z^l^^K^^'-T'  ^T>f  *^®  ''''^^ 

Gitchel,  78  P   94    14  Okl  5^3  judges  of  the  evidence,   the  accused 

s'!  <sf' T^„iJ  o  w  T>,r  n^^^'  c    -i-T,  i''    ^^ot    entitled    to    the    unqualified 

(Tex  ^h   Ann^67^  w  ^nal   -S^'u '  ^^^"^^^  ^^'^^  "^^'^  witnesses  of  good 

K.;.  i  o^?;^            A^  •  1064;   TV  ells  character,  who  are  unimpeacned,  are 

nv'lpp)%4rw%6o'''''*''^^'''-^-  '^'''''^    '^    ^^^^ter    cred?t    than' one 

Ln.  App.)  lo4  S.  ^.  .36...  witness     who      swears      differently." 

84  Gilmore  v.  Seattle  &  R.  Ry.  Co.,  State   v.   Breckenridge,   33   La.  Ann. 

69  P.  743,  29  Wash.  150.  310  o  ,     o      a.   ^iiu. 


^.61 


INSTRUCTIONS   TO   JURIES 


118" 


the  evidence  in  favor  of  one  party  or  the  other.®^^  So  an  instruction 
making  it  the  duty  of  the  jury  to  give  heed  to  an  indefinite  something 
that  rings  of  truth,  even  as  against  the  preponderance  of  the  evi- 
dence, invades  their  province.^" 

§  65.     Balancing  one  witness  against  another 

^^'here  two  witnesses  contradict  each  other  upon  a  particular  issue 
of  fact,  a  charge  to  the  effect  that  in  such  case  the  evidence  is  evenly 
balanced,  and  that  the  jury  must  therefore  find  the  fact  in  issue  not 
proved,  unless  additional  evidence  or  corroborating  circumstances  are 
produced  by  one  side  or  the  other,  is  erroneous,  as  invading  the  prov- 
ince of  the  jury.*^^     Such  rule  applies  in  criminal  cases. ^- 

§  66.     Instructions  on  reasonable  doubt  in  criminal  cases 

Necessity  and  sufficiency  of  instructions,  see  post,  §§  257-278. 

An  instruction  in  a  criminal  case  that,  if  the  jury  believe  from  the 
evidence  beyond  a  reasonable  doubt  that  the  elements  of  the  offense 
charged  have  been  proved,  they  should  convict  the  defendant,  does  not 
invade  the  province  of  the  jury,'-'^  and  a  charge  on  reasonable  doubt. 


8  9  Witt  V.  Gallemore,  163  111.  App. 
649;  Suse  v.  Metropolitan  St.  Ry. 
Co.,  SO-  N.  Y.  S.  513,  80  App.  Div. 
21;    Ely  v.  Tescli,   17  Wis.  202. 

9  0  Little  V.  Superior  Rapid  Tran- 
sit Ry.  Co.,  88  Wis.  402,  GO  N.  W. 
705. 

91  Ga.  Clarlv  v.  Cassidy,  62  Ga. 
407;  McLean  v.  Clarlv,  47  Ga.  24; 
Salter  v.  Glenn,  42  Ga.  64. 

111.  Johnson  v.  People,  140  111. 
350,  29  N.  E.  895,  affirming  40  111. 
App.  382,  and  overruling  McFarland 
V.  People,  72  111.  368;  DeDaud  v. 
Dixon  Nat.   Banli,  111  111.  .323. 

Ind.  Canada  v.  Curry,  73  Ind. 
246. 

Me.  Johnson  v.  Whidden,  32  Me. 
230. 

Mich.  Malthy  v.  Plummer,  40  N. 
W.  3.  71  Mich.  578. 

Wis.  Sickle  v.  Wolf,  91  Wis.  396, 
64  N.  AV.  1028;  Thomas  v.  Paul,  87 
Wis.  607,  o8  N.  W.  1031 ;  Manner  v. 
Pettibone,  14  Wis.  195;  Kuehn  v. 
Wilson.   33    Wis.    104. 

Instructions  improper  \idtliin 
rule.  An  instruction  in  an  action 
for  injuries  to  plaintiff  at  a  railroad 
crossing  that,  if  the  evidence  was 
evenly  balanced  as  to  the  speed  of 
an   engine,  and    the   witnesses   as   to 


this  matter  were  equally  credible,  it 
was  the  jury's  duty  to  give  credence 
to  those  witnesses  who  testified  that 
the  speed  did  not  exceed  five  miles 
per  hour.  Southern  Ry.  Co.  v. 
Weatherlow,  51  So.  381,  164  Ala.  151. 
An  instruction  that  the  defense  of 
fraud  to  an  action  on  a  note  is  not 
proven  if  the  jury  find  that  the  mali- 
er  supported  such  fraud  by  liis  own 
testimony  alone,  that  his  statements 
were  denied  by  the  payee,  tiiat  both 
parties  were  equally  credible,  had 
equal  opportunities  for  knowing,  and 
testified  witla  equal  fairness,  candor, 
and  trutlifulness.  and  that  neither 
was  corroborated  by  other  evidence, 
facts,  or  circumstances.  Chariton 
Plow  Co.  v.  Davidson,  16  Neb.  374, 
20  N.  W.  256. 

02  Patton  V.  State,  46  So.  862,  156 
Ala.  23;    Childs  v.  State,  76  Ala.  93. 

93  Ind.  Bhicher  v.  State,  98  N.  E. 
lis,  177  Ind.  356 ;  Reynolds  v. 
State,  46  N.  E.  31,  147  Ind.  3. 

Miss.  Brett  v.  State,  47  So.  781, 
94  Miss.  669. 

Tex.  Melton  v.  State,  140  S.  W. 
781.  03  Tex.  Cr.  R.  573;  Young  v. 
State,  113  S.  W.  276,  54  Tex.  Cr.  R. 
417;  Gardenhire  v.  State  (Cr.  Ajip.) 
107  S.  W.  S36;  Trail  v.  State  (Cr. 
App.)  107  S.  W.  545. 


119  COMMENT   ON   TROBATIVE   EFFECT   OF   EVIDENCE  §  67 

tliat  the  evidence  should  be  such  as  would  control  and  decide  the  con- 
duct of  reasonable  men  in  the  most  important  affairs  of  life,  and  not 
a  mere  conjecture,  a  trivial  supposition,  a  bare  possibility  of  the  inno- 
cence of  defendant,  does  not  discredit  defendant's  evidence,  or  his 
statement,  or  intimate  judicial  disapproval  of  an  acquittal;"*  but  an 
instruction  that  proof  of  a  single  fact  inconsistent  with  guilt  will  be 
sufficient  to  raise  a  reasonable  doubt,  and  require  the  jury  to  acquit, 
invades  their  province,"^'  as  does,  ordinarily,  an  instruction  that  certain 
facts,  if  found  by  the  jury,  are  sufficient  to  raise  a  reasonable  doubt  of 
defendant's  guilt. ""^^  And  while  a  reasonable  doubt  in  the  minds  of 
the  jury,  arising  from  testimony  in  support  of  the  good  character  of  the 
accused,  constitutes  a  legitimate  basis  for  an  acquittal,  the  court 
has  no  right  to  instruct  that  such  testimony  is  sufficient  for  that 
purpose.**' 

J.  Corroboration  of  Witne;sse;s  in  Criminal  Case;s 

§    67.     Corroboration  of  prosecuting  witness 

Ordinarily  an  instruction  that  certain  matters  do  not  corroborate, 
or  are  not  sufficient  to  corroborate,  the  evidence  of  the  prosecuting 
witness,  invades  the  province  of  the  jury,"®  and  it  is  error,  in  a 
prosecution  for  a  sexual  crime,  to  instruct  that  the  testimony  of  the 
prosecutrix  must  be  strongly  corroborated  by  other  evidence,"''  or, 
on  the  other  hand,  that  the  prosecutrix  has  been  corroborated.^ 

9*  Clay    V.    State,    60    S.    E.    1028,  Instructions   ield  not    to   be  on 

4   Ga.    App.   142.  tie   weight    of   the    evidence.      An 

sspinson  v.  State,  78  So.  876.  201  instruction,  in  a   prosecution   for  se- 

Ala.    522;     Cowan    v.    State,    72    So.  duction,  that  circumstantial  evidence 

578,  15  Ala.  App.  87.  may    be    relied    on    to    establish    tne 

96  State  V.  Vance,  70  P.  34,  29  corroboration  required  by  statute. 
Wash.  435.  and  if  it  be  shown  by  evidence  other 

Instructions  held  improper.  than  that  of  the  prosecuting  wit- 
An  instruction  that  if  the  jury  have  ness  that  defendant  visited  her,  that 
a  doul)t  such  as  a  reasonable  man  they  kept  company  together,  and  act- 
would  entertain  in  affairs  of  his  own  ed  as  lovers  usually  do,  such  evi- 
concern,  "under  the  facts  and  evi-  dence  would  be  sufficient  to  justify 
dence  as  strong  as  that  in  this  a  conviction,  if,  when  considered  in 
case,"  that  would  be  a  reasonable  connection  with  other  evidence,  the 
doubt.  State  v.  Davis,  31  S.  E.  62,  jury  was  satisfied  beyond  a  reason- 
53  S.  C.  150,  69  Am.  St.  Eep.  845.  able  doubt  of  defendant's  guilt ;    but 

97  State  V.  Batecliam,  186  P.  5,  94  that  the  jury  should  bear  in  mind 
Or.   524.  that  they  were  the  judges  of  the  suf- 

9  s  Watts  V.  State,  63  So.  18,  8  Ala.  ficiency  '  of     tlie     corroborating     evi- 

App.  264 ;    Jones  v.  State,  141  S.  W.  dence,  in  connection  with  another  in- 

953,  63  Tex.  Cr.  R.  394.  struction  stating  that  mere  proof  of 

9  9  State  V.   Sublett,  90  S.   W.  374,  acquaintance     and      opportunity      to 

191  ]\Io.  163.  have    comniitted    the   offense    is    not 

1  Lanphere  v.  State,  89  JS'.  W.  128,  sufficient,   but  the  corroborating  evi- 

114  Wis.  193.               ■  dence  must  be  such  as  tends  to  con- 


§68 


INSTRUCTIONS  TO  JURIES 


120 


§  68.     Corroboration  of  accomplice 

Sufficiency  of  instructions  on  corroboration  of  accomplice,  see  post,  §  176. 

In  jurisdictions  where  the  testimony  of  an  accomplice  must  be  cor- 
roborated in  order  to  constitute  a  basis  of  conviction,  the  determination 
as  to  whether  there  is  evidence  independent  of  the  testimony  of  an 
accomplice  tending  to  connect  the  accused  with  the  commission  of 
the  crime  is  for  the  court,^  and  according  to  some  of  the  cases  the 
court  can  instruct,  where  such  is  the  case,  that  there  is  corroborating 
evidence  sufficient  to  authorize  the  jury  to  consider  the  testimony  of 
the  accomplice,  no  comment  being  iiiade  on  the  weight  of  the  corrobo- 
rating evidence.^ 

Where  there  Is  some  evidence  tending  to  corroborate  the  testimony 
of  an  accomplice,  its  weight  is  for  the  jury,*  and  it  is  ordinarily  error 


nect  the  defendant  with  the  commis- 
sion of  the  offense  and  corroborate 
the  evidence  of  prosecutrix  in  rela- 
tion to  the  crime.  State  v.  Smith, 
100  N.  W.  40.  124  Iowa,  3.34. 

Harmless  error.  A  charge,  in  a 
prosecution  for  rape,  that  if  the 
mother  of  the  prosecutrix  wag  the 
first  person  she  saw,  in  whom  she 
was  expected  to  place  confidence,  aft- 
er the  offense  was  alleged  to  have 
been  committed,  and  that  she  com- 
municated to  her  at  the  first  oppor- 
tunity that  she  had  been  outraged, 
the  .iury  might  consider  such  cir- 
cumstance as  corroborative  of  the 
testimony  of  the  prosecutrix,  is  not 
prejudicial  error,  since  this  only  tells 
the  jury  what  they  already  know. 
People  v.  Bene,  62  P.  404,  130  Cal. 
159. 

2  United  States  v.  Murphy  (D.  G. 
N.  Y.)  2.53  F.  404 ;  Quong  Yu  v.  Ter- 
ritory, 100  P.  462,  12  Ariz.  183; 
Kent  V.  State.  41  S.  W.  849,  64  Ark. 
247;  People  v.  .Josephs,  128  N.  Y.  S. 
2.57.  143  App.  Div.  534:  People  v. 
Kathan,  120  N.  Y.  S.  1096,  136  App. 
Div.   303. 

•f  Quong  Yu  v.  Territory,  100  P. 
462,  12  Ariz.  183;  People  v.  Hum- 
mel, 104  N.  Y.  S.  308,  119  App.  Div. 
153. 

In  Alabama,  however,  a  charge 
that  certain  matters  constituted  coi.- 
roborativo  evidence  tending  to  con- 
nect defendant  with  the  commission 
of  the  offense,  if  committed,  has  been 


held  one  on  the  effect  of  the  evidence, 
and  erroneous  when  a  material  inqui- 
ry of  fact  rested  in  inference.  Bur- 
ney  v.  State,  87  Ala.  80,  6  So.  391. 

In  Oregon,  an  instruction  that, 
when  other  corroborating  evidence 
has  been  offered  "as  in  this  case," 
it  is  for  the  jury  to  determine  the 
weight  of  the  testimony  of  the  ac- 
complice is  held  to  be  erroneous  as 
stating  that  corroborating  evidence 
has  been  received.  State  v.  Bunyard, 
144  P.  449,  73  Or.  222. 

4  Ariz.  Quong  Yu  V.  Territory, 
100  P.  462,  12  Ariz.  183. 

Cal.  People  v.  Kunz.  73  Cal.  313, 
14  P.  836. 

Ga.  Brown  v.  State,  89  S.  E.  342, 
18  Ga.  App.  288;  Dixon  v.  State,  67 
S.  E.  699,  7  Ga.  App.  604;  Rice  v. 
State,  84  S.  E.  609,  16  Ga.  App.  128. 

Iowa.  State  V.  O'Meara,  177  N. 
W.  5G3 ;  State  v.  Cox,  10  Iowa,  351 ; 
State  V.  Dorsey,  134  N.  W.  946,  154 
Iowa,  208. 

Ky.  Craft  v.  Commonwealth,  81 
Ky.  250,  .50  Am.  Rep.  160;  Neal  v. 
Commonwealth,  6  Ky.  Law  Rep.  (ab- 
stract) 368. 

N.Y.  People  v.  Becker,  109  N.  E. 
127,  215  N.  Y.  126,  Ann.  Cas.  1917A, 
600,  rehearing  denied  109  N.  E.  1086, 
215  N.  Y.  721;  People  v.  O'Farrell, 
67  N.  E.  588,  175  N.  Y.  323,  reversing 
order  77  N.  Y.  S.  1135,  73  App.  Div. 
626;  People  v.  Doyle,  177  N.  Y.  B. 
641.  107  Misc.  Rep.  268. 

Okl.     Campbell  v.  State,  157  P.  49^ 


121 


COMMENT  ON   PROBATIVE   EFFECT  OF  EVIDENCE 


§69 


to  instruct  that  certain  matters  are  ^  or  are  not  ®  corroborative  of  the 
testimony  of  an  accompHce,  or  that  slight  evidence  may  satisfy  the  re- 
quirements of  the  statute  as  to  corroboration.'^ 


K.  Undisputed  Facts 
§  69.     In  general 
Necessity  of  instructions,  see  post,  §  279. 

The  provisions  set  out  supra,*  refer  only  to  disputed  facts,  and  not 
to  those  concerning  which  there  is  no  dispute,  or  which  are  admitted.^ 
Where  facts  are  admitted,^*^  or  are  not  disputed,^^  the  court  may  so 
tell  the  jury,  and  the  court  may  charge  as  facts,  or  direct  the  jury  to 
find  as  facts,  matters  shown  by  the  undisputed  evidence,^ ^  and,  in  some 


12  Okl.  Cr.  349 ;  McGill  v.  State,  120 
P.  297,  6  Okl.  Cr.  512;  Hill  v.  Ter- 
ritory, 79  P.  757,  15  Okl.  212. 

S.  D.  State  v.  Walsh,  125  N.  W. 
295,  25  S.  D.  30. 

5  Dickenson  v.  State  (Tex.  Cr. 
App.)  63  S.  W.  328. 

6  Follis  V.  State,  101  S.  W.  242,  51 
Tex.  Cr.  R.  1S6. 

7  State  V.  James,  89  P.  460,  32 
Utah,  152. 

8  Section   29. 

9  Harvey  v.  Dodge,  73  Me.  316 ; 
Mullaly  V.  Smyth,  79  S.  E.  634,  96 
S.  C.  14;  Galveston,  H.  &  S.  A.  Ry. 
Co.  V.  Roberts  (Tex.  Civ.  App.)  91  S. 
"W.  375 ;  Lownsdale  v.  Gray's  Har- 
bor Boom  Co.,  78  P.  904,  36  Wash. 
198. 

10  Schulman  v.  Stock,  93  A.  531,  89 
Conn.  237 ;  Cooley  v.  Bergstrom,  60 
S.  E.  220,  3  Ga.  App.  496;  De  Saul- 
les  v.  Leake,  56  Ga.  365;  Weekes  v. 
Cottingham,  58  Ga.  559;  Barkley  v. 
Quick,  156  N.  W.  544,  33  N.  D.  124. 

11  Texas  &  P.  Ry.  Co.  v.  Gentry, 
163  IT.  S.  353,  16  S.  Ct.  1104,  41  L. 
Ed.    186. 

12  Ala.  St.  Louis  &  S.  F.  R.  C5o. 
V.  Hall,  65  So.  33,  186  Ala.  353; 
Speakman  v.  Vest,  51  So.  980,  166 
Ala.  235;  Rutledge  v.  Rowland,  49 
So.  461,  161  Ala.  114;  Stephenson  v. 
Wright,  111  Ala.  579,  20  So.  622. 

Cal.  Low  v.  Warden,  77  Cal.  94, 
19   Pac.   235. 

CoiLn.  Schoefield  Gear  &  Pulley 
Co.  v.  Schoefield,  40  A.  1046,  71  Conn. 


Ga.  Marshall  v.  Morris,  16  Ga. 
368. 

Iowa.  Fleming  v.  Stearns,  79 
Iowa,  256,  44  N.  W.  376. 

Me.  McLellan  v.  Wheeler,  70  Me. 
285. 

Mass.  Rock  V.  Indian  Orchard 
Mills,  142  Mass.  522,  8  N.  E.  401. 

Mich.  Burt  v.  Long,  106  Mich. 
210,  64  N.  W.  60;  Welch  v.  Olm- 
stead,  90  Mich.  492,  51  N.  W.  541. 

Mo.  Hall  V.  Missouri  Pac.  Ry. 
Co.,  74  Mo.  298. 

Okl.  Wichita  Falls  &  N.  W.  Ry. 
Co.  V.  Woodman,  168  P.  209,  64  Okl. 
326. 

Pa.  Devlin  v.  Snellenburg,  132 
Pa.  186,  18  A.  1119. 

S.  C.  Burns  v.  Kendall,  SO  S.  E. 
621,  96  S.  C.  385 ;  Bryan  v.  Donnelly, 
69  S.  E.  840,  87  S.  C.  388;  McGee  v. 
Wells,  37  S.  C.  365,  16  S.  E.  29. 

Tex.  Kirby  Lumber  Co.  v.  Bratch- 
er  (Civ.  App.)  191  S.  W.  700;  Mis- 
souri, K.  &  T.  Ry.  Co.  of  Texas  v. 
Rogers  (Civ.  App.)  141  S.  W.  1011; 
El  Paso  &  S.  W.  R.  Co.  V.  Eichel  & 
Weikel  (Civ.  App.)  130  S.  W.  922; 
Biimner  Fire  Co.  v.  Payne,  118  S.  W. 
602,  54  Tex.  Civ.  App.  501 ;  Houston 
&  T.  C.  R.  Co.  V.  Wilkins  (Civ.  App.) 
98  S.  W.  202 ;  Texas  &  P.  Ry.  Co.  v. 
Jones  (Civ.  App.)  39  S.  W.  124. 

Utah.  Cooper  v.  Denver  &  R.  G. 
R.  Co.,  11  Utah,  46,  39  P.  478. 

Wash.  Washington  Boom  Co.  v. 
ChehaUs  Boom  Co.,  156  P.  24,  90 
Wash.  350. 

■Wis.  Lappley  v.  State,  174  N.  W. 
,913,   170  Wis.  356,  7  A.  L.  R.  1279; 


69 


INSTRUCTIONS   TO  JURIES 


12^ 


jurisdictions,  the  court  should  not  submit  to  the  jury  an  issue  of  fact 
about  which  there  is  no  conflict. ^^  The  mere  fact,  however,  that  evi- 
dence in  support  of  certain  facts  has  not  been  directly  contradicted  by 
other  evidence  does  not  make  it  proper  for  the  court  to  state  that  such 
facts  are  proved,^*  since  the  jury  may  disbelieve  evidence,  although  un- 
contradicted/^    Thus  the  fact  that,  in  a  criminal  prosecution,  all  the 


Harriman  v.  Queen  Ins.  Co.,  49  Wis. 
71,  5  N.  W.  12. 

In  North  Carolina  the  rule  is 
that,  where  there  is  no  evidence  con- 
trary to  certain  testimony,  the  court 
may  instruct  the  jury  that,  if  they 
find  such  facts  to  be  as  testified  to, 
they  shall  consider  them  as  establish- 
ed, together  with  the  statutory  infer-' 
ences  therefrom.  Mvers  v.  Petty,  6'J 
S.  E.  417,  1.5.3  N.  C.  462. 

Instructions  proper  \iritliin  rule. 
It  was  not  error  to  charge  that  a 
train,  with  its  platform,  coupling 
lights,  etc.,  at  the  time,  was  such  as 
was  usual  and  customary  with  all 
passenger  trains  then  being  operated 
in  the  place,  where  such  facts  were 
undisputed.  Sickles  v.  Missouri,  K.  & 
T.  Ry.  Co.  of  Texas,  1.3  Tex.  Civ.  App. 
434,  35  S.  W.  493.  Where  the  evi- 
dence clearly  shows  that  plaintiffs 
are  the  cousins,  on  the  father's  side, 
of  one  who  died  seised  of  the  land  in 
controversy,  and  that  the  decedent 
left  neither  wife,  child,  brother,  nor 
sister,  it  is  proper  to  instruct  the 
jury  that,  in  order  for  plaintiffs  to  be 
the  heirs  of  the  decedent,  he  must 
have  died  leaving  neither  father, 
mother,  grandfather,  nor  grandmoth- 
er. Byers  v.  Wallace  (Tex.  Civ.  App.) 
25  S.  W.  1043.  In  an  action  against 
a  railroad  company  for  injuries  to  an 
employe  alleged  to  have  been  caused 
by  a  defect  in  a  hand  car  and  in  a 
rail,  a  charge  that  the  promise  of  the 
section  master  to  rei)air  the  rail  some 
days  before,  and  the  fact  that  he  had 
sent  the  car  to  the  shop  for  repairs, 
and  had  again  put  it  in  use,  might  be 
considered  on  the  question  of  con- 
tributory negligence,  is  not  a  charge 
on  the  weight  of  evidence,  where  the 
uncontradicted  evidence  shows  the 
facts  recited  in  it.  Missouri  Pac.  Ry. 
Co.  V.  James  (Tex.)  10  S.  W.  332. 
Where,  in  an  action  between  heirs  for 
the  partition  of  an  estate,  all  the  wit- 
nesses speak  of  the  estate  as  that  of 


the  heirs'  mother,  the  jury  were 
properly  instmcted  that  they  should 
treat  it  as  the  separate  estate  of  the 
mother.  Ellis  v.  Stewart  (Tex„  Civ. 
App.)  24  S.  W.  5S5.  In  an  action 
against  a  town  to  recover  for  injuries 
caused  by  an  obstruction  in  the  high- 
way, where  the  undi-sputed  testimony 
is  that  there  was  a  stone  or  stones  in 
the  traveled  track,  it  is  not  error  for 
the  court  to  state  to  the  jury  the  sub- 
stance of  the  testimony  on  both  side.^ 
as  to  the  size  and  situation  of  the 
stone,  and  say  that  "there  is  no  ques- 
tion at  all  under  the  testimony  that 
there  was  a  stone  there.  Its  size  and 
character  and  location  you  are  to  de- 
termine." Salladay  v.  Town  of 
Dodgeville,  85  Wis.  318,  55  N.  W.  696, 
20  L.  R.  A.  541.  An  instruction  that 
"there  is  no  question,  under  the  evi- 
dence, that  the  hor.se  fell  by  reason 
of  his  foot  getting  into  one  of  these 
holes,"  is  justifiable,  where  the  un- 
contradicted evidence  proves  that  the 
court  stated  the  correct  reason  for 
the  horse's  fall.  Wall  v.  Town  of 
Highland,  72  Wis.  435,  39  N.  W.  560. 

13  Hall  V.  Hilley,  67  S.  E.  428,  134 
Ga.  77;  Bee  Bldg.  Co.  v.  Weber  Gas 
&  Gasoline  Engine  Co.,  125  X.  W.  518, 
86  Neb.  326:  International  &  G.  N. 
R.  Co.  V.  Lewis  (Tex.  Civ.  App.)  63  S. 
W.  1091.  rehearing  denied  (Tex.  Civ. 
App.)  (i4  S.  W.  1011:  Houston  &  T.. 
C.  R.  Co.  V.  Harvin  (Tex.  Civ.  App.) 
54  S.  W.  629. 

In  Iowa,  however,  it  is  not  error 
to  charge  that  the  pai'ty  alleging  a 
material  fact  in  issue  must  prove  it, 
though  there  is  no  conflict  of  testl- 
monv  about  it.  Blotckv  v.  Caplan,  91 
Iowa,  852,  59  N.  W.  204. 

14  Green  v.  State,  30  So.  056,  43 
Fla.  556:  State  v.  Austin,  80  N.  W. 
303,  109  Iowa.  118 ;  State  v.  Cannon, 
27  S.  E.  526,  49  S.  C.  550. 

15  Ryan  v.  Fall  River  Iron  Work:> 
Co.,  SO  N.  E.  310,  200  Mass.  188, 


123  COMMENT   ON   PROBATIVE   EFFECT   OF   EVIDENCE  §  71 

witnesses  concur  in  the  statement  that  the  defendant's  general  character 
as  a  peaceable,  law-abiding  citizen  is  good,  does  not  make  it  proper  for 
the  court  to  charge  that  the  defendant  has  proved  a  good  character, 
since  such  testimony  only  expresses  the  opinion  of  the  witnesses/" 
and  in  one  jurisdiction  it  is  held  to  be  error  to  tell  the  jury  that  there 
is  no  dispute  in  the  testimony  on  a  certain  point,  or  that  anything  is  con- 
clusively proved.  This,  however,  is  under  a  constitutional"  provision 
considered  to  be  more  restrictive  than  the  constitutional  provisions  of 
any  other  state. ^^ 

§  70.     Stating  legal  effect  of  undisputed  facts 

A  charge  upon  the  legal  effect  of  admitted  or  uncontroverted  facts 
is  not  one  upon  the  weight  of  the  evidence;  ^^  but,  where  the  undisputed 
facts  cannot  properly  be  considered,  disconnected  from  other  testimony 
bearing  on  the  same  point,  an  instruction  stating  what  such  facts  show 
should  be  refused.^" 


L.  Affirming    Existence    or    Nonexistence    of    Evidence    or 
Tendencies  Thereof 

§  71.     Failure  or  absence  of  proof 

Necessity  of  instructions,  see  post,  §  2S0. 

It  is  error,  as  invading  the  province  of  the  jury,  to  instruct  that  there 
is  no  evidence  of  a  given  fact,-**  where  there  is  evidence,  however  slight, 

10  Reid   V.    State,    61    So.   324,    181  determine  tlie  powers  and  limitations 

Ala.  14.  of  tlie  agent.     Smith  v.  Mutual  Cash 

17  Bard  well  v.  Ziegler,  3  Wash.  34,  Guaranty   Fire    Ins.    Co.,    113   N.    W. 
28  P.  360.  94,  21  S.  D.  4.33. 

18  U.    S.      (C.   O.  A.  Minn.)   North-  lo  Morris    v.    Osterhout,    55    Mich, 
western  Fuel  Co.  v.  Danielson,  57  F.  262,  21  N.  W.  339. 

915,  6  C.  C.  A.  636.  20  Ala.      Wheat   v.    Union    Springs 

Ala.     Riley  v.  Fletcher,  64  So.  85,  Guano  Co.,  70  So.  631,  195  Ala.  App. 

185  Ala.  570.  I'^O ;      Woodmen     of     the    World     v. 

Mo.     Sessinghaus  v.  Knoche,  118  S.  bright,  60  So.  1006,  7  Ala.  App   255 ; 

W.  104,  137  Mo.  App.  323;    Slayback  ^^tip^ial    Chemica     Co.    v.    Nationa 

T.  Gerkhardt,  1  Mo.  App.  333.  ^^'^'"f  ^  ^;  Jf ™l?    m*""'/^!  ^'^-  V-^'  "^ 

„  ,       ^,-,               ^^   .^^  „       „    ^  Ala.  App.  469;    Mobile  &  O.  R.  Co.  v. 

Neb.    ^\ helan  V.  Union  Pac.  R.  Co.,  TJovUo.-^ft  ««    winsi    o    aio     at^t.    r^nv- 

I'^a  V    w    on    01    ivt^h    >'>'>'i  Uaibei,  5b  So.  ho8,  2  Ala.  App.  50 i, 

l.ob  iN.   VV.  ^U,  Jl  Ael3.  _o^.  Crenshaw   v.    State,   45    So.   631,   153 

S.  D.    Wright  V.  Lee,  72  N.  W.  895,  Ala.   5:    Parham  v.    State,  42   So.   1, 

10  S.  D.  263.  147    Ala.    57. 

Determination  of  powers  of  an  Ind.     Van  Camp  Hardware  &  Iron 

agent.      Where   the    undisputed    evi-  Co.  v.  O'Brien,  62  N.  E.  464,  28  Ind. 

dence  shows  that  a  fire  policy  was  is-  App.   1.52. 

sued  by  insurer  on  an  application  au-  Okl.     Smith  v.   Gillis,  151   P.  869, 

thoritatively  taken,  it  is  the  duty  of  51  Okl.  134. 

the  court  in  its  charge  to  recognize  R.  I.     Perry  v.  Sheldon,  75  A.  690, 

the   existence  of  the   agency  and  to  30  R.  I.  426. 


71 


INSTRUCTIONS  TO  JURIES 


124 


tending  to  prove  such  fact;  ^^  but,  where  there  is  no  legal  evidence  of 
the  existence  of  certain  facts,  or  there  is  a  total  lack  of  evidence  to 
sustain  the  necessary  allegations  of  fact  in  a  pleading,  the  court  may,^^ 
and  in  some  jurisdictions  should,^^  on  request,  so  instruct.  Such  a 
charge  is  not  within  a  statutory  provision  forbidding  the  court  to  give 
instructions  on  the  effect  of  the  evidence  except  upon  request.-* 


21  Ala.  James  v.  State,  72  So.  299, 
14  Ala.  App.  652;  Western  Union 
Telegraph  Co.  v.  Northcutt,  48  So. 
553,  158  Ala.  539,  132  Am.  St.  Rep. 
38;  Way  v.  State,  46  So.  273,  155 
Ala.  52;  Southern  Coal  &  Coke  Co. 
V.  Swinney,  42  So.  808,  149  Ala,  405 ; 
Garth  v.  North  Alabama  Traction 
Co.,  42  So.  627,  148  Ala.  96. 

Cal.  Thompson  v.  Southern  Pac. 
Co.,  161  P.  21,  31  Cal.  App.  567. 

111.  Morton  v.  Gateley,  1  Scam. 
211 ;  Dornf eld-Kunert  Co.  v.  Volk- 
mann,  138  111.  App.  421. 

Mo.  Sills  V.  Burge,  124  S.  W.  605, 
141  Mo.  App.  148;  Houghtaling  v. 
Ball,  19  Mo.  84,  59  Am.  Dec.  331. 

Neb.  Sheiblev  v.  Nelson,  121  N. 
W.  458,  84  Neb.  393. 

N.  C.  State  V.  Allen,  48  N.  C.  257 ; 
Wells  V.  Clements,  48  N.  C.  168. 

Pa.  Shoninger  v.  Latimer,  105  Pa. 
373,   30   A.  985. 

S.  C.  Howard  v.  Wofford,  16  S.  C. 
148. 

Tex.  International  &  G.  N.  R.  Co. 
V.  McVey  (Civ.  App.)  81  S.  W.  991, 
rehearing  denied  (Civ.  App.)  83  S.  W. 
34,  and  reversed  87  S.  W.  328,  99  Tex. 
28. 

Vt.    Rogers  v.  Judd,  6  Vt.  191. 

2  2  u.  S.  (Sup.)  Parks  v.  Ross,  11 
How.  .362. 13  L.  Ed.  730  ;  (C.  C.  A.  Cal.) 
Connecticut  Mut.  Life  Ins.  Co.  v.  IMc- 
Whirter,  73  F.  444,  19  C.  C.  A.  519. 

Ala.  Edmondson  v.  Anniston  Citv 
Land   Co..  29   So.   596,   128  Ala.   .589. 

Cal.  People  v.  Perry,  65  Cal.  568, 
4  P.  572 ;  People  v.  Vasquez,  49  Cal. 
.500;  People  v.  Welch,  49  Cal.  174; 
People  v.  Dick,  34  Cal.  663  ;  People  v. 
King,   27   Cal.   507,   87   Am.   Dec.   95. 

Fla.  Carr  v.  State,  34  So.  892,  45 
Fla.  11. 

Ga.  Underwood  v.  American  Mort- 
gage Co.,  97  Ga.  238,  24  S.  E.  847; 
East  Tennessee,  V.  &  G.  Ry.  Co.  v. 
Markens,  88  Ga.  60,  13  S.  E.  855,  14 
L.  R.  A.  281. 


111.  Scott  V.  Parlin  &  Orendorff 
Co.,  92  N.  E.  318,  245  111.  460,  afhrm- 
ing  judgment  146  111.  App.  92. 

Ind.  Beckner  v.  Riverside  &  B. 
G.  Turnpike  Co.,  65  Ind.  468;  Kline 
V.  Spahr,  56  Ind.  296. 

Kan.  Case  v.  Hannahs,  2  Kan. 
490. 

Me.     Rogers  v.  Percy,  12  Atl.  545. 

Md.  Webb  v.  McCloskey,  68  Md. 
196,  11  A.  715:  Sheppard  v.  Willis, 
28  Md.  631;  Farmers'  Bank  v.  Du- 
vall.  7  Gill  &  J.  78. 

Mass.  Farnum  v.  Pitcher,  151 
Mass.  470.  24  N.  E.  590;  Carter  v. 
Goff.  141  Mass.  123,  5  N.  E.  471. 

Mo.  State  V.  Hottman,  94  S.  W. 
237,   196  Mo.   110. 

Neb.  Graham  v.  Hartnett,  10  Neb. 
517,  7  N.  W.  280. 

N.  C.  Newsome  v.  Western  Union 
Telegraph  Co..  56  S.  E.  863,  144  N. 
C.  178;  Woodburv  v.  Evans,  30  S. 
E.  2,  122  N.  O.  779;  State  v.  Byrd. 
28  S.  E.  353,  121  N.  C.  684;  Hiuson 
V.  King,  50  N.  C.  393. 

Or.  Latshaw  v.  Territory,  1  Or. 
140. 

S.  C.  Trapp  v.  Western  Union 
Telegraph  Co..  75  S.  E.  210.  92  S.  C. 
214:  Brvce  v.  Cayce,  40  S.  E.  948, 
62  S.  C.  .546. 

Temn.     Slattery  v.  Lea.  11  Lea.  9. 

Tex.     Burrell  v.  State,  18  Tex.  713. 

Va.  Norfolk  Southern  R.  Co.  v. 
Norfolk  Truckers'  Exchange,  88  S.  E. 
318,   118   Ya.  650. 

Wasli.  State  v.  McPhail,  81  P. 
683.  .39  Wash.   199. 

2  3  Davis  V.  Davis,  7  Har.  &  J.  (Md.) 
36;  Alexander  v.  Harrison.  38  Mo. 
2.58.  90  Am.  Dec.  431 :  Humphrey  v. 
Morgan,  120  P.  577,  30  Okl.  343. 

2  4  Cole  Motor  Car  Co.  v.  Tebault, 
72  So.  21,  196  Ala.  382;  Thomas  v. 
State,  43  So.  371,  1.50  Ala.  31:  Hug- 
gins  v.  Southern  Ry.  Co.,  41  So.  856, 
148  Ala.  153. 


125 


COMMENT  ON  PROBATIVE   EFFECT  OF  EVIDENCE 


§72 


§  72.     Declaring  tendency  of  evidence 

By  the  weight  of  authority,  it  is  not  an  improper  comment  on  the 
weight  of  the  evidence,  and  does  not  trench  upon  the  province  of  the 
jury,  for  the  court  to  state  the  tendencies  of  the  evidence,  or,  if  such 
is  the  case,  that  there  is  some  evidence  tending  to  prove  certain  facts,^^ 
the  tendency  of  the  evidence  being  regarded  as  a  question  of  law.^® 
In  some  jurisdictions  such  an  instruction  should  also  advise  the  jury 
that  they  are  the  exclusive  judges  of  the  facts  and  the  credibility  of  the 
witnesses,-^  or  that  it  is  for  them  to  judge  of  the  credibility  of  the 
testimony  whose  tendency  is  thus  indicated.^ ^ 


2  5  U.  S.  (Sup.)  Williams  v.  Con- 
ger, 125  U.  S.  397,  8  S.  Ct.  933,  31  L. 
Ed.  778. 

Ala.  Graves  v.  State,  52  So.  34, 
166  Ala.  671;  Grain  v.  State,  52  So. 
31,   166  Ala.   1. 

Ark.  Walker  v.  State,  212  S.  W. 
319,  138  Ark.  517;  Hogue  v.  State,  124 
S.  W.  783,  130  S.  W.  167,  93  Ark. 
316. 

Cal.  Teople  v.  Flannelly,  60  P. 
670,  128  Cal.  S3;  People  v.  Cum- 
mings,  113  Cal.  88,  45  P.  184 ;  Morris 
V.  Locbman,  68  Cal.  109,  8  P.  799. 

Ind.  White  V.  State,  54  N.  E.  763, 
153  Ind.  689 :  Huffman  v.  Cauble,  86 
Ind.  591 ;  Pittsburgh,  C.  &  St.  L.  Ry. 
Go.  V.  Sponier,  85  Ind.  165 ;  Helms 
V.  Wayne  Agricultural  Co.,  73  Ind. 
325,  38  Am.  Rep.  147;  Ball  v.  Cox,  7 
Ind.  453. 

Mass.  Garmody  v.  Boston  Gas- 
light Co.,  162  Mass.  539,  39  N.  E. 
184. 

Mich.  Campau  v.  Langley,  39 
Mich.  451,  33  Am.  Rep.  414. 

Minn.  State  v.  Minneapolis  Milk 
Co..  144  N.  W.  417,  124  Minn.  34.  51 
L.  R.  A.  (N.  S.)  244;  State  v.  Rose, 
47  Minn.  47.  49  N.  W.  404;  State  v. 
Taunt.  16  Minn.  109  (Gil.  99). 

Miss.  Garnett  v.  Kirkman,  33 
Miss.  389. 

Nev.  State  v.  Loveless.  30  P. 
1080.  17  Nev.  424;  State  v.  Watkins, 
11  Nev.  30. 

N.  Y.  People  v.  Walker,  83  N.  Y. 
S.  372.  85  App.  Div.  556,  judgment  af- 
firmed 70  N.  E.  1105.  178  N.  Y.  563. 

N.  C.  Lewis  v.  Norfolk  &  W.  Ry. 
Co..  43  S.  E.  919,  132  N.  C.  382. 

Or.  Smitson  v.  Southern  Pae.  Co., 
60  P.  907,  37  Or.  74 ;  Coos  Bav,  R.  & 
E.  R.  &  Nav.  Co.  V.  Siglin,  53  P.  504, 
34  Or.  SO. 


S.  C.  Wingo  V.  New  York  Life  Ins. 
Co.,  101  S.  E.  653. 

Va.  Michie  v.  Cochran,  25  S.  E. 
884,  93  Va.  641. 

■Wash.  Farraris  v.  S.  E.  Slade 
Lumber  Co.,  152  P.  680,  88  Wash.  106. 

Wis.  Spick  V.  State,  121  N.  W. 
664,  140  Wis.  104. 

Under  a  statute  prohibiting  the 
court  from  presenting  the  facts 
of  the  case  to  the  jury,  an  instruc- 
tion, in  a  murder  case,  that  there  is 
evidence  "to  the  effect"  or  "tending 
to  show"  a  certain  fact,  and  instruct- 
ing the  jui-y  that,  if  they  find  it  to  be 
a  fact,  to  consider  it  in  determining 
the  degree  of  the  defendant's  guilt,  is 
not  erroneous  as  being  a  presentation 
of  facts.  State  v.  Brown,  28  Or.  147, 
41  P.  1042. 

Instructions  not  proper  ivithin 
rule.  A  statement  that  "the  evi- 
dence on  the  part  of  the  state  goes  to 
show  that  this  defendant  fired  all 
three  of  those  shots"  goes  beyond  tho 
rule  that  the  judge  may  state  tend- 
ency of  evidence  on  both  sides,  and. 
invades  the  province  of  the  jury.  An- 
drews V.  State,  48  So.  858,  159  Ala.  14. 

In  Oregon  such  an  instruction  has 
been  mildly  criticized,  the  court  stat- 
ing that,  while  the  use  of  the  word 
"tending,"  to  a  jury  of  men  skilled  in 
the  law,  would  be  unexceptionable,  its 
use  with  the  ordinary  jury  is  likely 
to  mislead.  State  v.  Rader,  124  P. 
195,  62  Or.  37. 

2  6  Druse  v.  Wheeler,  26  Mich.  189; 
Berry  v.  State,  31  Ohio  St.  219,  27 
Am.  Rep.  506. 

2  7  State  v.  Rose,  47  Minn.  47,  49  N. 
W.  404. 

2  8  Davis  v.  Gerber,  69  Mich.  246, 
37  N.  W.  281. 


§  72  INSTRUCTIONS   TO   JURIES  126 

In  some  jurisdictions  the  power  of  the  court  to  give  such  an  in- 
struction is  made  to  depend  upon  whether  there  is  any  evidence  con- 
troverting the  evidence  tending  to  prove  the  specified  facts.  In  Iowa, 
in  the  absence  of  any  conflicting  evidence,  such  an  instruction  is  up- 
held,-^ while  in  Oklahoma,  if  there  is  evidence  both  affirming  and 
denying  the  existence  of  certain  facts  in  issue,  it  is  error  to  instruct  that 
the  evidence  tends  to  prove  such  facts.^*'  In  two  jurisdictions  an  in- 
struction stating  the  tendency  of  the  evidence  to  show  certain  facts 
seems  to  be  unqualifiedly  condemned  as  on  the  weight  of  the  evidence.^^ 

§  73.     Declaring  that  there  is  some  evidence  of  particular  facts 

In  accordance  with  the  general  rule  above  stated,  it  is  within  the  prov- 
ince of  the  court  to  instruct  that  there  is  some  evidence  of  certain  facts 
for  the  consideration  of  the  jury,^^  and  in  a  criminal  case  the  court 
may  in  some  jurisdictions  in  a  proper  case  instruct  that  there  is  suffi- 
cient evidence  to  sustain  a  conviction  if  the  juiy  believe  it,^^  or  if  it 
satisfies  the  jury  beyond  a  reasonable  doubt.^* 

2  9  State  V.  Meshek,  16  N.  W.  143,  32  Commonwealth    v.    Miilrey,    170 

61  Iowa,  316.  Mass.  103.  49  N.  E.  91 ;   People  v.  Min- 

30  St.  Louis  &  S.  F.  R.  Co.  v.  Wil-  gey,  103  N.  Y.  S.  627,  118  App.  Div. 
son,  124  P.  326,  32  Okl.  752.  6.52,  judgment  affirmed  82  N.  E.  728, 

31  Ga.     Stephens  v.  State,  45  S.  E.  190  N.  Y.  61. 

619.  lis  Ga.  762;    Chapman  v.  State,  33  People  v.  Johnson,  104  Cal.  418, 

34  S.  E.  369.  109  Ga.  157.  38  P.  91. 

Tex.    :McCleary  v.  State,  122  S.  W.  34  People  v.  Spiegel,  143  N.  Y.  107, 

26,  57  Tex.  Cr.  R.  139;    Cavaness  v.  38  N.  E.  284.  affirming  75  Hun,  161. 

State,  74   S.  W.  908,  45  Tex.  Cr.  R.  26  N.  Y.  S.  1041. 

209  ;    Cortez  v.  State  (Cr.  App.)  74  S.  In  Texas,  however,  it  has  been  held 

W.  907;   Hollar  v.  State  (Cr.  App.)  73  that  a  court   can  never  legitimately 

S.  W.  961;    Reese  v.  State  (Cr.  App.)  instruct  the  jury  that  any  evidence 

70  S.  W.  424 ;    Reese  v.  State,  68  S.  before  them  is  sufficient  to  convict  of 

W.  283,  44  Tex.  Cr.  R.  34 ;    Santee  v.  the  crime  charged.    Lunsford  v.  State, 

State  (Cr.  App.)  37  S.  W.  436.  9  Tex.  App.  217.    • 


127 


ASSUMPTIONS  AS  TO  EXISTENCE  OF  FACTS 


74 


CHAPTER  IV 

ASSUMPTION  OF  EXISTENCE  OR  NONEXISTENCE  OF  FACTS  BY  THE 

COURT 

Assumption  of  Facts  When  They  are  in  Dispute. 

§  74.  Statement  of  rule. 

75.  Limitations  or  qualifications  of  rule. 

76.  Specific  applications  of  rule  in  ci\nl  cases. 

77.  Specific  applications  of  rule  in  criminal  cases. 

B.     Facts  Admitted,  Not  Controverted,  or  Conclusively  Established. 

78.  General  rule. 

79.  Limitations  of  i*ule. 

80.  Specific  applications  of  rule. 

C.     Assumption  of  Nonexistence  of  Facts. 

81.  Where  there  is  some  evidence  of  particular  facts. 

82.  Where  no  conflict  in  evidence. 

A.  Assumption  of  Facts  When  They  are  in  Dispute 

§  74.     Statement  of  rule 

In  all  jurisdictions,  both  in  civil  ^  and  in  criminal  cases,"  the  rule 
is  that  instructions  which  assume  the  existence  of  material  facts  in 


1  tr.  S.  Snvder  v.  Rosenbaum,  .SO  S. 
Ct.  73,  215  U.'S.  261,  54  L.  Ed.  186,  af- 
firmincT  judgment  Snyder  v.  Stribling, 
89  P.  222,  18  Okl.  168 ;  (C.  C.  A.  Ga.) 
Southern  Rv.  Co.  v.  Hopkins,  161  F. 
266,  88  C.  C.  A.  .312 :  (C.  C.  A.  Mich.) 
Crosley  v.  Reynolds,  106  F.  640.  116 
C.  C.  A.  814;  (C.  C.  A.  Neb.)  Chicaejo, 
B.  &  Q.  R.  Co.  V.  Blunt.  206  F.  425, 
124  C.  C.  A.  307;  (C.  C.  A.  Va.)  Amer- 
ican Locomotive  Co.  v.  Thornton,  259 
F.  405,  170  C.  C.  A.  381. 

Ala.  Marbury  Lumber  Co.  v.  La- 
mont,  53  So.  773,  169  Ala.  33;  Garden 
V.  Houston  Bros.,  50  So.  1030,  163 
Ala.  300;  Selma  St.  &  S.  Ry,  Co.  v. 
Campbell,  48  So,  378,  158  Ala.  438. 

Ark.  Missouri  Pac.  R.  Co.  v.  Car- 
ey, 212  S.  W.  80,  138  Ark.  563 ;  Solo- 
mon V.  Robinson.  198  S.  W.  109;  St. 
Louis,  I.  M.  &  S.  R.  Co.  v.  Wirhel,  149 
S.  W.  92,  104  Ark.  236,  Ann.  Cas. 
1914C,  277;  Maryland  Casualty  Co. 
V.  Chew,  122  S.  W.  642,  92  Ark.  276. 

Cal.  Sterling  v.  Cole,  106  P.  602, 
12  Cal.  App.  93;  Johnston  v.  Beadle, 
91  P.  1011,  6  Cal.  App.  251. 


Colo.  King  Solomon  Tunnel  &  De- 
velopment Co.  V.  Mary  Verna  Mining 
Co..  127  P.  129.  22  Colo.  App.  528. 

Conn.  Kelley  v.  To^ti  of  Torring- 
ton,  68  A.  855,  80  Conn.  378. 

Del.  Daniels  v.  State,  48  A.  196,  2 
Peunewill,  586,  54  L.  R.  A.  286. 

Fla.  Southern  Pine  Co.  v.  Powell, 
37  So.  570,  48  Fla.  154 ;  Florida  Cent. 
&  P.  R.  Co.  V.  Foxworth,  25  So.  338, 
41  Fla.  1,  79  Am.  St.  Rep.  149. 

Ga.  Central  of  Georgia  Ry.  Co.  v. 
Woodall,  78  S.  E.  781,  13  Ga.  App.  50; 
Ozmore  v.  Coram,  65  S.  E.  448,  133 
Ga.  250;  Augusta  Ry.  &  Electric  Co. 
V.  Lyle,  60  S.  E.  1075,  4  Ga.  App.  113; 
Atlanta  &  B.  A.  L.  Ry.  v.  McManus, 
58  S.  E.  258,  1  Ga.  App.  302. 

111.  Flanagan  v.  Chicago  Citv  Rv. 
Co.,  90  N.  E.  688.  243  111.  456,  affirm- 
ing judgment  145  111.  App.  56  ;  Moreen 
V.  Devillez,  212  111.  App.  208 ;  Adams 
V.  Elgin  &  Belvidere  Electric  Co.,  204 
111.  App.  1 ;  Levy  v.  Chicago  Rys.  Co., 
167  111.  App.  527 ;   Forster,  Waterbury 

2  See  note  2  on  page  130. 


§  74  INSTRUCTIONS  TO  JURIES  128 

dispute  are  erroneous,  as  invading  the  province  of  the  jury,  and 


&  Co.  V.  Peer,  120  111.  App.  199 ;  Turn- 
er V.  Eighter,  120  111.  App.  131;  Faulk- 
ner V.  Birch,  120  111.  App,  281;  Illinois 
Cent.  R.  Co.  v.  Berry,  SI  III.  App.  17. 

Ind.  Kuhn  v.  Bowman,  93  N.  E. 
455,  46  Ind.  App.  677;  Southern  Ry. 
Co.  V.  Limback,  85  N.  E.  354,  172  Ind. 
89 ;  Sasse  v.  Rogers,  81  N.  E.  590,  40 
Ind.  App.  197;  Manion  v.  Lake  Erie 
&  W.  Ry.  Co.,  80  N.  E.  166,  40  Ind. 
App.  569. 

Iowa.  First  Nat.  Bank  of  Shenan- 
doah V.  Cook,  153  N.  W.  169, 171  Iowa, 
41 ;  Snips  v.  Minneapolis  &  St.  L.  R. 
Co.,  146  N.  W.  468,  164  Iowa,  530; 
Heisler  v.  Heisler,  131  N.  W.  676,  151 
Iowa,  503;  Jones  v.  De  Moss,  130 
N.  W.  914,  151  Iowa,  112;  NeviUe  v. 
Chicago  &  N.  W.  Ry.  Co.,  79  Iowa,  232, 
44  N.  W.  367;  Perigo  v.  Chicago,  R. 
I.  &  P.  R.  Co.,  55  Iowa,  326,  7  N.  W. 
627. 

Kan.  Busalt  v.  Doidge,  136  P.  904, 
91  Kan.  37. 

Ky.  Log  Mountain  Coal  Co.  v. 
White  Oak  Coal  Co.,  174  S.  W.  721, 
163  Ky.  842;  Baltimore  &  O.  S.  W. 
R.  Co.  V.  Sheridan,  101  S.  W.  928,  31 
Ky.  Law  Rep.  109. 

La.  State  v.  King,  64  So.  1007,  135 
La.  117. 

Md.  American  Fidelity  Co.  of 
Montpelier,  Vt.,  v.  State.  109  A.  99,  135 
Md.  326;  City  of  Baltimore  v.  Ault, 
94  A.  1044,  126  Md.  402 ;  Crown  Cork 
&  Seal  Co.  V.  O'Leary,  69  A.  1068,  108 
Md.  463 ;  Orem  Fruit  &  Produce  Co. 
of  Baltimore  City  v.  Northern  Cent. 
Ry.  Co.,  66  A.  436,  106  Md.  1,  124  Am. 
St.  Rep.  462. 

Mass.  Hannah  v.  Connecticut  Riv- 
er R.  Co.,  154  Mass.  529,  28  N.  E.  682. 

Mich.  Rimmele  v.  Huebner,  157  N. 
W.  10,  190  Mich.  247;  McQuillan  v. 
EcRerson,  144  N.  W.  510,  178  Mich. 
281 ;  Ruthruff  v.  Faust,  117  N.  W.  902, 
154  :Mich.  409;  Karrer  v.  City  of  De- 
troit. 106  N.  W.  64,  142  Midi.  331. 

Minn.  Larkin  v.  City  of  Minneap- 
olis. 127  N.  W.  1129,  112  Minn.  311. 

Miss.  Reid  v.  Yazoo  &  M.  V.  R. 
Co.,  47  So.  670,  94  Miss.  639;  Griffin 
V.  Griffin,  46  So.  945,  93  Miss.  651; 
Coleman  v.  Adair,  23  So.  369,  75  Miss. 
660. 

Mo.     Blair  v.  Union  Electric  Light 


&  Power  Co.,  213  S.  W.  976.  201  Mo. 
App.  571 ;  Oliver  v.  St.  Louis-San 
Francisco  Ry.  Co.  (App.)  211  S.  W.  699 ; 
Hunt  V.  City  of  St.  Louis,  2ll  S.  W, 
673,  278  Mo.  213 ;  Pearson  v.  Chicago, 
M.  &  St.  P.  Ry.  Co.  (App.)  200  S.  W. 
441;  Neeley  v.  Snyder  (App.)  193  S. 
W.  610;  Bryan  v.  United  States  In- 
candescent Lamp  Co.,  159  S.  W.  754, 
176  Mo.  App.  716;  Simon  v.  Metropoli- 
tan St.  Ry.  Co.,  132  S.  W.  250,  231  Mo. 
65,  140  Am.  St.  Rep.  498;  Wilson  v. 
City  of  St.  Joseph,  123  S.  W.  504,  139 
Mo.  App.  557;  WiUiamson  v.  Wabash 
R.  Co.,  122  S.  W.  1113,  139  Mo.  App. 
481 ;  Glaser  v.  Rothschild,  120  S.  W. 
1,  221  Mo.  180,  22  L.  R.  A.  (N.  S.)  1045, 
affirming  judgment  80  S.  W.  332,  106 
Mo.  App.  418;  Morrell  v.  Lawrence, 
101  S.  W.  571,  203  Mo.  363. 

Mont.  Stephens  v.  Elliott,  92  P.  45, 
36  Mont.  92 ;  Gallick  v.  Bordeaux,  78 
P.  583,  31  Mont.  328. 

Neb.  Willman  v.  Sandman,  162  N. 
W.  419,  101  Neb.  92 ;  Herold  v.  Coates, 
129  N.  W.  998,  88  Neb.  487 ;  Deitrich 
V.  Hutchinson,  20  Neb.  52,  29  N.  W. 
247. 

N.  Y.  Anderson  v.  Dyer,  176  N.  Y. 
S.  758;  Milano  v.  Stuyvesant  Auto 
Trading  Co.,  164  N.  Y,  S.  26 ;  Knapp  v. 
Niagara  Junction  Ry.  Co.,  158  N.  Y. 
S.  640,  171  App.  Div.  126. 

N.  C.  Third  Nat.  Bank  of  St.  Lou- 
is V.  Exum,  79  S.  E.  498,  163  N.  C.  199; 
Dixie  Fire  Ins.  Co.  v.  American  Bond- 
ing Co.,  78  S.  E.  430,  162  N.  C.  384; 
IMarcus  v.  C.  D.  Loane  &  Co.,  45  S. 
E.  354,  133  N.  C.  54. 

OMo.  Toledo  Rys.  &  Light  Co.  v. 
Mayers,  112  N.  E.  1014,  93  Ohio  St. 
304. 

Okl.  Chicago,  R.  I.  &  P.  Ry.  Co.  v. 
Stibbs,  87  P.  293,  17  Okl.  97. 

Or.  West  V.  McDonald,  136  P.  650, 
67  Or.  551. 

Pa.  Whitehead  v.  Pittsburg  Rys. 
Co..  79  A.  240,  230  Pa.  79. 

R.  I.  Taber  v.  New  York,  P.  &  B. 
R.  Co..  67  A.  9,  28  R.  I.  269. 

S.  C.  Pearson  v.  Piedmont  &  N. 
Ry.  Co.,  99  S.  E.  811,  112  S.  C.  220; 
Hiller  v.  Bank  of  Columbia,  79  S.  E. 
899.  96  S.  C.  74 ;  Lee  v.  Northwestern 
R.  Co..  65  S.  E.  1031,  84  S.  C.  125. 

S.  D.     Whaley  v.  Tidal,  132  N.  W. 


129  ASSUMPTIONS  AS  TO   EXISTENCE   OP   FACTS  §  74 

such  an  instruction  is  properly  refused.*    The  above  rule  has  been 


248,  27  S.  D.  642  ;  Richardson  v.  Dybe- 
dahl.  98  N.  ^Y.  164,  17  S.  D.  629. 

Tenn.  Ellis  V.  Spurgin,  48  Tenn. 
(1  Heisk.)  74. 

Tex.  Anders  v.  California  State 
Life  Ins.  Co.  (Civ.  App.)  214  S.  W.  497 ; 
Texas  &  racific  Coal  Co.  v.  Sherbley 
(Civ.  App.)  212  S.  W.  758;  Southern 
Traction  Co.  v.  Owens  (Civ.  App.)  198 
S.  W.  150;  Texas  &  P.  Ry.  Co.  v. 
Wooldridge  &  Hamhy.  126  S.  W.  603, 
59  Tex.  Civ.  App.  384;  St.  Louis  South- 
western Ry.  Co.  V.  Putton,  118  S.  W. 
798,  55  Tex.  Civ.  App.  59 ;  Chicago,  R. 
I.  &  G.  Ry.  Co.  V.  Groner,  111  S.  W. 
667,  51  Tex.  Civ.  App.  65 ;  Thompson 
V,  Galveston,  H.  &  S.  A.  Ry.  Co.,  106 
S.  W.  910,  48  Tex.  Civ.  App.  284 ;  Dal- 
las Consol.  Electric  St.  Ry.  Co.  v.  Ely 
(Civ.  App.)  91  S.  W.  887. 

Utah.  Bills  v.  Salt  Lake  City,  109 
P.  745,  37  Utah,  507;  Davidson  v. 
Utah  Independent  Telephone  Co.,  97 
P.  124,  34  Utah,  249. 

Va.  Cardozo  v.  Middle  Atlantic 
Immigration  Co.,  Inc.,  82  S.  E.  SO,  116 
Va.  342. 

W.  Va.  Williams  v.  Schehl,  100  S. 
E.  280,  84  W.  Va.  499;  Cobb  v.  Dun- 
levie,  60  S.  E.  384,  63  W.  Va.  398. 

Wis.  Northern  Supply  Co.  v.  Wan- 
gard,  100  N,  W.  1066,  123  Wis.  1,  107 
Am.  St.  Rep.  984;  Clifford  v.  Minneap- 
olis, St.  P.  &  S.  S.  M.  Ry.  Co.,  81  N. 
W.  143,  105  Wis.  618 ;  Owen  v.  Long. 
72  N.  W.  364,  97  Wis.  78;  Gillet  v. 
Phelps,  12  Wis.  392. 

IlliLstratioiLS  of  instructions  im- 
proper within  rule.  In  an  action 
for  injuries  to  street  passenger  an  in- 
struction that  if  plain tilf  attempted  to 
board  a  moving  car  he  was  guilty  of 
contributory  negligence  was  erroneous 
as  importing  some  degree  of  negli- 
gence on  defendant's  part.  Hanton  v. 
Pacific  Electric  Ry.  Co.,  174  P.  61,  178 
Cal.  616.  In  an  action  for  the  value 
of  cotton  destroyed  by  fire  while  on  a 
station  platform,  where  the  jury 
might  have  found  that  plaintiff  put 
the  cotton  on  the  platform  for  his  own 
convenience,  and  not  to  be  held  by 
defendant  as  warehouseman,  an  in- 
struction requiring  iilaintiff  to  estab- 
lish defendant's  negligence  would  have 
been  erroneous,  as  assuming  that  it 
Inst. TO  Jueies— 9 


held  the  cotton  as  warehouseman : 
negligence  not  otherwise  being  an  es- 
sential element.  St.  Louis  &  S.  F. 
Ry.  Co.  V.  Black,  218  S.  W.  377,  142 
Ark.  41.  In  an  action  to  recover  for 
personal  injuries  sustained  by  a  cattle 
shipper  who  had  been  invited  to  ride 
in  one  of  defendant's  trains,  as  the  re- 
sult of  being  brushed  off  a  cattle  car 
when  it  passed  under  a  bridge,  an  in- 
struction assuming  that  an  engine  is 
a  safe  place  in  which  to  ride  is  im- 
proper. Wall  v.  Chesapeake  &  O.  Ry. 
Co.,  210  111.  App.  136.  In  passenger's 
action  for  injuries  sustained  in  alight- 
ing from  train,  an  instruction  on  duty 
of  assistance,  which  assumed  the  fact 
in  issue,  that  place  where  passenger 
alighted  was  dangerous,  was  errone- 
ous. Nashville,  C.  &  St.  L.  Ry.  Co.  v. 
Newsome,  206  S.  W.  33,  141  Tenn.  8. 
In  a  servant's  action  for  injuries,  a 
charge  assuming  decrease  in  the  serv- 
ant's earning  capacity  as  a  proven 
fact  from  statement  of  a  physician 
that  plaintiff  would  always  have  a 
weak  arm  was  erroneous,  since  the 
weakened  condition  of  the  arm  need 
not  necessarily  decrease  plaintiff's 
earning  capacity.  Texas  &  Pacific 
Coal  Co.  V.  Ervin  (Tex.  Civ.  App.)  212 
S.  W.  234.  Where  suits  of  passenger 
in  automobile  and  of  the  driver's  ad- 
ministrator were  tried  together,  re- 
quested instruction  that,  if  either 
driver  or  passenger  was  guilty  of  neg- 
ligence contributing  to  the  accident, 
and  without  which  it  would  not  have 
occurred,  verdict  should  be  for  defend- 
ant in  both  cases,  was  erroneous,  as 
assuming  that  the  relation  of  the  oc- 
cupants warranted  imputing  negli- 
gence of  one  of  them  to  the  other. 
Robison  v.  Oregon-Washington  R.  «& 
Nav.  Co.,  176  P.  594,  90  Or.  490.  In 
action  for  injuries  sustained  by  plain- 
tiff while  driving  across  defendant's 
street  car  tracks  at  a  crossing,  an  in- 
struction as.suming  that  plaintiff,  when 
near  the  track,  was  in  a  position  of 
danger,  was  erroneous  as  invading  the 
province  of  the  jury.  Terre  Haute.  T 
&  E.  Traction  Co.  v.  Ellsbury  (Ind. 
App.)  123  N.  E.  810.    In  an  action  for 

3  See  note  3  on  page  135. 


INSTRUCTIONS  TO  JURIES 


130 


§74 

frequently  violated  by  instructions  given  or  requested  which,  in 


death  resulting  from  collision  between 
a  veliicle  driven  by  deceased  and  de- 
fendant's automobile,  it  is  error  to  in- 
struct that,  if  the  jury  believe  from 
the  evidence  that  at  time  of  the  acci- 
dent deceased  was  violating  an  ordi- 
nance regulating  the  manner  in  which 
vehicles  shall  proceed  in  turning  cor- 
ners to  the  left,  and  that  such  viola- 
tion was  negligence  which  proximate- 
ly contributed  to  the  accident,  then 
they  should  find  for  defendant,  as 
thereby  there  is  an  assumption  that 
violation  of  the  ordinance  was  conclu- 
sive of  the  fact  that  deceased  was  neg- 
ligent, instead  of  being,  at  the  most, 
mere  prima  facie  evidence  thereof. 
Culver  V.  Harris,  211  111.  App.  474. 

Instructions     not     objectionable 
under  rule.     An  instruction,  "If  the 
jury    find    the    issues    for    plaintiff, 
*     *     *     you  will      *     *     *     take  in- 
to consideration  mental  and  physical 
pain  endured   by   her   since   said  in- 
jury," etc.,  was  not  erroneous  as  as- 
suming   that    plaintiff    was    injured. 
Breen  v.  United  Rys.  Co.  of  St.  Louis 
(Mo.)  '204  S.  W.  521.     In  personal  in- 
jury action,  an  instrtiction,  authoriz- 
ing damages  in  such  reasonable  sum 
as  jury  shall  award  plaintilf  on  ac- 
count of  pain  and  anxiety  she  has  suf- 
fered by  reason  of  her  injuries,  was 
not   objectionable    as    assuming   that 
plaintiff  had  in  fact  suffered  pain  and 
anxiety,  though  there  was  testimony 
that  plaintiff  was  stolid  and  reticent 
concerning    her    injuries.    Brinck    v. 
Bradbury,   176   P.   690,    179   Cal.   376. 
Instruction  "that  the  law  does  not  jus- 
tify nor   excuse   parents  in  willfully 
and  maliciously  interfering  with  the 
domestic  affairs  of  their  married  chil- 
dren" is  not  subject  to  objection  that 
it  is  a  direct  assertion  by  the  court 
that  defendants  interfered  in  the  do- 
mestic affairs  of  plaintiff  and  her  hus- 
band.   Wagner  v.  Wagner    (Mo.  App.) 
215  S.  W.  784.     An  instruction  predi- 
cating verdict  for  plaintiff  on  a  find- 
ing tiiat  the  negligence,  if  any,  in  con- 
struction of  a  platform  consisted  in 
certain  defects,  was  not  erroneous  as 
assuming  as  a  fact  the  existence  of 
those  defects.     Deming  v.  Alpine  Ice 
Co.  (Mo.  App.)  214  S.  W.  271.    In  wag- 


on driver's  personal  injury  action 
against  street  railroad,  instruction 
limiting  consideration  of  reasonable 
care  to  the  situation  at  the  time  of 
the  accident,  and  not  upon  anything 
subsequently  discovered,  which  could 
not  with  reasonable  diligence  have 
been  discovered  before  accident,  was 
not  erroneous  in  assuming  that  wagon 
driver  was  not  negligent,  such  instruc- 
tion not  purporting  to  cover  all  mat- 
ters of  law  involving  right  of  recovery. 
Indianapolis  &  Cincinnati  Traction 
Co.  V.  Senour  (Ind.  App.)  122  N.  E. 
772.  Instruction  that  motorman,  op- 
erating street  car  at  reasonable  speed 
with  due  care,  may  assume  that  others 
on  the  street  will  exercise  ordinary 
care,  and  will  see  that  which  is  plainly 
to  be  seen,  was  not  objectionable,  as 
assuming  that  the  street  car  could  be 
plainly  seen.  Busch  v.  Los  Angeles 
By.  Corporation,  174  P.  665,  178  Cal. 
536,  2  A.  L.  R.  1607.  In  an  action  for 
injuries  received  in  collision  between 
vehicles  on  a  street,  an  instruction,  ex- 
pressly conditioned  on  the  jury  find- 
ing for  the  plaintiff  under  rules  given, 
one  of  which  was  an  instruction  stat- 
ing that  in  order  to  enable  plaintiff 
to  recover  she  must  establish  by  ti  fair 
preponderance  of  tbe  evidence  that 
she  received  some  part  of  injuries  as 
alleged  in  complaint,  does  not  assume 
the  fact  of  plaintiff's  injuries.  Spick- 
elmeir  v.  Hartman  (Ind.  App.)  123  N. 
E.  232. 

2  U.  S.  Dolan  v.  United  States  (C. 
C.  A.  Alaska)  123  F.  52,  59  C.  C.  A. 
176,  reversing  judgment  on  rehearing 
116  F.  578,  54  C.  C.  A.  34. 

Ala.  Pounds  v.  State,  73  So.  127, 
15  Ala.  App.  223;  Bone  v.  State,  68 
So.  702,  13  Ala.  App.  5;  Jones  v.  State, 
68  So.  690,  13  Ala.  App.  10 ;  Rector  v. 
State,  66  So.  857,  11  Ala.  App.  333; 
Brooks  V.  State,  62  So.  569,  8  Ala. 
App.  277,  judgment  reversed  64  So. 
295.  185  Ala.  1;  Naftel  v.  State,  57 
So.  386,  3  Ala.  App.  34;  Johnson  v. 
State,  55  So.  321,  1  Ala.  App.  102; 
Morris  v.  State,  41  So.  274,  146  Ala. 
66;  "Wilson  v.  State,  37  So.  93,  140 
Ala.  43 ;  Hall  v.  State,  32  So.  750,  134 
Ala.  90. 


131 


ASSUMPTIONS   AS  TO   EXISTENCE   OF   FACTS 


74 


referring  to  some  or  all  of  the  evidentiary  facts  necessary  to  be 


Ark.  Marsh  v.  State,  188  S.  W. 
815,  125  Ark.  282. 

Cal.  People  v.  McPherson,  91  P. 
1098,  6  Cal.  App.  266 ;  People  v.  Thom- 
son, 79  P.  435,  145  Cal.  717 ;  People  v. 
Matthai,  67  P.  694,  135  Cal.  442. 

Colo.  Harris  v.  People,  135  P.  785, 
55  Colo.  407. 

Conn.  State  v.  Alderman,  78  A. 
331.  S3  Coun.  597. 

Fla.  Bates  v.  State,  84  So.  373,  78 
Fla.  672  ;  Johnson  v.  State,  40  So.  678, 
51  Fla.  44;  Melbourne  v.  State,  40  So. 
189,  51  Fla.  69 ;  Wallace  v.  State,  26 
So.  713,  41  Fla.  547;  Doyle  v.  State, 
22  So.  272,  39  Fla.  155,  63  Am.  St.  Rep. 
159. 

Ga.  Wilson  v.  State,  70  S.  E.  193, 
8  Ga.  App.  816 ;  Phillips  v.  State,  62 
S.  E.  239,  131  Ga.  426;  Cooper  v. 
State,  59  S.  E.  20,  2  Ga.  App.  730. 

Idalio.  State  v.  Schweitzer,  111 
P.  130,  18  Idaho,  609. 

111.  People  V.  Pezutto,  99  N.  E. 
677,  255  111.  583;  Miller  v.  People, 
82  N.  E.  391,  229  111.  376;  People  v. 
Johnson,  150  111.  App.  424. 

Ind.  Koerner  v.  State,  98  Ind. 
7;    Binns  v.   State,  66   Ind.  428. 

Iowa.  State  v.  Teale,  142  N.  W. 
235,  162   Iowa,  451. 

Kan.  State  v.  Shew,  57  P.  137,  8 
Kan.  App.  679 ;  State  v.  Johnson,  50 
P.  907,  6  Kan.  App.  119. 

Ky.  Rand  v.  Commonwealth,  195 
S.  W.  802,  176  K.y.  343. 

La.  State  v.  Fontenot,  23  So.  634, 
50  La.  Ann.  537,  69  Am.  St.  Rep.  455. 

Mich.  People  v.  Auerbach,  141  N. 
W.  869,  176  Mich.  23,  Ann.  Cas. 
1915B,  557;  People  v.  Schick,  42  N. 
W.  1008,  '55  ]Mich.  592. 

Miss.  De  Silva  v.  State,  47  So. 
464.  93  Miss.  635. 

Mo.  State  v.  Fish,  195  S.  W.  997 ; 
State  V.  Langley,  154  S.  W.  713,  248 
Mo.  545;  State  v.  Webb.  146  S.  W. 
805,  163  Mo.  App.  275 ;  State  v.  Bon- 
ner, 77  S.  W.  463,  178  Mo.  424. 

Neb.  Titterington  v.  State.  110 
N.  W.  678.  78  Neb.  8;  Parker  v. 
State,  108  N.  W.  121,  76  Neb.  765. 

Nev.  State  v.  Buralli,  71  P.  532, 
27    Nev.    41. 

N.  Y.  People  v.  Brown,  96  N.  E. 
367,  203  'N.  T.  44,  Ann.  Cas.  1913A, 


732 ;  People  v.  Walker,  91  N.  E.  806, 
198  N.  Y.  329,  reversing  judgment  118 
N.  Y.  S.  11.32,  134  App.  Div.  909. 

N.  C.  State  v.  Hand,  86  S.  E. 
1005,  170  N.  C.  703 ;  State  v.  Medlin, 
36  S.  E.  344,  126  N.  C.  1127. 

Okl.  Gray  v.  State,  122  P.  265, 
7  Okl.  Cr.  102 ;  Kirk  v.  Territory,  60 
P.  797,  10  Okl.  46. 

Or.     State    V.    Stiles,    160    P.    126, 
81  Or.  497 ;    State  v.  Bock,  88  P.  318, 
49  Or.  25;    State  v.  Andrews,  58  P. 
,765,  35  Or.  388. 

Pa.  Commonwealth  v.  Ronello,  89 
A.  553,  242  Pa.  381;  Commonwealth 
V.  Calhoun,  86  A.  472,  238  Pa.  474. 

Tenn.  Powers  v.  State,  97  S.  W. 
815,  117  Tenn.  363. 

Tex.  Sarli  v.  State,  189  S.  W.  149, 
80  Tex.  Cr.  R.  161;  Leary  v.  State, 
117  S.  W.  822,  55  Tex.  Cr.  R.  547; 
Schwartz  v.  State,  111  S.  W.  399,  53 
Tex.  Or.  R.  449;  Hazlett  v.  State, 
(Cr.  App.)  96  S.  W.  36;  Spivey  v. 
State,  77  S.  W.  444,  45  Tex.  Cr.  R. 
496;  Bradshaw  v.  State,  70  S.  W. 
215,  44  Tex.  Cr.  R.  222;  Owens  v. 
State,  46  S.  W.  240,  39  Tex.  Cr.  R. 
391. 

Utah.  State  v.  Seymour,  163  P. 
789.  49  Utah,  285. 

Va.  Boswell  v.  Commonwealth, 
20  Grat.  860. 

Wash.  State  v.  Phillips,  67  P. 
608,  27  Wash.  364. 

W.  Va.  State  v.  Dickey,  33  S.  E. 
231,  46  W.  Va.  319 ;  State  v.  Robin- 
son, 20  W.  Va.  713,  43  Am.  Rep.  799. 

Wis.  Oupps  V.  State,  97  N.  W. 
210,  120  Wis.  504,  102  Am.  St.  Rep. 
996,  rehearing  denied  98  N.  W.  .546, 
120  Wis.  504,  102  Am.  St.  Rep. 
996. 

Instructions  obnoxious  to  rule. 
A  charge  that  the  absence  of  any 
probable  motive  for  the  commission 
of  the  crime  was  a  circumstance 
which  should  be  considered  in  de- 
fendant's favor.  State  v.  Bobbitt, 
114  S.  W.  511,  215  Mo.  10.  A  charge, 
on  a  prosecution  of  a  boy  under  1- 
years  old,  that,  in  determining 
whether  he  had  sufficient  intelligence 
to  entertain  a  criminal  intent,  the 
fact  that  he  was  a  bright  boy  may 
be    considered,    is    erroneous    in    as- 


§74 


INSTRUCTIONS   TO  JURIES 


132 


found  in  order  to  find  an  ultimate  fact,  have  assumed  the  existence 


suming  that  he  was  a  bright  boy. 
Neville  v.  State,  41  So.  1011,  148 
Ala.  681.  An  instruction  that,  if  de- 
fendant and  the  third  person  conniv- 
ed together  to  make  a  sale  to  the 
witness  for  the  purpose  of  evading 
the  law.  the  transaction  was  a  sale, 
is  erroneous  for  assuming  the  fact 
of  connivance,  not  shown  by  the  evi- 
dence. Randell  v.  State,  90  S.  W. 
1012.  49  Tex.  Cr.  R.  261.  An  in- 
struction on  a  trial  for  murder  that 
accused  could  not  invoke  the  aid  of 
the  doctrine  of  self-defense,  for  acts 
done  after  he  had  disabled  deceased 
with  a  pistol  shot,  is  erroneous,  as 
it  assumes  that  deceased  was  dis- 
abled. McCrory  v.  State  (Miss.)  25 
So.  671.  A  charge,  in  a  prosecution' 
for  homicide,  that  he  who  slays  an- 
other in  a  duel,  whether  formally  or 
suddenly  improvised,  and  however 
fairly  conductpd,  is  legally  a  murder- 
er, and  is  guilty  of  murder  is  er- 
roneous, as  assuming  that  tlie  alter- 
cation between  defendant  and  de- 
ceased constituted  a  duel.  Stringer 
T.  State  (Miss.)  38  So.  97.  A  charge, 
in  a  prosecution  for  assault  with  in- 
tent to  murder,  that  defendant  was 
attacked  at  his  own  house,  and  that 
the  law  does  not  require  that  he  re- 
treat in  order  to  plead  self-defense, 
and  the  principle  extends  to  his 
dwelling  house  with  so  much  addi- 
tional space  as  is  used  for  the  pur- 
pose of  a  dwelling  assumes  that  de- 
fendant was  attacked.  Pearson  v. 
State,  41  So.  733.  148  Ala.  670.  A 
requested  instruction  on  self-defense, 
commencing,  "If  you  believe  the  de- 
fendant, at  the  time  of  the  killing, 
had  a  reasonable  apprehension  and 
belief  that  deceased  was  about  to 
execute  his  threat  to  kill  him,"  is 
erroneous,  as  declaring  as  a  fact  that 
deceased  had  threatened  to  kill  de- 
fendant. People  V.  Roemer,  45  P. 
1003,  114  Cal.  51.  A  charge  in  a 
prosecution  for  homicide,  that  if,  at 
the  time  of  the  killing,  deceased  was 
attacking,  or  about  to  attack,  defend- 
ant with  a  deadly  weapon,  defend- 
ant was  not  bound  to  retreat,  assumes 
that  defendant  could  not  have  re- 
treated    without     endangering     his 


safety.  Gafiford  v.  State.  25  So.  10, 
122  Ala.  54.  A  charge  that,  if  de- 
ceased was  near  the  place  of  the 
killing,  in  concealment,  early  in  the 
morning  of  thp  killing,  and  this  fact 
was  communicated  to  accused,  he 
had  a  right  to  arm  himself,  and,  be- 
lieving that  deceased  had  left  the 
place  where  he  had  been  between  de- 
fendant and  his  oxen,  the  action  of 
defendant  in  hunting  his  oxen  was 
the  action  of  a  prudent  man,  and,  if 
assaulted,  he  was  justified  in  taking 
the  life  of  deceased.  Hisler  v.-  State, 
42  So.  692,  52  Fla.  30.  A  requested 
insti-uction  if  defendant  was  in  dan- 
ger of  his  life  or  of  serious  bodily 
harm,  or  if  he  reasonably  believed 
he  was,  and  defendant  was  free  from 
fault  in  bringing  on  difficulty,  he 
had  right  to  strike  in  self-defense, 
was  properly  refused,  because  as- 
suming that  defendant  used  no  more 
force  than  was  necessary  to  reiDel 
alleged  danger  to  his  life  or  the  ap- 
parent grievous  injury  to  his  person. 
Buckner  v.  State,  81  So.  687,  17  Ala. 
App.  57.  An  instruction,  in  a  prosecu- 
tion for  violating  a  city  ordinance  as 
to  transportation  of  intoxicating  liq- 
uor, that,  if  the  jury  believed  that  de- 
fendant "had  hired  a  taxicab  or  had 
the  control  or  direction  of  the  tax- 
icab in  which  the  suit  cases  con- 
taining liquor  were  carried"  from 
the  station  to  a  certain  point,  he 
was  transporting  liquor  within  the 
meaning  of  the  city  ordinance,  was 
erroneous  as  assuming  that  the  suit 
cases  were  carried  and  taken  by  de- 
fendant or  under  his  direction.  City 
of  Spokane  v.  Dale,  192  f".  921,  112 
Wash.  533.  A  statement  in  an  instruc- 
tion, if  "at  any  time  between  the  time 
they  took  these  turkeys  to  the  bug- 
gy," is  error,  as  assuming  a  fact ; 
the  evidence  being  conflicting  as  to 
who  took  them  there,  and  this  being 
a  matter  of  importance.  Common- 
wealth V.  Light,  45  A.  933,  195  Pa. 
St.  220.  An  instruction,  in  a  pros- 
ec-ution  for  concealing  stolen  prop- 
erty, that  if  defendant,  in  concealing 
the  property  as  alleged  in  the  indict- 
ment, etc.  Oddo  V.  State,  44  So.  646, 
152  Ala.  51.     An  instruction  that  de- 


133 


ASSUMPTIONS   AS   TO   EXISTENCE   OF   FACTS 


§74 


of  such  evidentiary  facts  or  which  state  that  if  a  certain  proposition 


fendant's  possession  of  a  buggy,  alleg- 
ed tc  have  been  stolen,  recently  after 
the  commission  of  the  offense,  "unsat- 
isfactorily accounted  for,"  was  prima 
facie  evidence  that  defendant  com- 
mitted the  offense  is  erroneous  as 
assuming  that  defendant's  explana- 
tion of  his  i)ossession  was  unsatis- 
factory. Miller  v.  People,  82  N.  E. 
391,  229  111.  376.  Where  accused  de- 
nied that  he  carried  a  weapon  at  all 
at  the  time  he  was  charged  with 
carrying  one  concealed,  an  instruc- 
tion "that  if  the  pistol"  was  carried 
so  exposed  to  view  that  it  could  be 
readily  recognized  as  a  pistol  he  car- 
ried it  openly,  but  if  he  carried  it 
concealed,  even  for  a  minute,  the  of- 
fense was  complete,  etc.,  was  erro- 
neous as  eliminating  the  defense  al- 
leged. Jenkins  v.  State,  58  S.  E. 
10G3,  2  Ga.  App.  626. 

Instructions  not  improper 
within  rule.  A  paragraph  in  an 
instruction  on  reasonable  doubt  that 
a  juror  may  not  create  materials  of 
doubt  by  resorting  to  trivial  supposi- 
tions and  remote  conjecture,  as  to  a 
possible  state  of  facts  different  from 
that  established  by  the  evidence. 
State  V.  Crean,  114  P.  603,  43  Mont. 
47,  Ann.  Cas.  1912C,  424.  An  in- 
struction in  a  prosecution  for  bigamy 
that,  in  determining  the  criminal  in- 
tent, the  jury  might  consider  the 
fact,  "if  such  be  the  fact,"  that  in 
making  application  for  license  to 
marry  defendant's  second  wife  he 
misstated  his  name  and  residence, 
and  falsely  concealed  his  former 
marriage,  was  not  objectionable  as 
assuming  that  defendant  in  fact  did 
so  conceal  such  former  marriage. 
Fletcher  v.  State.  81  N.  E.  1083,  169 
Ind.  77,  124  Am.  St.  Rep.  219.  An 
instruction  that,  where  two  or  more 
persons  are  associated  together  for 
purpose  of  doing  an  unlawful  act, 
the  act  of  one  is  deemed  act  of  all 
is  not  objectionable  as  assuming  ex- 
istence of  conspiracy.  State  v. 
Chong  Ben,  173  P.  258,  89  Or.  313. 
In  a  prosecution  of  two  defendants 
for  conspiracy,  an  instruction  that 
the  jury  may  convict  either  or  both 
of    the     defendants,     provided     that 


those,  the  one  or  both  to  be  convict- 
ed, conspired  together  or  with  some 
other  person  or  persons  jointly  indict- 
ed, or  that  the  jury  might  find  either 
or  both  not  guilty,  is  not  objectionable 
as  assuming  that  one  or  both  of  the 
defendants  were  to  be  convicted. 
Imboden  v.  People,  90  P.  60S,  40 
Colo.  142.  An  instruction,  in  a  pros- 
ecution for  forging  a  aeed.  tliat, 
while  the  jury  cannot  find  defendant 
guilty  on  proof  that  the  acknowli^da- 
ment  was  forged,  yet,  if  the  jury  be- 
lieve it  was  forged,  and  that  the 
body  of  the  deed  was  written  by  the 
same  person,  then,  in  determining 
whether  the  deed  was  a  forgery,  the 
forged  acknowledgment  can  be  con- 
sidered along  with  other  facts  and 
circumstances,  is  not  objectionable, 
as  assuming  that  the  acknowledg- 
ment was  forged.  State  v.  Pyscher, 
77  S.  W.  836,  179  jMo.  140.  An  in- 
struction, in  a  prosecution  for  the 
fraudulent  conversion  of  property, 
that  if  the  jury  believed  that  defend- 
ant was  in  the  possession  of  the 
property  of  another  by  virtue  of  a 
contract  of  hiring,  and  unlawfully 
converted  the  property  to  his  own 
use.  he  was  guilty,  etc.,  did  not  as- 
sume that  there  was  a  contract  of 
hiring.  Lewallen  v.  State,  87  S.  W. 
1159,  48  Tex.  Cr.  R.  283.  An  in- 
struction that,  if  accused  assaulted 
the  deceased,  the  latter  had  a  right 
to  use  such  force  as  was  necessary 
to  prevent  the  assault,  and  that,  if 
defendant  killed  the  deceased  when 
he  was  only  making  such  resistance 
as  was  necessary  to  defend  himself 
from  the  assault  of  defendant,  de- 
fendant would  be  justifiable  in  kill- 
ing deceased,  is  not  erroneous  as  as- 
suming that  defendant  assaulted  the 
deceased.  Tolbirt  v.  State,  53  S.  E. 
327,  124  Ga,  767.  An  instruction,  on 
a  prosecution  for  murder,  that  if 
the  jury  believe  that  defendant 
brought  on  the  difficulty,  and  was 
the  first  assailant,  he  cannot  avail 
himself  of  the  right  to  self-de- 
fense, however  imminent  to  the  dan- 
ger in  which  he  may  have  found 
himself  in  the  progress  of  the  affray, 
is  not  open  to  the  objection  that  it 


74 


INSTRUCTIONS   TO  JURIES 


134 


is  true  certain  results  will  follow,  and  in  the  hypothesized  proposi- 


assumes  there  was  a  difficulty,  and 
that  there  was  au  affray,  since,  in 
the  absence  of  a  difficulty  and  affray, 
the  killing  would  not  have  taken 
place.  Henry  v.  People,  65  X.  E. 
120,  19S  111.  162.  An  instruction  that 
if  defendant  was  without  fault  in 
bringing  on  the  shooting  at  a  place 
where  he  had  a  right  to  be,  and  was 
assaulted  by  the  injured  party,  and 
from  said  assault  defendant  believ- 
ed, and  had  reasonable  ground  to 
believe,  he  was  in  great  danger  of 
losing  his  life  or  receiving  great  bod- 
ily harm  from  the  injured  party,  ho 
would  be  justified  in  any  defense  nec- 
essary to  protect  himself,  and  in  that 
view  of  the  case  he  should  be  ac- 
quitted, and  if  the  jury  has  reason- 
able doubt  as  to  whether  the  defend- 
ant acted  in  self-defense  when  he 
fired  the  shot  he  should  not  be  con- 
victed, does  not  assume  that  defend- 
ant brought  on  the  shooting.  \Miit- 
ney  v.  State,  57  N.  E.  .39S,  154  Ind. 
573.  A  charge  in  homicide,  that  if 
deceased  cursed  defendant,  and  de- 
fendant, while  under  the  heat  of 
passion,  aroused  by  the  insult,  se- 
cured a  pistol,  and  killed  deceased, 
he  would  be  guilty  of  manslaughter, 
is  not  subject  to  the  objection  of  as- 
suming that  defendant  was  in  the 
heat  of  passion  aroused  by  having 
been  cursed  by  deceased.  IMoore  v. 
State.  .38  So.  504,  86  Miss.  160.  An 
instruction,  on  a  prosecution  for  mur- 
der, that,  if  defendant  had  been  in- 
foi-med  that  decedent  had  been  guilty 
of  insulting  conduct  toward  defencl- 
ant's  wife,  and  that  soon  thereafter 
defendant  met  decedent,  etc.,  was  not 
erroneous  as  tolling  the  jury  that 
the  insult  must  have  been  established 
as  a  fact.  Bays  v.  State.  99  S.  W. 
561,  50  Tex.  Cr.  E.  548.  In  a  prose- 
cution for  murder,  an  instruction 
that  defendant  could  not  justify  the 
killing  of  deceased  by  evidence  that, 
after  defendant  had  fired  the  fatal 
shot  and  killed  deceased,  friends  or 
relatives  of  deceased  fired  on  and 
wounded  defendant,  but  that  the  acts 
of  deceased  or  other  persons,  in  or- 
der to  give  defendant  the  right  to 
kill  in  self-defense,  must  have  occur- 


red or  existed  before  he  fired  the 
fatal  shot,  and  not  afterwards,  is  not 
erroneous  as  assuming  facts,  instead 
of  stating  them  hypothetically,  and 
thus  excluding  defendant's  theory  of 
justification.  Na.sh  v.  State,  95  S. 
W.  147,  79  Ark.  120.  On  a  prosecu- 
tion for  assault  with  intent  to  rape, 
an  instruction  that  if  the  jury  be- 
lieved beyond  a  reasonable  doubt 
that  defendant  induced  prosecutrix 
to  enter  his  buggy,  and  after  he  got 
her  in  the  buggy  he  took  hold  of  her 
with  intent  to  have  intercourse  with 
her,  against  her  will  and  with  an  in- 
tent to  accomplish  his  object  at  all 
events  by  his  strength  and  power 
against  any  resistance  she  might  of- 
fer, then  he  was  guilty  of  an  assault 
with  intent  to  rape,  whether  he  suc- 
ceeded in  his  purpose  or  not,  is  not 
erroneous  as  assuming  by  the  words 
"his  object"  that  he  had  a  criminal 
purpose.  Donovan  v.  People,  74  X. 
E.  772,  215  111.  520.  An  instruction 
on  a  prosecution  for  homicide  that 
if  defendant  slew  deceased  with  a 
razor,  and  that  said  razor  was  a 
deadly  weapon,  to  find  defendant 
guilty,  does  not  tell  the  jury  that  the 
razor  was  a  deadlv  weapon.  Spears 
V.  State,  .56  S.  W.  347.  41  Tex.  Cr. 
R.  527.  On  a  prosecution  for  homi- 
cide, an  instruction  that  though  there 
may  be  some  mental  derangement, 
still,  if  the  accused  at  such  time  had 
mental  capacity  sufficient  to  ade- 
quately comprehend  the  nature  and 
consequences  of  his  acts,  and  a  mind 
sufficient  to  deliberate  and  premedi- 
tate, and  to  form  an  intent  and  pur- 
pose to  kill — an  unimpaired  will  pow- 
er sufficient  to  control  an  impulse  to 
commit  crime — he  was  not  entitled 
to  an  acquittal  on  the  ground  of  men- 
tal incapacity,  is  not  bad  as  assum- 
ing that  accused  had  sufficient  men- 
tal capacity  to  commit  the  crime. 
Hoover  v.  State,  68  N.  E.  591,  161 
Ind.  348.  An  instruction  that  no 
man  can,  by  his  own  lawless  act, 
create  a  necessity  for  acting  in  self- 
defense,  when  considered  with  in- 
structions properly  defining  self-de- 
fense, is  not  erroneous  as  assuming 
that  defendant  created  the  necessity 


135 


ASSUMPTIONS  AS  TO   EXISTENCE   OF   FACTS 


74 


tion  facts  are  involved  which  are  assumed.*    So  such  rule  is  broken 


by  bis  own  lawless  act  to  produce  a 
fear  that  his  life  was  iu  clanger  from 
deceased,  and  talking  advantage  of 
the  plea  of  self-defense  made  it  nec- 
essary to  kill.  Robinson  v.  Territory, 
85  P.  4.51,  16  Okl.  241,  reversed  Same 
V.  Territory  of  Oklahoma,  14S  f. 
830,  78  C.  C.  A.  520.  A  charge,  in 
prosecution  for  incest,  that  if  jury 
believed  that  parties  were  uncle  and 
niece  they  would  be  within  statute. 
Griffin  v.  State,  202  S.  W.  87,  83  Tex. 
Cr.  R.  157.  An  instruction,  in  a 
prosecution  for  hog  theft,  that,  if 
the  offense  w^as  committed,  it  was 
complete  when  the  hog  was  taken, 
and  if  so  taken,  and  if  defendant 
was  guilty  as  a  principal  in  the  orig- 
inal taking,  under  circumstanceg 
making  it  theft,  he  could  not  be  re- 
lieved from  punishment  by  reason 
of  his  failure  to  aid  in  bringing  the 
hog  to  towm  after  such  taking,  if 
any.  Newberry  v.  State  (Tex.  Cr. 
App.)  74  S.  W.  774.  An  instruction 
on  a  trial  for  malicious  shooting, 
that  the  principles  of  the  law  of  self- 
defense  in  murder  cases  applied  to 
to  "malicious  shooting  cases."  does 
not  assume  the  fact  of  malice  on  the 
part  of  defendant,  since  the  terms 
used  indicated  the  class  of  cases  to 
v/hich  the  one  on  trial  belonged,  as 
shown  by  the  indictment  or  charge, 
rather  than  by  the  evidence,  and  re- 
ferred not  to  the  case  on  trial  but 
to  such  class  of  cases.  State  v.  Lav- 
in,  60  S.  E.  888,  64  W.  Va.  26.  An 
instruction  that  if  the  jury  found 
that  an  assault  with  Intent  to  rape 
was  upon  a  female  under  18  years, 
"to  wit,  of  the  age  of  15  years,"  does 
not  assume  the  age  of  the  victim  to 
be  15  years.  Dickens  v.  People,  152 
P.  909,  60  Colo.  141. 

3U.  S.  White  V.  Van  Horn,  159 
U.  S.  3,  15  Sup.  Ct.  1027,  40  L.  Ed. 
55. 

Ala.  Denton  Bros.  v.  Foster.  70 
So.  152,  195  Ala.  53;  Smith  v.  E.  T. 
Davenport  &  Co.,  68  So.  545,  12  Ala. 
App.  456;  Continental  Gin  Co.  v. 
Milbrat,  65  So.  424,  10  Ala.  App. 
351,  certiorari  denied  Ex  parte 
Continental  Gin  Co.,  66  So.  lOOS,  191 
Ala.  660 ;    Vinegar  Bend  Lumber  Co. 


V.  Soule  Steam  Feed  Works,  62  So, 
279,  182  Ala.  146;  Western  Union 
Telegraph  Co.  v,  Burns,  51  So.  373, 
164   Ala.    252. 

Ark.  St.  Louis,  I.  M.  &  S.  Ry.  Co. 
V.  Rhoden,  123  S.  W.  798,  93  Ark. 
29,  137  Am.  St.  Rep.  73,  20  Ann. 
Cas.  915;  St.  Louis,  I.  M.  &  S.  Ry. 
Co.  V.  Fambro,  114  S.  W.  230,  88  Ark. 
12 ;  Western  Coal  &  Mining  Co.  v. 
Burns,  104  S.  W.  535.  84  Ark.  74. 

Cal.  Tousley  v.  Pacific  Electric 
Ry.  Co.,  137  P.  31,  166  Cal.  457;  Still 
V.  San  Francisco  &  N.  W.  Ry.  Co., 
98  P.  672,  154  Cal.  559,  20  L.  R.  A. 
(N.  S.)  322,  129  Am.  St.  Rep.  177. 

Colo.  Finding  v.  Gitzen,  131  P. 
1042,  24  Colo.  38 ;  Patrick  Red  Sand- 
stone Co.  V.  Skoman,  1  Colo.  App. 
323,  29  Pac.  21;  Downing  v.  Brown, 
3  Colo.  571. 

Conn.  Wilson  v.  Waltersville 
School  Dist.,  46  Conn.  400;  Miles  v. 
Douglas,  34  Conn.  393. 

111.  Commercial  State  Bank  of 
Forreston  v.  Folkerts,  200  111.  App. 
385 ;  Carlisle  v.  Novak,  196  111.  App. 
385 ;  Muenter  v.  Moline  Plow  Co., 
193  111.  App,  261;  McDermott  v. 
Griffiths,  190  111.  App.  53 ;  Devine  v. 
L.  Fish  Furniture  Co.,  189  111.  App. 
136;  Wilkinson  v.  Jiltua  Life  Ins. 
Co.,  144  111.  App.  38,  judgment  affirm- 
ed 88  N.  E.  550,  240  111.  205,  25  L.  R. 
A.  (N.  S.)  1256,  130  Am.  St.  Rep.  269. 

Ind.  Cleveland,  C,  C.  &  St.  L. 
Ry.  Co.  V.  Cloud,  110  N.  E.  81.  61 
Ind.  App.  256;  Lake  Shore  &  M.  S. 
Ry.  Co.  V.  W.  H.  Mclntyre  Co.,  108 
N.  E.  978,  60  Ind.  App.  191 ;  Ohio  & 
M.  Ry.  V.  Pearcy,  27  N.  E.  479,  128 
Ind.  197. 

Iowa.  Severs  v.  Cleveland  Coal 
Co.,  159  N.  W.  194,  179  Iowa,  2,35; 
Case  V.  Chicago  Great  Western  Rv. 
Co.,  126  N.  W.  1037,  147  Iowa,  747; 
Connors  v.  Chingren,  82  N.  W.  934, 
111  Iowa,  437. 

Kan.  Baughman  v.  Penn,  33  Kan. 
504.  6  P.  890;  Jardicke  v.  Scrafford, 
15  Kan.  120. 

Ky.  Louisville  City  Ry.  Co.  v. 
INIercer,  11  Ky.  Law  Rep.  (abstract) 
810. 

Md.     American  Towing  &  Lighter- 

•4  See  note,  on  page  136. 


74 


INSTRUCTIONS   TO  JURIES 


136 


by  instructions  which,  in  leaving  to  the  jury  the  question  of  wheth- 


Ing  Co.  V.  Baker-Wliiteley  Coal  Co., 
75  A.  341,  111  Md.  504;  Monumental 
Brewing  Co.  v.  Larrimore,  72  A.  596, 
109   Md.   682. 

Mass.  Bi.sbee  v.  McManus,  118 
N.  E.  192,  229  Mass.  124;  Dunham 
V.  Holmes,  113  N.  E.  845,  225  Mass. 
68;  Edwards  v.  Willey,  107  N.  E. 
450,  219  Mass.  443;  Maionica  v.  Pis- 
copo,  104  N.  E.  839,  217  Mass.  324; 
Clark  V.  American  Express  Co.,  S3  N. 
E.  365.  197  Mass.  100. 

Minn.  Macy  v.  St.  Paul  &  D.  Ry. 
Co.,  35  Minn.  200,  28  N.  W.  249; 
Faber  v.  St.  Paul,  M.  &  M.  Ry.  Co., 
29   Minn.   465,   13   N.   W.   902. 

Mo.  Lamport  v.  General  Acci- 
dent, Fire  &  Life  Assur.  Corp.,  197 
S.  W.  95,  272  Mo.  19;  Carpenter  v. 
Oruendler  Mach.  Co.,  141  S.  W.  1147, 
162  Mo.  App.  296;  Hartley  v.  Cal- 
breath,  106  S.  W.  570,  127  Mo.  App. 
559. 

Mont.  Trogdon  v.  Hanson  Sheep 
Co..  139  P.  792,  49  Mont.  1 ;  Lindsley 
V.  INTcGrath,  87  P.  961,  34  Mont.  564. 
Neb.  Van  Dorn  v.  Kimball,  160 
N.  W.  953,  100  Neb.  590;  Ottens  v. 
Fred  Krug  Brewing  Co.,  78  N.  W. 
622.  58  Neb.  331. 

N.  J.  Heindel  v.  Hetzel,  82  A. 
511. 

N.  Y.  Schoenholtz  v.  Third  Ave. 
R.  Co.  (Sup.)  16  ]\Iisr.  Rep.  7.  37  N. 
Y.  S.  682  ;  Rettig  v.  Fifth  Ave.  Transp. 
Co.  (Super.)  6  Misc.  Kep.  328.  26  N.  Y. 
S.  896:  Trask  v.  Payne,  43  Barb.  569. 
N.  C.  Pigford  v.  Norfolk-South- 
ern R.  Co..  75  S.  E.  860,  160  N.  C.  93. 
44  L.  R.  A.  (N.  S.)  865 ;  Horton  v. 
Seaboard  Air  Line  Ry.,  58  S.  E.  993, 
145  N.  C.  132. 

N.  D.  Landis  v.  Fyles,  120  N.  W. 
566.  18  N.  D.  587. 

Okl.  Waldock  v.  First  Nat.  Bank 
of  Idabel,  143  P.  53,  43  Old.  348. 

Or.  Kemp  v.  Portland  Ry.,  Light 
&  Power  Co.,  145  P.  274,  74  Or.  258 ; 
Heiser  v.  Shasta  Water  Co.,  143  P. 
917.  71  Or.  566. 

Pa.  Fern  v.  Pennsylvania  R.  Co., 
95  A.  590,  250  Pa.  487 ;  Friodland  v. 
Altoona  &  I>ogan  Valley  Electric  Ry. 
Co.,  59  Pa.  Super.  Ct.  539. 

R.  I.  National  Machinery  Co.  v. 
Kirby,  94  A.  149. 


S.  C.  Southern  Realty  &  Inv.  Co. 
V.  Keenan,  S3  S.  E.  39,  99  S.  C.  195 ; 
Thornton  v.  Seaboard  Air  Line  Ry., 
82  S.  E.  433,  98  S.  C.  348. 

S.  D.  Davis  v.  C.  &  J.  Michel 
Brewing  Co.,  140  N.  W.  694,  31  S.  D. 
284;  Arneson  v.  Spawn,  2  S.  D.  269, 
49  N.  W.  1066,  39  Am.   St.   Rep.  783. 

Tenn.  Gulf  Compress  Co.  v.  In- 
surance Co.  of  Pennsylvania,  167  S. 
W.  850.  129  Tenn.  586. 

Tex.  Chicago,  R.  I.  &  G.  Ry.  Co. 
v.  Smith  (Civ.  App.)  197  S.  W.  614; 
McCulloh  V.  Reynolds  Mortgage  Co. 
(Civ.  App.)  196  S.  W.  565 ;  Fidelity  & 
Deposit  Co.  of  Maryland  v.  Anderson 
(Civ.  App.)  189  S.  W.  346 ;  Ft.  Worth 
&  D.  C.  Ry.  Co.  V.  Wlninger  (Civ. 
App.)  151  S.  W.  586;  Pecos  &  N.  T. 
Ry.  Co.  v.  Coffman  (Civ.  App.)  121 
S.  W.  218. 

Vt.  Taplin  &  Rowell  v.  Marcy,  71 
A.   72,   81   A^t.   428. 

Wash.  Larson  v.  McMillan,  170 
P.  324,  99  Wash.  626;  Phoenix  Assur. 
Co.  v.  Columbia  &  P.  S.  R.  Co.,  159 
P.  369.  92  Wash.  419,  opinion  modi- 
fied 162  P.  519,  94  Wash.  323. 

W.  Va.  Harrison  v.  Farmers' 
Bank,  4  W.  Va.  393. 

Wis.  Mickuczauski  v.  Helmholz 
Mitten  Co..  134  N.  W.  369,  148  Wis. 
153 ;  Ferguson  v.  Truax,  110  N.  W. 
395,  132  Wis.  478,  rehearing  granted 
111  N.  W.  657,  judgment  reversed  112 
N.  W.  513,  14  L.  R.  A.    (N.   S.)  350, 

13  Ann.  Cas.  1092. 

4  Ala.  Birmingham  Ry.,  Light  & 
Power  Co.  v.  Lipscomb,  73  So.  962, 
198  Ala.  653;  Western  Ry.  of  Ala- 
bama V.  Mays,  72  So.  641,  197  Ala. 
367;  Alabama  Great  Southern  R.  Co. 
V.  Hanbury,  49  So.  467,  161  Ala.  358: 
Mobile  Light  &  R.  Co.  v.  Walsh,  40 
So.  560,  146  Ala.  295;  Birmingham 
Ry.,  Light  &  Power  Co.  v.  IMullen.  35 
So.  701,  138  Ala.  614;  Richmond  & 
D.  R.  Co.  V.  Greenwood,  99  Ala.  501, 

14  So.  495 ;    Alabama  Great  Southern 
R.  Co.  V.  Roebuck,  76  Ala.  277. 

Cal.  Kahn  v.  Triest-Rosenberg 
Cap  Co.,  73  P.  164,  139  Cal.  340. 

Fla.  Florida  East  Coast  Ry.  Co., 
V.  jNIcElroy,  72  So.  459,  72  Fla.  90. 

111.  Illinois  Cent.  R.  Co.  v.  John- 
son, 77  N.  E.  592,  221  lU.  42,  afltirming 


137 


ASSUMPTIONS  AS  TO  EXISTENCE  OF  FACTS 


74 


er  a  party  had  knowledge  of  certain  matters,  assume  the  existence 


judgment  123  111.  App.  300;  Mom- 
ence  Stone  Co.  v.  Turrell,  68  N.  E. 
1078.  205  111.  515,  affirming  judgment 
106  111.  App.  160;  Chicago  &  A.  R. 
Co.  V.  Winters,  51  N.  B.  901,  175  111. 
293.  affirming  judgment  65  111.  App. 
435 ;  Lord  v.  Board  of  Ti-ade  of 
Wichita,  45  N.  E.  205,  163  111.  45; 
<^hicago.  St.  L.  &  P.  R.  Co.  v.  Hutch- 
inson, 120  111.  587,  11  N.  E.  855; 
Adams  v.  Elgin  &  Belvidere  Electric 
Co..  204  111.  App.  1;  Osborn  v.  City 
of  Mt.  Vernon.  197  HI.  App.  267 ;  Chi- 
cago &  A.  R.  Co.  V.  Gore,  92  111.  App. 
41S;  Chicago  &  A.  R.  Co.  v.  Bloom- 
field.  7  111.  App.  (7  Bradw.)  211. 

Iowa.  Selensky  v.  Chicago  Great 
Western  Ry.  Co.,  94  N.  W.  272,  120 
Iowa.   113. 

Md.  Baltimore  &  O.  R.  Co.  v. 
State.  64  A.  304,  104  Md.  76. 

Mich.  McCullough  v.  Minneapo- 
lis. St.  P.  &  S.  S.  M.  Ry.  Co.,  101 
Mich.  234.  59  N.  W.  618. 

Mo.  Klein  v.  St.  Louis  Transit 
Co.,  93  S.  W\  281.  117  Mo.  App.  691 ; 
Freeman  v.  ^Metropolitan  St.  Ry.  Co., 
68  S.  W.  1057,  95  IMo.  App.  94;  Gar- 
esche  v.  Boyce,  8  Mo.  228. 

N.  M.  Prvor  v.  Portsmouth  Cat- 
tle Co.,  6  N.  M.  44,  27  P.  327. 

N.  C  Bumgardner  v.  Southern 
Ry.  Co.,  43  S.  E.  948,  1-32  N.  C.  4.38. 

Tex.  Gulf,  C.  &  S.  F.  Rv.  Co.  v. 
Sullivan  (Civ.  App.)  190  S.  W.  739; 
Dallas  Consol.  Electric  St.  Ry.  Co.  v, 
Kelley  (Civ.  App.)  142  S.  W.  1005 ;  St. 
Louis,  S.  F.  &  T.  Ry.  Co.  v.  Bowles, 
131  S.  W.  1176,  63  Tex.  Civ.  App.  23 ; 
Long  V.  Consumers'  Light  &  Heating 
Co.,  121  S.  W.  172,  55  Tex.  Civ.  App. 
298;  Suderman  &  Dolson  v.  Kriger, 
109  S.  W.  373.  50  Tex.  Civ.  App.  29 ; 
Texas  Midland  R.  Co.  v.  Booth,  80  S. 
W.  121,  35  Tex.  Civ.  App.  322;  Texas 
&  P.  Ry.  Co.  V.  Berry^  72  S.  W.  423, 
32  Tex.  Civ.  App.  259 ;  Gulf,  C.  &  S. 
F.  Ry.  Co.  V.  Shelton,  69  S.  W.  653,  30 
Tex.  Civ.  App.  72,  rehearing  denied  70 
S.  W.  .359,  affirmed  72  S.  W.  165,  96 
Tex.  .301. 

Wash.  Wren  v.  Citv  of  Seattle, 
170  P.  342,  100  Wash.  67,  3  A.  L.  R. 
1123. 

Instructions  improper  x^ithin 
rule.     An  instruction  that,  if  a  car- 


rier's agent  was  negligent  in  deliver- 
ing to  plaintiff's  wife  a  ticket  to  the 
wrong  station,  and  if  such  negligence 
directly  and  proximately  produced 
any  injury,  such  as  the  allegations  and 
proof  established,  if  any,  tlien  defend- 
ants were  liable  for  such  injuries  as 
were  created  as  the  direct  and  proxi- 
mate cause  thereof,  if  any,  was  objec- 
tionable as  on  the  weight  of  the  evi- 
dence, and  as  inducing  the  jury  to 
believe  that  it  was  established  that 
the  agent  was  negligent  in  selling  the 
ticket,  and  that  such  negligence  re- 
sulted in  injury  to  plaintiff's  wife. 
International  &  G.  N.  R.  Co.  v.  Doolan, 
120  S.  W.  1118,  56  Tex.  Civ.  App.  503. 
An  instruction,  in  a  action  by  an  em- 
ploye for  injuries  by  a  ladder  break- 
ing, in  which  there  was  no  evidence  a& 
to  how  he  adjusted  his  weight  in  de- 
scending the  ladder,  that  if  it  broke 
becau.se  he  improperly  adjusted  his 
weight  on  it  .so  as  to  throw  his  weight 
on  one  side  piece,  and  if  he  had  not 
so  thrown  his  weight,  hut  had  kept  it 
leaning  on  the  ladder  in  the  way  it 
was  intended  the  ladder  should  c-arry 
it,  the  ladder  would  not  have  broken,, 
he  could  not  recover.  Adams  v.  Gulf. 
C.  &  S.  F.  Ry.  Co.  (Tex.  Civ.  App.) 
105  S.  W.  526.  An  instruction,  in  an 
action  by  a  servant  against  a  rail- 
road company  for  injuries,  that  if  de- 
fendant's servants,  in  charge  of  its 
locomotive,  knew  or  could  have  known 
that  plaintiff  was  in  the  car  to  which 
the  coupling  was  made,  and  of  his  per- 
ilous condition  and  surroundings 
therein,  and  they  negligently  propelled 
defendant's  locomotive  against  the  car 
with  greater  force  than  necessary, 
causing  the  car  door  to  fall  on  him, 
and  that  plaintiff,  in  remaining  in  the 
car,  exercised  ordinary  care,  they 
should  find  for  plaintiff,  is  erroneous, 
as  it  assumes  that  plaintiff  was  in  a 
perilous  position.  St.  Louis  S.  W.  Ry. 
Co.  of  Texas  v.  Sibley,  68  S.  W.  516,  29 
Tex.  Civ.  App.  396.  An  instruction,  in 
an  action  by  a  servant  against  a  rail- 
road for  injuries  received  while  in  the 
latter's  employ,  that,  if  defendant's 
servants  in  charge  of  its  locomotive 
knew,  or  could  have  known,  that 
plaintiff  was  in  the  car  to  which  cou- 


75 


INSTRUCTIONS   TO  JURIES 


138 


of  such  matters,^  or  by  instructions  on  whether  a  wrong-  has  been 
done  or  a  breach  of  contract  committed,  which  assume  that  dam- 
ages have  resulted  from  any  such  wrong  or  breach  of  contract,^  or 
by  instructions  on  the  measure  of  damages  which  assume  that  the 
alleged  tort  or  breach  of  contract  on  which  the  action  is  founded 
was  committed,'^  or  by  instructions  on  the  right  to  exemplary  dam- 
ages which  assume  that  the  tort  for  which  the  action  is  brought  is 
of  such  a  character  as  to  warrant  the  allowance  of  exemplary 
damages.* 

§  75.     Limitations  or  qualifications  of  rule 

An  instruction  which  merely  asserts  an  abstract  legal  propo- 
sition, without  attempting  to  apply  it  to  the  facts  in  the  case  on  trial, 
does  not  assume  the  existence  of  facts  within  the  above  rule.^     It 


pling  was  made,  and  of  bis  perilous 
condition  and  surroundings  tlierein, 
and  tliey  negligently  propelled  defend- 
ant's locomotive  against  the  car  with 
greater  force  than  necessary,  causing 
the  car  door  to  fall  on  plaintiff,  and 
that  plaintiff,  in  remaining  in  the  car, 
exercised  ordinary  care,  they  should 
find  for  the  plaintiff.  St.  Louis  S.  W. 
Ry.  Co.  of  Texas  v.  Sibley,  68  S.  W. 
516,  29  Tex.  Civ.  App.  396.  Where  a 
servant  of  a  railroad  company  was 
killed  by  the  falling  of  a  car  which 
was  raised  upon  jacks,  because  of  the 
breaking  of  a  timber  upon  which  one 
of  the  jacks  rested,  and  it  was  an 
issuable  fact  whether  the  servant  was 
negligent  in  using  that  timber,  a 
charge  that,  if  the  falling  of  the  car 
was  caused  by  the  breaking  of  the 
timber,  there  could  be  no  recovery, 
was  properly  refused,  being  in  effect 
a  peremptory  instruction.  Gulf,  C.  & 
S.  F.  Ry.  Co.  v.  Kennedy  (Tex.  Civ. 
App.)  139  S.  W.  1009.  An  instruction, 
in  an  action  to  recover  damages  for 
the  obstruction  of  navigable  waters, 
thereby  preventing  plaintiff  from 
floating  his  logs  to  market,  directing 
the  jury  to  find  for  plaintiff,  if  they 
believed  from  the  preponderance  of 
the  evidence  that  defendant  unreason- 
ably detained  plaintiff's  logs  by  reason 
of  wrongfully  obstructing  their  pas- 
sage "along  said  navigable  waters,"  is 
incorrect  as  being  on  the  weight  of 
the  evidence ;  the  question  of  the  nav- 
igability of  those  waters  being  contro- 
verted.   Orange  Lumber  Co.  v.  Thomp- 


son  (Tex.   Civ.  App.)   113   S.  W.  563. 

5  Straight  Creek  Coal  Co.  v.  Han- 
ey's  Adm'r,  87  S.  W.  1114,  27  Ky. 
Law  Rep.  1117. 

6  Walter  v.  Alabama  Great  South- 
ern R.  Co.,  39  So.  87,  142  Ala.  474; 
Crossley  v.  St.  Louis,  I.  M.  &  S.  Ry. 
Co.,  199  111.  App.  195;  Dougherty  v. 
"^'anderpool,  35  Miss.  165 ;  Gulf.  C.  & 
S.  F.  Ry.  Co.  v.  White  (Tex.  Civ.  App.) 
32  S.  W.  322. 

7  111.  Gibbons  v.  Southern  Illinois 
Ry.  &  Power  Co.,  199  111.  App.  154. 

Ind.     Steele  v.  Davis,  75  Ind.  191. 

Micli.  Prentiss  v.  Ross'  Estate,  96 
Mich.  S3,  55  N.  W.  613. 

Minn.  Smith  v.  Dukes,  5  Minn. 
373  (Gil.  301). 

Mo.  Orscheln  v.  Scott,  79  Mo.  App. 
534. 

Pa.  Hayes  v.  Pennsylvania  R.  Co., 
45  A.  925,  195  Pa.  184. 

Tex.  Strawn  Coal  Co.  v.  Trojan 
(Civ.  App.)  195  S.  W.  256;  Internation- 
al &  G.  N.  R.  Co.  V.  Bingham.  89  S. 
W.  1113,  40  Tex.  Civ.  App.  469;  St. 
Louis  S.  W.  Ry.  Co  v.  Smith  (Civ. 
App.)  63  S.  W..  1064. 

8  Percifull  v.  Coleman,  72  S.  W.  29, 

24  Ky.  Law  Rep.  1685. 

9  People  V.  Wilkins,  111  P.  612,  15S 
Cal.  530;  People  v.  Lawrence,  76  P. 
893,  143  Cal.  148,  68  L.  R.  A.  193; 
Florida  Cent.  &  P.  R.  Co.  v.  Foxworth, 

25  So.  338,  41  Fla.  1,  79  Am.  St.  Rep. 
149;  Illinois  Steel  Co.  v.  Hanson,  97 
111.  App.  469,  judgment  aflirmed  195 
111.  106,  62  N.  E.  918. 


139 


ASSUMPTIONS   AS  TO   EXISTENCE   OF   FACTS 


75 


is  not  improper  for  the  court  to  assume  facts  merely  for  the  purpose 
of  illustrating  the  law  of  the  case.^®  The  court  may  assume  facts 
which  are  a  matter  of  common  knowledge,  and  of  which,  therefore, 
it  may  take  judicial  notice,^^  and  a  statement  by  the  court  of  the 
claims  of  the  parties,  as  made  in  their  pleadings  or  otherwise,  is  not 
objectionable  as  assuming  the  existence  of  the  facts  alleged  as  the 
basis  of  such  claim ;  ^^  this  rule  applying  to  statements  by  the 
court  ill  a  criminal  prosecution  as  to  the  theory  of  the  prosecution 
or  as  to  matters  alleged  in  the  indictment  or  information.^^ 

An  instruction  cannot  be  objected  to,  as  assuming  facts,  if  it 
submits  such  facts  as  issues  to  the  jury.^^    Thus  an  instruction  that 


10  Miller  v.  State,  74  So.  840,  16  Ala. 
App.  3 ;  Masters  v.  Town  of  Warren, 
27  Conn.  293. 

11  U.  S.  (C.  C.  N,  Y.)  Hoagland  V. 
Canfield,  160  F.  146. 

Cal.  People  v,  Maves,  45  P.  S60, 
113  Cal.  618. 

111.  Harris  v.  Shebek.  151  111.  287, 
37  N.  E.  1015 ;  City  of  Joliet  v.  Shu- 
feldt,  144  111.  403.  32  N.  E.  969,  .36 
Am.  St.  Rep.  453,  18  L.  R.  A.  750,  af- 
firming 42  111.  App.  208. 

Mich.  Lewis  v.  Bell,  109  Mich. 
189,  66  N.  W.  1091. 

Mo.  State  v.  Nerzinger,  119  S.  W. 
379,  220  Mo.  36. 

Utali.  Spiking  v.  Consolidated  Ry. 
&  Power  Co.,  93  P.  838,  33  Utah,  313. 

12  U.  S.  (C.  C.  A.  Alaska)  Lind- 
blom  V.  Fallett,  145  F.  805,  76  C.  C.  A. 
369. 

Cal.  Anderson  v.  Seropian,  81  P. 
521,  147  Cal.  201;  Carraher  v.  San 
Francisco  Bridge  Co.,  81  Cal.  98,  22 
P.  480 ;  Jarman  v.  Rea,  70  P.  216,  137 
Cal.  339. 

Colo.  De  St.  Aubin  v.  Field,  62  P. 
199,  27  Colo.  414. 

Fla.  Florida  Ry.  Co.  v.  Dorsey,  52 
So.  963,  59  Fla.  260. 

111.  Illinois  Cent.  R.  Co.  v.  Daven- 
port, 52  N.  E.  266,  177  111.  110,  affirm- 
ing judgment  75  111.  App.  579;  Nipper 
V.  Wabash  R.  Co.,  187  111.  App.  353. 

Ind.  Kreag  v.  Anthus,  2  Ind.  App. 
482,  28  N.  E.  773. 

Me.  Skene  v.  Graham,  100  A.  938, 
116  Me.  202. 

Neb.  Hotel  Ass'n  of  Omaha  v. 
Walter,  23  Neb,  280,  36  N.  W.  561. 

N.  Y.     West  V.  Banigan,  65  N.  E. 


1123.  172  N.  T.  622,  affirming  judg- 
ment 64  N.  T.  S,  884,  51  App.  Div.  328 ; 
Polykrauas  v.  Krausz,  77  N.  Y.  S.  46, 
73  App.  Div.  583. 

Tex.  Missouri,  K.  &  T.  Ry.  Co.  of 
Texas  v.  Kyser  &  Sutherland,  95  S. 
W.  747,  43  Tex.  Civ.  App.  322 ;  Texas 
&  N.  O.  R.  Co.  V.  Kelly,  80  S,  W.  1073. 
34  Tex.  Civ.  App.  21 ;  International 
&  G.  N.  R.  Co.  V.  Locke  (Civ.  App.)  67 
S.  W.  1082 ;  San  Antonio  &  A,  P.  Ry. 
Co.  V.  Keller,  11  Tex.  Civ.  App.  569, 
32  S.  W.  847. 

13  People  V.  Worden,  45  P.  844,  113 
Cal.  569;  Knights  v.  State,  78  N.  W. 
508,  58  Neb.  225,  76  Am.  St.  Rep.  78; 
Burk  V.  State,  95  S.  W.  1064,  50  Tex. 
Cr.  R.  185. 

14  Ala.  Emerson  v.  Lowe  Mfg-.  Co., 
49  So.  69,  159  Ala.  350;  Seaboard 
Mfg.  Co.  V.  Woodson,  94  Ala.  143,  10 
So.  87;   Hall  v.  Posey,  79  Ala.  84. 

111.  Fitzgerald  v.  Benner,  76  N.  E, 
709,  219  111.  485,  affirming  judgment 
120  111.  App.  447;  Globe  Mut.  Life 
Ins.  Ass'n  v.  Ahern,  60  N.  E.  806,  391 
111.  167,  affirming  judgment  92  111.  App. 
326;  Smith  v.  Henline,  51  N.  E.  227, 
174  111.  184;  Siegel,  Cooper  &  Co.  v. 
Connor,  49  N.  E.  728,  171  111.  572,  af- 
firming judgment  70  111.  App.  116; 
Brown  v.  Leppo.  194  111.  App.  243; 
Raxworthy  v.  Heisen,  191  111.  App. 
457;Fl5'nn  v.  St.  Louis  Nat.  Stock 
Yards,  165  111.  App.  646. 

Ind.  Cleveland.  C,  C.  &  St.  L.  Ry. 
Co.  V.  Clark,  97  N.  E.  822,  51  Ind. 
App,  392. 

Iowa.  Lauer  v.  Banning,  131  N. 
W,  783.  152  Iowa,  99:  Jensen  v. 
Damm.  103  N.  W.  798.  127  Iowa,  555 ; 


§75 


INSTRUCTIONS   TO  JURIES 


140 


the  jury  may  take  into  consideration  certain  matters,  "if  any,"  etc., 
will  usually  not  be  held  erroneous,  as  assuming  the  existence  of 


Fitch  V.  Masou  City  &  C.  L.  Traction 
Co.,  100  N.  W.  618,  124  Iowa,  665. 

Ky.  Evans'  Adm'r  v.  Spillman,  6 
B.  Mon.  334. 

Md.  Fulton  V.  Maccracken,  18  Md. 
528.  81  Am.  Dec.  620. 

Mass.  Wyman  v.  Whiclier,  60  N. 
E.  612,  179  Mass.  276 ;  Emmons  v.  Al- 
vord,  59  N.  E.  126,  177  Mass.  466. 

Mo.  Roy  V.  Kansas  City,  224  S. 
W.  132,  204  jMo.  App.  332 ;  Cooley  v. 
Dunham,  195  S.  W.  1058,  196  Mo.  App. 
399;  Warnke  v.  A.  Leschen  &  Sons 
Rope  Co.,  171  S.  W.  643,  186  Mo.  App. 
30;  Torreyson  v.  United  Rys.  Co.  of 
St.  Louis,  152  S.  W.  32,  246  Mo.  696, 
affirming  judgment  145  S.  W.  106,  164 
Mo.  App.  366;  Southern  Missouri  & 
A.  Ry.  Co.  V.  Woodard,  92  S.  W.  470, 
193  Mo.  656;  O'Neill  v.  Blase,  94  Mo. 
App.  648,  68  S.  W.  764 ;  O'Connell  v. 
St.  Louis  Cable  &  W.  Ry.  Co.,  106  Mo. 
482,  17  S.  W.  494. 

Neb.  Tunnicliffe  v.  Fox,  94  N.  W. 
1032,  6,8,  Neb.  811. 

N.  Y.  Nugent  v.  Breuehard,  51  N. 
E,  1092.  157  N.  Y.  687,  affirming  judg- 
ment and  order  Nugent  v.  Breuehard, 
36  N.  Y.  S.  102,  91  Hun,  12. 

Pa.  Bretz  v.  Diehl,  117  Pa.  589,  11 
A.  893,  2  Am.  St.  Rep.  706. 

S.  C.     Pooler  v.  Smith.  52  S.  E.  967, 

73  S.  C.  102. 

Tex.     Glover  v.  Pfeuffer  (Civ.  App.) 

163  S.  W.  984 ;    Missouri,  K.  &  T.  Ry. 

Co.  of  Texas  v.  McCormick  (Civ.  App.) 

160  S.  W.  429  ;  Chicago,  R.  I.  &  G.  Ry. 

Co.  V.  De  Bord  (Civ.  App.)  146  S.  W. 

667;    Ft.  Worth  &  R.  G.  Ry.  Co.  v. 

Montgomery    (Civ.    App.)    141    S.    W. 

813;     San    Antonio    Traction    Co.    v. 

Warren  (Civ.  App.)  85  S.  W.  26;    St. 

Louis  Southwestern  Ry.  Co.  of  Texas 

v.  Wright  (Civ.  App.)  84  S.  W.  270; 

Blake  v.  Austin,  75  S.  W.  571,  33  Tex. 

Civ.  App.  112 ;    Galveston,  H.  &  S.  A. 

Ry.  Co.  V.   Lynch,  55   S.  W.  389,  22 

Tex.  Civ.  App.  336;    St.  Louis  S.  W. 

Ry.  Co.  of  Texas  v.  Casseday,  50  S.  W. 

325,  92  Tex.  525,  reversing  judgment 

(Civ.  App.)  48  S.  W.  6;    Texas  &  N. 

O.  R.  Co.  v.  Echols,  41  S.  W.  488,  17 

Tex.  Civ.  App.  677;    Austin  &  N.  W. 

Ry.  Co.  v.  Beatty,  73  Tex.  592,  11  S. 

W.  858. 


Va.  McCrorey  v.  Thomas,  63  S.  E. 
1011,  109  Va.  373,  17  Ann.  Cas.  373; 
Virginia  Fire  &  Marine  Ins.  Co.  v. 
Hogue,  .54  S.  E.  8,  105  Va.  355;  Nor- 
folk &  W.  R.  Co.  V.  Cottrell,  83  Va. 
512,  3  S.  E.  123. 

Wasli.  Nolan  v.  Stillwa'ter  Lum- 
ber Co.,  118  P.  340,  65  Wash.  445. 

Wis.  Lee  V.  Hammond,  90  N.  W. 
1073,  114  Wis.  550. 

Instructions  proper  ivitliin  rule. 
An  instruction  that  proof  of  defend- 
ant's liability  is  made  out  "when"  cer- 
tain facts  are  shown  is  not  objection- 
able, as  assuming  that  such  proof  has 
been  made.  Elledge  v.  National  City 
&  O.  Ry.  Co.,  100  Cal.  282,  34  P.  720, 
38  Am.  St.  Rep.  290;  Id.,  34  P.  852. 
An  instruction  that  plaintiff  can  re- 
cover on  certain  facts  if  she  gave  the 
conductor  reasonable  notice  to  stop 
the  car  does  not  assume  that  the  no- 
tice given  by  plaintiff  was  reasonable. 
Springfield  Consol.  Ry.  Co.  v.  Hoeff- 
ner,  51  N.  E.  884,  175  111.  634,  affirm- 
ing judgment  71  111.  App.  162.  An  in- 
struction stating,  "if  you  find  from  the 
greater  weight  of  the  evidence  that 
the  defendant  acting  by  its  duly  au- 
thorized agent,  agreed,"  etc.,  is  not  er- 
roneous as  assuming  that  a  contract 
was  made  with  a  duly  authorized 
agent  of  defendant.  Neff  v.  Harwood 
Barley  Mfg.  Co.,  193  111.  App.  439. 
An  instruction,  in  an  action  for  goods 
sold  and  delivered,  that  if  there  was 
no  evidence  that  defendant  authorized 
the  furnishing  of  the  goods,  if  the 
jury  believed  that  defendant,  subse- 
quent to  the  furnishing  of  the  goods, 
for  which  charge  was  made,  promised 
to  pay  for  them,  he  was  liable,  is  not 
objectionable,  as  assuming  any  facts 
to  the  injury  of  defendant.  Reynolds 
v.  Blake,  111  111.  App.  53.  An  instruc- 
tion which  tells  the  jury  "to  consider 
all  the  facts  and  circumstances  in  evi- 
dence surrounding  the  transaction  in 
regard  to  the  releasing  the  defendant 
from  the  obligation  to  pay  the  sum 
claimed  to  be  released,"  does  not  as- 
sume that  the  defendant  was  in  fact 
released.  Kemmerer  v.  Kokendifer, 
65  111.  App.  31.  A  charge,  in  an  action 
for   injuries   to  an  employe  working 


141 


ASSUMPTIONS  AS  TO   EXISTENCE  OF   FACTS 


75 


any  of  such  matters/^  and  an  instruction  that  if  the  jury  find  certain 


at  a  machine  as  a  helper,  that  if  the 
employer  did  not  use  ordinary  care 
in  the  premises,  hut  at  the  time  of  the 
accident  the  machine  was  in  a  defec- 
tive condition,  dangerous  to  those 
working  at  or  near  it,  and  the  defect 
was  known  to  the  employer,  or  in  the 
exercise  of  ordinary  care  would  have 
been  known  to  it,  then,  on  their  so 
finding,  the  employer  was  guilty  of 
negligence,  and  that,  "unless  they  so 
found,"  the  verdict  must  be  for  the 
employer,  was  not  erroneous  as  as- 
suming that  the  machine  was  in  a  de- 
fective condition.  Fries  v.  Bettendorf 
Axle  Co.,  101  N.  W.  859,  126  Iowa,  138. 
An  instruction  that  if  the  evidence 
showed  that  plaintiff  and  her  husband 
treated  certain  paper  as  their  joint 
property,  and  each  permitted  the  oth- 
er to  exercise  ownership  over  it,  it 
would  authorize  a  finding  that  each 
had  a  half  interest,  and  that  any  in- 
terest either  had  inconsistent  there- 
with was  relinquished  to  the  other, 
did  not  tell  the  jury  that  proof  of  such 
facts  was  conclusive  of  joint  owner- 
ship, but  only  that  they  might  find  it 
therefrom.  Owen  v.  Christensen,  76 
N.  W.  1003,  106  Iowa,  394.  An  in- 
struction, if  the  railroad  engineer,  aft- 
er seeing  plaintiff,  failed  to  use  ordi- 
nary care  to  stop  the  train  or  prevent 
injury,  to  find  for  plaintiff,  was  not 
objectionable,  as  assuming  that  he 
saw  plaintiff,  where  in  the  first  part 
of  the  instruction  the  question  wheth- 
er he  saw  plaintiff  was  submitted  for 
the  jury's  determination.  Louisville 
&  N.  R.  Co.  V.  Allen,  154  S.  W.  1095, 
1.53  Ky.  252.  An  instruction,  in  an 
action  for  injuries  from  a  collision, 
that  if  the  jury  believed  that  the  mo- 
torman  saw,  or  by  ordinary  care  could 
have  seen,  the  plaintiff's  wagon  in 
dangerous  nearness  to  the  track,  held 
not  objectionable  as  assuming  that 
the  car  was  "in  dangerous  nearness 
thereto"  without  the  qualification,  "If 
you  so  find."  .Tohnson  v.  Springfield 
Traction  Co.,  161  S.  W.  1193,  176  Mo. 
App.  174.  An  instruction,  in  an  action 
for  the  death  of  a  person  in  a  colli- 
sion, "If  therefore  you  find  from  the 
evidence  that  M.  L.  K.  (decedent)  was 
at  the  time  and  place  in  question  in  a 


position  of  imminent  peril  of  being 
struck  hy  the  car  mentioned  in  evi- 
dence, and  by  reason  of  the  fact  that 
the  buggy  in  which  he  was  seated  was 
upon  or  approaching  th^  track  on 
which  «aid  car  was  running,"  etc.,  did 
not  assume  that  he  was  in  a  place  of 
danger  simply  because  his  buggy  was 
on  or  near  the  track,  but  required  the 
jury  to  find  those  facts  to  be  true  in 
the  light  of  other  facts  and  circum- 
stances stated  in  the  instruction. 
Kinlen  v.  Metropolitan  St.  Ry.  Co.,  115 
S.  W.  523,  216  Mo.  145.  An  instruc- 
tion that,  while  plaintiff,  in  accepting 
employment  of  defendant,  assumed  all 
the  risks  incident  to  the  employment 
in  which  he  was  engaged,  yet  he  did 
not  assume  those  risks,  if  any  such 
there  were,  arising  from  the  negli- 
gence, if  any,  of  defendant's  employ^, 
B.,  was  not  objectionable  as  assuming 
that  B.  was  negligent.  Wright  v.  Din- 
ger Mining  Co.,  147  S.  W.  213,  163  Mo. 
App.  536.  An  instruction,  in  an  ac- 
tion for  injuries  received  by  an  em- 
ploye from  falling  into  an  unguarded 
elevator  shaft,  that,  if  the  room  near 
the  shaft  was  insufficiently  lighted, 
etc.,  plaintiff  was  entitled  to  recover, 
was  not  objectionable  as  assuming 
that  the  room  was  unlighted.  Wen- 
dler  V.  People's  House  Furnishing 
Co.,  65  S.  W.  737,  165  Mo.  527.  In  an 
action  for  injuries,  where  an  instruc- 
tion required  the  jury  to  believe  and 
find  from  the  evidence  that  there  was 
near  the  usual  stopping  place  of  a 
street  car  a  depression  in  the  street, 
and  that  "said  depression,  if  any," 
was  dangerous,  its  subsequent  refer- 
ence to  the  depression  as  "said  depres- 
sion," without  adding  "if  any,"  was 
not  erroneous.  Costello  v.  Kansas 
City,  219  S.  W.  386,  280  Mo.  576.  A 
charge  that,  "if"  a  will  was  the  result 
of  undue  infiuence,  that  alone  was 
sufficient  to  impeach  it,  is  not  errone- 
ous, as  assuming  that  there  was  un- 
due influence.  Gordon  v.  Burris,  54 
S.  W.  546,  153  Mo.  223.     An  instruc- 

15  Evans  v.  City  of  Joplin,  84  Mo. 
App.  296;  Western  Union  Tel.  Co.  v. 
Chambers,  77  S.  W,  273,  34  Tex.  Civ. 
App.  17. 


75 


INSTRUCTIONS  TO  JURIES 


142 


facts,  etc.,  does  not  improperly  assume  the  existence  of  such  facts 


16 


tion,  in  an  action  against  a  railroad 
company,  tliat  plaintiff  could  recover, 
under  a  certain  state  of  facts,  "if  the 
jury  find  from  the  evidence  that  the 
defendant's   engine   was   derailed   by 
reason  of  the  cracked,  defective,  and 
dangerous   condition  of  said   wheel." 
does  not  assume  the  defective  condi- 
tion of  the  wheel,  but  properly  sub- 
mits such  question  to  the  jury.    Geary 
V.  Kansas  City,  O.  &  S.  R.  Co.,  13S  Mo. 
251,  39  S.  W.  774,  60  Am.  St.  Rep.  555, 
An    instruction,    in    an    action    on    a 
dramshop  keeper's  bond,  for  permit- 
ting plaintiff's  minor  son  to  enter  and 
remain  in  the  saloon,  that  if  plaintiff 
showed  that  the  keeper  permitted  the 
minor  to  enter  and  remain  in  the  sa- 
loon the  jury  should  render  a  verdict 
for  plaintiff,  while  if  plaintiff  failed 
to  so  prove  the  verdict  must  be  for  de- 
fendant, was  not  erroneous  as  assum- 
ing that   the  minor  entered   and  re- 
mained  in  the  saloon,  but  left  that 
question  'to    the    jury.     McElroy    v. 
Sparkman  (Tex.  Civ.  App.)  139  S.  W. 
529.     An  instruction,  in  an  action  for 
injuries    to    a    street    car   passenger 
while  endeavoring  to  alight,  in  which 
the  court  left  it  to  the  jury  to  say 
whether  or  not  the  car  stopped,  that 
it  was  the  motorman's  duty  when  he 
stopped  the  car  to  let  passengers  on  or 
off  to  exercise  such  care  as  a  reason- 
ably prudent  motorman  would  exer- 
cise under  similar  circumstances,  etc., 
was  not  objectionable,  in  that  it  as- 
sumed that  the  car  was  stopped  to  let 
off  passengers  at  the  time  of  the  in- 
jury.    Citizens'  Ry.  Co.  v.  Hall  (Tex. 
Civ.  App.)  138  S.  W.  434.    An  instruc- 
tion in  an  action  for  injuries  to  an 
employe,  that  though  the  jury  might 
believe     that     defendant's     employgs 
were  guilty  of  negligence,  still  if  plain- 
tiff negligently  placed  himself  in  such 
position   that   he  would   probably   be 
injured,  and  that  he  was  guilty  of  neg- 
ligence in  so  doing,  the  verdict  should 
be  for  defendant,  was  not  erroneous, 
as  assuming  any  fact.    St.  Louis  South- 
western Ry.  Co.  of  Texas  v.  Norvell 
(Tex.   Civ.   App.)   115   S.  W.   861.     A 
charge,  in  an  action  against  a  railroad 
for  injuries  to  a  switchman  caused  by 
a  handhold  on  a  box  car  giving  way 


while  plaintiff  was  descending  from 
the  car,  that  plaintiff  had  a  right  to 
presume  that  defendant  had  exercised 
ordinary  care  to  furnish  a  reasonably 
safe  handhold  for  his  use,  and  was 
not  required  to  inspect  such  handhold 
before  using  it,  but  if  the  fact  that 
the  handhold  was  insecurely  fastened 
was  open  and  obvious  to  plaintiff,  or  if 
he  knew  of  the  same,  or  must  neces- 
sarily have  discovered  the  same  while 
engaged  in  the  discharge  of  his  duties, 
he  would  assume  the  resulting  risk, 
was  not  subject  to  the  objection   of 
assuming  that  the  handhold  was  inse- 
curely  fastened,    but    submitted    that 
question  to  the  jury.     Missouri,  K.  & 
T.  Rv.  Co.  of  Texas  v.  Box  (Tex.  Civ. 
App.)  93  S.  W.  134.    The  language  of 
a  charge,  in  an  action  for  injury  to  a 
passenger  while  boarding  a  car,  that 
if  the  jury  believe  the  train  was  not 
stopped  long  enough  for  the  passenger 
"in  his  physical  condition  as  known 
to  the  conductor,"  will  not  be  held  to 
take  from  the  jury  the  issue  whether 
the  conductor  knew  his  physical  con- 
dition, where  the  intention  to  submit 
such  issue  is  clear  from  the  preceding 
part  of  the  charge.     Houston  &  T.  C. 
R.  Co.  V.  Copley,  87  S.  W.  219,  38  Tex. 
Civ.  App.  568.    An  instruction  that  if, 
on  the  day  of  his  injury,  plaintiff  was 
employed  as  a  laborer,  and  carrying  a 
ladle  filled  with  molten  material  to 
defendant's  molding  room,  and  walked 
over  a  certain  path  established  by  the 
defendant  for  the  use  of  its  employes, 
etc.,  was  not  objectionable  as  assum- 
ing  that   defendant    had   established 
the  path  for  the  use  of  its  employes. 
San  Antonio  Foundry  Co.  v.  Drish,  85 
S.  W.  440,  38  Tex.  Civ.  App.  214.     A 
charge  that  if  the  jury  believe  that 
plaintiff  attempted  to  alight  from  a 
car  after  it  had  stopped,  etc.,  is  not 
objectionable  as  assuming  the  fact  to 
be  that  the  car  had  stopped  when  she 
attempted     to    alight.     San    Antonio 
Traction    Co.    v.    Welter    (Tex.    Civ. 
App.)  77  S.  W.  414.    A  charge  that  "if, 
from   the  evidence,  you  believe  tliat 
sparks   or   cinders   escaped   from    de- 
la  Caywood  v.  Seattle  Electric  Co., 
110  P.  420,  59  Wash.  566. 


143 


ASSUMPTIONS   AS  TO   EXISTENCE   OF   FACTS 


75 


So  long  as  the  court  confines  its  statement  of  the  law  to  principles, 


fendant's  engine,  and  got  into  plain- 
tiff's eyes,  whicli  caused  plaintiff's  in- 
juries," etc.,  was  not  objectionable  as 
assuming  that  plaintiff's  eyes  were  in- 
jured by  sparks  or  cinders  that  escap- 
ed from  the  locomotive.  St.  Louis  S. 
W.  Ry.  Co.  V.  Parks  (Tex.  Civ.  App.) 
Hi  S.  W.  439.  An  instruction  that  "if 
the  jury  believed  that  plaintiff  was 
inexperienced  in  jumping  o&.  moving 
trains  and  ignorant  of  the  dangers, 
and  if  they  believed  it  was  no  part  of 
his  ordinary  duty  to  do  so,"  etc.,  was 
not  objectionable  as  assuming  the 
truth  of  the  recitals  made.  Galveston, 
H.  &  S.  4.  Ry.  Co.  V.  Sanchez  (Tex. 
Civ.  App.)  65  S.  W.  S93.  A  charge 
that  the  jury  should  find  for  plaintiff 
if  defendant  had  abandoned  his  busi- 
ness in  a  store,  sought  to  be  subject- 
ed to  execution,  and  was  not  using  the 
store  house  in  connection  with  his 
dwelling  for  the  purpose  of  carrying 
on  a  boarding-house  business,  was  not 
erroneous,  as  being  on  the  weight  of 
evidence,  in  that  it  assumed  that  de- 
fendant was  engaged  in  the  hoarding- 
house  business.  Freeman  v.  Gates,  55 
S.  W.  524,  22  Tex.  Civ.  App.  623.  A 
charge,  in  an  action  for  injuries  to  a 
passenger  through  the  derailment  of 
a  train,  that  the  company  is  liable  if 
the  bad  condition  of  the  track,  road- 
bed, and  switch,  or  the  fast  running 
of  the  train,  were  concurring  proxi- 
mate causes  of  the  wreck,  and  were 
brought  about  by  the  company's  negli- 
gence, does  not  assume  as  facts  the 
bad  condition  of  the  track  and  the 
fast  running  of  the  train.  Houston, 
E.  &  W.  T.  Ry.  Co.  v.  Summers  (Tex. 
Civ.  App.)  49  S.  W.  1106,  affirmed  51 
S.  W.  324,  92  Tex.  621.  A  charge  that 
if  the  jury  believed  that  "by  reason  of 
a  defective  road  crossing,  cattle 
guards,  ditches,  and  bridge,  or  either 
of  them,  the  car  on  which  plaintiff 
was  riding  was  derailed,"  etc.,  plain- 
tiff is  entitled  to  recover,  is  not  an 
assumption  of  the  existence  of  said 
defects.  Galveston,  H.  &  S.  A.  Ry.  Co. 
V.  Waldo  (Tex.  Civ.  App.)  32  S.  W. 
783.  An  instruction  to  the  effect  that 
defendant  would  not  be  liable  if  plain- 
tiff continued  in  its  service  after  he 
knew  of  the  defect  which  caused  the 


accident,  "unless  you  fui'ther  find 
from  the  evidence  that  the  plaintiff, 
by  reason  of  his  ignorance  and  inex- 
perience, did  not  know,  or  could  not 
have  reasonably  known,  the  danger 
incident  to  said  defect,"  is  not  open  to 
the  objection  that  it  assumes  that 
plaintiff  was  ignorant  and  inexperi- 
enced. Gulf.  C.  &  S.  F.  R.  Co.  V.  Wells 
(Tex,  Sup.)  16  S.  W.  1025.  An  instruc- 
tion that  a  servant  did  not  accept 
risks  which  grew  out  of  any  defect  in 
the  road,  rendering  it  more  hazardous 
than  reasonable,  unless  he  had  knowl- 
edge thereof,  does  not  assume  that  de- 
fects existed.  Taylor,  B.  &  H.  Ry.  Co. 
v.  Taylor,  79  Tex.  104,  14  S.  W.  918,  23 
Am.  St.  Rep.  316.  An  instruction  that 
if  the  jury  believed  that  the  injury 
was  caused  both  by  the  defective  con- 
struction or  unfitness  of  the  engine  < 
for  the  purposes  for  which  it  was  then 
used,  and  the  negligence  of  the  engi- 
neer and  yard  foreman,  combined 
with  the  defect  in  the  engine,  the  com- 
pany W'Ould  be  liable,  is  not  obnoxious 
to  the  objection  that  it  assumed  as 
a  fact  that  the  engine  was  defective 
and  unsuitable.  Missouri  Pac.  Ry.  Co. 
V.  L<?hmberg,  75  Tex.  61,  12  S.  W. 
838.  An  instruction  that  to  authorize 
a  verdict  plaintiff  must  show,  inter 
alia,  that  the  injury  was  the  immedi- 
ate result  of  the  negligence  of  defend- 
ant's agent  "in  directing  plaintiff  to 
use  said  implement  in  an  unskillful 
and  dangerous  manner,  the  plaintiff 
himself  being  inexperienced  in  the 
work,  *  *  *  au^  ]-)y  reason  there- 
of was  ignorant  of  the  danger,"  etc., 
is  not  objectionable  as  assuming  that 
plaintiff  was  inexiDerienced,  especially 
where  the  question  of  his  experience 
was  expressly  submitted  to  the  jury 
in  the  preceding  instruction.  Texas 
Mexican  Ry.  Co.  v.  Douglas,  73  Tex. 
.325,  11  S.  W.  333.  An  instruction  that 
if  the  jury  believe  from  the  evidence 
that  plaintiff  was  in  actual  possession 
of  the  land,  and  claimed  title  thereto 
by  virtue  of  a  certain  deed  of  parti- 
tion, and  defendants  entered  and  took 
possession  of  part  of  it  within  the  15 
years  next  preceding  commencement 
of  the  action,  they  shall  find  for  plain- 
tiff, does  not  assume  adversary  pos- 


10 


INSTRUCTIONS   TO  JURIES  144 


the  application  of  which  is  called  for  by  facts  which  the  jury  may 
find  from  the  evidence,  without  saying  or  in  any  way  indicating 
an  opinion  that  they  have  been  proved,  it  cannot  be  said  that  the 
existence  of  any  fact  has  been  assumed.^'  An  instruction,  however, 
which  begins  properly  by  leaving  certain  questions  to  the  jury,  but 
in  the  body  thereof  contains  a  direct  statement  with  reference  to 
the  existence  of  such  facts,  is  improper.^* 

As  indicated  by  the  statement  of  the  general  rule,  the  assump- 
tion of  the  existence  of  immaterial  facts  is  not  error  which  will  work 
a  reversal.^* 

§  76.     Specific  applications  of  rule  in  civil  cases 

This  rule  has  been  applied  to  a  great  variety  of  facts.  Thus  it  is 
error  to  assume  on  conflicting  evidence  that  a  certain  relation  ex- 
isted,^** the  existence  of  a  contract,^^  that  a  contract  made  w^s  with 
a  certain  person,^^  that  a  contract  was  completely  executed  and 
delivered,'^  that  an  agreement  was  not  in  writing,^*  that  a  deed  or 
patent  was  executed,^^  that  a  signature  to  a  note  or  bond  was  gen- 
uine,^^  that  a  grantor  in  a  deed  intended  to  deliver  it,''  that  a  deed 
was  accepted,^*  that  the  alleged  consideration  for  a  note  was  re- 
ceived by  the  maker,-*  that  an  application  for  an  insurance  policy 
was  annexed  to  it,^"  that  a  contract  of  sale  was  made,^^  that  goods 

session  in  plaintiff  of  the  land  claim-  22  Gaines  v.  McAlister,  29  S.  E,  844, 

ing     under     the    deed     of    partition.  122  N.  C.  340. 

Whealton  &  Wisherd  v.  Doughty,  72  -^  Rutherford    v.    Holbert,    142    P. 

S.  E.  112,  112  Va.  649.  1099,  42  Okl.  735,  L.  R.  A.  1915B,  221. 

17  Olson  V.  Swift  &  Co.,  1S2  S.  W,  24  Glenn  v.  Rogers.  3  Md.  312. 
903,  122  Ark.  611;   State  v.  Willis,  132  25  Fitzgerald   v.    Goff,   99    Ind.   28; 
P.  962,  24  Idaho,  252 ;  State  v.  Wright,  Holloran  v.  Meisel,  87  Va.  398,  13  S. 
85  P.  493,  12  Idaho,  212 ;  State  v.  Tay-  E.  33. 

lor,  50  S.  E.  247,  57  W,  Va.  228.  26  Black  v.  Miller,  138  N.  W.  535, 

18  Lichter  v.  Aurora,  E.  &  C.  R.  Co.,  158  Iowa,  293 ;  State  ex  rel.  Welch  v. 
179  III.  App.  216.  Morrison,  148  S.  W.  907,  244  Mo.  193. 

19  Pecos  &  N.  T.  Ey.  Co.  v.  Trower,  27  Walker  v.  Nix,  64  S.  W.  73,  25 
130  S.  W.  588,  61  Tex.  Civ.  App.  53.  Tex.  Civ.  App.  59G. 

20  Schroeder  v.   Brown  &  McCabe,  28  Haney  v.  Marshall,  9  Md.  194. 
116  P.  335,  59  Or.  181.  29  Halsey  v.   Bell   (Tex.   Civ.  App.) 

^1  Ala.     Green   v.   Southern   States  62  S.  W.  1088. 

Lumber  Co  ,  37  So.  670,  141  Ala.  680.  so  Monjeau     v.     Metropolitan     Life 

111.     Nolan  v.   O'Sullivan,   148  111.  Ins.  Co.,  94  N.  E.  302,  208  Mass.  1. 

App.  316.  31  Ala.     Atlantic  Coast  Line  R.  Co. 

Md.     Ellicott  V.  Turner,  4  Md.  476.  v.    Dahlberg    Brokerage    Co.,    54    So. 

S.  C.     Frasier  v.  Charleston  &  W.  168.  170  Ala.  617. 

C.  Ry.  Co.,  52  S.  E.  964,  73  S.  C.  140.  Ark.      L.    &    A.    Scharff   Distilling 

Tex.     Missouri,  K.  &  T.  Ry.  Co.  of  Co.  v.  Dennis,  168  S.  W.  141,  113  Ark. 

Texas  v.  De  Bord,  53  S.  W.  587,  21  221;     Watkins    v.    Curry,    147    S.    W. 

Tex.  Civ.  App.  691 ;    McCallon  v.  Co-  43.  103  Ark.  414,  40  L.  R.  A.  (N.  S.) 

hen  (Civ.  App.)  39  S.  W.  973.  967. 


145 


ASSUMPTIONS   AS   TO   EXISTENCE   OF   FACTS 


76 


sold  were  delivered  to  the  purchaser,^  that  the  purchaser  of  goods 
accepted  them,^^  that  the  relation  of  passenger  and  carrier  existed,^* 
that  the  relation  of  master  and  servant,  or  of  principal  and  agent, 
existed,^^  that  there  was  an  agreement  authorizing  an  attorney  to 
commence  suit  on  behalf  of  another,^^'  that  the  relation  of  partner- 
ship existed  between  certain  persons,^"  that  the  relation  of  landlord 
and  tenant  existed,^*  that  the  relation  of  debtor  and  creditor  ex- 
isted,^^  that  a  note  was  altered,'^**  that  a  contract  was  still  in  force,^^ 
that  the  relation  of  master  and  servant  was  terminated,*-  that  the 
nature  or  terms  of  a  contract  were  of  a  certain  kind  or  descrip- 
tion,*3  ii^^i  a  certain  transaction  constituted  a  loan,  and  not  a  dis- 


lowa.  Case  v  Burrows,  52  Iowa, 
146,  2  N.  W,  1045. 

Md.     Gaither  v.  Martin,  3  Md.  146. 

Mo.  Moody  v.  Cowherd  (App.)  199 
S.  W.  586. 

Tex.  Landman  v.  Glover  (Civ. 
App.)  25  S.  W.  994. 

3  2  Wood  V.  Tomlinson,  53  Cal.  720; 
Jaehnig  &  Peoples  v.  Fried,  85  A.  321, 
S3  N.  J.  Law,  361. 

3  3  Ross  Attley  Lumber  Co.  v.  Co- 
lumbia Hardwood  Lumber  Co.,  20O 
111.  App.  65. 

3  4  Georgia  R.  &  Banking  Co.  v. 
Radford,  85  S.  E.  1006,  144  Ga.  22; 
Carroll  v.  Chicago  City  Ry.  Co.,  180 
in.  App  309;  Wise  v.  Columbia  Ry., 
Gas  &  Electric  Co.,  77  S.  E.  924,  94 
S.  C.  254;  Northern  Texas  Traction 
Co.  V.  Nicholson  (Civ.  App.)  188  S.  W. 
1028;  Dallas  Rapid  Transit  Co.  v. 
Payne,  82  8.  W.  649,  98  Tex.  211,  re- 
versing judgment  Dallas  Rapid  Trans- 
it Ry.  Co.  v.  Payne  (Civ.  App.)  78 
S.  W.  1085. 

3  5  Ga.  Vaughn  v.  Miller,  76  Ga. 
712. 

Ky.  Castleman  v.  Rustenholtz,  140 
S.    W.   170,    145   Ky.   146. 

Md.  Baltimore  Consol.  Ry.  Co.  v. 
State,  46  A.  1000,  91  Md.  506. 

Mich.  American  Seed  Co.  v.  Cole, 
140  N.  W.  622,  174  Mich.  42. 

Or.  Salomon  v.  Cress,  22  Or.  177, 
29  P.  439. 

Tenn.     Roper  v.  Stone,  Cooke,  497. 

Tex.  Ft.  Worth  &  D.  C.  Ry.  Co.  v. 
Lynch  (Civ.  App.)  136  S.  W.  580 ;  Mes- 
ser  V.  Walton,  92  S.  W.  1037,  42  Tex. 
Civ.  App.  488;  East  Texas  Fire  Ins. 
Co.  V.  Brown,  82  Tex.  631,  18  S.  W. 
713. 

Inst.to  Juries— 10 


3  6  Briseno  v.  International  &  G.  N. 
R.  Co    (Tex.  Civ.  App.)  81  S.  W.  579. 

37  Bond  V.  Nave,  62  Ind.  505 ;  Bo- 
wen  V.  Epperson,  118  S.  W.  528,  136 
Mo.  App,  571;  Wright  v.  Fonda,  44 
Mo.  App.  634;  Lawrence  v.  Westlake, 
73  P.  119,  28  Mont.  503;  Peters 
Branch  of  International  Shoe  Co.  v. 
Blake  (Okl.)  176  P.  892. 

38  Bravton  v.  Boomer,  107  N.  W. 
1099,  131  Iowa,  28. 

39  Cropper  v.  Pittman,  13  Md.  190; 
Lyle  V.  Mclnnis  (Miss.)  17  So.  510; 
Metcalfe  v.  Lowenstein,  81  S.  W.  362, 
35  Tex.  Civ.  App.  619. 

40  Lanier  v.  Clarke,  133  S.  W.  1093, 
63  Tex.  Civ.  App.  206. 

41  Stalleto  V.  Plumley  &  Sargent,  85 
A.  975,  86  Vt.  444. 

42  Derby  Cycle  Co.  v.  White,  64  HI. 
App.  245. 

43  Ala.  Wellman  v.  Jones,  27  So. 
416,  124  Ala.  580. 

Ark.  Allen-West  Commission  Co. 
V.  Hudgius  &  Bro.,  86  S.  W.  289,  74 
Ark.  468. 

Conn.  Plumb  v.  Curtis,  66  Conn. 
154,  33  A.  998. 

Ga.  Bashinski  v.  J.  H.  &  W.  W. 
Williams  Co.,  90  S.  E.  223,  18  Ga. 
App.  646. 

111.  Adams  v.  Neu.  108  111.  App. 
50. 

Ind.  Kepler  v.  Jessup,  37  N.  E. 
655.  11  Ind.  App.  241. 

Ky.  Locke  &  Ellison  v.  Lyon  Medi- 
cine Co.,  84  S.  W.  307,  27  Ky.  Law 
Rep.   1. 

Mass.  Nonantum  Worsted  Co.  v. 
North  Adams  Mfg.  Co.,  156  Mass.  331, 
31  N.  E.  293. 

Mo.  Galamba  v.  Harrisonville 
Pump  &   Foundry  Co.   (App.)    191    S. 


76 


INSTRUCTIONS   TO   JURIES 


146 


count,**  that  a  contract  with  a  carrier  was  a  written  one,  or  con- 
tained certain  provisions,*^  that  a  contract  was  performed,*^  that 
certain  acts  constituted  a  material  deviation  from  the  terms  of  a 
contract,*''  that  a  party  to  a  contract  refused  to  permit  the  other  to 
proceed  under  it,**  that  a  heating  plant  was  sufficient,*^  that  there 
was  a  proper  demand  of  performance,^**  that  a  claim  for  damages 
for  delay  in  carrying  out  a  contract  was  waived,^^  that  certain  debts 
or  notes  were  paid,^^  that  certain  facts  constitute  negligence. ^^  to 
assume  facts  bearing  on  question  of  whether  due  care  was  exercised 


TV.  10S4;  Bowen  v.  Buckner  (App.) 
183   S.   W.   704. 

Pa.  Hershey  v,  Hershey,  8  Serg. 
&  R.  333. 

Tex.  Grigg  V.  Jones  (Civ.  App.)  26 
S.  W.  885! 

Vt.     Leahey  v.  Allen.   47  Vt.  463. 

44  Sallee  v.  Security  Bank.&  Trust 
Co..  177  S.  W.  1133,  119  Ark.  484. 

4  5  Evansville  &  T.  H.  R.  Co.  v.  Mc- 
Kinney,  73  N.  E.  148,  34  Ind.  App. 
402;  Same  v.  Kevekordes,  73  N.  E. 
1135,  35  Ind.  App.  706 ;  San  Antonio  & 
A.  P.  Ry.  Co.  V.  Gradv  (Tex.  Civ. 
App.)  171  S.  W.  1019;  Gulf,  C.  &  S. 
F.  Ry.  Co.  V.  Batte  (Tex.  Civ.  App.) 
94  S.  W.  345. 

46  Bates  V.  Harte,  26  So.  898,  124 
Ala.  427,  82  Am.  St.  Rep.  186;  Gi-ay- 
ling  Lumber  Co.  v.  Hemingway,  194 
S.  W.  508.   128  Ark.  535. 

47  Alexander  v.  Smith,  57  So.  104, 
3  Ala.  App.  501. 

48  McDonnugh  v.  Almy,  105  N.  B. 
1012,  218  Mass.  409,  Ann.  Cas.  1915D, 
855. 

4  9  Morse  v.  Tochterman,  132  P. 
1055,  21  Cal.  App.  726. 

50  Steagall  v.  McKellar,  20  Tex.  265. 
siFike  V.  Stratton,  56  So.  929,  174 
AJa.  541. 

5  2  Chipps  V.  Buxton,  109  111.  App. 
88;  Schultz  v.  Schultz,  71  N.  W.  854, 
113  Mich.  502. 

53  Ala.  Birmingham  Ry.,  Light  & 
Power  Co.  v.  Donaldson,  68  So.  .^)96, 
14  Ala.  App.  160;  Western  Steel  Car 
&  Foundry  Co.  v.  Cunningham,  48  So. 
109,  158  Ala.  369. 

Ark.  Western  Coal  &  Mining  Co. 
V.  Jones.  87  S.  W.  440,  75  Ark.  76. 

Ga.  Western  &  A.  R.  Co.  v.  Casteel, 
75  S.  E.  609,  138  Ga.  579. 

ni.  Weil  V.  Chicago  City  Ry.  Co., 
182  111.  App.  100;  Lewman  v.  Dan- 
ville St.  Ry.  &  Light  Co.,  161  111.  App. 


582 ;  Nelson  v.  Knetzger,  109  111.  App. 
296 ;  Anderson  v.  Moore,  108  111.  App. 
106 ;  Beidler  v.  King,  108  111.  App.  23, 
.judgment  affirmed  70  N.  E.  763.  209 
ill.  .302,  101  Am.  St.  Rep.  246 ;  Mobile 
&  O.  R.  Co.  V.  Healy,  100  HI.  App. 
586;  La  Salle  County  Carbon  Coal 
Co.  V.  Eastman.  99  111.  App.  495 ;  City 
of  La  Salle  v.  Thorndike,  7  HI.  App. 
282. 

Ind.  Indiana  Union  Traction  Co. 
V.  Reynolds,  95  N.  E.  584,  176  Ind. 
263. 

Iowa.  Bauer  v.  Citv  of  Dubuque, 
98  N.  W.  355,  122  Iowa,  500. 

Md.  Citv  of  Baltimore  v.  State, 
103  A.  426.  132  Md.  113. 

Mo.  Lafever  v.  Prvor  (App.)  190 
S.  W.  644;  Priebe  V.  Crandall  (Apn.) 
187  S.  W.  605;  Stanley  v.  Chicago,  M. 
&  St.  P.  Ry.  Co.,  87  S.  W.  112.  112 
Mo.  App.  601 ;  Baker  v.  City  of  In- 
dependence, 81  S.  W.  501,  106  ivio.  App. 
507;  Van  Natta  v.  People's  St.  fly.. 
Electric  Lisrht  &  Power  Co.,  133  Mo. 
13,  34   S.  W.  505. 

Or.  Delovage  v.  Old  Oregon 
Creamery  Co.,  147  P.  392,  76  Or.  430, 
motion  to  retax  costs  denied  149  P. 
317,  76  Or.  430;  Salmi  v.  Columbia 
&  N.  R.  R.  Co.,  146  P.  819,  75  Or.  200, 
L.  R.  A.  1915D,  834. 

S.  C.  Lundy  v.  Southern  Bell  Tel- 
ephone &  Telegraph  Co.,  72  S.  E.  558, 
90  S.  C.  25;  Bodie  v.  Charleston  & 
W.  C.  Ry.  Co.,  44  S.  E.  943,  66  S.  C. 
302. 

Tex.  Macee  v.  Cavins  (Civ.  App.) 
197  S.  W.  1015;  Panhandle  &  S.  F. 
Ry.  Co.  v.  Wright-Herndon  Co.  (Civ. 
App.)  195  S.  W.  216;  Panhandle  &  S. 
F.  Ry.  Co.  V.  Vaughn  (Civ.  App.)  191 
S.  W.  142 ;  Houston  &  T.  C.  R.  Co.  v. 
Walker  (Civ.  App.)  167  S.  W.  199. 
.judgment  rever.sed  173  S.  W.  208,  107 
Tex.  241 ;    Chicago,  R.  I.  &  G.  Ry.  Co. 


147 


ASSUMPTIONS  AS  TO   EXISTENCE   OF   FACTS 


76 


by  a  carrier  to  avoid  injury  to  a  passenger,^  to  assume  facts  bear- 
ing on  question  whether  a  railroad  exercised  due  care  to  prevent 
accidents^"*  that  certain  facts  show  negligence  on  the  part  of  a  mas- 
ter towards  a  servant,^^  that  certain  facts  constitute  contributory 
negligence,^"  that  certain  facts  show  due  care  and  caution  or  the 


V.  Oliver  (Civ.  App.)  159  S.  W.  853; 
Missouri,  K.  &  T.  Rv.  Co.  of  Texas 
V.  Williams,  133  S.  W.  499,  63  Tex. 
Civ.  App.  368;  Texas  &  P.  Ry.  Co. 
V.  Felker,  93  S.  W.  477,  42  Tex.  Civ. 
App.  256 ;  Houston  &  T.  C.  R.  Co.  v. 
Burns,  90  S.  W.  688,  41  Tex.  Civ. 
App.  83 ;  Missouri,  K,  &  T.  Ry.  Co.  of 
Texas  v.  Smith  (Civ.  App.)  82  S.  W. 
787;  Missouri.  K.  &  T.  Ry.  Co.  of 
Texas  v.  Wood  (Civ.  App.)  81  S.  W. 
1187 ;  St  Louis  Southwestern  Ry.  Co. 
of  Texas  v.  Gentry  (Civ.  App.)  74  S. 
W.  607. 

Wash.  Atherton  v.  Tacoma  Ry.  & 
Power  Co.,  71  P.  39,  30  Wash.  395. 

W.  Va.  Culp  V.  Virginia  Ry.  Co., 
87  S.  E.  187,  77  W.  Va.  125. 

54  Larson  v.  Chicago,  M.  &  P.  S. 
Ry.  Co.,  141  N.  W.  353,  31  S.  D.  512; 
Missouri,  K.  &  T.  Ry.  Co.  of  Texas  v. 
Wolf,  89  S.  W.  778.  40  Tex.  Civ.  App. 
381;  St.  Louis  S.  W.  Rv.  Co.  v.  Ball, 
66  S.  W.  879.  28  Tex.  Civ.  App.  287; 
Rapid  Transit  Ry.  Co.  v.  Lusk  (Tex. 
Civ.  App.)  66  S.  W.  799 ;  Dallas  &  O. 
C.  El.  Ry.  Co.  V.  Harvey  (Tex,  Civ. 
App.)  27  S.  W.  423. 

5  5  Cleveland,  C,  C.  &  St.  L.  Ry. 
Co.  v.  Gossett,  87  N.  E.  723,  172  Ind. 
525;  Maryland,  D.  &  V.  Ry.  Co.  v. 
Brown,  71  A.  1005,  109  Md.  304; 
Cleveland.  C.  C.  &  St.  L.  Ry.  v.  Sivey, 
27  Ohio  Cir.  Ct.  R.  248;  Missouri, 
K.  &  T.  Ry.  Co.  of  Texas  v.  Smith, 
133  S.  W.  482,  63  Tex.  Civ.  App.  510; 
St.  Louis  &  S.  W.  Ry.  Co.  of  Texas  v. 
Gill  (Tex.  Civ.  App.)  55  S.  W.  386. 

56  111.  William  Graver  Tank  Works 
V.  McGee,  58  111.  App.  250. 

Ky.  West  Kentucky  Coal  Co.  v. 
Kelley,  159  S.  W.  1152,  155  Ky.  552. 

Mo.  Haire  v.  Schaff  (App.)  190  S. 
W.  56;  Dority  v.  St.  Louis  &  S.  F. 
R.  Co.,  174  S.  W.  209,  188  Mo.  App. 
365 ;  Wease  v.  Fayette  R.  Plumb  Tool 
Co.,  173  S.  W.  79,  187  Mo.  App.  716; 
Burrows  v.  Likes,  166  S.  W:  643,  180 
Mo.  App.  447 ;  Lukamiski  v.  Ameri- 
can Steel  Foundries,  142  S.  W.  1093, 
162  Mo.  App.  631;    Abbott  v.  Marion 


Min.  Co.,  87  S.  W.  110,  112  Mo.  App. 
550 ;  Sinberg  v.  Falk  Co.,  98  Mo.  App. 
546,  72  S.  W.  947 ;  Linn  v.  Massillon 
Bridge  Co.,  78  Mo.  App.  111. 

N.  D.  Lang  v.  Bailes,  125  N.  W. 
891.  19  N.  D.  582. 

S.  C.  Hunter  v.  D.  W.  Alderman 
&  Sons  Co.,  71  S.  E.  1082,  89  S.  C. 
502. 

Tex.  Houston  Belt  &  Tei'minal 
Ry.  Co.  V.  Montello  (Civ.  App.)  165  S. 
W.  540 :  St.  Louis  Southwestern  Ry. 
Co.  of  Texas  v.  Tune  (Civ.  App.)  147 
S.  W.  364  ;  Phillips  v.  St.  Louis  South- 
western Ry.  Co.  of  Texas  (Civ.  App.) 
136  S.  W.  542;  Chicago,  R.  I.  &  G. 
Ry.  Co.  v.  De  Bord,  132  S.  W.  845, 
62  Tex.  Civ.  App.  302;  Chicago,  R. 
I.  &  M.  Ry.  Co.  V.  Harton,  81  S.  W. 
1236,  36  Tex.  Civ.  App.  475 ;  Harwell 
V.  Southern  Furniture  Co.  (Civ.  App.) 
75  S.  W.  52,  motion  to  dismiss  denied, 
Id.  888. 

5  7  Ala.  Montgomery  Light  &  Ti'ac- 
tion  Co.  V.  Harris,  72  So.  545,  197  Ala. 
236;  Montgomery  St.  Ry.  Co.  v. 
Shanks,  37  So.  166,  139  Ala.  489. 

111.  Hartrich  v.  Hawes,  67  N.  B. 
13,  202  111.  334,  affirming  judgment 
103  111.  App.  433;  Vittum  v.  Drury, 
161  111.  App.  603;  Elwood  v.  Chicago 
City  Ry.  Co.,  90  111.  App.  397. 

Ind.  Virgin  v.  Lake  Erie  &  W. 
R.  Co.,  101  N.  E.  500,  55  Ind.  App. 
216 ;  Teagarden  v.  McLaughlin,  86 
Ind.  476,  44  Am.  Rep.  332. 

Ky.  Louisville.  C.  &  L.  R.  Co.  v. 
Goetz's  Adm'x,  79  Ky.  442,  42  Am. 
Rep.  227. 

Mass.  Knight  v.  Overman  Wheel 
Co.,  54  N.  E.  890,  174  Mass.  455. 

Mo.  Lumb  V.  Forney  (App.)  190 
S.  W.  988;  Tanchof  v.  Metropolitan 
St.  Ry.  Co.   (App.)  177  S.  W.  813. 

Tex.  Wiliams  v.  Galveston,  H.  & 
S.  A.  Ry.  Co.  (Civ.  App.)  196  S.  W. 
309;  Abilene  Gas  &  Electric  Co.  v. 
Thomas  (Civ.  App.)  194  S.  W.  1016; 
Missouri,  K.  &  T.  Ry.  Co.  of  Texas  v. 
Cardwell  (Civ.  App.)  187  S.  W.  1073 ; 
San  Antonio,  U.  &  G.  R.  Co.  v.  Gal- 


§76 


INSTRUCTIONS  TO  JURIES 


148 


want  of  negligence,^^  that  a  servant  appreciated  and  assumed  cer- 
tain risks,^*  that  defects  in  a  sidewalk  were  obvious,^^  that  one 
walking  on  a  railroad  track  was  a  trespasser ,^i  that  an  engine  was 
properly  equipped  to  prevent  the  escape  of  sparks,^^  that  certain 
acts  or  places  or  positions  or  agencies  are  dangerous,^*  that  a  struc- 
ture was  a  scaffold,^*  that  certain  objects  are  not  such  as  to  fright- 


breath  (Civ.  App.)  185  S.  W.  901; 
Texas  Midland  R.  R.  v.  Nelson  (Civ. 
App.)  161  S.  W.  1088;  St.  Louis 
Southwestern  Ry.  Co.  of  Texas  v. 
Tarver  (Civ.  App.)  150  S..  W.  958; 
Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Broom- 
head  rCiv.  App.)  140  S.  W.  820; 
Chicago,  R.  I.  &  G.  Ry.  Co.  v.  Knox 
(Civ.  App.)  138  S.  W.  224;  Gulf,  C. 
&  S.  F.  Ry.  Co.  V.  Brooks,  132  S.  W. 
95,  63  Tex.  Civ.  App.  231;  Inter- 
national &  G.  N.  R.  Co.  V.  Brice  (Civ. 
App.)  95  S.  W.  660,  judgment  revers- 
ed 97  S.  W.  461,  100  Tex.  203. 

Vt.  Doyle  v.  Melendy,  75  A.  881, 
83  Vt.  339. 

5  8  U.  S.  (C.  C.  A.  Mo.)  Ameri- 
can Car  &  Foundry  Co.  v.  Barry,  195 

F.  919,  115  C.  C.  A.  607. 

Ala.  Alabama  Great  Southern  R. 
Co.  V.  Demovllle,  52  So.  406,  167  Ala. 
292. 

Ark.  St.  Louis  Southwestern  Ry. 
Co.  V.  Adams,  135  S.  W.  814,  98  Ark. 
222. 

Cal.  Williams  v.  Pacific  Electric 
Ry.  Co.,  170  P.  423,  177  Cal.  235. 

111.  Beeson  v.  Vandalia  R.  Co., 
161  111.  App.  267;  Chicago  Union 
Traction  Co.  v.  Grommes.  110  111.  App. 
113 ;  West  Chicago  St.  R.  Co.  v.  Cal- 
low,  102  111.  App.   323;    De  Kalb  & 

G.  W.  Ry.  Co.  V.  Rowell,  74  111.  App. 
191. 

Ind.  Rump  v.  Woods,  98  N.  E. 
369,  50  Ind.  App.  347;  Indianapolis 
St.  Ry.  Co.  V.  O'Donnell,  73  N.  E.  163, 
35  Ind.  App.  312,  rehearing  denied 
74  X.  E.  253,  35  Ind.  App.  312. 

Md.  Wolf  V.  Shriver,  72  A.  411, 
109  :Md.  295. 

Mo.  Lagarce  v.  Missouri  Pac.  Ry. 
Co.,  166  S.  W.  1063,  183  Mo.  App.  70. 

N.  Y.  Schwartz  v.  Metropolitan 
St.  Ry.  Co.,  78  N.  Y.  S.  886,  38  Misc. 
Rep.  795. 

Or.  Richardson  v.  Klamath  S.  S. 
Co.,  126  P.  24,  62  Or.  490. 


Pa.  Schmidt  v.  McGill,  120  Pa. 
405,  14  A.  383,  6  Am.  St.  Rep.  713. 

S.  C.  Kirby  v.  Southern  Ry.,  41 
S.  E.  765.  63  S.  C.  494. 

Tesc.  International  &  G.  N.  R.  Co. 
V.  Garcia,  117  S.  W.  206,  54  Tex.  Civ. 
App.  59 ;  Thompson  v.  Galveston,  H. 
&  S.  A.  Ry.  Co.,  106  S.  W.  910,  48 
Tex.  Civ.  App.  284. 

Wash.  Hall  v.  West  &  Slade  Mill 
Co.,  81  P.  915,  39  Wash.  447,  4  Ann. 
Cas.  587. 

5  9  Nix  v.  Brunswick-Balk e-Collen- 
der  Co.,  191  111.  App.  503:  Cook  v. 
Urban  (Tex.  Civ.  App.)  167  S.  W.  251. 

60  Waters  v.  Kansas  City,  68  S. 
W.  366,  94  Mo.  App.  413. 

61  Houston  &  T.  C.  R.  Co.  v.  O'Don- 
nell (Tex.  Civ.  App.)  90  S.  W.  886, 
judgment  reversed  92  S.  W.  409,  99 
Tex.  636. 

6  2  Alabama  Great  Southern  R.  Co. 
v.  Sanders,  40  So.  402,  145  Ala.  449 ; 
Alabama  Great  Southern  R.  Co.  v. 
Clark.  .39  So.  816,  145  Ala.  459. 

63  Ala.  Prattville  Cotton  Mills 
Co.  V.  McKinney,  59  So.  498,  178  Ala. 
554. 

111.  Sugar  Creek  iMin.  Co.  v.  Pet- 
erson, 52  N.  E.  475,  177  111.  324.  re- 
versing judgment  75  111.  App.  631 ; 
Hughes  V.  Eldorado  Coal  &  IMining 
Co.,  197  111.  App.  259;  Wilson  v. 
Danville  Collieries  Coal  Co.,  171  111. 
App.  65;  Odett  v.  Chicago  City  Ry. 
Co.,    166    111.    App.    270. 

Ind.  Indiana  Union  Traction  Co. 
V.  Sullivan,  101  N.  E.  401,  53  Ind. 
App.  239. 

Mo.  Ganev  v.  Kansas  City,  168 
S.  W.  619,  259  Mo.  654. 

S.  C.  Lowrimore  v.  Palmer  Mfg. 
Co..  ,38  S.  E.  430,  60  S.  C.  153. 

Wash.  Walters  v.  City  of  Seat- 
tle, 167  P.  124,  97  Wash.  657. 

Wyo.  Acme  Cement  Plaster  Co. 
v.  Westman,  122  P.  89,  20  Wyo.  143. 

6*  Conger  v.  Wiggins,  57  A,  341, 
208  Pa.  122. 


149 


ASSUMPTIONS  AS  TO   EXISTENCE   OF   FACTS 


§76 


en  a  mule  of  ordinary  gentleness,®^  that  there  was  fraud  in  a  certain 
transaction,  or  that  certain  representations  were  fraudulent,^®  that 
certain  false  representations  were  material,®'*^  that  one  possessed 
knowledge  or  opportunities  for  knowledge  of  certain  matters  in 
time  to  govern  his  action,®^  that  certain  persons  or  things  were 
identical,®^  that  a  will  was  signed,''**  that  the  children  of  a  decedent 
were  the  natural  objects  of  his  bounty,'^  that  certain  persons  were 
the  heirs  of  a  decedent,''  that  there  was  unreasonable  delay  on  the 
part  of  a  bankrupt  in  endeavoring  to  obtain  his  discharge,'^  that  a 
receipt  expressly  acknowledged  payment  of  a  bill,''*  to  assume  the 
fact  of  nonpayment,''^  that  testimony  given  on  a  former  trial  has 
been  accurately  reproduced,''®  that  a  copy  was  a  correct  copy/^ 
that  a  certain  document  was  an  ancient  instrument,''*  that  a  certain 
conversation  took  place  between  the  parties,''^  that  certain  items 


6  5  Western  Ry.  of  Alabama  v. 
Cleghorn,  39  So.  133,  143  Ala.  392. 

6G  Mont£;omery-Moore  Mfg.  Co.  v. 
Leeth,  5G  So.  770,  2  Ala.  App.  324; 
Gardner  v.  Boothe,  31  Ala.  186. 

Ga.  Chambers  v.  Gardner,  89  Ga. 
270,  15  S.  E.  312. 

111.  American  Ins.  Co.  v.  Craw- 
ford, 89  111.  62 ;  Clark  v.  Lee,  205  111. 
App.  1. 

Mich.  Gordon  v.  Alexander,  SO  N. 
W.  978.  122  Mich.  107. 

Mo.  State  v.  Mason,  96  Mo.  559, 
10  S.  W.  179. 

Tex.  St.  Louis,  S.  F.  &  T.  Ry.  Co. 
V.  Bowles.  131  S.  W.  1176,  63  Tex. 
Civ.  App.  23. 

6  7  Weil  V.  Fineran,  93  S.  W.  568, 
78  Ark.  87. 

6  s  Aripeka  Sawmills  v.  Georgia 
Supply  Co.,  84  S.  B.  455,  143  Ga.  210 ; 
Howell  V.  Lawrenceville  ^Ifg.  Co.,  31 
Ga.  663. 

111.  Rosinski  v.  Burton,  163  111. 
App.  162. 

Md.  Annapolis  Gas  &  Electric 
Light  Co.  V.  Fredericks,  72  A.  534, 
109  Md.  595. 

Mich.  Rouse  v.  Michigan  United 
Rys.  Co.,  129  N.  W.  719,  164  Mich. 
475 ;  American  Cushman  Tel.  Co.  v. 
Noble,  98  Mich.  67,  56  N.  W.  1100. 

Mo.  Legg  V.  Metropolitan  St.  Ry. 
Co.,  133  S.  W.  1190,  154  Mo.  App.  290. 

Pa.  Podona  v.  Lehigh  Valley 
€oal  Co.,  91  A.  920,  245  Pa.  501. 

R.  I.     Blake  v.  Rhode  Island  Co., 


78  A.  834,  32  R.  I.  213,  Ann.  Oas. 
1912D,    852. 

Tex.  Wichita  Falls  Motor  Co.  v. 
Bridge  (Civ.  App.)  158  S.  W.  1161; 
Goodbar  v.  City  Nat.  Bank,  78  Tex. 
461.  14  S.  W.  851. 

■Wash.  Harkins  v.  J.  A.  Veness 
Lumber  Co.,  124  P.  492,  69  Wash. 
196. 

6  9  Dunaway  &  Lambert  v.  Stick- 
ney,  69  So.  232,  13  Ala.  App.  645; 
Witherell  v.  Maine  Ins.  Co.,  49  "Slv. 
200 ;  Bellis  v.  Phillips,  28  N.  J.  Law, 
125. 

ToWhitsett  V.  Belue,  54  So.  677. 
172  Ala.  256;  O'Dav  v.  Crabb,  109 
N.  E.  724,  269  HI.  123.      • 

71  Jackson  v.  Folsom,  118  N.  E. 
955,  187  Ind.  257. 

7  2  Woolfolk  V.  Ashby,  2  Mete.  (Kv.i 
288. 

7  3  Huntington  v.  Saunders,  166 
Mass.  92.  43  N.  B.  1035. 

7  4  Swift  &  Co.  V.  Mutter,  115  111. 
App.  374. 

7  5  Rouden  v.  Heisler's  Estate  (Mo. 
App.)  219  S.  W.  691. 

7  6  Carter  v.  Marshall,  72  111.  609. 

7  7  Louisville  &  N.  R.  Co.  v.  Shep- 
herd, 61  So.  14,  7  Ala.  App.  496. 

7  8Daugharty  v.  S.  L.  &  C.  C. 
Drawdy,  68   S.   E.  472.   134  Ga.  650. 

7  0  Vroman  v.  Rogers  (City  Ct. 
Brook.)  5  N.  Y.  S.  426,  judgment  af- 
firmed 132  N.  Y.  167,  30  N.  E.  388; 
Gurnev  v.  Smithson,  20  N.  Y.  Super. 
Ct.   .396. 


76 


INSTRUCTIONS  TO  JURIES 


150 


constituted  elements  of  recovery.*®  that  a  personal  injury  was  per- 
manent,^!  that  a  carrier  had  notice  of  special  damages  which  might 
accrue  to  a  shipper  from  delay  in  transportation,*^  that  a  plaintiff 
was  entitled  to  substantial  damages,*^  that  plaintiff  could  have  pre- 
vented the  damages  for  which  he  sued,**  to  assume  facts  relating 
to  value,*^  that  certain  facts  diminished  the  value  of  land  or  other 
property,*^  that  certain  effects  were  due  to  certain  causes,*''  that 


80  IT.  S.  Vicksburg  &  M.  R.  Co.  v. 
Putnam,  118  U.  S.  545,  7  S.  Ct.  1,  30 
L.  Ed.  257. 

111.  Barrelett  v.  Bellgard.  71  111. 
280;  Todd  v.  Chicago  City  Ry.  Co., 
1^  111.  App.  544. 

Iowa.  Sample  v.  Rand,  84  N.  W. 
683,  112  Iowa.  616. 

Ky.  McGrew's  Ex'r  v.  O'Donnell, 
92  S.  W.  301,  28  Ky.  I^w  Rep.  1366. 

Md.  City  of  Baltimore  v.  M.  A. 
Talbott  &  Co.,  87  A.  941,  120  Md.  354. 

Minn.  Conehan  v.  Crosby,  15 
Minn.  13   (Gil.  1). 

Miss.  Lopez  v.  Jackson,  32  So. 
117,   80  Miss.  684. 

Mo.  Van  Zandt  v.  St.  Louis 
Wholesale  Grocer  Co.,  190  S.  W. 
10.50,  196  Mo.  App.  640;  Evans  v. 
City  of  Joplin,  76  Mo.  App.  20 ;  Wal- 
ters v.  Cox,  67  Mo.  App.  299 ;  Patton 
V.  Penquite,  32  INIo.  App.  595. 

N.  Y.  McCormick  v.  McCaffray, 
55  N.  Y.  S.  574,  25  Misc.  Rep.  786; 
Catlin  V.  Pond,  101  N.  Y.  649,  5  N.  E. 
41. 

Ohio.  Weybright  v.  Fleming,  40 
Ohio  St.  52. 

Tex.  San  Antonio  &  A.  P.  Ry. 
Co.  V.  Shankle  &  Lane  (Civ.  App.) 
183  S.  W.  115 ;  Waterman  Lumber 
&  Supply  Co.  V.  Holmes  (Civ.  App.) 
161  S.  W.  70;  ITlhnan  v.  Deverenx 
(Civ.  App.)  93  S.  W.  472;  St.  Louis 
S.  W.  Ry.  Co.  V.  McCiillough  (Civ. 
App.)  33  S.  W.  285;  Houston  City 
St.  Ry.  Co.  V.  Artusey  (Civ.  App.) 
31  S.  W.  319;  Wilkinson  v.  Johnson, 
83  Tex.  .392,  IS  S.  W,  746. 

81  Pekin  Stave  &  Mfg.  Co.  v.  Ram- 
ey,  158  S.  W.  150,  108  Ark.  483. 

82  Atchison,  T.  &  S.  F.  Ry.  Co.  v. 
Keel  Grain  Co.  (Tex.  Civ.  App.)  132 
S.  W.  837. 

83  Dady  v.  Condit,  58  N.  E.  900, 
188  111.  2.34,  reversing  judgment  87 
111.   App.   2.50;    Jtidd   v.  Isenhart,   93 


111.  App.  520;  Blow  v.  Joyner,  72 
S.  E.  319.  156  N.  C.  140. 

8^  King  Land  &  Improvement  Co. 
V.  Bowen,  61  So.  22,  7  Ala.  App.  462. 

8  5  Idaho.     Drumheller    v.    Dayton, 

160  P.  944,  29  Idaho.  552. 

111.  Staver  Carriage  Co.  v.  Amer- 
ican &  British  Mfg.  Co.,  188  111.  App. 
634. 

N.  Y.  Schoolman  v.  Ratkowsky 
(Sup.)  141  N.  Y.  S.  527;  McNulty  v. 
Pickelmann  (Sup.)  141  N.  Y.  S.  521; 
Spencer  v.  Hardin,  134  N.  Y.  S.  373, 
149  App.   Div.  667. 

Tex.  Houston  &  T.  C.  R.  Co.  v. 
Crowder  (Civ.  App.)  152  S.  W.  183; 
Gulf,  C.  &  S.  F.  Rv.  Co.  V.  Coulter 
(Civ.  App.)  1.39  S.  W.  16. 

86  New  York,  C.  &  St.  L.  R.  Co.  v. 
Rhodes.  86  N.  E.  840,  171  Ind.  521,  24 
L.  R.  A.  (N.  S.)  1225 ;  Norris  v.  Laws, 
64  S.  E.  499.  1.50  N.  C.  599 ;  Missouri, 
K.  X-  T.  R.  Co.  of  Texas  v.  Light,  117 
S.  W.  1058,  54  Tex.  Civ.  App.  481. 

8  7  Ala.  Sloss-Sheffield  Steel  & 
Iron  Co.  V.  Smith  (Sup.)  40  So.  91. 

ni.  Illinois.  I.  &  M.  Ry.  Co.  v. 
Easterb.rook,  71  N.  E.  1116,  211  111.. 
624;  Dawson  v.  Allen,  191  111.  App. 
399;  Security  Ins.  Co.  v.  Slack,  183 
111.  App.  579;  Browning  v.  Jones,  52 
111.  App.  .597. 

Ind.  Baltimore  &  O.  S.  W.  Ry. 
Co.  v.  Young,  54  N.  E.  791,  153  Ind. 
103. 

Minn.  McGrath  v.  Great  North- 
ern Rv.  Co.,  78  N.  AV.  972,  76  xAIinn. 
146. 

Mo.     Fife  V.  Chicago  &  A.  R.  Co., 

161  S.  W.  300.  174  Mo.  App.. 6-55. 

N.  Y.  Link  v.  Sheldon,  136  N.  Y. 
1,  32  N.  E.  696.  affirming  64  Iltiin. 
6.32.  18  N.  Y.  S.  815. 

N.  C.  Brewster  v.  Corporation  of 
Elizabeth  Pity,  54  S.  E.  784,  142  N. 
C.  9 :  Pooiiles  v.  North  Carolina  R. 
Co.,  49  S.  E.  87,  137  N.  C.  96. 

Tex.     Trinity  &  B.   V.   Ry.   Co.  v. 


151 


ASSUMPTIONS  AS  TO  EXISTENCE  OF  FACTS 


77 


certain  dangerous  conditions  were  due  to  a  latent  defect,^*  to  as- 
sume facts  in  relation  to  ownership,*^  that  the  location  of  a  bound- 
ary line  was  correct,^®  that  a  survey  was  made,^^  that  possession  of 
land  was  of  a  certain  character,^^  that  the  possession  of  property 
was  in  a  certain  person,^^  that  an  absence  from  land .  occupied 
as  a  homestead  was  temporary,^*  and  to  assume  facts  bearing  on 
the  credibility  of  witnesses."* 

§  77.     Specific  applications  of  rule  in  criminal  cases 

In  'criminal  cases  the  above  rule  has  been  applied  to  instructions 
assuming  that  a  crime  was  proved,"^  that  defendant  committed  the 


Gregory  (Civ.  App.)  142  S.  W.  656; 
Same  v.  Burke.  Id.  658;  Hunt  v. 
Johnson  (Civ.  App.)  129  S.  W.  879. 

S8  Pierce  v.  Decatur  Coal  Co.,  151 
111.  App.  47. 

89  Ala.  Louisville  &  N.  R.  Co.  v. 
Christian  Moerlein  Brewing  Co.,  43 
So.  723,  150  Ala.  390 ;  Dorian  v.  Wes- 
tervitch,  37  So.  382,  140  Ala.  283,  103 
Am.   St.  Rep.  35. 

Cal.  Jolly  V.  McCoy,  172  P.  618, 
36  Cal.  App.  479:  Dean  v.  Ross,  105 
Cal.  227,  38  P.  912. 

111.  Allmendiniier  v.  McHie,  59  N. 
E.   517,   189  111.  308. 

Ky.  Bailey  v.  Tygart  Valley  Iron 
Co.,   10   S.  W.   234. 

Me.     Whipple  v.  Wing,  39  Me.  424. 

Miss.  American  Express  Co.  v. 
Jennings,  38  So.  374,  86  Miss.  329, 
109  Am.  St.  Rep.  708. 

Mo.  Nichols  V.  Tallman,  189  S.  W. 
1184;  Warrington  v.  Bird,  151  S.  W. 
754,  168  Mo.  App.  385;  Benne  v.  Mil- 
ler, 50  S.  W.  824,  149  Mo.  228;  AVil- 
kerson  v.  Eilers,  114  Mo.  245,  21  S. 
W.  514. 

S.  C.  Hodge  V.  Hodge,  34  S.  E. 
517.  56  S.  C.  263. 

Tex.  Fir.st  Nat.  Bank  v.  Thomas 
(Civ.  App.)  118  S.  W.  221;  Lake  v. 
Copeland,  72  S.  W.  99,  31  Tex.  Civ. 
App.  358. 

W.  Va.  Union  Trust  &  Deposit 
Co.  V.  Paulhamus,  81  S.  E.  547,  74 
W.  Va.  1. 

9  0  Smith  V.  Bachus,  78  So.  888.  201 
Ala.  5.34;  Paschall  v.  Brown,  147  S. 
W.  561.  105  Tex.  247,  reversing  judg- 
ment (Civ.  App.)  1.33  S.  W.  509 ;  Luc- 
kie  v.  Schneider  (Tex.  Civ.  App.)  57  S. 
W.  690. 

91  Goff  V.  Cougle,  76  N.  W.  489,  118 
Mich.  307,  42  L.  R.  A.  161. 


9  2  Anthony  v.  Seed,  40  So.  577,  146 
Ala.  193;  Rabbermann  v.  Carroll,  69 
N.  E.  7.59,  207  111.  253;  Neppach  v. 
Jordan,  15  Or.  308,  14  P.  353. 

93  Casper  v.  Geek,  185  111.  App.  155. 

94  White  V.  Epperson,  73  S.  W.  851, 
32  Tex.  Civ.  App.  162. 

9  5  XT.  S.  (C.  C.  A.  Mass.)  American 
Agricultural  Chemical  Co.  v.  Hogan, 
213  F.  416,  1.30  C.  C.  A.  52. 

Ala.  Worthy  v.  State,  44  So.  535, 
152  Ala.  49;  Crittenden  v.  State,  32 
So.  273,  134  Ala.  145. 

Ark.  Spencer  v.  State,  194  S.  W. 
863,  128  Ark.  452. 

Ky.  McKinney  v.  Commonwealth, 
82  S.  W.  263,  26  Ky.  Law  Rep.  565. 

Mich.  People  v.  Fox,  105  N.  W. 
1111.  142  Mich.  528. 

Mo.  Freeman  v.  Metropolitan  St. 
Ry.  Co.,  68  S.  W.  1057,  95  Mo.  App. 
94. 

Pa.  Commonwealth  v.,  Bober,  59 
Pa.  Super.  Ct.  573. 

Tex.  Ballard  v.  State,  160  S.  W. 
716,  71  Tex.  Cr.  R,  587;  Green  v. 
State,  98  S.  W.  1059,  49  Tex.  Cr.  R. 
645. 

9G  Merino  v.  State,  141  P.  710,  16 
Ariz.  132;  People  v.  Roberts,  55  P. 
137,  122  Cal.  377;  State  v.  Lee,  182 
S.    W.    972,    272    Mo.    121. 

Instrnctions  not  improper  as 
assuming:  the  commission  of  a 
crime.  Since  "homicide"  means  the 
killing  of  any  human  being  an  in- 
struction speaking  of  the  killing  as  a 
homicide  is  not  erroi*.  Griggs  v. 
State,  86  S.  E.  726,  17  Ga.  App.  301. 
Where,  in  a  murder  case,  the  court 
charged  that  it  was  contended  by  ac- 
cused that  he  was  elsewhere  at  the 
time  of  the  commission  of  the  homi- 
cide, and  consequently  that  it  was  im- 


77 


INSTRUCTIONS   TO   JURIES 


152 


act  charged  as  a  crime,^''^  that  the  intent  of  defendant  was  criminal, 
or  the  reverse,^*  that  the  offense  charged  was  committed  in  a  cer- 
tain place,^  that  the  offense  was  committed  in  a  certain  manner^ 
or  that  certain  articles  were  used  in  its  commission/  that  defend- 
ant had  a  good  character,^  that  evidence  incriminating  defendant 
existed,^  that  defendant  fled,*  that  a  witness  was  an  accomplice,^ 
that  defendant  had  committed  other  related  offenses,®  that  defend- 
ant had  confessed  or  made  admissions,'  and  to  instructions  assum- 
ing facts  bearing  on  issue  of  self-defense.* 


possible  for  him  to  have  committed  it, 
that  the  contention  constituted  an 
alibi,  which  if  established  was  a  per- 
fect refutation  of  any  crime  charged, 
and,  being  interposed  by  accused  as 
proof  that  he  was  not  guilty,  it  be- 
came the  duty  of  the  jury  to  pass  up- 
on the  question  whether  accused  was 
present  at  the  scene  of  the  homicide 
at  the  time  of  the  commission  thereof, 
it  was  held  that  the  charge  was  not 
objectionable  as  assuming  the  proof 
of  the  crime  charged  against  accused, 
on  the  hypothesis  that  "homicide"  is 
synonymous  with  "crime,"  since  the 
killing  of  a  human  being  under  any 
circumstances  constitutes  homicide, 
but  whether  a  homicide  is  a  crime 
depends  on  the  circumstances  under 
which  it  is  committed.  People  v.  Mar 
Gin  Suie,  103  P.  951,  11  Cal.  App.  42. 
9T  Lujan  V.  State,  141  P.  706,  16 
Ariz.  12.3. 

0  8  Morris  v.  State,  41  So.  274,  146 
Ala.  66;  Willis  v.  State,  33  So.  226, 
1.34  Ala.  429;  Wimberly  v.  State,  77 
S.  E.  879,  12  Ga.  App.  540;  Kennison 
V.  State,  115  N.  W.  289,  80  Neb.  688 ; 
Young  V.  State.  151  S.  W.  1046,  68 
Tex.  Cr.  R.  580. 

99  Cox  V.  State,  60  S.  W.  27,  68 
Ark!  462 ;  Commonwealth  v.  Cooper, 
27  Pa.  Super.  Ct.  8. 

1  Hall  V.  State,  65  So.  427,  11  Ala. 
App.  95 :  Sloan  v.  State,  70  So.  23,  70 
Fla.  216:  Smothers  v.  State,  59  So. 
900.  64  Fla.  459;  People  v.  P.issett, 
92  N.  E.  949,  246  111.  516;  Stiite  v. 
Harris,  108  S.  W.  28,  200  Mo.  423. 

2  Axelrod  v.  State,  60  So.  959,  7 
Ala.  App.  61 ;  Sadler  v.  State,  51  So. 
564,  165  Ala.  109;  People  v.  Lathrop 
(Cal.  App.)  192  P.  722. 

3  Thomas  v.  State,  32  So.  250,  133 
Ala.  139;  Rupe  v.  State,  124  S.  W. 
655,   57   Tex.   Cr.  588. 


W. 


W. 


4  Lantern  v.  State,  55  So.  1032,  1 
Ala.  App.  31. 

5  U,  S.  Holmgren  v.  United  States, 
30  S.  Ct.  588,  217  U.  S.  509.  54  L.  Ed. 
861,  19  Ann.  Cas.  778,  affirming  judg- 
ment (C.  C.  A.  Cal.)  156  F.  4.39,  84 
C.  C.  A.  301;  (C.  C.  A.  Pa.)  Richard- 
son V.  United  States,  181  F.  1,  104  C 
C.  A.  69. 

Ark.  Simms  v.  State,  150  S.  W. 
113,  105  Ark.   16. 

Mo.  State  v.  Potts,  144  S.  W.  495, 
239   Mo.   403. 

Mont.  State  v.  Sloan,  89  P.  829,  35 
Mont.  367 ;  State  v.  Allen,  87  P.  177, 
34  Mont.  403. 

Tenn.     Hicks  v.   State,  149  S. 
1055,  126  Tenn.  359. 

Tex.     Foster  v.    State,    150   S. 
936,  68  Tex.  Cr.   R.  38. 

c  Glover  v.  State  (Tex.  Cr.  App.) 
76  S.  W.  465;  Homer  v.  State  (Tex. 
Cr.  Apr>.)   65  S.  W.  371. 

T  Young  V.  State,  54  S.  E.  82,  125 
Ga.  584 ;  Dixon  v.  State,  39  S.  E.  846. 
113  Ga.  1039;  Hellyer  v.  People,  58 
N.  E.  245,  186  111.  550;  State  v.  Drew, 
179  Mo.  315,  78  S.  W.  594,  101  Am. 
St.  Rep.  474. 

8  Ala.  Cain  v.  State,  77  So.  453,  16 
Ala.  App.  303;  Smith  v.  State.  74  So., 
755,  15  Ala.  App.  662;  Pippin  v. 
State,  73  So.  340.  197  Ala.  613;  All- 
sup  v.  State,  72  So.  599,  15  Ala.  121 ; 
Hutchinson  v.  State,  72  So.  572,  15 
Ala.  App.  90 ;  White  v.  State,  71  So. 
452,  195  Ala.  681;  Murray  v.  State, 
69  So.  354.  13  Ala.  App.  175 ;  Thomas 
V.  State,  69  So.  315,  13  Ala.  App.  50 ; 
Bailey  v.  State,  65  So.  422,  11  Ala. 
App.  8;  McGhee  v.  State,  59  So.  573, 
178  Ala.  4;  Cheney  v.  State,  55  So. 
801,  172  Ala.  368;  Phillips  v.  State, 
54  So.  Ill,  170  Ala.  5;  Stockdale  v. 
State,  51  So.  563,  1G5  Ala.  12;  Wil- 
liams V.  State,  50  So.  59,  161  Ala.  52 ; 


153 


ASSUMrTIONS  AS  TO   EXISTENX'E   OF   FACTS 


78 


B.  Facts  Admitted,  Not  CoxtrovErtkd,  or  Conclusively  Es- 
tablished 
§  78.     General  rule 

The  court  may  assume  the  existence  of  facts  which  are  admit- 
ted,® or  are  not  disputed;^"  this  rule  also  applying  in  criminal 
cases/' 


11 


Wright  V.  State.  42  So.  745,  148  Ala. 
596 ;  Cawley  v.  State,  32  So.  227,  13;] 
Ala.  128;  Mitchell  v.  State,  32  So. 
132,  133  Ala.  65;  Push  v.  State,  31 
So.  727,  132  Ala.  1;  Gilmore  v.  State, 
28    So.    595,    126   Ala.   20. 

Fla.  Stokes  v.  State,  44  So.  759, 
54  Fla.  109. 

Miss.  Cunningham  v.  State,  39  So. 
531,  87  Miss.  417. 

Tex.  Parish  v.  State,  153  S.  W. 
327,  69  Tex.  Cr.  R.  254;  Christian  v. 
State,  97  S.  W.  694,  50  Tex.  Cr.  R. 
410. 

9  Ala.  Sheffield  Co.  v.  Harris,  61. 
So.  88,  183  Ala.  357;  Ham  v.  State, 
47  So.  126,  156  Ala.  645. 

Alaska.  Williams  v.  Alaska  Com- 
mercial Co.,  2  Alaska,  43. 

Ark.  Driver  v.  Board  of  Direc- 
tors of  St.  Francis  Levee  Dist.,  68  S. 
W.  26,  70  Ark.  358. 

Ga.  Morrison  v.  Cureton,  77  S.  E. 
160,  139  Ga.  299 ;  Western  Union  Tel- 
egraph Co.  V.  Harris,  64  S.  E.  1123, 
6  Ga.  App.  260;  Eagle  &  Phenix 
Mills  V.  Herron,  46  S.  E.  405,  119  Ga. 
389 :  .  Central  of  Georgia  Ry.  Co.  v. 
Johnston,  32  S.  E.  78.  106  Ga.  130. 

111.  Compher  v.  Browning.  76  N. 
E.  678.  219  111.  429,  109  Am.  St.  Rep. 
346 ;  Chicago  Anderson  Pressed  Brick 
Co.  V.  Reinneiger,  140  111.  334,  29  N. 
E.  1106,  33  Am.  St.  Rep.  249;  Monk 
V.  Caseyville  Ry.  Co.,  202  111.  App. 
641. 

Ind.  Horka  v.  Wieczorek,  115  N. 
E.  949,  64  Ind.  App.  ,387 ;  Indianapo- 
lis &  St.  L.  R.  Co.  v.  Stout,  53  Ind. 
143. 

Iowa.  Ryan  v.  Incoi-porated  Town 
of  Lone  Tree,  98  N.  W.  287,  122  Iowa, 
420. 

Kan.  Wade  v.  Empire  Dist.  Elec- 
tric Co.,  158  P.  28,  98  Kan.  366,  re- 
hearing denied  158  P.  1110. 

Ky.  .lones  v.  Mobile  &  O.  R.  Co. 
127  S.  W.  144. 

Md.     Koch  V.  Maryland  Coal  Co., 


68  Md.  125,  11  A.  700;    Waters'  Les- 
see V.  Riggin.  19  Md.  536. 

Micli.  Johnston  v.  Cornelius,  166 
N.  W.  983,  200  Mich.  209,  L.  R.  A. 
1918D,  880;  Dalm  v.  Bryant  Paper 
Co.,  122  N.  W.  257,  157  Mich.  550. 

Mo.  Montgomery  v.  Hammond 
Packing  Co.  (App.)  217  S.  W.  867; 
Palmer  v.  Shaw  Transfer  Co.  (Sup.) 
209  S.  W.  882;  Irwin  v.  Wilhoit 
(App.)  199  S.  W.  588;  Chapman  v. 
Brown,  179  S.  W.  774,  192  Mo.  App. 
78 ;  Bouillon  v.  Laclede  Gaslight  Co.. 
147  S.  W.  1107,  165  Mo.  App.  .320; 
AVise  V.  Wabash  R.  Co..  115  S.  W.  4.52, 
135  Mo.  App.  230;  Markey  v.  Louis- 
iana &  M.  R.  R.  Co.,  84  S.  W.  61, 
185  Mo.  348 ;  Spencer  v.  Farmers' 
Mut.  Ins.  Co.,  79  Mo.  App.  213;  Price 
V.  Patrons'  &  Farmers'  Home  Protec- 
tion Co.,  77  Mo.  App.  236. 

Neb.  Fitzgerald  v.  Union  Stock- 
yards Co.,  136  N.  W.  838,  91  Neb. 
493. 

Nev.  Cutler  v.  Pittsburg  Silver 
Peak  Gold  Mining  Co.,  116  P.  418,  34 
Nev.  45. 

N.  Y.  Smith  v.  New  York  Anti- 
Saloon  League,  106  N.  Y.  S.  251,  121 
App.  Div.  600;  McManus  v.  Woolver- 
ton  (Com.  PL)  19  N.  Y.  S.  545.  judg- 
ment affirmed  138  N.  Y.  648,  34  N. 
E.  513. 

N.  C.  Crampton  v.  Ivie,  32  S.  B. 
968,    124  N.   C.   591. 

Okl.  Choctaw,  O.  &  G.  R.  Co.  v. 
Burgess,  97  P.  271,  21  Okl.  653. 

S.  C.  Hiller  v.  Bank  of  Columbia. 
79  S.  E.  899.  96  S.  C.  74 ;  Reardon  v. 
Averbuck,  75  S.  E.  959,  92  S.  C.  569 ; 
Moore  v.  Columbia  &  G.  R,  Co.,  38  S. 
C.  1,  16  S.  E.  781. 

S.  D.  Duprel  v.  Collins.  146  N.  W. 
593,  .33  S.  D.  305 ;  Bolte  &  Jansen  v. 
Equitable  Fire  Ass'n,  121  N.  W.  773, 
23  S.  D.  240. 

Tex.     Richard  Cocke  &  Co.  v.  New 

10,  11  See  Notes  10  and  11  on  pages 
1.54  to  156. 


INSTRUCTIOXS   TO  JURIES 


154 


In  civil  cases,  if  the  evidence  is  all  one  way  and  conclusively 


Era  Gravel  &  Development  Co.  (Civ. 
App.)  168  S.  W.  9SS;  Spires  v.  Mc- 
Elroy  (Civ.  App.)  166  S.  W.  457;  Mis- 
souri, K.  &  T.  Rj'.  Co.  of  Texas  v. 
AUen,  115  S.  W.  1179,  53  Tex.  Civ. 
App.  433 ;  Thompson  v.  Johnson,  58 
S.  W.  1030,  24  Tex.  Civ.  App.  246. 

Wash.  Blair  v.  Calhoun,  151  P. 
259,  87  Wash.  154. 

10  U.  S.  Tuttle  V.  Detroit,  G.  H.  & 
M.  Ry.  Co.,  122  U.  S.  189,  7  Sup.  Ct. 
1166,  30  L.  Ed.  1114 ;  (C.  C.  A.  Mo.) 
Missouri  Dist.  Telegraph  Co.  v.  Mor- 
ris &  Co..  243  F.  481,  156  C.  C.  A.  179. 
appeal  dismissed  .38  S.  Ct.  11,  245  U. 
S.  651,  62  L.  Ed.  531. 

Ala.  Southern  Rv.  Co.  v.  Haves. 
73  So.  945,  198  Ala.  601;  Willoughby 
V.  Birmingham  Ry.,  Lisrht  &  Power 
Co.,  66  So.  887,  11  Ala.  App.  611: 
Alexander  v.  Smith,  61  So.  68.  180 
Ala.  541;  Louisville  &  X.  R.  Co.  v. 
Holland,  55  So.  1001.  173  Ala.  675; 
Birmingham  Rv.,  Lisht  &  Power  Co. 
V.  McCurdy,  55  So.  616,  172  Ala.  488 ; 
Marx  V.  Leinkauff,  93  Ala.  453,  9  So. 
818. 

Ark.  Pacific  Mut.  Life  Ins.  Co.  v. 
Walker,  53  S.  W.  675,  67  Ark.  147. 

Cal.  Mathes  v.  Aggeler  &  Musser 
Seed  Co.,  178  P.  713,  179  Cal.  697; 
Burrell  v.  Southern  California  Can- 
ning Co.,  169  P.  405,  .35  Cal.  App.  162 ; 
Yann  v.  McCreai-y,  77  Cal.  434,  19 
P.  826. 

Colo.  Craig  v.  A.  Leschen  &  Sons 
Rope  Co.,  87  P.  1143,  38  Colo.  115. 

Conn.  Brown  Bag  Filling  Mach. 
Co.  V.  United  Smelting  &  Aluminum 
Co.,  107  A.  619,  93  Conn.  670;  Fer- 
rigino  v.  Keasbey,  106  A.  445,  93  Conn. 
445 ;  Temple  v.  Gilbert,  85  A.  380,  86 
Conn.  335;  McCaffrey  v.  Groton  &  S. 
St.  Ry.  Co.,  84  A.  284,  85  Conn.  584. 

Del.  Truxton  v.  Fait  &  Slagle  Co., 
42  A.  431.  1  Pennewill,  483,  73  Am. 
St.    Rep.    81. 

Fla.  Atlantic  Coast  Line  R.  Co.  v. 
McCormifk,  52  So.  712.  59  Fla.  121. 

Ga.  Strickland  v.  Bank  of  Car- 
tersville,  81  S.  E.  886,  141  Ga.  565: 
Oxford  V.  Oxford,  71  S.  E.  883,  136 
Ga.  589;  Reeves  v.  H.  C.  Allgood  & 
Co.,  67  S.  E.  82.  133  Ga.  835 ;  Atlan- 
tic Coast  Line  R.  Co.  v.  Smith,  65  S. 
E.  44,  6  Ga.  App.  378. 

111.     Grannon  v.  Donk  Bros.   Coal 


&  Coke  Co.,  102  N.  E.  769,  259  111. 
350,  affirming  judgment,  173  111.  App. 
395 ;  Turner  v.  Osgood  Art  Colortype 
Co.,  79  N.  E.  306,  223  111.  629,  affirm- 
ing judgment  125  111.  App.  602  ;  Town 
of  Normal  v.  Bright,  79  N.  E.  90, 
223  111.  99,  affirming  judgment  125 
111.  App.  478 ;  Gerke  v.  Fancher,  158 
111.  375,  41  N.  E.  982 ;  City  of  Chica- 
go V.  Moore,  139  111.  201,  28  N.  E. 
1071 ;  Voglef  V.  Chicago  &  Carterville 
Coal  Co.,  196  111.  App.  574 ;.  Jarnecke 
V.  Chicago  Consol.  Traction  Co.,  190 
111.  App.  i79  ;  Mackie  v.  Webster  Mfg. 
Co.,  175  111.  App.  385;  Cahill  v.  Del- 
lenback,  139  111.  App.  320 ;  Chicago  & 
A.  Ry.  Co.  v.  Tracey,  109  111.  App. 
563. 

Ind.  Union  Traction  Co.  of  Indi- 
ana V.  Elmore,  116  K  E.  837,  66  Ind. 
App.  95 ;  Archer  v.  Ostemeier;  105  IS. 
E.  522,  56  Ind.  App.  385;  Cleveland, 
C,  C.  &  St.  L.  Ry.  Co.  v.  Jones,  m 
N.  E.  503,  51  Ind.  App  245 ;  Halstead 
V.  Woods,  95  N.  E.  429,  48  Ind.  App. 
127 ;  Baltimore  &  O.  R.  Co.  v.  Reiser, 
94  N.  E.  330,  51  Ind.  App.  58;  How- 
ard County  Com'rs  v.  Legg,  110  Ind. 
479,  11  N.  E.  612. 

Iowa.  Dunning  v.  Burt,  162  N.  W. 
23,  ISO  Iowa,  754;  Colsch  v.  Chicago, 
M.  &  St.  P.  Ry.  Co.,  153  N.  W.  327, 
171  Iowa.  78;  Sewing  v.  Harrison 
Countv,  136  X.  W.  200.  156  Iowa,  229 : 
State  V.  Wrangler,  132  N.  W.  22,  151 
Iowa,  555 ;  Murphy  v.  Hiltibridle, 
109  N.  W.  471,  132  Iowa,  114;  Pratt 
V.  Chicago.  R.  I.  &  P.  Ry.  Co.,  77  M. 
W.  1064,  107  Iowa,  287;  Russell  v. 
Huiskamp,  77  Iowa,  727,  42  N.  W. 
525. 

Kan.  Douglass  v.  Geiler,  32  Kan. 
499.  4  P.  1039. 

Ky.  Western  Union  Telegraph  Co. 
V.  City  of  Louisville,  169  S.  W.  994, 
160  Ky.  499 ;  Wasioto  &  B.  M.  R.  Co. 
V.  Blanton.  1G9  S.  W.  589,  160  Ky. 
134 ;  Otis  Elevator  Co.  v.  Wilson,  145 
S.  W.  391,  147  Ky.  676 ;  Lax-Fos  Co. 
v.  Rowlett,  139  S.  W.  836,  144  Ky. 
690:  Montgomery  v.  Morton,  137  S. 
W.  540,  143  Ky.  793. 

Me.  Toole  v.  Bearce,  39  A.  558,  91 
Mo.    209. 

Mass.  McGuire  v.  Lawrence  Mfg. 
Co..  156  Mass.  324,  31  N.  E.  3. 

Mich.     Holcomb  &  Hoke  Mfg.  Co. 


155 


ASSUMPTIONS   AS  TO  EXISTENCE   OF   FACTS 


§78 


istablishcs  a  certain  fact,  the  court  may  assume  its  existence,  al- 


V.  Cataldo,  165  N.  W.  I>41.  199  Mich. 
265;  Hummer  v.  Midland  Casualty 
Co..  148  N.  W.  41.^,,  181  Mich.  386; 
Colboi-ue  V.  Detroit  United  Ry.,  143 
N.  W.  32,  177  Mich.  1.39 ;  Opsomere  v. 
Opsomero,  ,133  N.  W.  518,  167  Mich. 
636;  Tunnicliffe  v.  Bay  Cities  Con- 
sol.  Ry.  Co.,  107  Mich.  261,  65  N.  W. 
226. 

Minn.  Marchio  v.  City  of  Duluth, 
158  N.  W.  612,  133  Minn.  470 ;  John- 
son V.  Carlin,  141  N.  W.  4,.  121  Minn. 
176.  4  Ann.  Cas.  1914C,  705. 

Miss.  Alabama  &  V.  Ry.  Co.  v. 
Phillips.  70  Miss.  14.  11  So.  602 ;  La- 
mar V.  Williams.  39  Miss.  342  ;  Heirn 
V.  MeCaughan,  32  Miss.  17,  66  Am. 
Dee.  588. 

Mo.  Frank  Hart  Realty  Co.  v. 
Ryan  (App.)  218  S.  W.  412;  Argero- 
poulos  V.  Kansas  City  Rys.  Co.,  212 
S.  W.  369,  201  Mo.  App.  287;  Denny 
V.  Randall  (App.)  202  S.  W.  602 ;  Nee- 
ley  V.  Snyder  (App.)  193  S.  W.  610; 
Phillips  V.  Pryor  (App.)  190  S.  W. 
1027;  Young  v.  Tilley  (App.)  190  S. 
W.  95 ;  Burns  v.  Polar  Wave  Ice  & 
Fuel  Co.  (App.)  187  S.  W.  145;  Cool 
V.  Petersen,  175  S.  W.  244,  189  Mo. 
App.  717 ;  Hall  v.  Manufacturers' 
Coal  &  Coke  Co.,  168  S.  W.  927,  260 
Mo.  351,  Ann.  Cas.  1916C,  375;  Schaaf 
V.  St.  Louis  Basket  &  Box  Co.,  131 
S.  W.  936,  151  Mo.  App.  35;  Knight 
V.  Kansas  City,  87  S.  W.  1192,  113 
Mo.  App.  561;  Schmidt  v.  St.  Louis 
R.  Co.,  63  S.  W.  834,  163  Mo.  645; 
First  Nat.  Bank  v.  Hatch,  98  Mo.  376, 
11  S.  W.  739. 

Mont.  De  Sandro  v.  Missoula 
Light  &  Water  Co.,  136  P.  711,  48 
Mont.  226 ;  Frederick  v.  Hale,  112  P. 
70,  42  Mont.  153. 

Neb.  Thomas  v.  Otis  Elevator  Co., 
172  N.  W.  53,  103  Neb.  401;  First 
Nat.  Bank  v.  Bower,  98  N.  W.  834,  5 
Neb.  (Unof .)  375 ;  Oelke  v.  Theis,  97 
N.  W.  588,  70  Neb.  465 ;  Thayer  Coun- 
ty Bank  v.  Huddleson,  95  N.  W.  471, 
1  Neb.  (Unof.)  261;  First  Nat.  Bank 
V.  Sargent,  91  N.  W.  595,  65  Neb.  594, 
59  L.  R.  A.  296. 

N.  M.  Milliken  v.  Martinez,  159  P. 
952,  22  N.  M.  61. 

Okl.  Byers  v.  Ingraham,  151  P. 
1061,  51  Old.  440;  Bleecker  v.  Miller, 
138  P.  809,  40  Okl.  374. 


S.  C.  McLain  v.  Allen,  79  S.  E.  1, 
95  S.  C.  152 ;  Black  v.  Atlantic  Coast 
Line  R.  Co.,  64  S.  E.  418,  82  S.  C. 
478 ;  McCarty  v.  Piedmont  Mut.  Ins. 
Co.,  62  S.  B.  1,  81  S.  C.  152,  18  L.  R. 
A.  (N.  S.)  729;  Bussey  v.  Charleston 
&  W.  C.  Ry.  Co.,  30  S.  E.  477,  52  S. 
C.  438. 

S.  D.  Bolte  &  Jansen  v.  Equitable 
Fire  Ass'n,  121  N.  W.  773,  23  S.  D. 
240. 

Tenm.  Farquhar  v.  Toney,  24 
Tenn.   (5  Humph.)  502. 

Tex.  Mueller  v.  State,  215  S.  W. 
93,  85  Tex.  Cr.  R.  346:  Townsend  v. 
Pilgrim  (Civ.  App.)  187  S.  W.  1021; 
Houston  Oil  Co.  of  Texas  v.  MeGrew, 
176  S.  W.  45,  107  Tex.  220,  affirming 
.judgment  (Civ.  App.)  143  S.  W.  191; 
Missouri,  K.  &  T.  Ry.  Co.  of  Texas 
V.  Cauble  (Civ.  App.)  174  S.  W.  880; 
Irvin  V.  Johnson  (Civ.  App.)  170  S. 
W.  1059;  Watson  v.  Rice  (Civ.  App.) 
166  S.  W.  106 ;  Missouri,  K.  &  T.  Ry. 
Co.  of  Texas  v.  Hampton  (Civ.  App.) 
142  S.  W.  89;  St.  Louis  Southwest- 
ern Ry.  Co.  of  Texas  v.  Shipley,  126 
S.  W.  952,  60  Tex.  Civ.  App.  1 ;  Mis- 
souri. K.  &  T.  Ry.  Co.  of  Texas  v. 
Hawley,  123  S.  W.  726,  58  Tex.  Civ. 
App.  143;  Suderman-Dolson  Co.  v. 
Hone  (Civ.  App.)  118  S.  W.  216 ; 
Trinity  &  S.  Ry.  Co.  v.  Lane,  79  Tex. 
643,  15  S.  W.  477,  16  S.  W.  18. 

Utah.  Black  v.  Rocky  Mountain 
Bell  Telephone  Co.,  73  P.  514,  26 
Utah,  451. 

Va.  Rangeley's  Adm'r  v.  South- 
ern Ry.  Co.,  30  S.  E.  386,  95  Va.  715. 

Wash.  White  v.  Jansen,  142  P. 
1140,  81  Wash.  435 ;  Anderson  v.  Kin- 
near,  141  P.  1151,  80  Wash.  638 ;  A. 
H.  Gehri  &  Co.  v.  Dawson,  116  P. 
673,  64  Wash.  240. 

W.  Va.  Jones  v.  Riverside  Bridge 
Co.,  73  S.  E.  942,  70  W.  Va.  374. 

Wis.  Illinois  Steel  Co.  v.  Muza, 
159  N.  W.  908,  164  Wis.  247 ;  Schaef- 
er  V.  City  of  Ashland,  94  N.  W.  303, 
117  Wis.   553. 

Illustrations  of  proper  instruc- 
tions -vpithin  rule.  Where,  in  an 
action  on  an  insurance  agent's  bond, 
there  was  only  one  witness  who  testi- 
fied concerning  the  amount  of  thb 
agent's  defalcation,  and  his  testimo- 


INSTRUCTIONS   TO  JURIES 


156 


though  it  is  not  expressly  admitted  by  the  party  interested  in  con- 


ny  showed  a  liability  in  excess  of 
the  penalty  of  the  bond,  and  there 
was  no  controverting  evidence  or 
anything  to  cause  suspicion  as  to  his 
testimony,  it  was  not  error  to  charge 
that,  if  the  jury  found  for  plaintiff 
on  the  only  issue  submitted,  they 
should  find  in  plaintiff's  favor  for 
the  full  amount  sued  for.  Foster 
V.  Franklin  Life  Ins.  Co.  (Tex.  Civ. 
App.)  72  S.  W.  91.  In  an  action  by 
an  employe  against  his  employer  to 
recover  for  injuries  resulting  from 
the  negligent  loading  of  a  car  of 
lumber,  where  the  undisputed  evi- 
dence shows  that  the  car  was  loaded 
under  the  direction  and  supervision 
of  defendant's  foreman,  whose  duty 
as  vice  principal  was  to  see  that  it 
was  properly  loaded  before  it  was 
placed  in  the  train,  a  charge  on  con- 
tributory negligence,  assuming  the 
fact  as  proved,  is  not  objectionable 
as  a  charge  on  the  weight  of  the  evi- 
dence. El  Paso  &  N.  W.  Ry.  Co.  v. 
.AlcComas,  81  S.  W.  760,  36  Tex.  Civ. 
App.  170.  Where  the  evidence  show- 
ed that  there  was  a  hole  in  the  mid- 
dle of  the  street,  leaving  room  on 
either  side  for  travel,  and  that  the 
city  had  not  closed  the  street,  nor 
placed  signals  to  mark  the  hole,  and 
plaintiff  testified  that  he  had  no 
knowledge  of  the  existence  of  the 
hole,  but  thought  that  it  had  been 
filled,  the  court  was  justified  in  as- 
suming in  a  charge  that  any  one  had 
the  right  to  travel  on  the  street. 
City  of  Dallas  v.  Muncton,  83  S.  W. 
431,  37  Tex.  Civ.  App.  112.  In  tres- 
pass to  try  title  to  land  claimed  by 
10  years'  adverse  possession,  where 
there  was  no  question  as  to  the  char- 
acter of  plaintiff's  possession,  the 
only  issue  being  as  to  the  length 
thereof  and  the  amount  of  the  land 
possessed,  and  all  the  facts  tended 
to  show  that,  if  plaintiff  was  in  pos- 
session at  all,  the  possession  was 
peaceable  and  adverse,  the  court 
could  assume  that  it  was  adverse  to 
defendant,  and  it  was  not  error  to 
fail  to  state  that  to  recover  under 
10  years'  limitations  there  should  be 
proof  of  adverse  possession.  Wash- 
am  V.  Harrison  (Tex,  Civ.  App.)  122 


S.  W.  52.  Where,  in  an  action  for 
damages  resulting  from  the  pollution 
of  a  stream,  there  is  no  dispute  as 
to  the  facts  of  the  death  of  plaintiff's 
cattle  and  the  destruction  of  his 
crops,  it  is  not  error  for  the  court  to 
assume  such  facts  in  submitting  the 
cause  of  such  damages  to  the  jury. 
Texas  &  N.  O.  Ry.  Co.  v.  Moers  (Tex. 
Civ.  App.)  97  S.  W.  1064. 

11  Wiborg  V.  United  States,  163  U. 
S.  632,  16  Sup.  Ct.  1127,  41  L.  Ed. 
289;  (C.  C.  A.  Wash.)  Mav  v.  Unit- 
ed States,  157  P.  1.  86  C.  C.  A.  57.5, 
certiorari  denied  28  S.  Ct.  570,  209 
U.  S.  542.  .52  L.  Ed.  918. 

Ala.  Murphy  v.  State,  71  So.  967, 
14  Ala.  App.  78;  Eubanks  v.  State, 
.56  So.  88.  2  Ala.  App.  61;  Brown  v. 
State,  38  So.  268,  142  Ala.  287;  Sher- 
rill  v.  State,  35  So.  129.  138  Ala.  3. 

Ark.  McConnell  v.  City  of  Boone- 
ville,  ISG  S.  W.  82,  123  Ark.  561; 
Jeffries  v.  State,  61  Ark.  308,  32  S. 
W.  lOSO. 

Cal.  People  v.  Mueller,  143  P. 
750,  168  Cal.  526;  People  v.  Pana- 
goit,  143  P.  70,  25  Cal.  App.  158; 
People  v.  Puttman,  61  P.  961,  129 
Cal.  258;  People  v.  Phillips,  70  Cal. 
61,  11  P.  493. 

Colo.  Imboden  v.  People,  90  P. 
608.  40  Colo.  142. 

Fla.  Edwards  V.  State,  56  So. 
401.  62  Fla.  40. 

Ga.  Allen  v.  State,  88  S.  E.  100, 
18  Ga.  App.  1 ;  Knight  v.  State,  85  S. 
E.  915,  143  Ga.  678 ;  Wilson  v.  State, 
84  S.  E.  81,  15  Ga.  App.  6.32 ;  Taylor 
V.  State,  70  S.  E.  237,  135  Ga.  622; 
Robinson  v.  State,  58  S.  E.  842,  129 
Ga.  336. 

111.  People  V.  Weir,  129  N.  E.  116, 
295  111.  268 ;  People  v.  Depew,  S6  N. 
E.  1090,  2.37  111.  574;  Smith  v.  Peo- 
ple, 103  111.  82;  Hanrahan  v.  Peo- 
ple, 91  111.  142. 

Ind.  Dorsey  v.  State,  100  N.  E. 
369.  179  Ind.  .531;  Whitney  v.  State, 
57  N.  E.  .398,  1.54  Ind.  573 ;  Hawkins 
V.  State,  136  Ind.  630.  36  N.  E.  419; 
Andor.son  v.  State,  104  Ind.  467,  4 
N.  E.  03,  5  N.  E.  711. 

Iowa.  State  v.  Wilson,  144  N.  W. 
47,  166  Iowa,  309,  rehearing  denied 
147  N.  W.  739,  106  Iowa,  309 ;    State 


157 


ASSUMPTIONS  AS   TO   EXISTENCE   OP   FACTS 


78 


testing  it,  or  is  formally  in  dispute.^^     In  criminal  cases  this  is  the 


V.  BpII,  125  N.  W.  652,  146  Iowa,  617 ; 
State  V.  McKuight,  93  N.  W.  63,  119 
Iowa,  79. 

Me.  State  v.  Day,  79  Me.  120,  8 
A.  544. 

Mich.  People  v.  Bryan,  136  N.  W. 
1120.  170  Mich.  683. 

Minn.  State  v.  Damutli,  160  N.  W. 
196.   135 'Minn.   76. 

Mo.  State 'v.  Bobbst  (Sup.)  190  S. 
W.  257;  State  v.  Bickel  (Sup.)  177 
S.  W.  310;  State  v.  McConnell,  144 
S.  W.  836,  240  Mo.  269;  State  v. 
Priest,  114  S.  W.  949,  215  Mo.  1; 
State  V.  Miller,  89  S.  W.  377,  190  IMo. 
449. 

Neb.  Pisar  v.  State,  76  N.  W. 
869,  56  Neb.  455;  Morgan  v.  State, 
71  N.  W.  788,  51  Neb.  672. 

N.  J.  State  V.  Bectsa,  58  A.  933, 
71  N.  J.  Law.  322. 

N.  C.  State  v.  Williams,  47  N.  C. 
(2  Jones,  Law)  194;  State  v.  Rash. 
34  N.  C.  (12  Ired.)  382,  55  Am.  Dec. 
420. 

Okl.  Bartell  v.  State,  111  P.  669, 
4  Okl.  Cr.  135 ;  Stewart  v.  Territory^ 
100  P.  47,  2  Okl.  Cr.  63,  rehearing  de- 
nied 102  P.  649,  2  Okl.  Cr.  63. 

Or.  State  v.  Eeed,  97  P.  627,  52 
Or.  377. 

S.  C.  State  V.  Bazen,  71  S.  E. 
779.  89  S.  C.  200;  State  v.  Ayers,  68 
S.  E.  625,  86  S.  C.  426;  State  v. 
Nickels,  43  S.  E.  521,  65  S.  C.  169. 

S.  D.  State  v.  Sonnensehein,  159 
N.  W.  101,  37  S.  D.  585;  State  v. 
Shepard,  138  N.  W.  294,  30  S.  D. 
219. 

Tenn.  Powers  v.  State,  97  S.  W. 
815,    117  Tenn.   .363. 

Tex.  Kellv  v.  State,  151  S.  W. 
304.  68  Tex.  Cr.  R.  317;  Russell  v. 
State,  111  S.  W.  658,  53  Tex.  Or. 
R.  500;  Tanner  v.  State  (Cr.  App.) 
44  S.  W.  489;  Strang  v.  State,  32 
Tex.  Cr.  R.  219,  22  S.  W.  680 ;  Fahev 
V.  State.  27  Tex.  App.  146,  11  S.  W. 
108.  11  Am.  St.  Rep.  182. 

Wis.  Bates  v.  State,  103  N.  W. 
251,  124  Wis.  612,  4  Ann.  Cas.  365; 
Bliss  V.  State,  94  N.  W,  325,  117  Wis. 
596. 

12  U.  S.  (C.  O.  A.  Minn.)  Clo- 
quet  Lumber  *  Co.  v.  Burns,  222  F. 
857,   138    C.    C.   A.  283;    Toledo,    St. 


L.  &  W.  R.  Co.  V.  Kouutz,  168  F.  832, 
94  C.  C.  A.  244. 

Ala.  Ferguson  v.  Shipp,  73  So. 
414,  198  Ala.  87;,  Webb  v.  Gray,  62 
So.  194,  181  Ala.  408 ;  City  of  Mont- 
gomery V.  Wyche,  53  So.  7S6,  16V» 
Ala.  381. 

Ark.  Western  Union  Telegraph 
Co.  V.  Wilson,  133  S.  W.  845,  97  Ark. 
198;  Preseott  &  N.  W.  Ry.  Co.  v. 
Morris,   123   S.   W.  392.  92  Ark.   365. 

Ga.  Watkins  v.  Stulb  &  Vorhauer, 
98  S.  E.  94,  23  Ga.  App.  181;  Wil- 
liams V.  Raper,  78  S.  E.  253,  139  Ga. 
811, 

III.  Brennan  v.  City  of  Streator, 
100  N.  E.  266.  250  111.  468,  affirm- 
ing .iudgment  168  111.  App.  134; 
O'Rourke  v.  Sproul,  89  N.  E.  663,  241 
111.  576. 

Ind.  Pittsburgh,  C,  C.  &  St.  L. 
Ry.  Co.  V.  Rogers,  87  N.  E.  28,  45 
Ind.  App.  230;  Swygart  v.  Willard, 
76  N.  E.  755,  166  Ind.  25. 

Iowa.  Mackland  v.  Board  of 
Sup'rs  of  Pottawattamie  County,  144 
N.  W.  317,  162  Iowa,  604;  Frank 
V.  Davenport,  75  N.  W.  480,  105  Iowa. 
588;  West  v.  Chicago  &  N.  W.  Rv. 
Co.,  77  Iowa,  654,  35  N.  W.  479,  42 
N.  W.  512. 

Ky.  Louisville  &  N.  R.  Co.  v.  E. 
J.  O'Brien  &  Co.,  182  S.  W.  227.  168 
Ky.  403,  Ann.  Cas.  1917D,  922 ;  Black 
V.  Terry,  163  S.  W.  737,  157  Ky.  600 ; 
Cowles  V.  Carrier.  101  S.  W.  916,  31 
Ky.  Law  Rep.  229. 

Md.  Weant  v.  Southern  Trust  & 
Deposit  Co.,  77  A.  289,  112  Md.  463. 

Mich.  Garrisi  v.  Kass,  167  N.  W. 
833.  201  Mich.  643. 

Mo.  Kearse  v.  Seyb,  209  S.  W. 
635.  200  Mo.  App.  645;  State  ex 
rel.  National  Newspapers'  Ass'n  v. 
Ellison  .(Sup.)  200  S.  W.  433,  quash- 
ing certiorari  Rail  v.  National  News- 
paper Ass'n,  192  S.  W.  129,  198  Mo. 
App.  463;  Spicer  v.  Spicer,  155  S.  W. 
832,  249  Mo.  582,  Ann.  Cas.  1914D, 
238 ;  Irving  v.  Chicago,  R.  I.  &  P.  Ry. 
Co.,  137  S.  W.  1009,  156  Mo.  App.  667 ; 
Westeiwelt  v.  St.  Louis  Transit  Co., 
121  S.  W.  114,  222  Mo.  325;  Holton 
v.  Cochran,  106  S.  W.  1035,  208  Uo. 
314;  Flaherty  v.  St.  Louis  Transit 
Co.,    106    S.    W.    15,    207    Mo.    318; 


§78 


INSTRUCTIONS   TO  JURIES 


158 


rule  with  respect  to  any  collateral  fact  which  tends  to  prove  one  of 
the  constituent  elements  of  the  crime  charged,  or  which  bears  on 
the  defense  set  up  by  the  accused.^^  But  with  respect  to  any  fact 
constituting  an  essential  element  of  the  crime  alleged  the  rule,  sup- 
ported by  the  weight  of  authority,  is  that  if  it  is  not  admitted  by 
the  defendant,  and  so  is  in  dispute  by  reason  of  his  plea  of  not 
guilty,  the  court  cannot  assume  its  existence,  although  the  testi- 
mony to  establish  it  is  without  contradiction;  the  theory  of  such 
rule  being  that  the  jury  have  an  absolute  right  to  disbelieve  the  evi- 
dence adduced  to  establish  such  fact.^*     In  New  York,  though  a 


Deschner  v.  St.  Louis  &  M.  E.  R.  Co., 
98  S.  W.  737,  200  Mo.  310;  Mitchell 
V.  St.  Louis,  I.  M.  &  S.  Ry.  Ck>.,  92 
S.  W.  Ill,  116  Mo.  App.  81 ;  Cameron 
V.  B.  Roth  Tool  Co.,  83  S.  W.  279, 
108  Mo.  App.  265 ;  Dunn  v.  Northeast 
Electric  Ry.  Co.,  81  Mo.  App.  42. 

Neb.  Jones  v.  Cliicago  Great 
Western  R.  Co.,  149  N.  W.  818,  97 
Neb.  306. 

N.  Y.  Kaufman  v.  Schoeffel,  46 
Hun,  571. 

N.  C.  Starr  v.  Southeni  Bell  Tel- 
ephone &  Telegraph  Co.,  72  S.  E.  484, 
156  N.  C.  435. 

Okl.  St.  Louis  &  S.  F.  R.  Co.  v. 
Kerns,  136   P.  169,   41   Okl.    167. 

Pa.  Thomas  -  Roberts  -  Stevenson 
Co.  V.  Philadelphia  &  R.  Ry.  Co., 
100  A.  998,  256  Pa.  549;  Miller  v. 
Cure,   54   A.  721,   205  Pa.   168. 

S.  C.  Martin  v.  Seaboard  Air 
Line  Ry.  Co.,  93  S.  E.  336,  108  S.  C. 
130. 

Tex.  Missouri,  K.  &  T.  Ry.  Co.  of 
Texas  v.  Kinslow  (Civ.  App.)  172  S. 
W.  1124 ;  McKenzie  v.  Imperial  Irr. 
Co.  (Civ.  App.)  166  S.  W.  495;  Mis- 
souri, K.  &  T.  Rv.  Co.  V.  Burton  (Civ. 
App.)  162  S.  W.  479 ;  Kennedy  v.  Walli- 
er  (Civ.  App.)  1.38  S.  W.  1115;  Mis- 
souri, K.  &  T.  Ry.  Co.  of  Texas  v. 
Tolbprt  (Civ.  App.)  134  S.  W.  280; 
Freeman  v.  Kane  (Civ.  App.)  133  S. 
W.  723 ;  Ludtlve  v.  Texas  &  N.  O.  R. 
Co.  (Civ.  App.)  132  S.  W.  377;  Mis- 
souri, K.  &  T.  Ry.  Co.  of  Texas  v. 
Rothonberg  (Civ.  App.)  131  S.  W. 
1157 ;  Grain  v.  National  Life  Ins.  Co. 
of  United  States,  120  S.  W.  1098,  56 
Tex.  Civ.  App.  406 ;  El  Paso  &  S.  W. 
Ry.  Co.  V.  Smith,  108  S.  W.  988,  50 
Tex.  Civ.  App.  10;  Louisiana  &  Tex- 
as I-umber  Co.  v.  Meyers  (Civ.  App.) 


94  S.  W.  140 ;  St.  Louis  Southwestern 
Ry.  Co.  of  Texas  v.  Highnote  (Civ. 
App.)  84  S.  W.  365,  judgment  revers- 
ed 86  S.  W.  923,  99  Tex.  23. 

Va.  Seaboard  Air  Line  Ry.  v. 
Abei-nathy,  92  S.  E.  913,  121  Va.  173. 

Wash.  Halverson  v.  Seattle  Elec- 
tric Co.,  77  P.  1058,  35  Wash.  600. 

13  Ariz.  Wagoner  v.  Territory,  51 
P.  145.  5  Ariz.  175. 

Ga.  Roarli  v.  State,  32  S.  E.  125. 
105  Ga.  736. 

111.  Zuelierman  v.  People,  72  N. 
E.  741.  213  111.  114. 

Miss.  Dean  v.  State,  37  So.  501, 
85  Miss.  40. 

Mo.  State  v.  Harris,  51  S.  W.  481, 
150  Mo.  56. 

Neb.  McCormick  v.  State,  92  N. 
W.  606.  66  Neb.  337 ;  Welsh  v.  State, 
82  N.  W.  368,  60  Neb.  101. 

S.  C.  State  V.  Thompson,  56  S.  E. 
789,  76  S.  C.  116. 

S.  D.  State  v.  James,  164  N.  W. 
91,  39  S.  D.  263. 

Tex.  WilUams  v.  State  (Cr.  App.) 
105  S.  W.  1024;  Roberson  v.  State 
(Civ.  Aop.)  91  S.  W.  578;  Cantwell 
V.  State,  85  S.  W.  18,  47  Tex.  Cr.  R. 
521 ;  Morgan  v.  State,  67  S.  W.  420, 
43  Tex.  Cr.  R.  543 ;  Messer  v.  State, 
63  S.  W.  643,  43  Tex.  Cr.  R.  97 ;  Wil- 
liams V.  State,  39  S.  W.  664.  37  Tex. 
Cr.  R.  238;  Holliday  v.  State,  35 
Tex.  Cr.  R.  133,  32  S.  W.  538. 

Wasb.  Edwards  v.  Territory,  1 
Wash.  T.  195. 

Wis.  Cupps  V.  State,  97  N.  W. 
210,  120  Wis.  504,  102  Am.  St.  Rep. 
996,  rehearing  denied  98  N.  W.  546, 
120  Wis.  504,  102  Am.  St.  Rep.  996. 

1*  People  v.  Craig,  91  P.  997,  152 
Cal.    42;     State    v.    Bige,    84    N.    W. 


159  ASSUMPTIONS   AS   TO   EXISTENCE   OF   FACTS  §  79 

fact  essential  to  the  crime  charged  is  undisputed  and  is  treated  by  all 
concerned  as  established,  the  court  must  submit  it  to  the  jury  if  the 
defendant  so  requests. ^^  In  some  jurisdictions,  however,  it  is  not 
improper  in  a  criminal  case  to  give  an  instruction  assuming-  an  es- 
sential fact  which  is  proved,  although  not  admitted.^®  In  Wiscon- 
sin the  courts  uphold  an  instruction  containing  such  an  assump- 
tion,^' or  at  least  consider  it  to  be,  if  error  at  all,  not  a  reversible 
one ;  **  and  in  Minnesota,  in  a  prosecution  for  larceny,  where  the 
question  was  as  to  the  value  of  the  property  stolen,  and  the  evi- 
dence of  the  state  as  to  such  value  was  not  disputed,  it  was  held 
that  the  court  might  assume  the  value  so  proved,  although  the  de- 
fendant did  not  formally  admit  such  value,  and  introduced  evi- 
dence that  he  had  purchased  the  goods  at  a  certain  discount. ^^ 

In  some  jurisdictions  the  court  should  assume  as  true  facts 
which  are  not  disputed.^" 

§  79.  'Limitations  of  rule 

Under  this  rule  the  court  should  never  assume  a  fact  to  be  prov- 
ed, unless  the  evidence  is  so  conclusive  one  way  that  the  minds 
of  reasonable  men  can  reach  but  one  conclusion  as  to  the  result.'^^ 
That  testimony  tending  to  show  the  existence  of  certain  facts  is 
not  contradicted  will  not  necessarily  permit  the  court  to  assume 
such  facts.^*    Facts  can  be  treated  as  undisputed  within  the  above 

518,  112  Iowa,  433 ;    State  v.  Barry,  i9  State  v.   Fleetwood,   126   N.   W. 

92  X.  W.  809,  11  N.  D.  428.  485,   111   Minn.  70,   rehearing  denied 

1?  People    V.    Marendi,    107    N.    E.  126  N.  W.  827,  111  Minn.  70. 

1058,  213  N.  Y.  600;    People  v.  Walk-  20  Peterson  v.  Chicago  &  O.  P.  Ele- 

er,  91  N.  E.  806,  198  N.  Y.  329.  vated  R.  Co.,  103  N.  E.  252,  260  111. 

16  Davis  V.  State,  100  S.  E.  50,  24  280,  reversing  judgment  176  111.  App. 
Ga.  App.  35 ;  Carter  v.  Common-  218 ;  Geo.  D.  Barnard  &  Co.  v.  Rob- 
wealth,  96  S.  E.  766,  123  Va.  810.  ertson  (Tex.  Civ.  App.)  29  S.  W.  697 ; 

Assnniptions          held         proper.  Texas  &  P.  Ry.  Co.  v.  Moore,  8  Tex. 

Where  the  evidence  showed  that  de-  Civ.  App.  289,27  S.  W.  962. 

ceased,  while  sitting  at  a  table  in  so-  In  Alabama   the   trial  court   can- 

cial    conversation    with    companions,  not  be  put  in  error  for  refusing  an 

was,    without    warning    and    withoiut  Instruction  assuming  the  existence  of 

provocation     on     his     part,     shot    to  a  fact,   even  though   the  evidence  is 

death  by  some  person,  a  charge  as--  not  in  dispute.     Huguley  v.  State,  72 

suming  as  a  fact  that  deceased  was  So.  764,  15  Ala.  App.  189;    Campbell 

shot   down   in   cold   blood,   and    that  v.  State,  69  So.  322,  13  Ala.  App.  70; 

the  person   who   fired   the   shot   was  Warsham  v.  State,  84  So.  885,  17  Ala. 

apparently  trying  to  commit  murder,  App.  181. 

or  doing   an  act   whicli   might  cause  21  McCoy  v.  Millville  Traction  Co., 

bloodshed,  was  not  open  to  objection.  85   A.   358,  S3   N.   J.   Law,  508 ;     Se- 

State  V.  Moynihan,  106  A.  817,  93  N.  euritv  Mut.  Life  Ins.   Co.  v.  Calvert 

J.  Law,  253.  (Tex.  Civ.  App.)  100  S.  W.  1033,  judg- 

17  Perugi  V.  State,  80  N.  W.  593,  ment  reversed  105  S.  W.  320,  101 
104  Wis.  230,  76  Am.  St.  Rep.  865.  Tex.   128. 

18  Burns  v.  State,  128  N.  W.  987,  22  state  v.  Anderson,  135  N.  W. 
145  Wis.  373,  140  Am.  St.  Rep.  1081.  405,   154   Iowa,  701 ;    Martin  Fertili- 


§  79  INSTRUCTIONS  TO  JURIES  160 

rule  only  when  they  are  not  merely  unopposed  by  the  direct  evi- 
dence, but  when  they  are  not  in  conflict  with  the  just  and  proper 
inferences  to  be  drawn  from  other  facts  proved  in  the  case.''*'* 
Within  such  rule  a  fact  is  not  placed  beyond  the  realm  of  contro- 
versy by  the  uncorroborated  testimony  of  a  party  to  the  action,-* 
nor,  as  a  general  rule,  by  the  testimony  of  experts,"^  and  a  fact 
will  be  regarded  as  in  dispute  if  a  witness  has  made  contradictory 
statements   with  reference   thereto.-^ 

In  some  jurisdictions  facts  put  in  issue  by  the  pleadings  cannot 
be  assumed,  because  the  evidence  in  their  support  is  uncontra- 
dicted, when  such  evidence  is  in  large  part  oral.^'  In  other  juris- 
dictions it  is  held,  in  conformity  with  the  statement  of  the  gen- 
eral rule  set  out  supra,  that  if  the  existence  of  a  fact  so  put  in 
issue  is  practically  conceded  by  clear  and  undisputed  evidence 
the  assumption  of  such  fact  will  not  be  prejudicial  to  the  sub- 
stantial rights  of  the  parties,  and  will  not,  therefore,  be  cauge  for 
reversal.-* 

§  80.  Specific  applicatioins  of  rule 

The  above  rule  has  been  applied  in  civil  cases  to  instructions 
assuming  the  existence  of  the  relation  of  carrier  and  passenger,^^ 
of  the   relation   of   employer  and   employee,^^  of  the   relation   of 

zer  Co.  V.  Thomas  &  Co.,  109  A.  458,  hearing,    answers    to    certified    ques- 

135   Md.  633;     Harrison   v.    Western  tious  144  S.  W.  1126,  105  Tex.  82,  39 

Union  Tel.  Co.,  48  S.  B.  772,  136  N.  L.  R.  A.  .(N.  S.)  512. 

C.  381;    State  v.   Johnson,   67   S.   E.  25  Choctaw,  O.  &  G.  R.  Co.  v.  De- 

453,  85  S.  C.  265;    Byers  v.  Wallace,  perade,  71  P.  629,  12  Old.  367:    Gal- 

87  Tex.  503,  28  S.  W.  1056,  29  S.  W.  veston,  H.  &  S.  A.  Ry.  Co.  v.  Worth 

760.  (Tex.  Civ.  App.)  107  S.  W.  958. 

2  3  Schultz  V.  Schultz,  71  N.  W.  854,  26  Citizens'    Nat.    Life    Ins.    Co.    v. 

113  Mich.  502.  Ragan,  78  S.  E.  683,  13  Ga.  App.  'AM. 

2  4  Colo.     City  of  Colorado  Springs  27  Dodd  v.   Guiseffi,  73   S.   W.  304, 

V.  Coray,  139  P.  1031,  25.  Colo.  App.  100  Mo.   App.  311. 

460.  Posting  of  certain  notices.     An 

Miss.     Dunlap  v.  Hearn,  37  Miss.  instruction     was     properly     refused 

471.  which  assumed  that  an  issuable  fact, 

Mo.     Cooley  v.  Dunham,  195  S.  W.  namely,  the  posting  of  certain  notic- 

1058,  196  Mo.  App.  399.  es  was  proven  in  the  case,  though  the 

N.  Y.    Merchants'  Exch.  Nat.  Bank  .  fact    that    the    notices    were    posted 

V.    Wallach    (Citv    Ct.    N.    Y.)    45    N.  was      uncontradicted.        Tognini      v. 

Y.    S.    885,    20    Misc.    Rep.    309,    af-  Kyle,  17  Nev.  209,  30  P.  829,  45  Am. 

firming  judgment  43  N.   Y.    S.   1159,  Rep.  442. 

19   Misc.   Rep.    711;     Brush    v.    Long  28  Weil  v.   Nevitt,   18  Colo.   10,   31 

Island  R.  Co.,  42  N.  Y.  S.  103,  10  App.  P.  487. 

Div.    535,    iudgmcnt    affirmed    53    N.  29  Dallas  Rapid  Transit  Ry.  Co.  v. 

E.  1123,  158  N.  Y.  742.  Payne  (Tex.  Civ.  App.)  78  S.  W.  1085, 

Tex.     Carothers     v.     Finley     (Civ.  reversed  82  S.  W.  649,  98  Tex.  211. 

App.^  209  S.  W.  801;    Atchison,  T.  &  somo...^  v.  Pacific  Coast  Steel  Co., 

S.   F.    Ry.    Co.   v.   Lucas    (Civ.    App.)  153  P.  912,  171  Cal.  489;    Louisville, 

148    S.    W.    1149,    foUowing,    on    re-  E.  &  St.  L.  Consol.  R.  Co.  v.  Utz,  133 


161 


ASSUMPTIONS   AS   TO   EXISTENCE   OF   FACTS 


§80 


principal  and  agcnt,^i  of  the  relation  of  partnership,^^  ^^  ^|-,g  ^g, 
sumption  of  the  fact  of  authority  of  an  agent,^^  to  the  assumption 
of  the  fact  of  negligence,^*  to  the  assumption  that  slanderous 
words  were  uttered,^^  that  a  libel  was  published,^®  that  the  amount 
of  recovery  should  be  a  certain  amount,^'  that  the  results  of 
physical  injuries  were  of  a  certain  character,^^  that  losses  accrued 
to  the  family  of  a  decedent  through  his  death,^^  and  to  assump- 
tions concerning  the  value  of  property.*" 

In  criminal  cases  such  rule  has  been  applied  to  the  assumption 
that  a  crime  was  committed,*^  that  defendant  did  the  act  charged 


Ind.  265,  32  N.  E.  8S1;  Patton-Wor- 
sham  Drua:  Co.  v.  Drennon  (Tex.  Civ, 
App.)  123  S.  W.  705. 

SI  Hartford  Life  Ins.  Co.  v.  Sher- 
man. 78  N.  E.  923,  223  111.  329,  af- 
firminsT  .iudgment  (1005)  123  111. 
App.  202 ;  People's  Nat.  Fire  Ins. 
Co.  V.  Jackson,  159  S.  W.  688,  155 
Ky.  150;  Hufft  v.  Dougherty,  171 
S.  W.  17,  184  :Mo.  App.  652. 

3  2  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Wil- 
banks.  7  Tex.  Civ.  App.  489,  27  S. 
W.    302. 

3  3  Devine  v.  Federal  Life  Ins.  Co., 
95  N.  E.  174.  250  111.  203 ;  MeCauley 
v.  IMcElroy  (Tex.  Civ.  App.)  199  S. 
W.  317. 

3  4  Ky.  Cincinnati,  N.  O.  &  T.  P. 
Ry.  Co.  v.  Mullane's  Adm'r,  152  S. 
W.  555,  151  Ky.  499. 

Minn.  Camnbell  v.  Canadian 
Northern  Ry.  Co.,  144  N.  W.  772,  124 
Minn.  245. 

Mo.  Keenig  v.  ^Missouri  Pac.  Rv. 
Co..  19  Mo.  App.  327. 

Tex.  Galveston,  H.  &  R.  A.  Rv. 
Co.  V.  Miller  (Civ.  App.)  191  S.  W. 
374;  Quanah,  A.  &  P.  Ry.  Co.  v. 
John.son  (Civ.  App.)  159  S.  W.  406; 
San  Antonio  Traction  Co.  v.  Pro- 
bandt,  125  S.  W.  931.  59  Tex.  Civ. 
App.  265;  Dallas  Rapid  Transit  Ry. 
Co.  V.  Payne  (Civ.  App.)  78  S.  W. 
1085,  reversed  82  S.  W.  649,  98  Tex. 
211. 

Wash.  Allend  v.  Spokane  Falls 
&  N.  Ry.  Co.,  58  P.  244,  21  Wash.  324. 

3  5  Culver  V.  Marx,  144  N.  W.  982, 
155  Wis.  453. 

3  6  San  Antonio  Light  Pub.  Co.  v. 
Lewy,  113  S.  W.  574,  52  Tex,  Civ. 
App.  22. 

Inst.to  Jubies— 11 


3  7  Chambers  v.  Farnham  (C.  C.  A. 
111.)  236  F.  886.  150  C.  C.  A.  148; 
Jones  V.  S.  H.  Kress  &  Co.,  153  P. 
655,  54  Okl.  194. 

ssind.  Town  of  Sellersburg  v. 
Ford,  79  N.  E.  220,  39  Ind.  App.  94. 

Ky.  Louisville  &  N.  R.  Co.  v. 
Earl's  Adm'x,  94  Ky.  368,  22  S.  W. 
607. 

Miss.  Mobile  &  O.  R.  Co.  v. 
Campbell.  75  So.  554,  114  INIiss.  S03. 

Mo.  Torreyson  v.  United  Rys.  Co. 
of  St.  Louis.  145  S.  W.  106,  164  Mo. 
App.  366 ;  Sotebier  v.  St.  Louis  Trans- 
it Co.,  102  S.  W.  651,  203  Mo.  702. 

Tex.  Yellow  Pine  Paper  Mill  Co. 
V.  Lyons  (Civ.  App.)  159  S.  W.  909; 
Southern  Kansas  Ry.  Co.  of  Texas  v. 
Sage  (Civ.  App.)  80  S.  W.  1038,  re- 
versed 84  S.  W.  814,  98  Tex.  438. 

3  9  Texas  &  N.  O.  R.  Co.  v.  Walker, 
125  S.  W.  99,  58  Tex.  Civ.  App.  615. 

4  0  Ga.  Deen  v.  Wheeler,  67  S.  E. 
212,  7  Ga.  App.  507. 

Idaho.  Soule  v.  First  Nat.  Bank 
of  Ashton,  140  P.  1098,  26  Idaho,  66. 

Mich.  Chapin  v.  Ann  Arbor  R. 
Co.,  133  N.  W.  512,  167  Mich.  648. 

Pa.  Duffy  V.  York  Haven  Water 
&  Power  Co.,  88  A.  935,  242  Pa.  146. 

R.  I.  Podrat  v.  Narragansett  Pier 
R.  Co.,  78  A.  1041,  32  R.  I.  255. 

Tex.  Caruthers  v.  Link  (Civ. 
App.)  1.54  S.  W.  330;  Missouri.  K. 
&  T.  Ry.  Co.  of  Texas  v.  Wasson 
Bros..  126  S.  W.  664,  59  Tex.  Civ. 
App.  239;  Stewart  v.  Jacob  Sachs 
&  Co..  96  S.  W.  1091,  43  Tex.  Civ. 
App.    530. 

41  Konirs  v.  People,  73  P.  25,  31 
Colo.  212;  Shinn  v.  State,  68  Ind. 
423 ;  People  v.  Mclnerney,  5  N.  Y 
Cr.   R.   47. 


81 


INSTRUCTIONS   TO   JURIES 


162 


to    be    a    criminal    offense,^'    that    the    flight    of    defendant    was 
shown,'*^  and  that  a  witness  was  an  accomplice.** 


C.  Assumption  of  Nonexistence  of  Facts 
Instructions  ignoring  evidence,  see  post,  §  144. 

§  81.  Where  there  is  some  evidence  of  particular  fact 

Where  there  is  some  evidence  of  the  existence  of  a  fact  in 
issue,  an  instruction  is  erroneous  which  assumes  its  nonexist- 
ence.*^ 

§  82.  Where  no  conflict  in  evidence 

Where  there  is  no  conflict  in  the  testimony,  and  no  room  to 
hesitate  or  doubt  that  a  certain  fact  exists,  an  instruction  should 
not  assume  that  such  fact  is  or  may  be  doubtful.*® 


42lnd.  Smith  v.  State,  115  X.  E. 
943.  1S6  Ind.  252;  Hoover  v.  State, 
68  N.  E.  591,  161  Ind.  348. 

Iowa.  State  v.  Evans,  97  N.  W. 
1008,  122  Iowa.  174 ;  State  v.  Archer, 
73  Iowa,  320,  35  N.  W.  241. 

Kan.     State  v.  Home,  9  Kan.  119. 

Mo.  State  v.  Holloway,  56  S.  W. 
734,  156   Mo.   222. 

43  State  v.  Mangana.  112  P.  693> 
33  Nev.  511 :  State  v.  Belknap,  87  P. 
934.  44  Wash.  605. 

44  Winfield  v.  State,  72  S.  W.  1S2, 
44  Tex.  Cr.  R.  475. 

4  5  Ala.  Georgia  Home  Ins.  Co.  v. 
Allen,  30  So.  537,  128  Ala.  451;  De 
Tjoach  ]\Iills  Mfg.  Co.  v.  Middle- 
brooks,  95  Ala.  459,  10  So.  917. 

Ga.  Shippev  Bros.  &  White  v. 
Owens,  86  S.  E.  407,  17  Ga.  App.  127. 

111.  Niagara  Fire  Ins.  Co.  v. 
Bishop,  154  111.  9,  39  N.  E.  1102,  45 
Am.  St.  Rep.  105;  Springfield  Con- 
sol.  Rv.  Co.  V.  Gregor>%  122  111.  App. 
607;  Chicago,  S.  &  St.  L.  R.  Co.  v. 
B<>ach,  29  111.  App.  157. 

Mich.  Koehler  v.  Buhl,  94  Mich. 
496.  54  N.  W.  157. 

MiiLn.  Simpson  v.  Kmmdick,  28 
Minn.  .•J52,  10  X.  W.  IS. 

Web.  Mutual  Hail  Ins.  Co.  of 
Wisconsin  v.  Wilde,  8  Neb.  427,  1  N. 
W.  384. 

N.  C.  Powell  v.  Wilmington  &  W. 
R.  Co.,  OS  X.  0.  395. 


Or.  Isaacson  v.  Beaver  Logging 
Co.,  143  P.  938,  73  Or.  28. 

Pa.  Cross  V.  Tyrone  Min.  &  Mfg. 
Co.,  121  Pa.  387,  15  A.  643. 

Wis.  Flilmer  v.  Wightman,  87 
Wis.  573,  58  N.  W.  1106. 

Instructions  improper  teitliin 
rule.  In  an  action  for  injuries  from 
the  Ivick  of  a  horse,  warranted  gentle 
by  the  vendor,  a  requested  instruc- 
tion, that,  to  make  the  seller's  state- 
rtient  amount  to  a  warranty,  it  must 
be  intended  as  such  and  so  accepted 
by  the  purchaser,  was  properly  re- 
fused, where  the  manner  of  presen- 
tation of  the  instruction  assumed  the 
absence  of  such  intention  without 
reference  to  the  evidence,  since,  in 
the  absence  of  evidence  to  the  con- 
trary, every  one  is  presumed  to  in- 
tend the  ordinary  meaning  of  his 
words.  Caruthers  v.  Balsley,  89  Til. 
App.  559.  In  an  action  by  an  employ^ 
for  injuries  caused  by  a  machine, 
a  charge  which  assumes  that  plain- 
tiff did  not  know  the  machine  was 
dangerous  is  erroneous  when  plain- 
tiff liad  seen  the  machine  in  opera- 
tion for  six  months.  B.  F.  Avery  »& 
Sons  v.  Meek,  96  Ky.  192,  28  S.  W. 
337. 

46Hauk  V.  Brownell,  120  111.  161, 
11  X.  E.  416;  Wintz  v.  Morrison,  17 
Tex.  372,  67  Am.  Dec.  65S. 


L63  COMMENTS   ON   MERITS   OR   CONDUCT   OP   CAUSE  §  85 


CHAPTER  V 

COMMENT  BY  COURT  ON  MERITS  OR  CONDUCT  OF  CAUSE  OR 

PARTIES 

§  S3.     Statement  of  rule. 

84.  Applications  of  rule. 

85.  Qualifications  of  rule. 

§  83.  Statement  of  rule 

A  litigant  has  a  right  to  a  trial  by  a  fair  and  impartial  jury, 
whose  consideration  of  his  cause  is  not  influenced  by  language 
of  the  court  which  will  create  resentment  or  prejudice  against 
him  or  sympathy  for  the  opposing  side/  and  where  one  invokes 
a  judicial  remedy  given  to  him  by  the  law  the  court  should  not 
make  use  of  language  calculated  to  make  the  jury  think  that 
the  plaintiff,  in  bringing  the  action,  is  doing  something  inequi- 
table, oppressive,  or  savoring  of  sharp  practice.- 

§  84.  Applications  of  rule 

In  a  criminal  case  it  is  improper  for  the  court  to  speak  favor- 
ably of  the  conduct  or  behavior  of  the  prosecuting  witness.^  It 
is  improper  so  to  frame  instructions  as  to  be  likely  to  induce 
the  jury  not  to  give  to  the  case  in  hand  a  careful  and  full  con- 
sideration, or  as  to  be  apt  to  unduly  hasten  their  deliberations,* 
and  it  will  ordinarily  be  error  for  the  court  to  speak  of  the  pos- 
sible effect  of  the  termination  of  the  suit  one  way  or  the  other 
upon  other  similar  cases  or  upon  the  interests  of  the  general 
public.'*  ■ 

§  85.  Qualifications  of  rule 

The  delay  of  a  party  in  bringing  an  action  may  be  such  as  to 
be  proper  for  the  consideration  of  the  jury,  in  which  event  it  is, 

1  Monier  v.  Pbiladelphia  Rapid  that  courts  should  try  these  cases,  but 
Transit  Co.,  75  A.  1070,  227  Pa.  273.  it  is  a  sad  commentary  on  the  sense 

2  Randolph  v.  McCain,  34  Ark.  G96;  of  the  people  that  such  slight  cause  as 
Westberry  v.  Clanton,  72  S.  E.  238,  is  in  this  case  should  be  tried  by 
136  Ga.  795 ;  Ludden  v.  Clemmons,  16  them  ;  *  *  *  that  in  such  trifling 
Neb.  506,  20  N.  W.  856.  matters    parties    could    not    arrange 

3  People  V.  MacDonald,  140  P.  256,  them  without  going  into  court,  where 
167  Cal.  545.  there  is  such  an  amount  of  costs.    The 

4  Skinner  v.  Stifel,  55  Mo.  App.  9.  only  question  in  this  case  is  as  to  the 
Speaking   of   matter   in   contro-      costs  in  the  main,"  etc.,  is  prejudicial 

versy  as  trifling.     An  instruction  in  to  plaintiff.     Ludden  v.  Clemmons,  16 

an  action  to  recover  damages  caused  Neb.  500,  20  N.  W,  856. 
by   the  trespassing  of  stock,   as  fol-  ^  Byles  v.  Ilazlett,  11  Wkly.  Notes 

lows:    "I  suppose  that  it  is  necessary  Cas.  (Pa.)  212,  29  Pittsb.  Leg,  J.  276. 


§  85  INSTRUCTIONS   TO   JURIES  164: 

of  course,   improper  to  instruct  the  jury  to  take   no  account  of 
such  delay.® 

It  is  not  improper  for  the  court  to  state  that  the  fact  that  the 
plaintiff  has  brought  the  suit  constitutes  no  reason  for  giving  him 
a  verdict,'  nor  for  the  court  to  refer  to  the  inconsistency  be- 
tween defenses  set  up  by  the  defendant  in  his  answer,*  and  where 
the  course  of  the  trial  is  such  that  considerations  not  pertaining 
to  the  justice  or  legality  of  the  contention  of  a  party  are  likely 
to  affect  the  deliberation  of  the  jury,  it  is  proper  for  the  court 
to  address  itself  directly  to  such  considerations,  for  the  purpose 
of  preventing  such  result.^ 

6  Shadock  v.  Alpine  Plank  Road  Co.,  «  McCusker  v.  Mitchell,  36  A.  1123, 
79  Mich.  7,  44  N.  W.  158.                             20  R.  I.  13. 

7  Rose  V.  West  Philadelphia  Ry.  Co.  "  Magee  v.  City  of  Troy,  48  Hun, 
(Pa.)  12  A.  78.                                              383,  1  N.  Y.  Supp.  24,  juds^ment  affirm- 
ed 119  N.  Y.  640,  23  N.  E.  1148. 


165 


QUESTIONS   OF   LAW  IN   CIVIL   CASES 


§86 


CHAPTER  VI 
QUESTIONS  OF  LAW  IN  CIVIL  CASES 

§  86.  General  rule. 

87.  Particular  questions  of  law. 

88.  •Coustructiou  and  effect  of  written  instruments. 

89.  Matters  relating  to  contracts. 

90.  Interpretation  and  effect  of  deeds. 

91.  Questions  relating  to  negligence. 

92.  Construction  and  effect  of  pleadings. 

93.  Burden  of  proof,  admissibility  of  evidence,  and  competency  of  witnesses. 

94.  Statutes  and  ordinances. 

95.  Foreign  laws. 

96.  Effect  of  error  in  submitting  question  of  law  to  jury. 

§  86.  General  rule 

It  is  the  province  and  duty  of  the  court  in  civil  cases  to  instruct 
the  jury  as  to  the  general  rules  of  law  applicable  to  the  issues 
and  the  facts.^  A  charge  stating  the  legal  conclusions  which  will 
result  from  the  establishment  of  certain  facts  is  not  objection- 
able as  a  charge  upon  the  facts  or  the  weight  of  evidence.^     Ac- 


1 U.  S.  (C.  C.  Mass.)  Nason  v. 
United  States,  Fed.  Cas.  No.  10,024,  1 
Gall.  53. 

Del.  State  V.  Keen,  82  A.  600,  3 
Boyce,  224. 

Ga.  Telfair  County  v.  Webb,  47  S. 
E.  218,  119  Ga.  916. 

Ind.  Vivian  Collieries  Co.  v.  Ca- 
hall,  110  N.  E.  672,  184  Ind.  473. 

Kan.  Atchison,  T.  &  S.  F.  Ry.  Co. 
V.  Woodson,  100  P.  633,  79  Kan.  567. 

Ky.  Maltus  V.  Shields,  2  Mete.  553; 
Cincinnati,  N.  O.  &  T.  P.  R.  Co.  v. 
Silvers,  126  S.  W.  120. 

La.  Union  Bank  v.  Thompson,  8 
Rob.  227. 

Me.     Grout  v.  Nichols,  53  Me.  383. 

Mass.  Fay  v.  Dudley,  124  Mass. 
266. 

Mict.  McCain  v.  Smith,  137  N.  W. 
616,  172  Mich.  1. 

Mo.  De  Ford  v.  Johnson  (Sup.)  177 
S.  W.  577 ;  Bamberge  v.  Supreme 
Tribe  of  Ben  Hur,  139  S.  W.  235,  159 
Mo.  App.  102 ;  Flournoy  v.  Andrews,  5 
Mo.  513. 

Neb.  Bartling  v.  Behrends,  20 
Neb.  211,  29  N.  W.  472. 

Okl.  Missouri,  O.  &  G.  Ry.  Co.  v. 
Davis,  154  P.  503,  54  Okl.  672. 


Pa.  Lilly  v.  Paschal's  Ex'rs,  2 
Serg.  &  R.  394. 

S.  C.  Wylie  v.  Commercial  & 
Farmers'  Bank,  41  S.  E.  504,  63  S.  C. 
406. 

Tex.  St.  Louis  &  S.  F.  Ry.  Co.  v. 
Lane  (Civ.  App.)  118  S.  W.  847. 

Va.     Picket  v.  MoiTis,  2  Wash.  255. 

2  Ga.  Southern  Ry.  Co.  v.  Chit- 
wood,  45  S.  E.  706,  119  Ga.  28 ;  Pierce 
V.  Atlanta  Cotton  Mills,  79  Ga.  782, 
4  S.  B.  381. 

Iowa.  Pritchett  v.  Overman,  3  G. 
Greene,  531. 

Kan.  Haines  v.  Goodlander,  84  P. 
986,  73  Kan.  183. 

Mo.  Harris  v.  Woody,  9  Mo.  113; 
Stewart  v.  Sparkman,  75  Mo.  App. 
106;   Dunn  v.  Henley,  24  Mo.  App.  579. 

Neb.  Schmuck  v.  Hill,  96  N.  W. 
158,  2  Neb.  (Unof.)  79. 

S.  C.  Kean  v.  Landrum,  52  S.  E. 
421,  72  S.  C.  556. 

Tex.  Btter  v.  Stampp  &  Eichel- 
berger  (Civ.  App.)  204  S.  W.  143; 
Kaack  v.  Stanton,  112  S.  W.  702,  51 
Tex.  Civ.  App.  495 ;  Houston  &  T.  C. 
R.  Co.  V.  White,  56  S.  W.  204,  23  Tex. 
Civ.  App.  280;    Taylor,  B.  &  H.   Ry. 


86 


INSTRUCTIONS   TO   JURIES 


166 


cordingly,  not  only  is  it  error  in  a  civil  case  to  tell  the  jury  that 
they  are  the  judges  of  the  law  as  well  as  of  the  facts,^  but  it  is  the 
duty  of  the  jury  to  receive  and  act  upon  the  law  as  given  to  them 
by  the  court,*  and  the  court  may  so  instruct.^ 

Instructions  which  permit  the  jury  to  pass  upon  questions  of 
law  are  erroneous,  and,  if  requested,  are  properly  refused.^    Thus 


Co.  V.  Taylor.  79  Tex.  104,  14  S.  W. 
918,  2.3  Am.  St.  Rep.  316. 

Va.     Green  v.  Grain,  12  Grat.  252. 

Instructions  proper  writliin  rule. 

A  charge  that  a  failure  to  deliver  a 
telegraph  message  without  satisfac- 
tory explanation  is  some  evidence  up- 
on which  the  jury  may  "base  a  verdict 
for  punitive  damages.  Bush  v.  West- 
ern Union  Telegraph  Co.,  76  S.  E.  197, 
93  S.  C.  176.  A  charge  that  if  there 
is  a  river  bottom  filled  to  considerable 
depth  with  sand,  gravel,  or  other  por- 
ous material,  over  which  a  stream 
runs  on  the  surface,  and  through  and 
in  which  the  water  moves  under- 
ground, enough  of  it  rising  to  supply 
the  surface  stream,  and  through  a 
larger  space  in  the  porous  material, 
but  in  the  same  general  direction  as 
the  surface  stream,  and  in  connection 
with  it,  and  in  a  course  and  within  a 
space  reasonably  well  defined,  then 
such  underground  portion  would  be  a 
part  of  the  water  course.  City  of  Los 
Angeles  v.  Tomeroy,  57  P.  585,  124 
Cal.  597.  A  charge  that  it  was  the 
duty  of  the  carrier  to  stop  the  train 
long  enough  at  its  station  for  plaintiff 
to  alight  was  not  erroneous  as  an  ex- 
pression of  opinion  as  to  what  would 
be  negligence.  Western  &  A.  R.  Co. 
V.  Burnham,  50  S.  E.  984,  123  Ga.  28. 

3  Livingston  v.  Taylor,  63  S.  E.  694, 
1.32  Ga.  1;  Atlantic  &  B.  Ry.  Co.  v. 
Bowen,  54  S.  E.  105,  125  Ga.  460 ;  Fer- 
guson v.  Moore,  39  S.  W.  341,  98  Tenn. 
342;  Fink  v.  Evans,  95  Tenn.  413,  32 
S.  W.  .307. 

*  United  States  v.  Ullman  (D.  C.  N. 
Y.)  Fed.  Cas.  No.  16,593,  4  Ben.  547; 
Leeklieder  v.  Chicago  City  Ry.  Co., 
172  111.  App.  557;  Eckels  v.  Hawkin- 
son,  1.38  111.  App.  627;  Moore  v.  Ilin- 
kle.  50  N.  E.  822,  151  lud.  343 ;  Brady 
v.  Clark,  12  Lea  (Tenn.)  323. 

0  Brown  v.  City  of  Atlanta,  66  Ga. 
71:  Tliornton  v.  Lane,  11  Ga.  4.59; 
I'.run  V.  Chicago  City  R,  Co.,  183  111. 


App.  129 ;  Hart  v.  Menefee  (Tex.  Civ. 
App.)  45  S.  W.  854;  First  Congrega- 
tional Meeting  House  Soc.  v.  Town  of 
Rochester,  66  Vt.  501,  29  A.  810. 

6  U.  S.  (C.  C.  A.  Iowa)  Wliat  Cheer 
Coal  Co.  V.  Johnson,  56  F.  810,  6  C.  C. 
A.  148;  (C.  C.  Or.)  Brown  v.  Oregon 
King  Min.  Co.,  110  F,  728. 

Ala.  Jeffries  v.  Pitts,  75  So.  959, 
200  Ala.  201;  Greenwood  Cafe  v. 
Walsh,  74  So.  82,  15  Ala.  App.  519; 
Avondale  Mills  v.  Bryant,  63  So.  932, 
10  Ala.  App.  507;  C.  H.  Gilliland  & 
Son  V.  Martin,  42  So.  7,  149  Ala.  672. 

Ariz.  Jordan  v.  Duke,  36  P.  896, 
4  Ariz.  278. 

Cal.  Tompkins  v.  Montgomery,  55 
P.  997,  123  Cal.  219 ;  Dean  v.  Grimes. 
72  Cal.  442,  14  P.  178. 

Conn.  Beardsley  v.  Irving,  71  A. 
580,  81  Conn.  489. 

D.  C.  Reid  v.  Anderson,  13  App. 
D.  C.  30. 

111.  F.  W.  Cook  Brewing  Co.  v. 
Goldblatt,  184  111.  App.  266;  Peoria. 
Bloomington  &  Champaign  Traction 
Co.  V,  O'Connor,  149  111.  App.  598: 
People  V.  Welch,  143  111.  App.  191; 
Ware  v.  Senders,  120  111.  App.  209; 
Sexton  V.  Barrie,  102  111.  App.  586. 

Ind.  Prudential  Ins.  Co.  of  Amer- 
ica V.  Union  Trust  Co.,  105  N.  E.  505, 
56  Ind.  App.  418. 

Kan.  Shrader  v.  McDaniel,  189  P. 
954,  106  Kan.  755;  Aaron  v.  Missouin. 
&  Kansas  Telephone  Co.,  114  P.  211, 
84  Kan.  117. 

Ky.  Black  v.  Davenport,  224  S.  W. 
500,  189  Ky.  40 ;  Illinois  Cent.  R.  Co. 
v.  Dallas'  Adm'x,  150  S.  W.  536,  150 
Ky.  442 ;  Smith  v.  Cornett,  38  S.  W. 
689,  18  Ky.  Law  Rep.  818. 

Md.  Dronenburg  v.  Harris,  71  A. 
81,  108  Md.  597;  New  York,  P.  &  N. 
R.  Co.  V.  Jones,  50  A.  423,  94  Md.  24. 

Mich.  Stearns  v.  Vincent,  15  X. 
W.  SO,  50  Mich.  209,  45  Am.  Rep.  37; 
Battershall  v.  Stephens,  34  Mich.  68. 

Mo.     Niehaus  v.  Gillanders  (App.) 


167 


QUESTIONS   OF   LAW   IN   CIVIL  CASES 


86 


an   instruction  that  the  court  will   sanction  any  verdict  the  jury 


184  S.  W.  949 ;  Burns  v.  Limerick,  165 
S.  W.  1166,  178  Mo.  App.  145;  Bar- 
ton V.  City  of  Odessa,  82  S.  W.  1119, 

109  Mo.  App.  76 ;   Carroll  v.  Campbell, 

110  Mo.  557,  19  S.  W.  809. 

Mont.  Gallick  v.  Bordeaux,  78  P. 
583,  31  Mont.  328. 

Or.  Hoag  V.  Washington-Oregon 
Corporation,  144  P.  574,  75  Or.  588, 
judgment  modified  on  rehearing  147 
P.  756,  75  Or.  588;  Oberlin  v.  Oregon- 
Washington  R.  &  Navigation  Co.,  142 
P.  554,  71  Or.  177. 

Pa.  Poundstone  v.  Jones,  38  A. 
714,  182  Pa.  574;  Work  v.  Maclay's 
Lessee,  2  Serg.  &  R.  415. 

S.  C.  Duren  v.  Kee,  41  S.  C.  171, 
19  S.  E.  492. 

Tex.  Wall  v.  Lubbock,  118  S.  W. 
886,  52  Tex.  Civ.  App.  405. 

Vt.  Coolidge  v.  Taylor,  80  A.  1038, 
85  Vt.  39. 

Va.  Keen's  Ex'r  v.  Monroe,  75  Va. 
424. 

Wash.  J.  L.  Mott  Iron  Works  v. 
Metropolitan  Bank,  139  P.  36,  78 
Wash.  294 ;  Patterson  v.  Wenatchee 
Canning  Co.,  101  P.  721,  53  Wash.  155. 
W.  Va.  Lawrence's  AdmYv.  Hyde, 
88  S.  E.  45,  77  W.  Va.  639 ;  Britton  v. 
South  Penn  Oil  Co.,  81  S.  E.  525,  73 
W.  Va.  792;  Tracewell  v.  Wood  Coun- 
ty Court,  52  S.  E.  185,  58  W.  Va.  283. 
Wis.  Guinard  v.  Kuapp-Stout  & 
Company,  90  Wis.  123,  62  N.  W.  625, 
48  Am.  St.  Rep.  901. 

Illustrations  of  instructions  im- 
proper within  rule.  An  instruction, 
in  ejectment  against  one  claiming 
through  P.,  that  if  the  jury  believe 
that  P.,  now  deceased,  had  possession 
of  the  land  under  claim  of  ownership, 
and  adversely  to  all  the  world,  from 
a  period  from  about  1875  to  1885,  and 
if  they  find  that  at  and  just  before 
her  death  in  1901  she  had  such  ad- 
verse possession,  then  the  presumption 
-is  that  during  the  intervening  time 
between  say  1885  and  the  death  of  P., 
the  adverse  possession  of  P.  continued, 
and  would  operate  a  har  to  this  suit 
•  under  the  defense  of  adverse  posses- 
sion. Hays  V.  Lemoine,  47  So.  97,  156 
Ala.  465.  An  instruction,  in  an  ac- 
tion for  the  killing  of  a  dog,  where  de- 
fendant  answered,   alleging  that   the 


dog  had  recently  killed  sheep  and  was 
approaching  defendant's  sheep  when 
killed,  and  plaintiff  replietl,  alleging 
that  he  had  an  agreement  with  de- 
fendant whereby  his  dogs  were  to  be 
allowed  to  run  at  large  on  defendant's 
premises,  and  he  was  to  be  liable  for 
double  damages  for  Injury  they  might 
cause,  telling  the  jury  that  if  they  be- 
lieved from  the  evidence  that  the  kill- 
ing of  the  dog  was  wrongful,  and  done 
without  good  cause,  they  should  find 
for  plaintiff,  was  error,  because  sub- 
mitting to  the  jury  the  principal  issue 
of  law  in  the  case.     Brisco  v.  Laugh- 
lin,  143  S.  W.  65,  161  Mo.  App.  76.    An 
instruction  that  plaintiff,  in  suing  out 
an  attachment,  must  have  acted  so  as 
not  to  "unjustly  or  wrongfully"  injure 
the  rights  of  other  creditors.     Martin 
Brown  Co.  v.  Perrill,  77  Tex.  199,  13 
S.  W.  975.     An  instruction,  in  an  ac- 
tion on  a  check  by  an  indorsee  against 
the  maker,  who  had  stopped  payment, 
that  if  the  indorsee  accepted  the  notes 
of   the  payee   and  his   wife   for   the 
amount  of  the  check,  and  released  the 
maker    from    liability,     the    verdict 
should  be  for  the  maker,  was  errone- 
ous in  failing  to  require  the  jury  to 
find  the  facts  necessary  to  constitute 
a   legal   release,   thus  leaving  to  the 
jury   a    question   of   law.      Weant   v. 
Southern  Trust  &  Deposit  Co.,  77  A. 
289,  112  Md.  463.     Instructions  which 
permit  the  jury  to  construe  a  contract. 
Empire  State  Surety  Co.  v.  Schilling- 
er  Bros.,  167  111.  App.  632.    A  charge, 
in  an  action  for  breach  of  contract, 
that  if  the  jury  believed  from  the  evi- 
dence that   plaintiffs   broke  the  con- 
tract, if  they  did,  by  demanding  to  be 
released  from  a  bond  of  one  of  the  de- 
fendants to  the  state,  and  by  refusing 
to  stay  on  such  bond,  if  they  did,  then 
they  could  not  recover.    Ben.  C.  Jones 
&  Co.  V.  Gammel-States-iuan  Pub.  Co. 
(Tex.  Civ.  App.)  94  S.  W.  191.  reversed 
99  S.  W.-  701,  100  Tex.  320,  8  L.  R.  A. 
(N.  S.)  1197.    An  instruction,  in  an  ac- 
tion on  contracts  for  acquiring  a  rail- 
road right  of  way,  which  left  it  to 
the  jury  to  determine  how  much  of 
the  work  was  done  by  "defendant," 
inadvertently    naming    defendant    in- 
stead of  plaintiff",  and  if  they  found 


86 


INSTRUCTIONS  TO  JURIES 


1G8 


may  return  is  erroneous,''  as  is  an  instruction  which  leaves  it  to 


that  the  work  was  not  completed  then 
to  find  why  it  was  not  completed,  and 
left  it  to  the  jury  to  find  the  legal 
consequences  of  the  failure  to  com- 
plete the  work.    Harrison  v.  Franklin, 
103  S.  W.  585,  126  Mo.  App.  366.     In- 
structions which  left  to  the  jury  to 
decide   what    acts   the   law    required 
plaintiff  to  perform  before  he  could  re- 
scind a  contract.    Gehr  v.  Hagerman, 
26    111.    438.     An    instruction    which 
leaves   to   the   determination    of   the 
jnry  the  question  whether  there  has 
been  at  a  particular  time  a  legal  trans- 
fer of  the  title  to  real  estate.    Lence 
V.   Insurance  Co.   of  North  America, 
147  111.  App.  259.    A  charge  in  an  ac- 
tion for  false  imprisonment,  requiring 
the  jury  to  find   that   "plaintiff  was 
illegally  imprisoned."    Roth  v.  Shupp, 
50  A.  430,  94  Md.  55.    An  instruction, 
in  an  action  for  the  balance  of  the 
price  of  goods,  leaving  the  question  of 
interest,  except  the  rate  thereof,  whol- 
ly to  the  jury,  indicating  no  time  or 
event  from  which  it  should  be  calcu- 
lated.'  Buchanan  v.  Caine,  106  N.  E. 
885,  57  Ind.  App.  274.     A  charge,  in 
an  action  for  the  cost  of  repairing  cer- 
tain dams  under  a  logging  contract: 
"You  know  more  or  less  about  this 
class  of  litigation,  about  lumber  busi- 
ness and  logging  contracts,  and  the 
way  this  business  is  carried  on.    Use 
your  common  sense,  and  do  what  is 
right  between  these  parties."    George 
W.  Roby  Lumber  Co.  v.  Gray,  73  Mich. 
.356,  41  N.  W.  420.     A  charge  permit- 
ting the  jury  to  determine  what  con- 
stitutes   a    reasonable   precaution    to 
prevent  injuries  from  an  excavation 
in  a  street  is  erroneous.    City  of  Mont- 
gomery V.  Bradley  &  Edwards,  48  So. 
809,   159  Ala.  230.     A  charge,  in  an 
action  against  a  city  for  an  assault 
committed  by  defendant's  street  com- 
missioner    who     was    I'Ci^urfacing    a 
street,  the  defense  being  that  plaintiff, 
a   street  car  driver,   was   unlawfully 
removing  gravel  from  the  tracks,  to 
find  for  defendant  if  the  jury  should 
find  that  plaintiff  was  himself  engaged 
in  an  unlawful  act,  and  that  his  in- 
jury  was   the   direct   result   thereof, 
was  properly  refused,  as  submitting  to 
the  jury  the  legal  status  of  plaintiff's 


act  in  removing  the  gravel.  Barree  v. 
City  of  Cape  Girardeau,  112  S.  W.  724. 
132  Mo.  App.  182.  An  instruction, 
submitting  a  question  whether  an 
agent's  authority  to  sell  gave  implied 
authority  to  employ  a  broker,  was  er- 
roneous as  submitting  a  question  of 
law,  in  the  absence  of  evidence  that 
the  employment  of  the  broker  was 
one  of  the  necessary  things  to  be  done 
for  the  proper  exei-cise  of  the  author- 
ity to  sell.  Doggett  v.  Greene,  98  N. 
E.  219,  254  111.  134,  reversing  judg- 
ment 163  111.  App.  369.  An  instruc- 
tion, in  an  action  against  a  railway 
company  for  the  killing  of  a  horse 
which  escaped  from  plaintiff's  field  to 
an  adjacent  field  and  thence  to  adja- 
cent railroad  tracks,  which  submitted 
to  the  jury  the  question  whether  the 
horse  was  lawfully  in  the  latter  field. 
Carpenter  v.  Chicago  &  A.  Ry.  Co.,  95 
S.  W.  985,  119  Mo.  App.  204.  An  in- 
struction, in  an  action  of  claim  and 
delivery  against  a  sheriff  for  horses 
taken  on  attachment,  that,  if  the  jury 
believed  plaintiff  bought  them  in  good 
faith  from  the  attachment  debtor,  and 
was  prevented  from  getting  possession 
by  the  wrongful  act  of  the  attaching 
creditor,  they  should  find  for  plaintiff, 
was  erroneous,  in  leaving  to  the  jury 
a  question  of  law,  whether  any  act  of 
the  attaching  creditor  was  wrongful. 
Fearce  v.  Boggs,  99  Cal.  340,  33  P.  906. 
An  instruction,  in  an  action  for  breach 
of  a  contract  of  sale,  the  seller  not 
having  filed  a  bond  required  by  the 
contract  within  a  reasonable  time, 
that,  if  the  bond  was  filed  within  such 
time  as  to  afford  the  buyer  all  the 
protection  he  was  entitled  to  under 
the  contract,  plaintiff  was  entitled  to 
recover.  Equitable  Mfg.  Co.  v.  How- 
ard, 41  So.  628,  148  Ala.  664.  A 
charge,  in  an  action  for  a  seller's 
breach  of  contract,  to  find  for  plain- 
tiff unless  jury  believed  that  they 
breached  that  part  of  agreement  con- 
cerning the  advancement'  of  money  by 
them  to  defendant  was  erroneous  as 
leaving  it  to  the  jury  to  determine 

7  Bockoven  .v.  Board  of  Sup'rs  of 
Lincoln  Tp.,  Clark  County,  83  N.  W. 
335,  13  S.  D.  317. 


169 


QUESTIONS   OF   LAW   IN   CIVIL   CASES 


87 


the  jury  to  determine  what  are  the  facts  necessary  to  be  proved 
to  enable  a  plaintiff  to  recover,*  or  an  instruction  leaving  it  to 
the  jury  to  discover  and  determine  from  all  the  facts  in  the  case 
whether  the  defendant  is  liable.®  The  duty  of  the  trial  court  to 
instruct  as  to  the  law  exists,  even  under  constitutional  provisions 
which  declare  that,  as  to  the  particular  action,  the  jury  shall  be 
the  judges  of  the  law  and  the  facts. ^" 

§  87.  Particular  questions  of  law 

The  question  of  ownership  is  frequently  one  of  law.**  What 
is  a  reasonable  time  within  which  to  perform  an  act,  when  de- 
pending on  undisputed  facts,  may  be  a  question  of  law.*'  Where 
the  evidence  relative  to  the  manner  of  conducting  a  business  is 
undisputed,  it  is  the  province  of  the  court  as  a  matter  of  law  to 
tell  the  jury  whether  such  business  constitutes  interstate  com- 
merce.*^    The  facts 'may  be  such  as  to  show  that  there  has  been 


what  would  constitute  breach  of  the 
contract  to  advance  money.  E.  F. 
Spears  &  Sons  v.  Winkle,  186  Ky. 
5S5,  217  S.  W.  691.  An  instruction, 
where  there  is  a  sharp  conflict  in  the 
testimony,  which  tells  the  jury  that 
any  one  who  commits  a  wrongful  act 
is  liable  for  any  natural  injury  result- 
ing therefrom,  although  such  result 
could  not  have  been  contemplated  or 
foreseen, as  the  probable  result  of  such 
act.  Brownback  v.  Frailey,  78  111.  App. 
262.  A  charge,  in  an  action  for  damag- 
es for  cutting  timber  on  certain  land, 
the  title  to  which  both  plaintiff  and  de- 
fendant claimed,  the  court  charged 
that,  if  the  jury  believed  from  the  pre- 
ponderance of  the  evidence  that  the 
defendant  cut  any  timber  upon  the 
lands  set  out  in  the  petition  whicb  the 
jury  believed  were  the  lands  of  the 
plaintiff,  it  should  find  for  them,  oth- 
erwise it  should  find  for  defendant. 
Burt  &  Brabb  Lumber  Co.  v.  Hurst, 
110  S.  W.  242,  33  Ky.  Law  Rep.  270. 
An  instruction,  in  trespass  quare 
clausum  fregit,  that  the  defendant 
was  not  liable  for  imnitive  damuues 
unless  his  agents,  when  in  the  plain- 
tiff's house,  acted  recklessly  and  in 
disregard  of  her  rights,  without  in 
any  manner  defining  her  rights.  Gus- 
dorff  V.  Duncan,  50  A.  574,  94  Md.  160. 
An  instruction  that,  unless  it  was  de- 
fendant's duty  to  keep  its  pipe  line  in 
such  condition  that  it  was  not  an  ob- 


struction to  the  creek  in  question  to- 
float  railroad  ties  out  of  it,  they 
should  find  for  defendant.  Cumber- 
land Pipe  Line  Co.  v.  Stambaugh,  126- 
S.  W.  106.  137  Ky.  528.  31  L.  R.  A, 
(N.  S.)  1131.  An  instruction,  in  an 
action  for  damages  for  diverting  wa- 
ter from  an  irrigating  ditch,  that, 
where  the  court  in  a  former  action 
had  found  certainly  upon  any  point 
that  had  arisen  in  this  action,  its  find- 
ing must  control,  and  was  conclusive 
upon  the  parties  thereto,  is  erroneous, 
as  leaving  to  the  jury  the  construction 
of  the  findings  of  the  court,  which  the 
court  should  have  itself  construed  and 
explained  to  the  jury.  Dalton  v.  Kel- 
sey,  114  P.  464,  58  Or.  244. 

8  Dalton  v.  Redemeyer,  133  S.  W. 
133,  154  Mo.  App.  190. 

0  Cook  V.  Mackrell,  70  Pa.  12. 

10  Jones  V.  Murray,  66  S.  W.  981. 
167  Mo.  25. 

11  Matson  v.  Ripley,  70  111.  App.  86. 

12  Long-Bell  Lumber  Co.  v.  Stump 
(C.  C.  A.  Ark.)  86  F.  574,  .30  C.  C.  A. 
260;  American  Window  Glass  Co.  v. 
Indiana  Natural  Gas  &  Oil  Co.,  76  N. 
E.  1006,  37  Ind.  App.  4.39 ;  Louisville 
&  N.  R.  Co.  V.  Grain,  224  S.  W.  1063, 
189  Ky.  431;  Williams  v.  Powell,  101 
Mass.  467,  3  Am.  Rep.  396 ;  Ziueman 
&  Bro.  V.  William  Harris,  6  Pa.  Super. 
Ct.  303. 

13  W.  T.  Rawleigh  Co.  v.  Van  Duyn^ 
188  P.  945,  32  Idaho,  767. 


§  87  INSTRUCTIONS  TO  JURIES  170 

a  wrongful  conversion  of  goods  as  a  matter  of  law,  in  which 
case  the  court  shouM  so  instruct.^*  An  instruction  that  cohabi- 
tation and  declarations  of  the  parties  that  they  are  husband  and 
wife  do  not  constitute  a  marriage,  in  the  absence  of  an  agree- 
ment, express  or  implied,  is  not  objectionable  as  a  comment  on 
the  evidence  ;^^  nor  is  it  a  charge  on  the  facts  to  instruct  as  to 
the  effect  of  a  pardon,^®  or  as  to  elements  of  damage  having  uni- 
versal judicial   recognition.^' 

Whether  a  party  injured  by  the  tort  of  another  has  fulfilled  his 
duty  to  exercise  the  diligence  of  an  ordinarily  prudent  man  to 
minimize  his  damages  is  one  of  law  for  the  court,  if,  under  the 
evidence,  only  one  inference  can  be  drawn  as  to  the  plaintiff's 
duty,^*  and  where  certain  facts,  as  a  matter  of  law,  constitute'  a 
waiver  of  rights  conferred  by  contract  or  otherwise,  it  will  be 
proper  for  the  court  to  so  charge. ^^  It  is  not  only  the  proper 
function,  but  the  duty,  of  the  court  to  instruct  as  to  the  use  of 
words  having  a  legal  technical  meaning.'**  So  the  court  should 
declare  the  legal  force  of  a  former  judgment  set  up  in  bar  of  the 
pending  action.^^ 

§  88.  Construction  and  effect  of  written  instrument 

It  is  the  province  and  duty  of  the  court,  as  a  general  rule,  to 
construe  written  documents  which  have  been  introduced  in  evi- 
dence and  to  declare  their  legal  efifect,~'~  and  an  instruction  so  de- 

1*  Sever  Wild  v.  McLaughlin,  79  N.  Andrews    v.    Grav.es,    Fed.    Cas.    No. 

C.  153.  376,  1  Dill.  108. 

15  Schwingle  v.   Keifer    (Tex.   Civ.  Cal.     Dean  v.  Grimes,  72  Cal.  442. 

App.)  135  S.  W.  194.  14    P.    178;     McGarvey   v.   Little,   15 

IB  Costley  V.  Galveston  City  Ry.  Co.,  Cal.  27. 

70  Tex.  112,  S  S.  W.  114.  Del.     Schilansky   v.    Merchants'    & 

17  Jennings  V.  Edgefield  :Mfg.  Co.,  52  Manufacturers'   Fire   Ins.   Co.,   55   A. 

S.  E.  113,  72  S.  C.  411.  1014,  4  Pennewill,  293. 

IS  Boyd  V.  Grove,  173  P.  310,  89  Or.  j.^^^     Upchurch  v.  Mizell,  40  So.  29. 

10  Grout  V.  Nichols.  .5.".  Me.  38?. :  Hoi-  "    „  *•  -T,  ""„„       ,      „ 

lings  V.  Rankers'  T'nion  of  the  World,  ^.  ^^;  ?^'^f%-^,,^]^^-  J'   ^'^^- 

41  S   E  90  63  S   C   19'^  strong,  4o  h.  E.  o( 9, 118  Ga.  424;  Home 

=o'Burreil  'v.' ■south"ern    California  J^."^"'"^' J^-   ^-   ^^^^5^'  ^4   Ga.   606, 

Cnnning  Co.,  1G9  P.  405,  35  Cal.  App.  ^-^J^'  ^-  5Ni- 

1(;2.  ^^}-     Bradish  v.  Grant,  119  111.  606, 

21  Richardson  v.  City  of  Boston,  24  ^^  ^'-  ^-  25S. 

How.  188,  16  L.  Ed.  625;    Young  v.  ^^^-     Zeuor  v.  Johnson,  107  Ind.  69, 

Bvrd.  124   Mo.  590,  28  S.  W.  S3,  46  7  N.  E.  751;    Louthain  v.  Miller,  85 

Am.  St.  Rep.  461;    Holbrook  v.  J.  J.  I"d.  161. 

Quinlnn  &  Co..  SO  A.  .3.39,  84  Vt.  411.  Iowa.     Warren     v.     Chandler.     98 

=  2  U.S.     (Sup.)  Bliven  V.  New  Eng-  Iowa,  2.37,  67  N.  W.  242;    Potter  v. 

land  Screw  Co..  23  How.  420.  4.33,  16  Wooster,    10    Iowa,    334;    Thorp    v. 

L.  Ed.  510,  514;    Turner  v.  Yates.  16  Craig,  Id.  461. 

How.  14,  14  L.  Ed.  824;    (C.  C.  Mo.)  Kan.     Dobbs    v.    Campbell,    72    P. 


171 


QUESTIONS   OF   LAW  IN   CIVIL   CASES 


daring  does  not  fall  within  the  rule  against  charging  on  the  facts 
or  the  weight  of  the  evidence.'^^  An  instruction  that  certain  doc- 
uments are  to  be  construed  together  is  not  improper,  as  permit- 
ting the  jury  to  construe  them.^*  But  while,  as  a  general  rule, 
the  interpretation  of  a  written  instrument  is  a  question  of  law  for 
the  court,  this  rule  presupposes  the  absence  of  a  dispute  as  to  the 
facts  and  the  absence  of  ambiguities,^^  and  where  the  language 
employed  in  such  instrument  is  not  free  from  ambiguity,  or  is 
equivocal,  and  its  interpretation  depends  upon  the  sense  in  which 
the  words  were  used,  in  view  of  the  subject-matter  to  which  they 
relate,  the  relation  of  the  parties,  and  the  surrounding  circum- 
stances properly  applicable  to  it,  the  intent  of  the  parties  becomes 
a  matter  of  inquiry,  and  the  interpretation  of  the  language  used 
by  them  is  a  mixed  question  of  law  and  fact.~^  The  rule  that  the 
court  must  determine  the  legal  meaning  of  documentary  evidence 
is  inapplicable,  where  the  dispute  is  not  as  to  the  legal  meaning 
of  a  document,  but  as  to  its  tendency  to  prove  one  side  or  the 


273,  66  Kan.  805;  Akin  v.  Davis,  11 
Kan.  580. 

Mich.  Batterstiall  v.  Stephens,  34 
Mich.  68.. 

Mo.  Milstead  v.  Equitable  Mortg. 
Co.,  49  Mo.  App.  191 ;  Wright  v.  Fonda, 
44  Mo.  App.  634. 

Or.  H.  R.  Wyllie  China  Co.  v.  Vin- 
ton, 192  P.  400,  97  Or.  350. 

Pa.  Halfman  v.  Pennsylvania  Boil- 
er Ins.  Co..  160  Pa.  202,  28  A.  837; 
Shaffer  v.  Corson.  141  Pa.  256,  21  A. 
647,  28  Wkly.  Notes  Cas.  121. 

S.  C.  Bedenbaugh  v.  Southern  Ry. 
Co.,  48  S.  E.  53,  69  S.  C.  1;  Thomp- 
son V.  Family  Protective  Union,  45 
S.  E.  19,  66  S.  C.  459;  Jones  v.  Swear- 
ingen,  42  S.  C.  58,  19  S.  E.  947. 

Tex.  Sherman  Slaughtering  &  Ren- 
dering Co.  V.  Texas  Nursery  Co.  (Civ. 
App.)  224  S.  W.  478;  J.  M.  Radford 
Grocery  Co.  v.  Jamison  (Civ.  App.)  221 
S.  W.  998 :  St.  Louis,  S.  F.  &  T.  Ry. 
Co.  V.  Birge-Forbes  Co.  (Civ.  App.)  139 
S.  W.  3;  Bennett  v.  Hollis,  9  Tex. 
437;  City  of  San  Antonio  v.  Lewis,  9 
Tex.  69. 

Va.  Houff  &  Holler  v.  German 
American  Ins.  Co.,  66  S.  E.  831,  110 
Va.  585 ;  Norwich  Lock  Mfg.  Co.  v. 
Hockaday,  89  Va.  557,  16  S.  E.  877. 

Meaning  of  plain  language.  An 
instruction  which  submits  to  the  jury 
the   meaning    of    language    which    is 


plain  and  can  have  but  one  meaning 
is  erroneous,  as  intimating  that  the 
court  is  of  opinion  that  the  jury  may 
rightfully  place  upon  the  language 
some  other  construction.  Dime  Sav- 
ings &  Trust  Co.  v.  Jacobson,  191  IlL 
App.  275. 

2  3  Iowa.  Lucas  v.  Snyder,  2  G. 
Greene,  499;  Durham  v.  Daniels,  Id., 
518. 

S.  C.  Metz  v.  Metz,  91  S.  E.  864, 
106  S.  C.  514;  Brown  v.  Moore,  26 
S.  C.  160,  2  S.  E.  9. 

Tex.  Temple  v.  Duran  (Civ.  App.) 
121  S.  W.  253;  Tinsley  v.  Mcllhenny, 
70  S.  W.  793,  30  Tex.  Civ.  App.  352; 
Howell  v.  Ilanrick  (Civ.  App.)  24  S. 
W.  823  ;  Wright  v.  Thompson,  14  Tex, 
558. 

~i  Anglo-American  Provision  Cq.  v. 
Prentiss,  157  III.  506,  42  N.  E.  157; 
Chicago  &  A.  R.  Co.  v.  Matthews,  48 
111.  A])p.  361. 

2  5  Cutler  v.  Spens,  158  N.  W.  224, 
191  Mich.  003. 

2  6  School  Dist.  No.  8  of  Thompson 
V.  Lynch,  33  Conn.  330;  Warner  v. 
Miltenberger's  Lessee,  21  Md.  264,  83 
Am.  Dec.  573;  Young  v.  Stephens.  66 
Mo.  App.  222;  Kenyon  v.  Knights 
Templars  &  Masonic  Mut.  Aid  Ass'n, 
25  N.  E.  299,  121.'  N.  Y.  247 :  Douglass 
&  Varnum  v.  Village  of  Morrisville, 
95  A.  810,  89  Vt.  393. 


§89 


INSTRUCTIONS  TO  JURIES 


172 


other  of  an  issue  of  fact,  and  different  inferences  may  fairly  be 
drawn  from  it  as  to  the  truth.-'  Thus  a  case  which  turns  upon 
the  proper  conclusions  to  be  drawn  from  a  commercial  corre- 
spondence in  connection  with  other  facts  and  circumstances  is 
properly  referred  to  a  jury,-*  and  where  the  controlling  question 
is  whether  an  ambiguous  w-ritten  instrument  relates  to  certain 
property  it  is  proper  for  the  court  to  submit  the  question  to  the 
jury  for  their  decision.-^ 

§  89.  Matters  relating  to  contracts 

The  essentials  of  a  contract  are  to  be  determined  by  the  court,^® 
and  instructions  are  erroneous  which  leave  it  to  the  jury  to  say 
whether  the  undisputed-  facts  in  evidence,  or  fhe  facts  found  b}^  the 
jury  from  the  evidence,  constitute  a  contract,  either  oral  or  writ-. 
ten,^i  or  whether  certain  conversations  preliminary  to  a  contract 
w^ere  a  part  thereof,^-  or  whether  an  alleged  contract  is  supported 
by  a  valuable  consideration.^^  Ordinarily  the  construction  of  a 
written  contract  is  for  the  court,^*  which  should  embody  such 
construction  in  its  charge,^''  and  instructions  which  permit  or 
require  the  jury  to  interpret  such  a  writing  are  erroneous  and 
properly  refused.^*     An  instruction  so  construing  a  contract  put 


2  7  Carp  V.  Queen  Ins.  Co.,  79  S.  W. 
757,  104  Mo.  App.  502. 

2  8  Rankin  v.  Fidelity  Insurance, 
Trust  &  Safe  Deposit  Co.,  2.3  S.  Ct. 
553,  1S9  U.  S.  242,  47  L.  Ed.  792. 

2  9  Ilanlon  v.  Ilanlon,  29  S.  E.  712, 
103  Ga.  562. 

30  Gowen  v.  Kehoe,  71  111.  66 ;  Witt 
V.  Gallemore,  163  111.  App.  649;  W. 
W.  Kendall  Boot  &  Shoe  Co.  v.  Bain, 
46  Mo.  App.  581. 

31  Turner  v.  Owen,  122  111.  App. 
.501 ;  Moody  v.  Standard  Wheel  Co.,  20 
Ind.  App.  422,  50  N.  E.  S90 ;  Erskine 
V.  Wilson,  27  Tex.  117.  See  W.  C. 
Sterling  &  Son  Co.  v.  Watson  &  Ben- 
nett Co.,  193  Mich.  11,  159  N.  W.  381. 

Implied  contracts.  Where  the 
quostion  is  whether  the  parties,  by 
oral  communications  and  by  their  acts 
have  entered  into  a  contract,  the  con- 
clusion to  be  deduced  is  not  one  of 
law,  but  of  fact,  and  must  be  deter- 
mined as  such.  Sines  v.  Superintend- 
ents of  Poor,  55  Mich.  383,  21  N.  W. 
428. 

3  2  J.  W.  Bishop  Co.  V.  Curran  & 
Burton,  76  A.  275,  30  R.  I.  504. 


S3  Lumpkin  v.  Strange  (Mo.  App.) 
179  S.  W.  742. 

3*  Paepcke-Leicht  Lumber  Co,  v. 
Talley,  153  S.  W.  833,  106  Ark.  400; 
Brown  Bag  Filling  Mach.  Co.  v.  Unit- 
ed Smelting  &  Aluminum  Co.,  107  A. 
619,  93  Conn.  670;  Leas  v.  Grubbs, 
1  Wils.  (Ind.)  301 ;  Black  River  Lum- 
ber Co.  V.  Warner,  93  Mo.  374,  6  S. 
W.    210. 

35  Timmons  v.  McKinzie,  189  P. 
627,  21  Ariz.  433 ;  Aaron  v.  Missouri 
&  Kansas  Telephone  Co.,  114  P.  211, 
84  Kan.  117;  Blair  v.  Baird,  94  S. 
W.  116.  43  Tex.  Civ.  App.  1.34;  Pey- 
ser V.  Western  Dry  Goods  Co.,  92  P. 
886,   48  Wash.   55. 

3G  Ala.  Cobb  &  Marston  v.  Mc- 
Kenzie,  60  So.  943,  7  Ala.  App.  203; 
McEutyre  v.  Hairston,  44  So.  417,  152 
Ala.  251;  Phoenix  Ins.  Co.  v.  Moog, 
78  Ala.  284,  56  Am.  Rep.  31. 

Conn.  In  re  Hotchkiss  Will,  92  A. 
419.  88  Conn.  655. 

Ga.  John  Mallock  &  Co.  v.  Kick- 
lighter,  73  S.  E.  1073,  10  Ga.  App. 
005. 

111.  Standard  Mfg.  Co.  v.  Slaugh- 
ter, 122  111.  App.  479;  Beidler  v.  King, 
108   111.   App.   23,   judgment  affirmed 


173 


QUESTIONS  OF  LAW  IN  CIVIL  CASES 


§90 


in  evidence  does  not  violate  a  statute  prohibiting-  a  judge   from 
summing  up  or  commenting  on  the  evidence.^' 

The  general  rule  that  the  construction  of  a  contract  is  a  matter 
to  be  determined  by  the  court  is  subject  to  the  qualification  that 
the  entire  contiact  is  in  writing,  needing  nothing  but  an  interpre- 
tation of  its  language  by  its  own  intrinsic  light,  or  that,  being 
by  parol,  there  is  no  antagonism  in  the  evidence  by  which  it  is 
sought  to  be  established.^*  Where  extrinsic  facts  are  to  be  con- 
sidered in  connection  with  the  written  language  of  a  contract  in 
determining  its  meaning,  very  much  must  be  left  to  the  jury.^^ 
After  the  jury  have  found  the  facts  showing  the  existence  of  an 
oral  contract  and  its  terms,  it  is  ordinarily  for  the  court  to  con- 
strue it  and  determine  its  effect.*"  The  question  of  what  is  a 
good  and  legal  cause  for  failure  to  carry  out  a  contract  should  not 
be  submitted  to  the  jury.*^ 

§  90.  Interpretation  and  effect  of  deed 

An  instruction  as  to  the  interpretation  and  legal  effect  of  a  deed 
admitted  in  evidence  does  not  constitute  a  forbidden  expression 
of  opinion  on  the  facts  or  a  charge  on  the  weight  of  evidence,'*'^ 
and  is  generally  held  to  be  within  the  province  of  the  court.*^ 


70  N.  E.  763,  209  111.  302,  101  Am. 
St.  Rep.  246 ;  Hutchinson  v.  Dunham, 
41  111.  App.  107. 

Ind.  Brown  v.  Langner,  58  N.  B. 
743,  25  Ind.  App.  538;  Spence  v. 
Owen  County  Com'rs,  117  Ind.  573, 
18  N.  E.  513. 

Ky.  Elkhorn  &  B.  V.  Ry.  Co.  v. 
Dingus,  220  S.  W.  1047,  187  Ky.  812; 
Romans  v.  McGinnis,  160  S.  W.  928, 
156  Ky.  205. 

Me.  Libby  v.  Deake,  54  A.  856,  97 
Me.  377. 

Md.  Doggett  V.  Tatham,  81  A. 
376,  116  Md.  147 ;  Williams  v.  Woods, 
16  Md.  220:  Baltimore  &  O.  R.  Co.  v. 
Resley,  14  Md.  424. 

Mass.  Woodbury  v.  Sparrell  Print, 
84  N.  E.  441,  198  Mass.  1. 

N.  Y.  Schwartz  v.  Mann  (Sup.) 
155  N.  Y.  S.  209. 

Tex.  Magnolia  Warehouse  &  Stor- 
age Co.  V.  Davis  &  Blackwell  (Civ. 
App.)  153  S.  W.  670. 

Utah.  Bailey  v.  Spalding-Livings- 
ton Investments  Co.,  136  P.  962,  43 
Utah,   535. 

37  Randolph  v.  Govan,  14  Smedes  & 
M.  (Miss.)  9. 


3  8  Gardner  v.  Clark,  17  Barb.  (W. 
Y.)  538. 

3!>  (Gardner  v.  Clark,  17  Barb.  (N. 
Y.)  538. 

40  Short  V.  Woodward,  79  Mass.  (13. 
Gray)  86 ;  Rhodes  v.  Chesson,  44  N. 
C.  336;  Hastings'  Adm'r  v.  Eckley's 
Adm'r,  8  Pa.  194. 

41  Harmison  v.  Fleming,  105  HI. 
App.  43 ;  La  Porte  v.  Wallace,  89  111. 
App.  517. 

Instructions  improper  vrithin 
rule.  An  instruction,  in  an  action 
for  breach  of  a  contract  of  marriage, 
that  the  jury  should  find  for  the 
plaintiff  if  they  believed  from  the  evi- 
dence that  there  was  a  contract  of 
marriage  between  the  parties,  and 
the  defendant  failed  to  carry  out  the 
contract  "without  good  and  legal 
cause  therefor,"  and  plaintiff  was 
damaged  by  reason  of  such  failure. 
Bradley  v.  Sehrayer,  204  111,  App. 
231. 

4  2  Berry  v.  Clark,  44  S.  E.  824,  117 
Ga.  964;  Phoenix  Ins.  Co.  of  Hartford, 
Conn.,  V.  Neal,  56  S.  W.  91,  23  Tex. 
Civ.  App.  427. 

43  West     Missouri     Land     Co.     v. 


91 


INSTRUCTIONS  TO  JURIES 


174 


Whether  an  ambiguity  in  a  deed  is  latent  or  patent  should  not 
be  left  to  the  jury  to  decide.^* 

§91.  Questions  relating  tOi  negligence 

Where  negligence  is  the  basis  of  an  action,  it  is  the  duty  and 
province  of  the  court  to  define  the  standard  of  care  to  which  the 
defendant's  conduct  must  conform/^  and  it  is  therefore  error,  in 
such  an  action,  to  tell  the  jury  that  they  are  the  sole  judges  of 
the  question  of  negligence,**'  or  to  charge  that  a  party  must  exer- 
cise such  a  degree  of  care  as  the  law  requires,*^  or  to  charge,  that 
by  negligence  is  meant  a  failure  to  observe  that  degree  of  care 
and  vigilance  which  circumstances  justly  demands  whereby  an- 
other suffers  injury.**  The  facts  in  a  particular  action  may  be 
such  as  to  make  the  question  of  negligence  one  of  law,*^  and 
where  this  is  the  case  the  court  may  so  instruct,^®  without  invad- 
ing the  province  of  the  jury,^^  or  making  a  forbidden  comment 


Thompson,    57    S.   W.   1042,   157   Mo. 
647. 

Instructions  not  objectionable 
as  leaving  interpretation  to  jnry. 

Where  the  trial  court  states  to  the 
jury  that  certain  deeds  are  before 
them,  if  the  jury  find  they"  are  prop- 
erly executed,  and  the  court  must 
constnie  them,  and  that  it  had  at- 
tempted to  do  so,  so  far  as  it  appear- 
ed necessary,  and  that  that  construc- 
tion must  be  accepted  as  the  true 
■  construction  of  the  Instruments,  an 
objection  that  the  court  left  to  the 
jury  the  construction  of  the  deeds  is 
not'  well  taken.  Glover  v.  Gasque,  45 
S.  E.  113,  67  S.  C.  18. 

4  4  Ne^A•man  v.  Lawless.  6  Mo.  279. 

4  5  Schindler  v.  Milwaukee,  L.  S.  & 
W.  Rv.  Co.,  43  N.  W.  911,  77  Mich. 
13C :  Casey  v.  Hoover,  89  S.  W.  330, 
114  Mo.  App.  47;    Id.,  S9  S.  W.  336.  ^ 

Instructions  improper  \idtliin 
rule.  Instructions,  in  an  action 
against  an  employer  for  injury  to  an 
employ^  struck  by  moving  cars,  that 
it  was  the  engineer's  duty  to  use  or- 
dinary care  to  prevent  injuring  em- 
ployes; that  if  the  employes  in  charge 
of  the  engine  and  cars  did  not 
use  such  care,  and  phiintiff  was  in- 
jured while  using  ordinary  care,  he 
could  recover  a  specified  amount  of 
damages;  and  that  plaintiff  was 
bound  to  use  ordinary  care  for  his 
own  safety ;  and  that,  though  the  en- 
gineer was  negligent,  if  but  for  plain- 


tiff's own  negligence  the  injury  wo^ld 
not  have  occurred,  he  could  not  re- 
cover. West  Kentucky  Coal  Co.  v. 
Davis,  128  S.  W.  1074,  138   Ky.  667. 

4&  Midland  Val.  R.  Co.  v.  Bailey, 
124  P.  987,  34  Okl.  193. 

4  7  Anderson  v.  Thunder  Bay  River 
Boom  Co.,  23  N.  W.  776,  57  Mich.  216. 

4  8  Missouri,  K.  &  T.  Ry.  Co.  of 
Texas  v.  Wood  (Tex.  Civ.  App.)  81  S. 
W.  1187. 

4  9  Hot  Springs  St.  Ry.  Co.  v,  Hil- 
dreth,  82  S.  W.  245,  72  Ark.  572; 
Ohio,  I.  &  W.  Ry.  Co.  v.  Kleiusmith, 

38  111.  App.  45,  following  Toledo,  P. 
&  W.  Ry.  Co.  V.  Bray,  57  111.  515; 
Snow  V.  Indianapolis  &  E.  Ry.  Co.,  93 
N.  E.  1089,  47  Ind.  App.  189;  Fort 
Worth  &  R.  G.  Ry.  Co.  v.  Eddleman, 
114  S.  W.  425,  52  Tex.  Civ.  App.  181. 

Whether  it  is  negligence  for  a 
passenger  to  stand  on  the  platform  of 
car  of  a  rapidly  moving  commercial 
train  is  held  to  be  a  question  of  law 
in  Alabama.  Southern  Ry.  Co.  v. 
Hayes,  69  So.  641,  194  Ala.  194. 

50  Crauf  V.  Chicago  City  Ry.  Co., 
85  N.  E.  235,  235  111.  262,  aflirming 
judgment  Chicago  City  Ry.  Co.  v. 
Crauf,  136  111.  App.  66;  Baltimore  & 
O.  S.  R.  Co.  V.  Kleespies,  78  N.  E.  252, 

39  Ind.  App.  151,  denying  rehearing 
Baltimore  &  O.  S.  W.  R.  Co.  v,  Klees- 
pies, 76  N.  E.  1015,  39  Ind.  App.  151; 
Gulf  &  S.  I.  R.  Co.  V.  Adkinsou,  77 
So.  954,  117  Miss.  118. 

01  Chattanooga,  R,  &  C.  R.  Co.  v. 


]75 


QUESTIONS   OF   LAW   IN   CIVIL  CASES 


92 


on  the  weight  of  the  evidence.^'  The  same  rule  applies  where 
certain  facts  show,  as  a  matter  of  law,  that  one  was  not  guilty 
of  contributory  negligence,^^  and  the  court  does  not  encroach  on 
the  province  of  the  jury  by  charging  on  the  effect  of  contributory 
negligence.^  An  instruction  in  a  negligence  case  leaving  it  to 
the  jury  to  say  whether  the  defendant  has  been  negligent,  regard- 
less of  the  provisions  of  a  statute  governing  the  subject-matter 
of  the  suit  is  erroneous.'*"*  An  instruction  which  submits  to  the 
jury  the  determination  of  the  question  of  whether  certain  acts  of 
commission  or  omission  of  a  party  constitute  negligence,  with- 
out also  submitting  the  facts  bearing  on  such  question,  is  held 
to  be  erroneous,  as  submitting  a  question  of  law.^®  It  is  held, 
however,  that  if  an  instruction  in  a  negligence  case  contains  a 
legal  definition  of  negligence,  the  fact  that  it  permits  the  jury  to 
determine  what  acts  or  failure  to  act  will  make  negligence  will 
not  render  it  objectionable  as  submitting  a  question  of  law.^' 

§  92.     Construction  and  effect  of  pleadings 

The  jury  should  not  be  permitted  to  determine  what  is  alleged 
in  the  pleadings  or  to  construe  the  effect  of  allegations  therein, 
these  being  questions  of  law.^     An  instruction,  therefore,  which 


Clowdis,  90  Ga.  258,  17  S.  E.  88; 
Chicago,  R.  I.  &  P.  Rv.  Co.  v.  Dizney, 
160  P.  880,  61  Okl.  176 ;  Rice  v.  Lock- 
hart  Mills,  55  S.  E.  160,  75  S.  C.  150 ; 
Houston  &  T.  C.  R.  Co.  v.  Hubbard 
(Tex.  Civ.  App.)  37  S.  W.  25. 

5  2  Chicago,  R.  I.  &  G.  Ry.  Co.  v. 
Sears  (Tex.  Civ.  App.)  155  S.  W.  1003 ; 
Texas  &  P.  Ry.  Co.  v.  Laverty,  4  Tex. 
Civ.  App.  74,  22  S.  W.  1047;  Texas 
&  P.  Ry.  Co.  V.  Mallon,  65  Tex.  115. 

Instructions  held  not  objection- 
able. An  instruction  that,  if  the 
.iury  believed  an  injui-y  was  caused 
both  by  the  defective  construction  or 
unfitness  of  the  engine  for  the  pur- 
poses for  which  it  was  used  and  the 
negligence  of  the  engineer  and  yard 
foreman,  combined  with  the  defect  in 
the  engine,  the  company  would  be  li- 
able. Missouri  Pac.  Ry.  Co.  v.  Lehm- 
berg,  75  Tex.  61,  12  S.  W.  838.  An 
instruction  that,  if  a  scaffold  was 
built  by  defendant  for  the  use  of 
plaintiff,  and  plaintiff  was  rightfully 
on  it,  and  it  fell  while  being  used  in 
a  proper  manner,  the  presumption 
was  that  the  scaffold  was  either  de- 
fective in  material  or  construction  in 
the  first  instance,  or  had  become  so 


since  It  was  put  in  use.  and  that  de- 
fendant would  be  liable,  does  not  vio- 
late a  constitutional  provision  declar- 
ing that  judges  shall  not  charge  juries 
on  the  facts  or  comment  thereon. 
Cleary  v.  General  Contracting  Co., 
101  P.  888,  53  Wash.  254. 

5  3  Rainey  v.  New  York  Cent.  &  H. 
R.  R.  Co.,  68  Hun,  495.  23  N.  Y.  S. 
80 :  Houston  Belt  &  Terminal  Ry.  Co. 
V.  Woods  (Tex.  Civ.  App.)  149  S,  W. 
372. 

5  4  Musi ck  V.  Borough  of  Latrobe, 
39  A.  220,  184  Pa.  375,  42  Wkly. 
Notes   Cas.    209. 

5  5  Searcy  v.  Golden,  18S  S.  W.  1098, 
172  Ky.   42. 

5  6  Louisville  Bridge  Co.  v.  Iring, 
203  S.  W.  531,  ISO  Ky.  729 ;  Winslow 
V.  Missouri,  K.  &  T.  Ry.  Co.  (Mo. 
App.)  192  S.  W.  121. 

5"  Conner  v.  Citizens'  St.  R.  Co., 
45  N.  E.  662,  146  Ind.  430;  Henderson 
V.  Heman  Const.  Co.,  199  S.  W.  1045. 
198  Mo.  App.  423;  Case  v.  Atlanta  & 
C.  A.  L.  Ry.,  92  S.  E.  472,  107  S.  C. 
216. 

5  8  Eggleston  v.  The  Fair,  167  111. 
App.  518;  Erb  v.  Gennan-American 
Ins.  Co.  of  New  York,  S3  N.  W.  1053, 


§  92 


INSTRUCTIONS  TO  JURIES 


176 


leaves  to  the  jury  the  determination  of  what  are  the  material  al- 
legations in  the  pleadings  or  the  material  issues  in  the  case,  is 
erroneous.*^®  Thus  an  instruction  that  ever}^  material  allegation 
in  the  complaint  of  plaintiff,  not  denied  by  the  answer,  must  be 
taken  as  true  for  the  purpose  of  the  action,  is  erroneous,^  as  is 
an  instruction  to  find  for  the  plaintiff  if  the  allegations  of  his 
complaint  are  "substantially"  proved,  since  thereby  the  jury  are 
left  to  say  how  far  the  evidence  of  the  plaintiff  may  depart  from 
such  allegations   without   defeating  his   right   of   recovery,*^^   and 


112  Iowa,  357 ;  Oliver  v.  Chapman,  15 
Tex.  400;  Gabrielson  v.  Hague  Box 
&  Lumber  Co.,  104  P.  635,  55  Wasli. 
342,  133  Am.  St.  Rep.  1032. 

Instractions  held  improper 
within  rale.  An  instruction,  in  a 
personal  injury  action,  that  defend- 
ant was  seeking  to  escape  liability 
by  pleading  not  guilty  and  that  plain- 
tiff was  guilty  of  contributory  negli- 
gence; that  from  the  pleas  of  con- 
tributory negligence  it  was  not  pre- 
sumed that  plaintiff  was  guiltj',  and 
no  burden  rested  on  plaintiff  to  prove 
affirmatively  that  he  used  due  care 
and  diligence,  but  that  the  burden 
was  upon  defendant  to  prove  the 
pleas,  unless  plaintiff's  evidence  es- 
tablished such  negligence;  and  that 
if  defendant  did  not  prove  the 
pleas,  and  plaintiff  proved  his  alle- 
gations, plaintiff  should  recover. 
Birmingham  Ry.,  Light  &  Power  Co. 
v.  Hayes,  44  So.  1032,  153  Ala.  178. 
An  instruction,  in  an  action  of  tres- 
l>ass  for  destroying  a  bridge  and 
killing  and  destroying  the  hogs  and 
cattle  of  the  plaintiff,  if  the  jury 
believe,  "from  the  pleadings  and  evi- 
dence, that  this  is  an  action  mere- 
ly for  an  alleged  injury  to  the  realty, 
and  that  there  is  no  evidence  that  the 
realty  is  located  in  P.  county,  or  that 
the  injury,  if  any,  was  done  in  that 
county,  to  said  realty,  they  may  find 
for  the  defendants,  the  venue  in  such 
cases  being  local  and  material,"  is  er- 
roneous, since  it  leaves  to  the  jury 
to  determine  from  the  pleadings  the 
nature  of  the  action.  Beebe  v.  Stuts- 
man, 5  Iowa,  271. 

50  ni.  Laughlin  v.  Hopkinson.  126 
N.  E.  591.  292  111.  SO;  Baker  v.  Sum- 
mers. 66  N.  E.  302,  201  111.  52,  revers- 
ing judgment  103  111.  Api).  237;  Six 
V.  Sikking,  158  111.  App.  2.30;    Cox  v. 


Cleveland,  C,  C.  &  St.  L.  Ry.  Co.,  151 
111.  App.  473;  Trustees  of  Schools, 
etc.,  St.  Clair  County  v.  Yoch,  133  IlL 
App.  32;  Chicago  &  E.  I.  Ry.  Co.  v. 
Walker,  127  111.  App.  212;  Illinois 
Cent.  R.  Co.  v.  Hicks,  122  111.  App. 
349;  Peoria  &  P.  Terminal  Ry.  v. 
Hoerr,  120  HI.  App.  65;  Lodge  v. 
Hampton,  116  111.  App.  414 ;  Daven- 
port, R.  I.  &  N.  W,  Ry.  Co.  v.  De 
Yaeger,  112  111.  App.  537;  Chicago 
Terminal  Transfer  R.  Co.  v.  Schmel- 
ling,  99  111.  App.  577.  judgment  af- 
firmed 64  N.  E.  714,  197  111.  619 ;  Da- 
vies  V.  Cobb,  11  111.  App.  587. 

Iowa.  Ottoway  v.  Milrov,  123  N. 
W.  467,  144  Iowa,  631;  Williams  v. 
Iowa  Cent.  Ry.  Co.,  96  N.  W.  774,  121 
Iowa,  270. 

Mo.  Alms  V.  Conway,  78  Mo.  App. 
490;  Fleischmann  v.  Miller,  38  Mo. 
App.   177. 

W.  Va.  Dicken  v.  Liverpool  Salt 
&  Coal  Co.,  41  W.  Va.  511,  23  S.  E. 
582. 

An  instrnction,  lio^eever,  that,  if 
the  evidence  in  the  case  is  evenly 
balanced  as  between  the  contention 
of  the  plaintiff  and  that  of  the  defend- 
ant on  the  material  issues,  the  jury 
should  find  the  defendant  not  guilty, 
is  properly  given,  where,  under  the 
pleadings,  evidence,  and  instructions 
as  given,  the  jury  could  not  have  been 
mistaken  as  to  what  the  material  is- 
sues were.  Chicago  City  Ry.  Co.  v. 
Osborne,   105  111.   App.  462. 

coAllard  V.  Smith,  2  Mete.  (Ky.) 
297:  Tipton  v,  Triplett,  1  Mete.  (Ky.) 
570. 

oiLumaghi  v.  Gardin,  53  111.  App. 
607. 

In  Indiana,  however,  It  has  been 
held  that  a  charge  that  plaintiff  is 
entitled  to  recover  "unless  defendant 
has  proved   by   a    preponderance   of 


177 


QUESTIONS  OF   LAW   IN   CIVIL  CASES 


93 


where  the  facts  as  proved  do  not  tend  to  support  the  allegations 
of  the  pleadings,  it  is  the  province  of  the  court  to  so  instruct.®^ 
So  the  court  may  inform  the  jury  that  certain  evidence  is  suffi- 
cient in  law  to  satisfy  the  averments  of  the  declaration  of  the 
plaintiff.^^  The  question  of  variance  between  a  pleading  and  the 
proofs,  however,  is  properly  submitted  to  the  jury,  where  the 
facts  are  in  dispute,*^  and  an  instruction  that,  if  the  jury  find 
from  the  evidence  that  the  plaintiff  has  made  out  his  case  as  laid 
in  his  complaint,  they  must  find  for  him,  is  held  not  to  make  the 
jury  the  judges  of  the  effect  of  the  averments  of  the  complaint, 
but  merely  to  empower  them  to  determine  whether  the  evidence 
introduced  sustains  the  issues  made  by  the  pleadings.^^ 

§  93.  Burden  of  prciof,  admissibility  of  evidence  and  compe- 
tency of  witnesses 
It  is  not  for  the  jury  to  say  on  whom  the  burden  of  proof 
rests,^  and  instructions  which  authorize  the  jury  to  pass  upon  the 
admissibility  or  competency  of  evidence  are  erroneous,  as  sub- 
mitting questions  of  law  to  them.®'     The  jury  cannot,  therefore, 


the  evidence  in  substance  the  allega- 
tions in  one  or  more  paragraphs  of 
his  answer"  is  not  erroneous,  on  the 
tlieory  that  such  a  charge  is  the 
equivalent  of  an  instniction  that  it 
is  only  necessary  for  the  defendant  to 
prove  the  material  allegations  in 
some  one  of  the  paragraphs  of  the 
answer.  Walker  v.  Heller,  73  Ind. 
46. 

6  2  Jaccard  v.  Anderson,  37  Mo.  91. 

63  Austin  V.  Richardson,  3  Call  (Va.) 
201,  2  Am.  Dec.  543. 

6  4  Morris  v.  Bridgeport  Hydraulic 
Co.,  47  Conn.  279. 

6  5  Laflin  &  Rand  Powder  Co.  v. 
Tearney,  131  111.  322,  23  N.  E.  389,  19 
Am.  St,  Rep.  34,  7  L.  R.  A.  262. 

6  6  Alabama  Fertilizer  Co.  v.  Rey- 
nolds, 79  Ala.  497. 

Effect  of  evidence.  A  charge  on 
the  burden  of  proof  in  the  case  is  not 
a  charge  "on  the  effect  of  the  evi- 
dence," within  the  Alabama  statute 
prohibiting  the  court  from  giving 
such  a  charge,  unless  requested. 
Hill's  Adm'r  v.  Nichols,  ^0  Ala.  336. 

67  Ala.  Wright  v.  Boiling,  27  Ala. 
259. 

Cal.    People  v.  Ivey,  49  Cal.  56. 

Fla.     Atlanta  &  St.  A.  B.  Ry.  Co. 
V.  Kelly,  82  So.   57,  77  Fla.  479. 
In  ST.  TO  Juries— 12 


Ga.  Chattahoochee  Nat.  Bank  v. 
Schley,  58  Ga.  369. 

lU.  Lambert  v.  Giffin,  100  N.  E. 
496,  257  111.  152;  Karnes  v.  Belle- 
ville &  E.  R.  Co.,  89  111.  269;  Bald- 
win V.  Toledo,  St.  L.  &  W.  R.  Co., 
171  111.  App.  137;  Chicago  Trust  & 
Savings  Bank  v.  Landfield,  73  111. 
App.   173. 

Ind.  Indiana  Farmers'  Live  Stock 
Ins.  Co.  V.  Byrkett,  9  Ind.  App.  443, 
36  N.  E.  779. 

Mich.  Colbv  V.  Portman,  72  N. 
W.  109S.  115  Mich.   95. 

Mo.  Jones  V.  Roberts,  37  Mo.  App. 
163. 

Tex.  Wichita  Falls  Compress  Co. 
V.  W.  L.  Moody  &  Co.  (Civ.  App.)  154 
S.  W.  1032. 

Materiality  of  testimony.  An 
instruction  that  the  jury  are  the  sole 
judges  of  the  weight  and  "impor- 
tance" of  the  respective  testimony  of 
the  witnesses  is  erroncxjus,  as  making 
the  jury  the  judges  of  the  materiality 
of  the  testimony.  ILui.sberger  v.  Se- 
dalia  Electric  Rv.,  Light  &  Power 
Co..  82  Mo.  App.  506. 

Instruction  not  improper  t^itli- 
in  rule.  An  instruction  that  every 
man  is  presumed  aane,  and  that  in- 
sanity can  only  be  proved  by   clear 


§  93  INSTRUCTIONS  TO  JURIES  178 

be  made  the  judge  of  what  are  and  what  are  not  material  and  im- 
portant features  of  hypothetical  questions,^  and  it  is  error  for 
the  court  to  intimate  doubts  as  to  the  competency  of  legal  testi- 
mony which  has  been  submitted  to  the  jury  on  the  trial,^^  and  an 
instruction  directing  the  jury  to  disregard  all  evidence  of  a  wit- 
ness which  clearly  appears  to  be  based  upon  what  others  have 
told  him  is  erroneous.'® 

On  the  other  hand,  an  instruction  which  withdraws  certain  evi- 
dence from  the  jury  as  not  being  material  to  the  issues  is  within 
the  province  of  the  court,'^  as  is  an  instruction  to  disregard  cer- 
tain parts  of  documents  introduced  in  evidence,  where  such  parts 
have  been  shown  to  be  incorrect."^ 

It  is  error  to  submit  to  the  jury  the  question  of  the  competency 
of  a  witness,"^  and  where  a  plaintiff's  case  rests  entirely  on  the 
testimony  of  an  incompetent  witness,  the  court  should  not  charge 
that  the  plaintiff  cannot  recover,  but  should  charge  directly  on 
the  incompetency  of  the  witness.'* 

§  94.     Statutes   and   ordinances 

The  question  of  the  existence  of  a  statute  is  one  of  law  for 
the  court  to  determine,'^  as  is  the  question  of  the  interpretation 
of  a  statute,'^  and  it  is  error,  to  submit  such  a  question  to  the 
jury.''  So  ordinarily  the  construction  of  an  ordinance  is  one  for 
the  court,'*  although  in  some  cases  such  construction  may  be  left 

and    unexceptional    evidence,    asserts  72  Missouri,    K.    &    T.    Ry.    Co.    of 

a    correct    legal    proposition,    and    in  Texas   v.   Magee  (Tex.   Civ.   App.)  49 

giving  such  a  charge  the  court  does  S.  W.  928. 

not  shift  from  itself  to  the  jury  the  73  Lake  Erie  &  W.  R.  Co.  v.  Bow- 
responsibility  of  passing  on  the  com-  ker,  .36   N.  E.  864,  9  Ind.   App.  428 ; 
petency  of  the  evidence  on  that  issue.  Chouteau  v.  Searcy,  8  Mo.  73.3. 
Dominifk  v.  Randolph.  27  So.  481,  124  74  Ross  v.  Espy,  66  Pa.  481,  5  Am. 
Ala.  557.  jjgp    394 

r^^^^f^  w  ?i1^^*^n^nwf"«rl-  ''    Jol"^^«n  ^-   ^rady  County,   150 

Co.,   161   N.   W.   114,  .1 80  Iowa,  8O0 ;      p    ^q-    r^n  ni-i    1  co 

Same   v.   Travelers'   Protective  Ass'n  \;Jl'  ''^         "  I    ;      •      ,r    o    o    w 

riowa)  161  N.  W.   125;  Ingwersen  v.  „ '"^^^I'^J"  ""■  ^1;  Lo"'^-  M.  &  S.  W. 

Carr  &  Brannon,  164  N.  W.  217.  180  ^^-  ^^-  1^0  S.  W.  494,  123  Mo.  App. 

Iowa,  9S8;      In   re   Rehard's  Estate,  '^^^'     McDaniel    v.    Lebanon    Lumber 

143  N.  W.  1106,  163  Iowa,  310 ;    Mad-  Co.,  140  P.  990,  71  Or.  15. 

den    V.    Savior   Coal    Co.,   Ill   N.   W.  '^7  Winchell    v.   Town   of   Camillus. 

57.  1.33  Iowa.  COO:  Stutsman  v.  Sharp-  95  N.  Y.    S.  688,   109  App.  Div.  341, 

Ifss.   101  N.  W.   105,   125    Iowa,  335.  affirmed  S3  N.  E.  1134,  190  N.  Y.  536; 

«o  Potts   v.    House,    6    Ga.    324,    50  Large  v.  Orvis,  20  Wis.  696. 

Am.   Dec.  329.  7  8  Sadler  v.  Peoples  (C.  C.  Pa.)  105 

70  Davidson  v.  Wallingford,  88  Tex.  F.     712;      Indianapolis     Traction     & 

619.  ,•52   S.   W.   10.30.  Terminal  Co.  v,   Howard   (Ind.    Sup.) 

7  1  In  re  Darrow.  92  N.  E.  369.  175  128  N.  E.  35;    Same  v.  Smith,  Id.  38; 

Ind.  44:    Bunck   v.   McAulay,   147   P.  Plummer  v.    Indianapolis   Union    Ky. 

33,  84  Wash.  473.  Co.,  104  N.  E.  601,  56  Ind.  App,  615. 


179  QUESTIONS   OF   LAW   IN   CIVIL   CASES  §  QQ 

to  the  jury  under  rules  laid  down  by  the  court  for  their  guid- 
ance.'^^ 

§  95.     Foreign  laws 

The  general  rule  is  that  the  laws  of  other  states  or  countries 
must  be  proved  as  facts,  and  ordinarily  the  question  must  be  left 
to  the  jury  to  decide  as  a  fact  what  the  law  of  another  state  is, 
if  it  becomes  material  to  be  determined.*"  Where,  however,  the 
evidence  which  is  given  of  the  law  of  another  state  consists  of  a 
statute  or  reports  of  judicial  decisions,  the  construction  of  such 
evidence  is  for  the  court,*i  unless  the  decisions  are  conflicting, 
or  where  inferences  of  fact  must  be  drawn,  in  which  case  the 
question  of  what  the  law  is  becomes  one  of  fact.*^  Where  the 
laws  of  a  foreign  state  have  been  proved,  it  is  for  the  court  to 
determine  their  meaning.*^ 

§  96.     Effect  of  error  in  submitting  question  of  law  to  jury 

An  error  of  the  court  in  submitting  for  the  determination  of 
the  jury  a  question  of  law  is  cured  by  its  verdict  correctly  decid- 
ing such  question,*'*  and  such  error  will  not  be  cause  for  reversal 
if  the  question  of  law  so  submitted  should  have  been  decided 
against  the  party  complaining  of  the  error.*^ 

7  9  Atchison,  T.  &  S.  F.  R.  Co.  v.  8  2  Hancock  Nat.  Bank  v.  Ellis,  172 
Anderson,  50  P.  603,  6  Kan.  App.  923.      Mass.  39,  51  N.  E.  207.   42  L.  R.  A. 

8  0  Mexican  Cent.   Ry.  Co.  v.   Gehr,      396,  70  Am.  St.  Rep.  232. 

66  ill.  App.  173 ;    Ufford  v.  Spaulding,  8  3  Inge  v.  Murphy,  10  Ala.  SS5  ;  Ely 

30  N.  E.  360,  156  Mass.  65;    Bank  of  y.   james,   123   Mass.  36;    Hooper  v. 

China,    Japan    and    The    Straits    v  Moore,    50    N.    C.    130 ;     Frasier    v. 

Morse,  61  N.  E   774,  168  N.  Y.  458,  5b  Charleston  &  W.  C.  Ry.,  .52  S.  E.  964. 

L.  R.  A.  139,  85  Am    St   Rep.  6i6.  73  g    q    140 ;    Fourth  Nat.  Bank  of 

^/at^^""  o««     T^^^     /'  ^1?  ^fv'  ^^o^;  Montgomery,    Ala.,    v.    Bragg.    102    S. 

t}  ^  ^o^f^'.i,^^^^  ^-  ll'^'^^i'^^'  ^^  E.  649,  127  Va.  47,  11  A.  L.  R.  1034. 

N.   E.    360,    156    Mass.    65;     Rice   v.  ^^  .,         ^       ^,  *,          m    1. 

Raukaus,    101    Mich.   378,   59   N.    W.  ,  '*-^J^-      Courtland    v.    Tarlton,    b 

660;   Union  Cent.  Lifelns.  Co.  V.  Pol-  ^^^-   ^'^^^ 

lard,  94  Va.  146,  26  S.  E.  421,  36  L.  HI.       Consolidated     Coal     Co.     v. 

R.  A.  271,  64  Am.  St.  Rep.  715.  Schaefer,  135  111.  210,  25  N.  E.  788. 

Applicability     of     foreign     law.  Me.      Simpson    v.    Norton,    45    Me. 

When   the  evidence  as  to  the  appli-  281. 

cability  of  a  foreign  law  consists  of  ^ass.     Hinds  v.  Cottle,  143  MaJ^s. 

statutes  and  .ludicial  decisions  alone,  ^-^q  9  N  E   654 

and    these    are    not    in    conflict,    the  w    <-■      el  1     "       a         rro  ts.t   /-■ 

question   of  the  applicability   of  the  ,,.^'  ^;    ^^   ,  . '^"o "^^^7'^^,^;  ^-  '^^ ' 

law  is  wholly  for  the  court,  a.s  it  is  ^ m^ent  v.  Corbm,  85  N.  C.  108. 

also  if  to  such  evidence  is  added  ex-  Or.    Johnson  v.  Shively,  9  Or.  333. 

pert  opinions  in  entire  accord.     Tar-  ss  Randon  v.  Toby,  11  How.  493,  13 

bell  V.  Grand  Trunk  Ry.  Co.  (Vt.)  Ill  L.  Ed.  784;    Bernstein  v.  Humes,  7» 

A.  567.  Ala.  134. 


97 


INSTRUCTIONS  TO  JURIES 


180 


CHAPTER  VII 

QUESTIONS  OF  LAW  IN  CRIMINAL  CASES 

§     97.     Jury  as  judges  of  the  law,  in  absence  of  constitutional  or  statutory 
provisions  governing  the  subject. 

98.  Eftcet  of  constitutional  or  statutory  provisions  on  power  of  jury  to 

judge  the  law. 

99.  Effect  of  power  of  jury  to  render  general  verdict. 

100.  Power  of  court  to  instruct  as  to  the  law. 

101.  Particular  questions  of  law. 

102.  Sufficiency  of  defenses. 

§  97.  Jury  as  judges  of  the  law,  in  absence  of  constitutional  or 
statutory  provisions  governing  the  subject 
In  the  federal  courts,  the  common-law  rule,  that  the  jury  in  a 
criminal  case  are  not  the  judges  of  the  law,  but  that,  on  the  con- 
trary, they  are  to  take  the  law  from  the  court  and  apply  it  to  the 
facts  which  they  find  from  the  evidence,  prevails,^  and  in  the  ab- 
sence of  an  inconsistent  constitutional  or  statutory  provision  on 
the  subject  this  rule  is  followed  in  the  state  courts.^ 


1  U.  S.  Sparf  V.  United  States,  156 
U.  S.  ol,  15  S.  Ct.  273,  39  L.  Ed.  343 ; 
(C.  C.  Cal.)  United  States  v.  Great- 
house,  Fed.  Cas.  No.  15,254,  2  Abb. 
(U.  S.)  364,  4  Sawy.  457 ;  (C.  C.  D.  C.) 
Stettinius  v.  United  States,  Fed.  Cas. 
No.  13.387,  5  Cranch,  C.  C.  573;  (C. 
C.  Mass.)  United  States  v.  Morris, 
Fed.  Cas.  No.  15,815,  1  Curt.  23;  Unit- 
ed States  V.  Battiste,  Fed.  Cas.  No. 
14.545,  2  Sumn.  240;  (C.  C.  N.  Y.) 
United  States  v.  Riley,  Fed.  Cas.  No. 
16,164,  5  Blatchf.  204 ;  (C.  C.  W.  Va.) 
Same  v.  Keller,  19  Fed.  633. 

Wasli.  State  v.  Fox,  127  P.  1111, 
71  Wash.  1X5,  judgment  affirmed  Fox 
V.  State  of  Washington,  35  S.  Ct.  383, 
2.36  U.  S.  273,  59  L.  Ed.  573. 

2  Ala.  Kennedy  v.  State,  40  So. 
658,  147  Ala.  687;  Tidwell  v.  State, 
70  Ala.  33. 

Ark.     Curtis  v.  State.  36  Ark.  2S4. 

Cal.  People  v.  Williams.  1.56  P. 
882.  29  Cal.  App.  552 ;  People  v.  Ivev, 
49  C:il.  56. 

Conn.  State  V.  Gannon,  52  A.  727, 
75  Conn.  206. 

Iowa.  State  V.  Kirk,  150  N.  W.  91, 
168  Iowa,  244;  State  v.  Belong,  12 
,  Iowa,  4.53. 


Kan.  State  V.  Truskett,  118  P. 
1047,  85  Kan,  804 ;  State  v.  Bowen,  16 
Kan.  475. 

Mass.  Commonwealth  v.  Marzyn- 
ski,  149  Mass.  68,  21  N.  E.  228:  Com- 
monwealth V.  White,  10  Mete.  (Mass.) 
14;  Same  v.  Porter,  10  Mete.  (Mass.) 
263. 

Mich.  People  v.  Gardner,  106  N. 
W.  541,  143  Mich.  104;  Hamilton  v. 
People,  29  Mich.  173. 

Miss.  Williams  V.  State,  32  Miss. 
389.  66  Am.  Dec.  615. 

Mo.  State  V.  Schoenwald,  31  Mo. 
147 ;    Hardy  v.  State,  7  Mo.  607. 

N.  H.  Lord  v.  State,  16  N.  H.  325, 
41  Am.  Dec.  729;  Pierce  v.  State,  13 
N.  H.  .5.36. 

N.  Y.  People  v.  Grout,  161  N.  Y. 
S.  718,  174  App.  Div.  608;  Duffv  v. 
People,  26  N.  Y.  588 ;  People  v.  Pine. 
2  Barb.  566 ;  Same  v.  Finnegan, 
1  Parker,  Cr.  R.  147;  Carpenter  v. 
People,  8  Barh.  603;  Safford  v.  Peo- 
ple, 1  Parker,  Cr.  R.  474. 

N.  C.  State  v.  Windley,  100  S.  E. 
116,  178  N.  C.  670;  State  v.  Walker,  4 
N.  C.  662. 

Pa.  Theel  v.  Commonwealth,  12  A. 
148. 


181 


QUESTIONS  OF   LAW   IN  CRIMINAL  CASES 


98 


§  98.  Effect  of  constitutional  or  statutory  provisions  on  power 
of  jury  to  judge  the  law 
In  a  number  of  jurisdictions  there  are  constitutional  and  statu- 
tory provisions  making  the  jury,  in  criminal  cases,  the  judges, 
either  unqualifiedly  or  under  the  direction  of  the  court,  of  the  law 
as  well  as  the  facts.^  The  effect  of  these  provisions  is  variously 
stated.  In  Illinois  it  is  held  that  under  the  statute  of  that  state 
the  jury  are  not  bound  by  the  instructions  of  the  court  as  to  the 
law,  if' they  can  say  upon  their  oaths  that  they  know  the  law 
better  than  the  court  does,*  and  in  certain  jurisdictions  where  the 
statutory    provision    relates    merely    to    prosecutions    for    libel    or 


S.  C.     State  V.  Drawdy,  14  Rich. 

Law,  87. 

S.  D.  State  v.  Carlisle,  139  N.  W. 
127.  30  S.  D.  475,  writ  of  error  dis- 
missed Carlisle  v.  State  of  South  Da- 
kota. 35  S.  Ct.  663,  238  U.  S.  609,  59 
L.  Ed.  1487. 

Tenn.  McGowan  v.  State,  9  Yerg. 
184. 

Tex.  Newton  v.  State,  138  S.  W. 
70S,  62  Tex.  Cr.  R.  622;  Leonard  v. 
State,  119  S.  W.  98,  56  Tex.  Cr.  R.  84 ; 
State  V.  Phare,  1  Ky.  Law  Rep.  135. 

Va.  Brown  v.  Commonwealth,  86 
Yn.  466,  10  S.  E.  745. 

Wash.  Hartigan  v.  Territory,  1 
Wash.  T.  447. 

W.  Va.  State  v.  Dickey,  37  S.  E. 
695,  48  W.  Va.  325. 

Wis.  Campbell  v.  State,  86  N.  W. 
855,  111  Wis.  152. 

In  Vermont,  overruling  the  earlier 
cases  of  State  v.  Meyer,  58  Vt.  457, 
3  A.  195,  State  v.  Croteau,  23  Vt.  14, 
.54  Am.  Dec.  90,  the  later  decisions 
hold  that  the  doctrine  that  jurors  are 
paramount  judges  of  the  law  as  well 
as  of  the  facts,  in  criminal  cases,  is 
contrary  to  the  common  law,  contrary 
to  Const.  Vt.  c.  1,  arts.  4,  10,  guaranty- 
ing every  person  "a  certain  remedy" 
for  all  wrongs,  comformable  to  the 
laws,  and  that  he  shall  not  be  depriv- 
ed of  liberty  "except  by  the  laws," 
contrary  to  R.  L.  §§  1699,  1700,  rela- 
tive to  reservation  of  questions  of  law 
to  the  supreme  court  after  a  verdict  of 
guilty,  and  contrary,  also,  to  Const. 
U.  S.  art.  6,  declaring  such  constitu- 
tion, and  all  laws  in  pursuance  there- 
of,  the  supreme  law,   binding  on  all 


judges  in  every  state.  State  v.  Bur- 
pee, 65  Vt.  1,  25  A.  964,  19  L.  R.  A. 
145,  36  Am.  St.  Rep.  775. 

Even  in  capital  cases  the  jury  are 
not  judges  of  the  law  as  well  as  of  the 
facts.    Pierson  v.  State,  12  Ala.  149. 

The  right  of  counsel  to  appear 
in  a  cause  is  a  question  of  law  for  the 
court.  State  v.  De  Wolfe,  74  P.  1084, 
29  Mont.  415. 

Duty  of  jury*  to  follow  instruc- 
tions, ivhether  right  or  w^rong.  An 
instruction  to  find  for  defendant,  ac- 
cused of  seduction,  if  his  promise  of 
marriage  was  conditioned  upon  preg- 
nancy resulting  from  the  intercourse, 
is  the  law  of  the  case,  and,  whether 
right  or  wrong,  binds  the  jury  to  find 
defendant  not  guilty,  where  prosecu- 
trix testified  that  defendant  promised 
to  marry  her  if  she  would  let  him 
have  intercourse  with  her  and  he  got 
her  in  a  family  way.  State  v.  Reilly, 
73  N.  W.  356,  104  Iowa,  13. 

3  Ind.  Hudelson  v.  State,  94  Ind. 
426,  48  Am.  Rep.  171;  Fowler  v. 
State,  85  Ind.  538;  Reiser  v.  State, 
83  Ind.  234 ;  Clifford  v.  State.  56  Ind. 
245;    Lynch  v.  State,  9  Ind.  541. 

La.  State  v.  Malone,  62  So.  350, 
133  La.  56;  State  v.  Saliba,  IS  La. 
Ann.  35 ;  Same  v.  Jurche,  17  La.  Ann. 
71:  State  v.  Lenares,  12  La.  Ann.  226; 
State  v.  Scott,  11  La.  Ann.  429. 

Me.     State  v.  Snow,  18  Me.  346. 

Md.     Forwood  v.  State,  49  Md.  o31. 

Pa.  Commonwealth  v.  Sallager,  3 
Clark,  127,  4  Pa.  Law  J.  511 ;  Same  v. 
Connor,  5  Law  T.  (N.  S.)  83. 

Tenn.  Ford  v.  State,  47  S.  W.  703, 
101  Tenu.  454, 

4  People  V.  Ezell,  155  111.  App.  298. 


§  98 


INSTRUCTIONS   TO  JURIES 


182 


slander  it  has  been  held  that  in  such  a  prosecution  the  jury  are 
not  bound  to  find  as  the  judge  directs,^  and  that  the  instructions 
of  the  court  are  only  to  inform  the  judgments  of  the  jury,  and 
not  to  bind  their  consciences.®  But  the  general  trend  of  the  deci- 
sions under  such  provisions  is  to  the  effect  that  the  jury  should 
accept  the  law  as  laid  down  and  expounded  to  them  by  the  judge.' 
Under  such  provisions  the  law  of  which  the  jury  are  the  judges 
is  ordinarily  the  law  given  them  in  charge  by  the  court,*  and  the 
jury  have  no  right  to  disregard  the  law,  but  must,  upon  their 
oaths,  determine  it  correctly;^  nor  can  they  make  law  for  the 
occasion,^"  and  where  the  authority  vested  in  them  is  to  deter- 
mine the  law  under  the  court's  direction  as  to  the  law  they  have 
not  the  moral  right  to  disregard  such  direction." 

In  some  jurisdictions  it  is  said  that,  while  the  jury  are  the 
judges  of  the  law,  the  best  evidence  of  it  is  the  statement  of  the 
law  in  the  charge  of  the  court.^^  In  this  view  the  court  is  a  wit- 
ness to  the  jury  of  what  the  law  is,^^  and  the  jury,  in  determining 
the  law,  have  no  more  right  arbitrarily  to  ignore  the  court's  in- 
structions than  they  have  to  disregard  the  e\-idence  in  determin- 
mg  the  facts.** 

Such  provisions  refer  only  to  such  questions  of  law  as  the  jury 


5  Gardner  v.  State,  139  P.  474,  15 
Ari:^.  403 ;  State  v.  Wesfhrook.  171  S. 
W.  616,  1S6  Mo.  App.  421;  State  v. 
Armstrong,  106  Mo.  395.  16  S.  W.  604, 
13  L.  K.  A.  419.  27  Am.  St.  Rep.  361, 
overruling  Same  v.  Hosmer,  85  Mo. 
55.3. 

c  Appeal  of  Lowe,  46  Kan.  255,  26 
P.  749. 

7  Ga.  Rouse  V.  State,  71  S.  E.  667, 
336  Ga.  3.56;  Hunt  v.  State,  81  Ga. 
140,  7  S.  E.  142;  Danforth  v.  State,  75 
Ga.  614,  58  Am.  Rep.  480. 

ni.  Schnier  v.  People,  23  111.  17; 
Fisher  v.  Same,  23  111.  283. 

Ind.  Fowler  v.  State,  85  Ind.  538 ; 
Mr-Donald  v.  State.  63  Ind.  544 ;  Wil- 
liams V.  State,  10  Ind.  503;  Carter  v. 
State,  2  Ind.  617. 

La.    State  v.  Tally,  23  La.  Ann.  677. 

Md.     Wheeler  v.  State,  42  Md.  563. 

Mass.  Commonwealth  v.  IMarzyn- 
ski,  WJ  Mass.  68,  21  N.  E.  228 ;  Com- 
monwealth V.  Abbott,  13  Mete.  120. 

Ohio.  Montgomery  v.  State,  11 
Ohio.    ILM. 

Tcnn.     Harris  v.  State,  7  Lea.  538. 

»l»uniinm  v.  State,  70  S.  E.  Ill,  8 
Ga.  App.  (jijH. 


9  Dean  v.  State,  46  N.  E.  528,  147 
Ind.  215 :  Anderson  v.  State,  104  Ind. 
467,  5  N.  E.  711. 

10  State  V.  Buckley,  40  Conn.  246. 
Instruction      held       proper.       A 

charge  that  the  jury  are  the  sole 
judges  of  the  facts,  and  may  deter- 
mine the  law  as  enacted  by  the  Legis- 
lature and  intei-preted  by  the  courts, 
is  not  objectionable  as  invading  the 
province  of  the  jury.  Leseuer  v. 
State,  95  N.  E.  2.39,  176  Ind.  448. 

11  State  v.  Wong  Si  Sam,  127  P.  683, 
63  Or.  266 ;  State  v.  Daley,  103  P.  502, 
54  Or.  514,  rehear  ins  denied  104  P.  1, 
54  Or.  514;  State  v.  Walton,  99  P.  431. 
53  Or.  557,  rehearing  denied  101  P. 
389,  53  Or.  557. 

12  Commonwealth  v.  Bednorciki, 
107  A.  666,  264  Pa.  124;  Common- 
wealth V.  IMcManus,  143  Pa.  64,  21  A. 
1018,  22  A.  761,  14  L.  R.  A.  89 ;  Com- 
monwealth V.  Goldberg,  4  Pa.  Super. 
Ct.  142. 

13  Ford  V.  State,  47  S.  W.  703,  101 
Tenn.  454. 

i*Dean  v.  State,  46  N.  E.  528,  147 
Ind.  215. 


183  QUESTIONS  OF   LAW   IN   CRIMINAL  CASES  §  100 

are  required  to  consider  in  making-  up  their  verdict.^^  They  do 
not  refer  to  such  questions  as  the  sufficiency  of  the  indictment 
or  questions  of  law  arising  upon  the  admissibility  of  evidence,'*' 
nor  do  they  give  power  to  determine  the  constitutionality  of  the 
statute  upon  which  the  prosecution  is  based. ^' 

§  99.     Effect  of  power  of  jury  to  render  general  verdict 

The  power  of  the  jury  to  render  a  general  verdict  of  guilty  or 
not  guilty  gives  them  the  physical  ability  to  disregard  the  in- 
structions of  the  court  as  to  the  law,  and  since  the  rule  is  that, 
where  a  jur}^  returns  a  general  verdict  of  not  guilty  in  a  criminal 
case,  the  trial  court  has  no  power  to  set  it  aside  or  modify  it  in 
any  respect,^*  it  is  sometimes  said  that  in  this  sense  they  are  the 
judges  of  the  law.^*  But,  as  one  court  has  said,  the  powder  of 
giving  wrong  verdicts  with  impunity  does  not  render  such  ver- 
dicts right."^ 

§  100.     Power  of  court  to  instruct  as  to  the  law 

In  all  jurisdictions  where  jury  trials  are  authorized,  the  court 
has  power  to  charge  the  jury  as  to  the  law  in  criminal  cases,~' 
this  being  so  even  in  those  jurisdictions  where,  as  stated  supra, 
the  jury  are  made,  by  constitutional  or  statutorv^  provision,  the 
judges  of  the  law.~^  Indeed,  in  one  jurisdiction  having  such  a  pro- 
is  Anderson  v.  State,  5  N.  E.  711,  La.  State  v.  Scott,  12  La.  Ann.  386. 
104  Ind.  467.                                                        Pa.     Commonwealth  v.  Bednorciki, 

16  Anderson  v.   State,  5  N.  E.  711,      107  A.   666,   264   Pa.   124;     Common- 

104  Ind.  467.  wealth  v.  Shurlock,  14  Leg.  Int.  3.3; 

17  United  States  v.  Callender,  Fed.  Tenn.  Bro\Yn  v.  State,  6  Baxt.  422. 
Cas.  No.  14,709;  State  v.  Main,  37  A.  20  Hamilton  v.  People,  29  Mich.  173. 
80,  69  Conn.  123,  36  L.  R.  A.  623,  61  21  People  v.  Fowler,  174  P.  892,  178 
Am.  St.  Rep.  .30;  Franklin  v.  State,  Cal.  657;  People  v.  Kelsey,  14  Abb. 
12  Md.  236;  Harrison  v.  Common-  Prac.  (N.  Y.)  372;  Gwatkin  v.  Com- 
wealth,  123  Pa.  508,  16  A.  611,  23  monwealth,  9  Leigh,  678,  33  Am.  Dec. 
Wkly.  Notes  Cas.  75.                                     264 ;   Blunt  v.  Commonwealth,  4  Leigh 

isBatre  v.  State.  18  Ala.  123;    Ap-       (Va.)  689,  26  Am.  Dec.  341. 
peal  of  Lowe,  46  Kan.  255,  26  Pac.  749.  22  People  v.  Miller,  106  N.  E.  191, 

19  U.  S.  United  States  v.  Taylor  264  111.  148,  Ann.  Cas.  1915B,  1240; 
(C.  C.  Kan.)  11  Fed.  470 ;  United  States  Sherer  v.  State,  121  N.  E.  369,  188 
V.  Wilson,  Fed.  Cas.  No.  16,730,  Baldw.  Ind.  14;  Parker  v.  State,  136  Ind.  284, 
78 ;  Same  v.  Stockwell,  Fed.  Cas.  No.  35  N.  E.  1105 ;  State  v.  Berdetta,  73 
16,405,  4  Cranch.  C.  C.  671 ;  Stettinius  Ind.  185,  38  Am.  Rep.  117. 
V.  United  States,  Fed.  Cas.  No.  13,387,  In    Maryland    the    constitutional 

5  Cranch,  C.  C.  573.  provision  declaring  that  the  jury  shall 

Conn.  State  v.  Gannon,  52  A.  727,  be  judges  as  well  of  law  as  of  fact  in 
75  Conn.  206.  criminal  cases  does  not  prohibit  the 

Ga.     Berry  v.   State,  31  S.  E.  592,      court   from    instructing   the   jury   on 

105  Ga.  683;  Robinson  v.  State,  66  Ga.      the  law,  when  they  unanimously  re- 
517;   McDaniel  v.  State,  30  Ga.  853.  quest  it.    Beard  v.  State,  71  Md.  275, 

Ky.  Commonwealth  v.  Van  Tuyl,  1  17  A.  1044,  4  L.  R.  A.  675,  17  Am.  St. 
Mete.  1,  71  Am.  Dec.  455.  Rep.   536;     although   no   instructions 


lOI 


INSTRUCTIONS  TO  JURIES 


184 


vision,  the  court  is  also  required  by  statute  to  instruct  as  to  the 
law ,23  and  in  the  great  majority  of  jurisdictions,  whether  affected 
by  such  a  provision  or  not,  the  court  may  charge  that  the  jury 
should  take  the  law  as  given  to  them  by  the  court.'^*  In  Indiana 
the  court  may  tell  the  jury  not  to  disregard  the  law,^^  and  that 
it  is  the  duty  of  the  court  to  instruct  them  as  to  what  the  law  is,^^ 
and  that,  if  the  jury  are  in  doubt  as  to  the  law,  they  should  give 
the  instructions  of  the  court  respectful  consideration,^'  and  in  some 
of  the  cases  it  is  held  that  it  is  proper  to  charge  that  they  should 
take  the  law  from  the  court.-^  In  Illinois  it  is  proper  to  tell  the 
jury,  after  instructing  that  they  are  the  judges  of  the  law  as  well 
as.  of  the  facts,  that,  before  they  can  disregard  the  law  as  given 
them  by  the  court,  they  ought  to  be  able  to  say,  upon  their  oaths, 
that  they  are  better  judges  of  the  law  than  the  court."^ 

§  101.     Particular  questions  of  law 

In  accordance  with  the  rule  above  stated,^"  the  court  should 
not  submit  to  the  jury  the  question  of  the  jurisdiction  of  the 
court,  nor  should  it  submit  the  question  of  the  constitutionality 


can  be  given  except  in  a  merely  ad- 
visory form,  Deems  v.  State,  96  A. 
878,  127  Md.  624. 

23  Clem  V.  State,  31  Ind.  480. 

2  4  Cal.  People  v.  Crane,  87  P.  2.39, 
4  Cal.  App.  142. 

Ga.  Hoi  ton  v.  State,  72  S.  EJ.  949, 
137  Ga.  86 ;  Skrine  v.  State,  51  S.  E. 
315,  123  Ga.  171 ;  Jackson  v.  State.  45 
S.  E.  604,  118  Ga.  780. 

La.  State  v.  McLofton,  82  So.  680, 
145  La.  499;  State  v.  Ford,  37  La. 
Ann.  443 ;  Same  v.  Vinson,  37  La. 
Ann.  792;  State  v.  Newton,  28  La. 
Ann.  65. 

Mich.  People  v.  Smith,  108  N.  W. 
1072,  145  Mich.  .530. 

N.  J.  Roesel  v.  State,  41  A.  408, 
(12  N.  .T.  Law,  216. 

Wash.  Leschi  v.  Territory,  1 
W.ish.  T.  13. 

Duty  to  accept  interpretation  of 
court  iwlietlier  right  or  Tirrong. 
Under  a  statute  which  reciuires  the 
jury  "to  receive  as  law  what  is  laid 
down  as  such  by  the  court,"  it  is  not 
<»rror  for  the  court  to  say,  in  cliarging 
the  jury,  "You  should  receive  the  law 
as  I  state  it  to  be,  notwithstanding 
you   may    firmly   believe   that   I    am 


wrong,  and  that  the. law  is,  or  should 
be,  otherwise."  People  v.  Worden,  45 
P.  844.  113  Cal.  569. 

In  Tennessee  it  is  not  error,  in  a 
criminal  case,  to  charge  the  jury  that 
they  cannot  arbitrarily  disregard  the 
instructions  of  the  court  as  to  the  law. 
Robertson  v.  State,  4  Lea,  425. 

2  5  Blaker  v.  State,  130  Ind.  203,  29 
N.  E.  1077. 

2  0  Stocking  v.  State,  7  Ind.  326; 
Powers  v.  State,  87  Ind.  144. 

Defendant  cannot  complain  of 
an  instruction  that  it  is  the  duty  of 
the  court  to  instruct,  it  as  to  the  law 
of  the  case,  but  the  instructions  are 
advisory  merely,  and  it  has  the  right 
to  disregard  them,  and  determine  the 
law  for  itself.  Walker  v.  State,  136 
Ind.  663,  36  N,  E.  356. 

2  7  Bird  V.  State,  107  Ind.  154,  8  N. 
E.  14. 

2  8  Driskill  v.  State.  7  Ind.  338 
no.?g  V.  State,  7  Ind.  551. 

2  9  Davison  v.  People,  90  111.  221 
Spies  V.  People,  122  111.  1.  12  N.  E 
865,  3  Am.  St.  Rep.  ,320;  Reddish  v 
People,  84  111.  App.  .509. 

30  Renan  v.  Commonwealth,  2  Ky, 
Law  Rep.  66. 


185 


QUESTIONS  OF   LAW  IN   CRIMINAL  CASES 


§101 


of  the  statute  on  which  the  prosecution  is  based,^'^  nor  whether 
such  a  statute  is  so  uncertain  as  to  be  void,^~  nor  the  meaning  of 
a  term  used  in  such  a  statute/*^  nor  the  question  as  to  whether 
an  arrest  or  the  service  of  legal  process  was  lawful,^'*  nor  the 
question  as  to  whether  one  had  a  right  to  carry  weapons.^^  On 
conflicting  evidence  it  is  for  the  jury  to  say  what  the  law  of  an- 
other state  is,  under  proper  instructions  from  the  court.^*' 

Questions  as  to  the  sufficiency  of  an  indictment  or  informa- 
tion,^' or  as  to  what  are  the  material  averments  therein,^*  are 
for  the  court  to  determine^  An  instruction  in  a  criminal  case 
that  proof  of  motive  is  not  essential  to  a  conviction  does  not  in- 
vade the  province  of  the  jury.^® 

Questions  relating  to  the  admissibility,  competency,  or  materi- 
ality of  evidence  are  for  the  court  to  pass  upon.'*®  It  is  proper 
to  refuse  instructions  which  include  rules  governing  the  admis- 
sibility of  evidence,*^  and  it  is  error  to  submit  evidence  to  the 
jury,  to  be  considered  by  them  if  they  are  of  the  opinion  that  it 
is  applicable  to  the  issues,  but  to  be  disregarded  if  they  are  of  a 
contrary  opinion.*"     In  some  cases,  however,  the  admissibility  of 


31  United  States  v.  Riley,  Fed.  Cas, 
No.  16,164,  5  Blntchf.  204;  State  v. 
McKee,  46  A.  409,  73  Conn.  18,  49  L. 
R.  A.  542,  84  Am.  St.  Rep.  124. 

3  2  State  V.  Main,  37  A.  80,  69  Conn. 
123,  36  L.  R.  A.  623,  61  Am.  St.  Rep. 
30. 

3  3  St,  Louis,  I.  M.  &  S.  R.  Co.  v. 
State,  143  S.  W.  913,  102  Arli.  205. 

3  4  Gibbons  v.  Territory,  115  P.  129, 
5  Olil.  Cr.  212;  State  v.  Anselmo,  148 
P.  1071,  46  Utali,  137. 

3r.  Carlisle  v.  State  (Tex.  Cr.  App.) 
56  S.  W.  ;365. 

3  6  People  V.  Tufts,  139  P.  78.  167 
Cal.  266 ;  State  v.  Morgan,  176  N.  W. 
35,  42  S.   D.  517. 

3  7  State  V.  Woods,  36  So.  626,  112 
La.  617;  State  v.  Plougb,  97  A.  265, 
88  N.  J.  Law,  428,  denying  rehearing 
97  A.  64,  88  N.  J.  Law,  425;  Smith  v. 
People,  47  N.  Y.  303. 

3  8  Harvey  v.  State,  73  So.  200,  15 
Ala.  App.  311 :  People  v.  Fleshman, 
148  P.  805,  26  Cal.  App.  788 ;  Holt  v. 
State,  62  S.  .E.  992,  5  Ga.  App.  184. 

3  9  Wheeler  v.  State,  63  N.  E.  975, 
158  Ind.  687;  State  v.  Mcintosh,  39 
S.  C.  97,  17  S.  E.  446. 

4  0  Ala.  Ward  v.  State,  58  So.  788, 
4  Ala.  App.  112. 

Ark.     Paxton  v.  State,  170  S.  W. 


80,  114  Ark.  393,  Ann.  Cas.  1916A, 
1239. 

Cal.  People  V.  Cook,  83  P.  43,  148 
Cal.  334. 

Ga.  Rouse  v.  State,  69  S.  B.  ISO, 
135  Ga.  227. 

Idaho.  State  V.  Bouchard,  149  P. 
464.  27  Idaho,  500. 

111.  People  V.  Niles,  129  N.  E.  97, 
295  111.  525. 

Ind,  Ruse  v.  State,  115  N.  E.  778, 
186  Ind.  237,  L.  R.  A.  1017E.  726; 
Townsend  v.  State,  2  Blackf.  151. 

Ky.  Robinson  v.  Commonwealth, 
199  S.  W.  28,  178  Ky.  557. 

La.  State  v.  Stephen,  45  La.  Ann. 
702,  12  So.  883. 

Mass.  Commonwealth  v.  Knapp, 
10  Pick.  477,  20  Am.  Dec.  534. 

Mieli.  People  v.  Hurst,  1  N,  W. 
1027,  41  Mich.  328. 

Neb.  Clarence  ats  State,  125  N.  W. 
540.  S6  Neb.  210. 

N.  Y.  State  v.  Jewett,  2  Wheeler, 
Cr   Cas   589 

Tex.  *  Newton  v.  State,  138  S.  W. 
70S.  62  Tex.  Cr.  R.  622. 

Wis.  Spick  V.  State,  121  N.  W. 
664,  140  Wis.  104. 

4iAdkisson  v.  State,  218  S.  W. 
167,   142  Ark.  34. 

4  2  People  V.  Ivey,  49  Cal.  56. 


§  101 


INSTRUCTIONS   TO  JURIES 


ISG 


evidence  may  present  a  mixed  question  of  law  and  fact,  in  which 
case  the  court  can  submit  its  admissibility  to  the  jury  and  m- 
struct  them  that  if  they  find,  under  the  instructions,  that  such 
evidence  is  admissible  to  consider  it,  but  otherwise  to  reject  it.** 
Thus  whether  dying  declarations  were  made,  and  made  when  the 
deceased  was  in  the  article  of  death  and  conscious  of  his  condi- 
tion, is  finally  to  be  determined  by  the  jury,  and  an  instruction 
tending  to  lead  the  jury  to  think  that  they  must  take  dying  dec- 
larations as  evidence  is  erroneous.** 

Primarily,  the  admissibility  in  evidence  of  an  alleged  confes- 
sion of  the  accused,*"  including  the  question  of  the  voluntary 
character  of  the  confession,*^  is  for  the  court  to  determine,  and 
in  some  jurisdictions  it  is  held  that  the  decision  of  the  court  as  to 
whether  the  confession  was  voluntary,  and  admitting  it  in  evi- 
dence, is  final,  and  that  it  is  error  to  instruct  that  the  jury  can  or 
must  reject  the  confession,  if  they  believe  it,  under  the  evidence. 


4  3  Cal.  People  v.  Wagner,  155  P. 
649.  29  Cal.  App.  .".6.3. 

Kan.     State  v.  Cook,  17  Kan.  .392. 

Mass.  Commonwealth  v.  Tucker, 
76  X.  E.  127,  189  Mass.  457,  7  L.  R. 
A.  CS.  S.)  1056;  Commonwealth  v. 
Robinson,  146  Mass.  571,  16  N.  E. 
452. 

Okl.  Gonzalufs  v.  State,  12.3  P. 
705,  7  Okl.  Cr.  444  ;  Coleman  v.  State, 
lis  P.  594,  6  Okl.  Cr.  2.52. 

Tex.  Lucas  v.  State  (Cr.  App.)  225 
S.  W.  2.57;  Ililliard  v.  State,  222  S. 
W.  5.5.3.  87  Tex.  Cr.  R.  416. 

Wash.  State  v.  Mann,  81  P.  561, 
.39  Wash.  144. 

4  4  Swain  v.  State,  101  S.  E.  539, 
149  Ga.  629. 

4  5  Ala.  Carr  v.  State,  85  So.  852, 
17  Ala.  App.  539;  MoKinney  v. 
State,  .32  So.  726.  134  Ala.  1.34. 

Ga.  Prire  v.  State,  40  S.  E.  1015, 
114  C.a.  S.55. 

Ky.  Duirnn  v.  Commonwealtu, 
43  S.  W.  418.  102  Ky.  241,  19  Ky. 
Law  Rep.   1273. 

Mo.  State  v.  Thomas,  157  S.  W. 
330.  2.50  5Io.  189. 

N.  J.  Roesel  v.  State,  41  A.  408, 
62  X.  .T.  Law,  216. 

N.  M.  State  v.  A.scarate,  153  P. 
1036,  21  X.  M.  191,  writ  of  error  dis- 
misscfl  (1917)  Asoarate  v.  State  of 
New  Mexico.  38  S.  Ct.  8,  245  U.  S. 
625,  62  L.  Ed.  517. 


Okl.  Berrv  v.  State,  111  P.  676,  4 
Okl.  Cr.  202,  31  L.  R.  A.  (X.  S.)  849. 

Or.  State  v.  Humphrey,  128  P. 
824,  63  Or.  540;  State  v,  Roselair, 
109  P.  865,  57  Or.  8. 

Tex.  Sharp  v.  State,  197  S.  W. 
207.  81  Tex.  Cr.  R.  256;  Belcher  v. 
State,  161  S.  W.  459,  71  Tex.  Cr.  R. 
646. 

4  6  Ala.  Ma  Chen  v.  State,  85  So. 
857,  17  Ala.  App.  427;  Johnson  v. 
State,  59  Ala.  37;  Bob  v.  State,  32 
Ala.   560. 

Cal.  People  V.  Haney  (App.)  189 
P.  338. 

D.  C.  Lorenz  v.  United  States,  24 
App.  D:  C.  337. 

Fla.  Stlner  v.  State,  83  So.  565, 
78  Fla.  647;  Kirby  v.  State,  32  So. 
8.36,  44  Fla.  81. 

Ind.  Hank  v.  State,  46  N.  E.  127, 
148  Ind.  238;  Id.,  47  N.  E.  465,  148 
Ind.  238. 

Kan.  State  v.  Hayes,  187  P.  675, 
106  Kan.  2.53. 

Ky.  Pearsall  v.  Commonwealth, 
92  S.  W.  589,  29  Ky.  Law  Rep.  222. 

Mo.  Hector  v.  State,  2  Mo.  166, 
22  Am.  Dec.  454. 

Mont.  State  v.  Berherick,  100  P. 
209,  .38  Mont.  423,  16  Ann.  Cas.  1077 ; 
State  V.  Sherman,  90  P.  981,  35 
^lont.  512.  119  Am.  St.  Rep.  869. 

Nev,  State  v.  Williams,  102  P. 
074,  31  Xev.  360. 


•l87 


QUESTIONS   OF   LAW   IN   CRIMINAL   CASES 


101 


not  to  have  been  voluntary ;  ^'  but  the  rule,  supported  by  the 
great  weight  of  authority,  is  that,  where  the  evidence  is  conflict- 
ing as  to  whether  a  confession  was  made  voluntarily,  and  the 
court  permits  the  confession  to  go  to  the  jury,  the  question  as  to 
its  voluntary  character  is  ultimately  to  be  decided  by  the  jury, 
who  should  be  instructed  to  disregard  the  confession  if  they  find 
from  the  evidence  that  it  was  procured  by  threats  or  promises.'*' 
If  the  court  has  decided  that  a  confession  offered  in  evidence  is 


N.  J.  state  V.  Hernia,  53  A.  85, 
€8  N.  J.  Law,  299  ;  State  v.  Young,  51 
A.  939,  67  N.  J.  Law,  223. 

Or.  State  v.  Seymour.  1.34  P.  7, 
66  Or.  123 :  State  v.  Spanos,  134  P.  6, 
66  Or.  118;  State  v.  Blodgett,  92  P. 
820,  50  Or.  329. 

S.  C.  State  V.  Perry,  54  S.  E.  764, 
74  S.  C.  551. 

S.  D.  State  v.  Landers,  114  N.  W. 
717.  21  S.  D.  606. 

Wis.  Hintz  v.  State.  104  N.  W. 
110,  125  Wis.  403. 

47  Ala.  Rice  v.  State,  85  So.  437. 
204  Ala.  104:  Machen  v.  State,  76 
So.  407,  16  Ala.  App.  170;  Godau 
V.  State,  60  So.  908.  179  Ala.  2( ; 
Kirby  v.  State,  59  So.  374,  5  Ala. 
App.  128;  Fowler  v.  State,  54  So. 
115,  170  Ala.  65 ;  McKinney  v.  State, 
32  So.  726,  134  Ala.  1.34:  Huffman, 
V.  State,  30  So.  394,  130  Ala.  89: 
Brown  v.  State,  27  So.  250,  124  Ala. 
76 ;  Burton  v.  State.  107  Ala.  108.  IS 
So.  284 ;  Redd  v.  State,  69  Ala.  255 ; 
Matthews  v.  Same,  55  Ala.  m,  28 
Am.  Rep.  698;  Washington  v.  State, 
53  Ala.  29. 

Md.  McCleary  v.  State,  89  A. 
1100,  122  Md.  394. 

Miss.  Hunter  v.  State,  21  So.  305, 
74  Miss.  515. 

Compare  Kinsey  v.  State,  85  So. 
519.  204  Ala.  180;  Garrard  v.  State, 
50  Miss.  147. 

4  8  (U.  S.)  Wilson  V.  United  States, 
162  U.  S.  613,  16  Sup.  Ct.  895,  40  L. 
Ed.  1090 ;  (D.  C.  N.  Y.)  United  States 
V.  Oppenheim,  228  F.  220.  judgment 
reversed  Oppenheim  v.  United  States, 
241  F.  625,  154  C.  O.  A.  383. 

Colo.     Martinez  v.  People,  132  P. 

64,  55  Colo.  51.  Ann.  Cas.  19140,  559. 

Ga.     Cantrell    v.    State,    SO   S.    B. 


649,   141   Ga.   98;    Dawson  v.   State, 
59  Ga.  333. 

111.  People  V.  Colvin,  128  N.  E. 
396.  294  111.  196. 

Iowa.  State  v.  Bennett,  121  N.  W. 
1021.  143  Iowa,  214;  State  v.  Foster, 
114  X.  W.  36,  136  Iowa,  527:  State 
V.  Wescott,  104  iX.  W.  341,  130  Iowa, 
1;  State  v.  Storms,  85  N.  W.  610, 
113  Iowa,  385,  86  Am.  St.  Rep.  380. 
Mass.  Commonwealth  v.  Sher- 
man. 124  N.  E.  423,  2.34  Mass.  7: 
Commonwealth  v.  Antaya,  68  N.  E. 
331,  184  Mass.  326;  Commonwealth 
v.  Burrough,  162  Mass.  513,  39  N.  E. 
184 ;  Commonwealth  v.  Piper,  120 
Mass.  185. 

Mich.  People  V.  McClintic,  160 
N.  W.  461,  193  Mich.  589,  L.  R.  A. 
1917C,  52;  People  v.  Prestige,  148 
N.  W.  347,  182  Mich.  80;  People  v. 
Trine,  129  N.  W.  3,  164  Mich.  1; 
People  V.  Barker,  27  N.  W.  539,  60 
Mich.  277,  1  Am.  St.  Rep.  501. 

Mo.  State  V.  Jones,  171  Mo.  401, 
71  S.  W.  680,  94  Am.  St.  Rep.  786; 
State  V.  Moore,  61  S.  W.  199,  160 
Mo.  443. 

N.  M.  State  v.  Armijo,  135  P. 
555.  18  N.  :M.  262. 

N.  J.  Roesel  v.  State,  41  A.  408, 
62  X.  J.  Law,  216. 

N.  Y.  People  v.  Roach,  100  N.  i-j. 
618,  215  N.  Y.  592,  Ann.  Cas.  1917A, 
410 ;  People  v.  Randazzio,  87  N.  E. 
112,  194  X.  Y,  147 ;  People  v.  Brasch. 
85  X.   E.  809,  193  X.  Y.  46. 

Ohio.  Spears  v.  State,  2  Ohio  St. 
583. 

Pa.  Commonwealth  v.  Aston,  75 
A.  1019.  227   Pa.  112. 

S.  C.  State  V.  Rogers,  S3  S.  E. 
971,  99  S.  C.  504. 

S.  D.  State  v.  Montgomery,  128 
N.  W.  718,  26  S.  D.  539 ;  State  v.  Al- 
lison, 124  X.  W.  747,  24  S.  D.  622. 


101 


INSTRUCTIONS  TO  JURIES 


188 


incompetent,  because  involuntary,  and  has  excluded  the  confes- 
sion, it  will  then  be  error  to  submit  any  evidence  as  to  its  vol- 
untary or  involuntary  character  to  the  jury.*^ 

It  is  the  province  of  the  court  to  determine  in  the  first  instance 
whether  the  existence  of  a  conspiracy  has  been  sufficiently  estab- 
lished to  admit  evidence  of  the  declarations  and  acts  of  one  al- 
leged co-conspirator  against  the  other ;  ^^  but,  on  conflicting  evi- 
dence, the  jury  must  find  the  existence  of  the  conspiracy  before 
considering  such  declarations.^^ 

In  a  criminal  prosecution  it  is  for  the  trial  court  to  determine 
whether  a  foundation  has  been  laid  to  admit  testimony  of 
threats,"-  or  to  admit  testimony  of  character.^  The  question  of 
whether  a  witness  is  an  accomplice  may  be  one  of  law  for  the 
court  to  decide,  although  frequently,  under  the  facts,  it  should 
be  left  to  the  jury  to  determine.^* 

In  criminal  as  in  civil  cases,  instructions  which  leave  to  the  jury 
the  interpretation  of  written  instruments  are  ordinarily  errone- 
ous.^'' 


Tex.  Williams  v.  State  (Cr.  App.) 
L>25  S.  W.  177;  Jones  v.  State,  216 
8.  W.  SS4,  86  Tex.  Cr.  R.  371 ;  Boze- 
man  v.  State,  215  S.  W.  319,  85  Tex. 
Cr.  R.  653;  Robertson  v.  State,  195 
S.  W.  602,  81  Tex.  Cr.  R.  378.  6  A.  L. 
R.  853 ;  Cook  v.  State,  180  S.  W.  254, 
78  Tex.  Cr.  R.  116:  Overstreet  v. 
State.  150  S.  W.  S99.  68  Tex.  Cr. 
R.  238;  Blocker  v.  State,  135  S.  W. 
130,  61  Tex.  Cr.  R.  413;  Johnson  v. 
State,  94  S.  W.  224,  49  Tex.  Cr.  R. 
314;  Williams  v.  State  (Cr.  App.) 
05  S.  W.  1059. 

Utah.  State  v.  Wells,  100  P.  681, 
35  Utah,  400.  136  Am.  St  Rep.  1059, 
19  Ann.   Cas.  631. 

^Vash.  State  v.  Wilson,  123  P. 
795.  08  Wash.  464. 

Wyo.  Clay  v.  State,  86  P.  17,  15 
A\'.\  o.  42. 

^»  ITarrold  v.  Territory  of  Okla- 
homa (C.  C.  A.  Okl.)  109  F.  47,  94  C. 
r.  A.  415,  17  Ann.  Cas.  S68  reversing 
jud-ment  89  P.  202.  IS  Okl.  ,305,  10 
L.  K.  A.  (N.  S.)  604,  11  Ann.  Cas. 
818. 

BO  Smith  V.  State,  62  So.  575,  S 
Ala.  App.  187 ;    CautrcU  v.  State,  174 


S.  W.  521,  117  Ark.  233;  State  v. 
Thompson,  38  A.  868,  69  Conn.  720; 
State  V.  Walker,  100  X.  W^  354.  124 
Iowa,  414;  Schultz  v.  State,  113  N. 
W.  428,  133  Wis.  215. 

51  State  V.  Crofford,  96  X.  W.  889, 
121   Iowa,  395. 

5  2  State  V.  Davis.  48  So.  771.  123 
La.  1.33;  State  v.  Williams,  35  So. 
521,  111  La.  205;  State  v.  Perioux, 
31   So.   1016,   107  La.   601. 

5  3  State  V.  Williams,  35  So.  521,  111 
La.  205. 

54  Rval  V.  State,  182  P.. 253.  16  Okl. 
Cr.  266.     See,  also,  supra,  §  21. 

5  3  Ala.  Dotson  v.  State,  SS  Ala. 
208,  7  So.  259. 

Me.  State  v.  Patterson,  68  Me. 
473. 

Mass.  Commonwealth  v.  Riggs, 
14  Gray.  376.  77  Am.  Dec.  333. 

Mo.  State  v.  Bro^ra,  71  S.  W\ 
1031.  171  :Mo.  477. 

Or.  State  V.  Moy  Looke,  7  Or, 
54. 

S.  C.  State  V.  Williams,  32  S.  C. 
123,  10  S.  E.  876. 

Tex.  Jefferson  v.  State,  214  S.  W. 
981,  85  Tex.  Cr.  R.  614. 


189 


QUESTIONS  OF  LAW  IN  CRIMINAL  CASES 


§  102 


§  102.     Sufficiency  of  defenses 

Ordinarily  a  plea  of  former  jeopardy  raises  an  issue  for  the  jury 
to  decide ;  ^^  but  where  there  is  no  question  either  as  to  the  iden- 
tity of  the  defendant  with  the  defendant  in  the  former  indictment, 
or  as  to  the  identity  of  the  transactions  involved,  the  question  of 
former  jeopardy  is  one  of  law  for  the  court,^'  and  it  is  for  the 
court,  and  not  the  jury,  to  try  the  issue  of  nul  tiel  record.^"  So 
the  construction  of  the  record  of  a  former  conviction  is  for  the 
court,"''  and  where  upon  its  face  a  plea  of  former  jeopardy  is  in- 
sufficient in  substance  it  may  be  so  adjudged  on  demurrer.^"  A 
plea  of  former  jeopardy,  alleging'  that  the  jury  at  a  former  trial 
was  discharged  without  the  defendant's  consent,  presents  only 
a  question  of  law,''^  and  such  a  plea  should  not  be  submitted  to 
the  jury,  if  there  is  no  evidence  in  its  support.^" 

The  issues  raised  by  the  plea  of  the  statute  of  limitations  in  a 
criminal  case  may  be  a  question  of  law,*'^  although  they  are  fre- 


5  0  Ala.  Lyman  v.  State,  45  Ala. 
72. 

Ark.  State  v.  Caldwell,  66  S.  W. 
150.  70  Ark.  74. 

Cal.  People  v.  Hamberg,  84  Cal. 
46S.  24  Pac.  298. 

Colo.  Dockstader  v.  People,  97  P. 
254.  43  Colo.  4.37. 

Ga.    Buhler  v.  State,  64  Ga.  504. 

Ind.     Dunn  v.  State.  70  Ind.  47. 

Iia.  State  v.  Williams,  45  La. 
Ann.  936,  12  So.  9.32. 

Minn.  State  v.  Dlugi,  143  N.  W. 
971.  123  Minn.  392. 

Miss.  Helm  v.  State,  67  Miss. 
562.  7  So.  487. 

Mont.  State  v.  Gaimos.  162  P. 
,596.   53   .Alont.   118. 

Neb.  State  v.  Priebnow,  16  Neb. 
131.  19  N.  W.  628. 

N.  J.  State  V.  Rosa,  62  A.  695, 
72  X.  .7.  Law,  462. 

N.  M.  Territory  v.  West,  99  P. 
343.  14   N.   M.  546. 

N.  Y.  Grant  v.  People,  4  Park- 
er.  Cr.  R.   527. 

Ohio.  Miller  v.  State,  3  Ohio  St. 
475. 

Okl.  Newton  v.  State  (Cr.  App.) 
170  P.  270. 

Pa.  Commonwealth  v.  Conner,  9 
Phila.  591. 

S.  D.  State  v.  Kieffer,  95  N.  W. 
289,  17' S.  D.  67. 

Tex.  Villareal  v.  State,  199  S.  W. 
642,    82    Tex.    Cr.    R.    327;     Cook    v. 


State.  63  S.  W.  872,  43  Tex.  Cr.  R. 
1S2.  96  Am.  St.  Rep.  854;  MeCnl- 
loush  V.  State  (Cr.  App.)  .34  S.  W. 
753. 

Utali.  People  V.  Kern,  8  Utah, 
268,  .30  P.  9«8. 

"Wyo.  McGinnis  v.  State,  96  P. 
525,   17  Wyo.    106. 

07  State  V.  Blodgett,  121  N.  W. 
685,  143  Iowa,  578,  21  Ann.  Cas.  231 ; 
State  V.  Williams,  53  S.  W.  424,  152 
Mo.  115,  75  Am.  St.  Kep.  441;  State 
V.  Haynes,  36  Vt.  667. 

58  Brady  v.  Commonwealth,  1 
Bibb.  517:  Hill  v.  State,  2  Yerg. 
(Tenn.)  248. 

5»  State  V.  Gorham,  67  Me.  247. 

6  0  Cal.  People  V.  Amnierman,  ,50 
P.  15,  lis  Cal.  23. 

I.a.  State  v.  Foley,  38  So.  402, 
114  La.  412 ;  State  v.  Paterno,  43  La. 
Ann.  514.  9  So.  442;  State  v.  MeeK- 
ins.  41  La.  Ann.  54,3.  6  So.  822;  State 
V.  Shaw,  5  La.  Ann.  342. 

Mo.  State  v.  Laughlin,  79  S.  W. 
401.    180    Mo.    342. 

N.  J.  State  V.  Rosa,  62  'N.  J.  Law, 
462,   62  A.   695. 

6 1  Lanphere  v.  State,  89  N.  W.  128, 
114   Wis.    193. 

62  Johnson  v.  State,  34  Tex.  Cr.  R. 
115.  29  S.  W.  473 ;    Id.,  29  S.  W.  474. 

6  3  L.  &  N.  &  G.  S.  R.  Co.  V.  Com- 
monwealth, 4  Ky.  Law  Rep.  627  > 
State  V.  Hansbrough,  80  S.  W.  900, 
181  Mo.  348. 


102 


INSTRUCTIONS  TO  JURIES 


190 


quently  matters  of  fact,  to  be  decided  by  the  jury,*'*  as  where  the 
question  is  whether  the  absence  of  defendant  from  the  state  was 
sufficient  to  prevent  the  statute  from  running.®^  In  Louisiana 
whether  the  crime  charged  is  prescribed  is  a  mixed  question  of 
law  and  fact,  upon  which  the  jury  has  the  power  to  pass.^^ 

Where  the  defense  of  insanity  is  interposed,  it  is  a  question  of 
law  whether  mental  disease  renders  the  defendant  irresponsible 
for  acts  committed  while  afflicted  with  such  disease,®'  and  it  is 
for  the  court  to  say  whether  the  form  of  insanity  attempted  to  be 
proved  is  a  legal  defense,®*  and  it  is  for  the  court  to  say  in  the 
first  instance  whether  the  facts  proved  would  reasonably  justify 
any  inference  of  mental  unsoundness.®^ 

in  some  jurisdictions  a  charge  submitting  to  the  jury,  in  a  pros- 
ecution for  homicide,  the  issue  of  what  constitutes  self-defense  is 
bad,  as  referring  to  them  a  question  of  law."®  The  court  may  in- 
struct that  mere  abusive  or  opprobrious  words  can  never  justify 
a  homicide,  or  reduce  it  from  the  grade  of  murder  to  manslaugh- 
ter.'i 


6  4Durrence  v.  State,  92  S.  E.  962, 
20  Ga.  App.  192;  People  v.  Clement, 
72  Mich.  116,  40  N.  W.  190;  State 
V.  Newton,  81  P.  1002,  39  Wash.  491. 

6  B  People  V.  Price,  74  Mich.  87,  41 
N.  W.  853 ;  Commonwealth  v.  Weber, 
103  A.  348.  259  Pa.  592,  affirming 
judgment  67  Pa.  Super.  Ct.  497. 

6  6  State  V.  Drummond,  61  So.  778, 
1.32  La.  749;  State  v.  West,  30  So. 
119,  105  La.  639;  State  v.  Strong, 
39  La.  Ann.  1081,  3  So.  266;  State 
V.  Cason,  28  La.  Ann.  40. 

6  7  Hankins  v.  State,  201  S.  W.  832, 
133   Ark.   38,   L.   R    A.    1918D,   784; 


State  V.  Winter,  72  Iowa,  627,  34  N. 
W.  475. 

6  8  State  V.  Casey,  117  P.  5,  34  Nev. 
154. 

6  9  State  V.  Morledge,  65  S.  W.  226, 
164  ]\Io.  522 ;  Turner  v.  Territory,  69 
P.  804,  11  Okl.  660. 

7  0  Collins  V.  State,  84  So.  417,  17 
Ala.  App.  186;  Pounds  v.  State,  73 
So.  127,  15  Ala.  App.  223;  Jennings 
V.  State,  72  So.  690,  15  Ala.  App. 
116 ;  Henderson  v.  State,  65  So.  721, 
11  Ala.  App.  37. 

71  Gaillard  v.  State,  99  S.  E.  629, 
149  Ga.  190. 


191 


DIRECTING   VERDICT  §  104 


CHAPTER  VIII 

DIRECTING  VERDICT 

A.    Direction  in  civil  Cases 

\  103.  Rule  that  court  may  direct  verdict 

104.  Tpsts  for  determiuing  wlien  to  direct  veraict.  .  .       ,  „,  , 

lit  directing  verdict  for  one  party,  where  verdict  for  his  adversary  would 
be  set  aside. 

106.  Direction  of  verdict  for  defendant, 

107.  Direction  of  verdict  for  plaintiff. 

108.  Rule  in  equity. 

B.    Direction  in  Criminal  Cases 

109.  Power  and  duty  of  court,  in  general,  to  direct  verdict  of  acquittal. 

110  Rule  that  court  has  no  power  to  direct  verdict  of  acquittal. 

111  Rule  that  court  may  advise  the  jury  to  acquit 

112  Rule  that  court  has  no  power  to  direct  conviction. 

lis'.     Qualifications  of  rule  that  court  cannot  direct  conviction. 

C.     Directing  Verdict  or  Declaring  Law   if  the  Jury  Believe 

THE  Evidence 

114.  In  civil  cases. 

115.  In  criminal  cases. 

D      Directing  Verdict  or  Declaring  Law  on  a  Hypothetical  Statement 
OF  Facts,  or  if  Certain  Facts  are  Found 

116.  In  civil  cases. 

117.  In  criminal  cases. 

A.  Direction  in  Civil  Cases 

8  103.     Rule  that  court  may  direct  verdict  ^        . 

There   is   general   agreement   on   the   proposition   that   in   civil 
cases  the  court,  under  a  proper  state  of  facts,  has  the  power  to  di- 
rect a  verdict  for  the  plaintiff  or  the  defendant.^  As  this  rule  is 
not  intended  to  limit  the  province  of  the  jury  to  determine  ques- 
tions of  fact,  it  is  merely  equivalent  to  saymg  that,  where  the 
evMence  is  such  that,  as  a  matter  of  law,  the  verdict  should  go 
for  one  party  or  the  other,  the  court  may  or  should  so  declare. 
S  104      Tests  for  determining  when  to  direct  verdict 
^  Where  the  evidence  upon  an  issue  is  uncontradicted,  and  is  no 
dis!l-edited  by  any  circumstances  appearing  m  the  case,-  and  is 
^.Cal.^  Martin  v.  Ward,  10  P.  276,      ^N.^^  M._  ^A.mUo  J^^^„^-,,f -- 

^\nd."  "^Purcell   v.   English    86    Ind       70a  ^  ^_  ^^^^^  ^^  ^^^,^^^ 

34,    44    Am.    Rep.    255,     MeiLel    v.  .^^^^    ^^,^^^    ^_g 

Greene,  94  Ind.  344.  rn^„nsD  8  U.  S.    (C.  O.  A.  N.  Y.)     Hammer- 

Mo.     Ferguson   v.  Venice  Transp.  v.^  »•    v  ^^  ^   jj^porters'  &  Trad- 

Co.,  79  Mo.  App.  3o2.  scnia„ 


§  104 


INSTRUCTIONS   TO   JURIES 


192 


of  a  kind  from  which  different  inferences  cannot  reasonably  be 
draw;n,^  tlie  facts  may  be  taken  as  established,  and  a  verdict  di- 
rected accordingly.  If  the  party  having  the  burden  of  proof  upon 
an  issue  necessary  to  the  maintenance  of  an  action  or  to  the  de- 
fense of  a  prima  facie  case  introduces  no  evidence  which,  if  true, 
giving  to  it  all  its  probative  force,  will  authorize  the  jury  to  find  in 
his  favor,  the  trial  judge  may  direct  a  verdict  against  him.*  On 
the  other  hand,  the  trial  court  will  direct  a  verdict  only  when  there 
is  a  total  absence  of  evidence  on  some  essential  issue,  or  when 
there  is  no  conflict  in  the  evidence  and  it  is  susceptible  of  only 
one  construction."  If  the  facts  are  such  that  reasonable  men  ma}^ 
properly  draw  different  inferences  therefrom,  the  case  should  go 
to  the  jury.®  A  verdict  should  be  directed  only  when  there  is  no 
evidence  before  the  jury,  either  strong  or  weak,  tending  to  prove 
the  contention  of  the  party  against  whom  a  direction  is  sought.' 
A  trial  court  may  not  direct  a  verdict  on  the  ground  that  the 
weight  of  the  evidence  greatly  or  clearly  predominates  in  favor 
of  one  side  or  the  other.* 


ers'  Nat.  Bank.  262  F.  266;  (C.  O. 
Mich.)  National  Exchange  Bank  v. 
White,  30  F.  412. 

Cal.  Martin  v.  Ward,  69  Cal.  129, 
10  P.  276. 

Ind.  Wabash  Rv.  Co.  v.  William- 
son, 104  Ind.  154,  3  N.  E.  814. 

Tex.     Eason  v.  Eason.  61  Tex.  22.5, 

Vt.  Villasre  of  St.  Johnsbury  v. 
Thompson.  59  Vt.  300,  9  A.  571,  59 
Am.  Rpp.  731. 

3  Thompson  v.  McConnell  (C.  C.  A. 
Tex.)  107  F.  33,  46  C.  C.  A.  124 ;  Skil- 
lern  v.  Baker,  100  S.  W.  764,  82  Ark. 
86,  118  Am.  St.  Rep.  52,  12  Ann.  Cas. 
243 ;  American  Cent.  Ins.  Co.  v.  Noe, 
75  Ark.  406,  88  S.  W.  572;  Roots  v. 
Killjreth,  10  Ohio  Dec.  20,  18  Wkly. 
T>aw  Bui.  58. 

4  Heath  v.  .Taquith,  68  Me.  433. 

5  Ind.  Reid  v.  Terre  Haute,  I.  & 
E.  Traction  Co.  (App.)  127  N.  E.  857 ; 
City  of  New  Albany  v.  Ray,  29  N.  B. 
611,  3  Ind.  App.  321. 

Iowa.  Citizens'  Bank  v.  Rhutasel, 
67  Iowa,  .316,  25  N.  W.  261;  Sperry 
V.  Etheridge,  63  Iowa,  543,  19  N.  W. 
G57. 

Or.  Marsters  v.  Isensee,  192  P.  907, 
97    Or.    567. 

S.  D.  Ilaugea  v.  Chicago  M.  &  St. 
I'.  Ky.  Co..  .53  N.  W.  769,  3  S.  D.  .394. 

«  U.  S.  (C.  C.  A.  Alaska)  Alaska 
Fi.sh    Sailing    &    By-Products    Co.    v. 


McMillan,  266  F.  26 ;  (C.  C.  A.  Mich.) 
Schwab  V.  Doyle,  269  F.  321. 

Ala.  Armour  &  Co.  v.  Alabama 
Power  Co.,  84  So.  628,  17  Ala.  App. 
280. 

Colo.  Citv  and  Conntv  of  Denver 
V.  Hatter,  188  P.  728,  68  Colo.  194. 

Mont.  First  Nat.  Bank  of  Lewis- 
town  V.  Wilson,  188  P.  371,  57  Mont. 
384. 

Okl.  Chicago,  R.  I.  &  P.  Ry.  Co. 
V.  Owens,  189  P.  171,  78  Okl.  114. 

7  International  Paper  Co.  v.  Gen- 
eral Fire  Assnr.  Co.  (C.  C.  A.  N.  Y.) 
263  F.  363. 

8  Armour  &  Co.  v.  Alabama  Power 
Co.,  84  So.  628,  17  Ala.  App.  280: 
In  re  Cochrane's  Estate,  178  N.  A\ . 
673,   211    Mich.  370. 

Scintilla  of  evidence.  The  re- 
fusal of  affirmative  charge  was  prop- 
erly refused,  even  though  evidence 
was  overwhelmingly  in  favor  of  party 
by  whom  it  was  requested;  a  scintilla 
of  evidence  being  sufficient  to  take  an 
issue  to  the  .lui-y.  Cleveland  Laundry 
Machinery  j\Ifg.  Co.  v.  Southern  Steam 
Carpet  Cleaning  Co.,  85  So.  535,  204 
Ala.  297.  See  Baldwin  v.  Taylor,  31 
A.   250,  166  Pa.  507. 

£ffect  of  conflict  in  evidence. 
To  warrant  a  court  in  directing  ver- 
dict, it  is  not  necessary  that  there 
should  be  an  absence  of  conflict  in 


193 


DIRECTING  VERDICT 


§  105 

§  105.     Directing  verdict  for  one  party,  where  verdict  for  his  ad- 
versary would  be  set  aside 

In  a  very  considerable  number  of  jurisdictions  it  is  said  that 
the  proper  test  to  guide  the  court  in  passing  upon  a  motion  for 
a  directed  verdict  is  what  would  be  the  action  of  the  court  with 
respect  to  a  verdict  rendered  for  the  party  asking  that  the  case 
be  submitted  to  the  jury,  and  that  if  the  court  would  be  under 
obligation  to  set  aside  such  a  verdict  as  manifestly  contrary  to 
the  evidence,  then  the  motion  for  a  direction  should  prevail,^  or, 
as  stated  in  some  jurisdictions,  the  trial  court,  may  direct  a  ver- 
dict in  any  case  where  the  evidence  is  of  such  a  conclusive 
character  that  the  court,  in  the  exercise  of  a  sound  judicial  discre- 
tion, would  be  compelled  to  set  aside  a  verdict  returned  in  oppo- 
sition to  it.^*^  This  may  serve  as  a  convenient  and  practical  test 
for  the  purpose  indicated.  The  objection  can  be  urged,  however, 
to  the  standard  of  measurement  of  judicial  duty  thus  set  up,  that 
it  is  not  certain  or  definite,  since  the  element  of  discretion  enters 
in,  and  that  the  observance  of  such  rule  will  often  lead  danger- 
ously close  to  trespassing  on  the  province  of  the  jury.     The  true 


the  evidence,  but  to  deprive  the  court 
of  the  right,  if  there  is  a  conflict,  it 
must  be  substantial.  Ross  v.  San 
Francisco-Oakland  Tenninal  Rys. 
Co.  (Cal.  App.)  191  P.  703.  The  mere 
fact  of  conflicts  in  the  testimony  does 
not  render  a  directed  verdict  eri-one- 
ous,  where  it  appears  that  the  con- 
flicts are  immaterial  and  that,  giving 
to  opposite  party  the  benefit  of  the 
most  favorable  view  of  the  evidence 
as  a  whole  and  of  all  the  legitimate 
inferences  therefrom,  the  verdict 
against  him  is  demanded.  Stanfield 
V.  McConnon  &  Co.  (Ga.  App.)  102  S. 
E.  908;  Hart  v.  Metropolitan  Dis- 
count Co.,  102  S.  E.  375,  24  Ga.  App. 
807. 

9  U.  S.  (C.  O.  A.  Alaska)  Shoup  v. 
Marks.  128  F.  32,  62  C.  C.  A.  540. 

Ariz.  Arizona  Binghampton  Cop- 
per Co.  V.  Dickson,  195  P.  538 ;  Root 
V.  Fay,  43  P.  527,  5  Ariz.  19. 

Cal.  Downing  v.  Murray,  45  P. 
869,  113  Cal.  455. 

Colo.  Livesay  v.  First  Nat.  Bank 
of  Denver,  86  P.  102.  36  Colo.  520, 
6  L.  R.  A.  (N.  S.)  598,  118  Am.  St. 
Rep.  120 ;  Brown  v.  Potter,  58  P.  785, 
13  Colo.  App.  512. 

Ind.  Green  \-.  Macy,  76  N.  E.  264, 
36  Ind.  App.  560. 

Inst.to  Juries— 13 


Iowa.  Cherry  v.  Des  Moines  Lead- 
er, 86  N.  W.  323,  114  Iowa,  298,  54 
L.  R.  A.  855,  89  Am.  St.  Rep.  365; 
Barnhart  v.  Chicago,  M.  &  St.  P.  R. 
Co..  66  N.  W.  902,  97  Iowa,  654. 

Me.  Moore  v.  McKennev,  21  A. 
749,  83  Me.  SO,  23  Am.  St.  Rep.  753. 

Mo.  Hite  V.  Metropolitan  St.  Ry. 
Co.,  130  Mo.  132,  31  S.  W.  262,  51  Am. 
St.  Rep.  555. 

Mont.  Mandoli  v.  National  Coun- 
cil of  Knights  and  Ladies  of  Security, 
194  P.  493,  58  Mont.  671. 

Neb.  Burke  v.  First  Nat.  Bank, 
84  N.  W.  408,  61  Neb.  20,  87  Am.  St. 
Rep.  447. 

N.  M.  Lockhart  v.  Wills,  50  P. 
318,  9  N.  M.  263;  Armi.io  v.  New 
JNIexico  Town  Co.,  5  P.  709,  3  N.  M. 
(Gild.)  427. 

Okl.  O'Neill  v.  Lauderdale,  195  P. 
121,  80  Okl.  170. 

Or.  Coffin  V.  Hutchinson,  30  P. 
424,  22  Or.  554. 

S.  D.  Fisher  v.  Porter,  77  N.  W. 
112,  11  S.  D.  311. 

W.  Va.  Cobb  v.  Glenn  Boom  & 
Lumber  Co.,  49  S.  E.  1005,  57  W,  Va. 
49,  110  Am.  St.  Rep.  734. 

10  Shoup  V.  Marks  (C.  C.  A.  Alaska) 
128  F.  32,  62  0.  C.  A.  540. 


§  105  INSTRUCTIONS  TO  JURIES  194 

rrle  is  that  a  verdict  should  never  be  directed  when  the  evidence 
presents  an  actual  issue  of  fact/^  or  unless  as  a  matter  of  law  no 
recovery  can  be  had  by  the  party  opposing  the  direction,  under 
any  proper  view  of  the  facts  which  the  evidence  tends  to  estab- 
lish/^ and  in  a  numbr  of  jurisdictions  the  view  is  taken  that  on  a 
motion  for  the  direction  of  a  verdict  the  court  should  directly  de- 
cide whether  there  is  an  issue  of  fact,  without  reference  to  its 
attitude  on  a  motion  to  set  aside  a  contrary  verdict. 

The  court  of  Appeals  of  New  York,  in  a  case  in  which  the  trial 
court  directed  a  verdict  for  the  defendant  because  it  thought  it 
might  be  its  duty  to  set  aside  a  verdict  for  plaintiff,  if  rendered, 
has  pointed  out  that  the  results  of  setting  aside  a  verdict  and  the 
result  of  directing  one  are  widely  different,  and  should  not  be  con- 
trolled by  the  same  conditions  or  circumstances ;  that  in  the  one 
case  there  is  a  retrial,  while  in  the  other  the  judgment  is  final ;  that 
one  rests  in  discretion,  and  the  other  upon  legal  right;  that  one 
involves  a  mere  matter  of  remedy  or  procedure,  while  the  other 
determines  substantive  and  substantial  rights;  and  in  this  juris- 
diction it  is  considered  that,  if  there  is  no  evidence  to  sustain  an 
opposite  verdict,  a  trial  court  is  justified  in  directing  one,  not  be- 
cause it  would  have  authority  to  set  aside  a  contrary  one,  but  be- 
cause there  is  an  actual  defect  of  proof,  and  hence,  as  a  matter  of 
law,  the  party  against  whom  the  directed  verdict  is  sought  is  not 
entitled  to  recover.^^  The  Supreme  Court  of  this  state  has  held 
that,  where  there  is  a  conflict  of  evidence  as  to  material  facts,  a 
verdict  cannot  be  directed  for  a  defendant,  although  a  verdict  for 
th'e  plaintiff  would  clearly  have  to  be  set  aside. ^* 

In  other  jurisdictions  similar  views  are  held.^^  In  Kentucky  it 
is  said  to  be  the  well-established  rule  that  it  is  not  enough  to  jus- 
tify a  peremptory  instruction  to  find  for  defendant  that  the  evi- 
dence, in  the  opinion  of  the  court,  is  such  that  possibly  a  new  trial 
should  be  awarded  in  case  of  a  verdict  for  plaintiff,  on  the  ground 
that  it  would  be  against  the  weight  of  the  evidence,  but  if  there 
be  evidence  conducing  to  show  a  right  of  recovery,  however  con- 
tradictory it  may  seem  to  the  court,  or  wherever  the  preponder- 
ance of  the  evidence  in  the  opinion  of  the  court  may  be,  the  plain- 
tiff" may  insist  on  a  verdict  of  the  jury.*^     In  another  case  in  this 

11  McDonald  v.  Metropolitan  St.  is  Citizens'  &  People's  Nat.  Banli 
Ry.  Co.,  GO  N.  E.  2S2,  167  N.  Y.  66.  v.  Louisville  &  N.  R.  Co.  (Fla.)  S5  So. 

12  Texas  &  P.  Ry.  Co.  v.  Cox,  12  916;  Aiken  v.  Holyoke  St.  Rv.  Co., 
S.  Ct.  905,  145  U.  S.  59.S,  36  L.  Ed.  61  N.  E.  557,  180  Mass.  8 ;  Derrick  v. 
820.  Harwood  Electric  Co.,  Ill  A.  48,  268 

18  McDonald  v.     Metropolitan     St.  Pa.  136. 

Ry.  Co.,  CO  N.  E.  282,  167  N.  Y.  66.  ic  Eslcridge's  Ex'rs  v.  Cincinnati,  N. 

14  Schmal   v.  Rothschild    (Sup.)   96  O.    &   T.   P.   Ry.   Co.,   12   S.    W.   580, 

N.   Y.    S.    170.  89  Kv.  367. 


1^5  DIRECTING   VERDICT  §  106 

jurisdiction  it  is  said  that  the  right  of  a  litigant  to  have  a  jury 
pass  on  the  issues  ceases  only  when  the  evidence  of  his  own  wit- 
nesses fails  to  show  a  right  to  recover  at.  all,  or  shows  such  facts 
as  must  preclude  a  recovery,  and  that,  however  strong  the  proof 
of  the  opposite  party  may  be,  even  to  satisfying  the  court  that  it 
would  not  permit  a  verdict  to  stand  if  returned  against  this  evi- 
dence, the  case  must  go  to  the  jury.^' 

In  Wisconsin  the  court  refuses  to  accept  the  doctrine  that  a 
verdict  should  be  directed  where  the  evidence  preponderates  so 
strongly  in  favor  of  the  party  seeking  a  direction  that  it  would  be 
the  duty  of  the  court  to  set  aside  an  opposite  verdict  and  grant 
a  new  trial,  and  in  this  jurisdiction  the  test  is,  taking  all  the  evi- 
dence produced,  giving  thereto  the  most  favorable  inferences  it 
will  reasonably  bear,  and  admitting  that  it  establishes  what  it 
tends  to  establish,  whether  it  will  sustain  a  contrary  verdict.  If 
so,  the  motion  for  a  direction  must  be  denied. ^^  The  Supreme 
Court  of  Washington  holds  that  the  rule  that,  if  the  trial  court 
would  set  aside  a  verdict  in  favor  of  one  of  the  parties  as  against 
the  evidence,  it  may  direct  a  verdict  for  the  adverse  party,  does 
not  obtain  in  that  jurisdiction.** 

§  106.     Direction,  ol  verdict  for  defendant 

In  accordance  with  the  principles  above  stated  the  court  may 
direct  a  verdict  for  the  defendant.***  It  is  proper  to  direct  such  a 
verdict  when  the  evidence  of  the  plaintiff  affords  no  basis  for  a 
recovery  by  him,^*  or  where  the  evidence  is  such  that  the  court 

17  Dick  V.   Louisville  &  N.  R.  Co.,  Ind.     State,  to  Use  of  School  Town 
(Ky.)  64  S.  W.  725.  of  Irvington,  v.  Julian,  93  Ind.  292. 

18  Lewis  V.  Prieu,  73  N.  W,  654,  98  Iowa.      Rice-Hinze    Piano    Co.    v. 
Wis.  87.  Sbellabarger,  56  N.  W.  422,  88  Iowa, 

10  Weir  v.   Seattle  Electric  Co..  84      752. 

P.  597,  41  Wash.  657.   ^^  ^    ^    ^^      -  Kan.      Barr  v.   Irey,  3  Kan.  App. 

20  Purcell  V.  English,  86  lad.  34,  44  040    45  P    111 

Am.  Rep.  255;    McGibbon  v.  Walsh,  *"  J._      t1^„„  .,        t-i   4.         •       t>     14. 

c-T^r^T    Ana    ma  wio    ftTO  -^y*     Leonard  v.  Enterprise  Realty 

^""o^^^T^-      ^'  it  ?7    -R  If   „      Co.,  219  S.  W.  1066,  187  Ky.  578,  10 

21 U.   S.     Royer  v.   Shulty  Belting       \    V     r    000 

Co.  (C.  C.  A.  Mo.)  29  F.  281.  -Tl     *  7''    i      ,0,00        ,     ^ 

Ala.     Sweet  v.  Birmingham  Ry.  &  ^\.  Standard  Scale  &  Supply  Co. 

Electric  Co.,  39  So.  767,  145  Ala.  667.  l,^f^'Ta^,^I'\'!^?^^o^^^^f%  ^?' 

Ariz.     Root   V.   Fay,  43  P.  527,  5  j^^  A.  486,  136  Md.  278,  9  A.  L.  R. 

Ariz.  19.  iouz. 

Cal.     Ross  V.   San  Francisco-Oak-  Mich.     Demill  v.  Moffat,  8  N.  W. 

land  Terminal  Rys.  Co.  (App.)  191  P.  '^^'  45  Mich.  410. 

703.  Mo.      Jackson   v.   Hardin,   83    Mo. 

Colo.    Murphy  v.  Cobb,  5  Colo.  281.  175. 

Idaho.      Haner    v.    Northern    Pac.  Neb.     Holdroire  v.   Watson    96  N 

Ry.  Co.,  62  P.  1028,  7  Idaho,  305.  W.  67,  1  Neb.  (Unof.)  687. 

ni.      Ackerstadt    v.    Chicago    City  N.  J,    Regan  v.  Palo,  41  A   364   62 

Ry.  Co.,  62  N.  E.  884,  194  111.  616.  N.  J.  Law,  30. 


§  107  INSTRUCTIONS  TO  JURIES  196 

would  be  compelled  to  set  aside  a  verdict  for  the  plaintiff,^-  and 
in  some  jurisdictions,  although  the  evidence  on  the  part  of  the 
plaintiff,  standing  alone,  would  justify  submitting  the  case  to  the 
jury,  yet  if,  on  the  whole  evidence,  the  court  could  not  permit  a 
verdict  for  the  plaintiff  to  stand,  it  may  direct  a  verdict  for  the 
defendant.-^  On  the  other  hand,  it  is  only  where  the  plaintiff  fails 
to  make  out  a  case,  so  that  it  would  be  the  duty  of  the  court  to 
set  aside  a  verdict  for  him  as  not  being  supported  by  any  compe- 
tent evidence  on  some  material  point,  that  a  verdict  for  the  de- 
fendant should  be  directed,-*  and  it  is  proper  to  refuse,  and  ordi- 
narily improper  to  grant,  a  peremptory  instruction  for  the  de- 
fendant, where  the  evidence  favgrable  to  the  plaintiff  and  rea- 
sonable inferences  which  the  jury  is  permitted  to  draw  therefrom 
support  the  essential  elements  of  the  cause  of  action  set  out  in 
the   complaint."^ 

§  107.     Direction  of  verdict  for  plaintiff 

Where  the  plaintiff  has  clearly  made  out  his, case,  and  there  is 
no  contrary  evidence,  it  is  proper  for  the  trial  court  to  direct 
a  verdict  in  his  favor,^^  and  in  some  jurisdictions,  as  has  already 
been  indicated,  the  rule  is  that,  if  the  evidence  so  preponderates 
in  favor  of  the  plaintiff  that  a  verdict  against  him  would  be  set 
aside  by  the  court  as  contrary  to  the  evidence,  it  is  the  duty  of 

N.  M.     Candelaria  v.  Atchison,  T.  (App.)    127    N.    E.    786;     Jackson   v. 

&  S.  F.  R.  Co.,  27  P.  497,  6  N.  M.  266.  Mauck,  126  N.  E.  851. 

N.  D.     Bowman  v.  Eppiuger,  1  N.  Mo.     Hunterbrinker  v.  Tappmeyer 

D.  21,  44  N.  W.  1000.  (App.)   223   S.   W.   692. 

Pa.    Simrell  v.  Miller,  169  Pa.  326,  Neb.     Harraliill  v.  Bell,  178  N.  W. 

32  A.  548.  622,    104  Neb.   777. 

S.  C.     Hillhouse  v.  Jennings,  38  S.  Okl.     Stevens  v.   Oklahoma  Auto- 

E.  596,  60  S.  C.  392.  mobile  Co.,  188  P.  1075,  78  Okl.  126; 
Tex.    Washington  v.  Missouri,  etc.,  Harrison  v.  Corry  Pharmacy,  188  P. 

Ry.  Co.  of  Texas  (Civ.  App.)  36  S.  W.  1076,  78  Okl.  127. 

778.  '  Pa.     Derrick  v.  Harwood  Electric 

Vt.     Knapp  V.  Winchester,  11  Vt.  Co.,  Ill  A.  48,  268  Pa.  136. 

351.  2  6  u.  S.    Marshall  v.  Hubbard,  6  S. 

W.  Va.     Knight  v.  Cooper,  36  W.  Ct.  806,  117  U.  S.  415,  29  L.  Ed.  919 ; 

Va.  232,  14  S.  E.  999.  Hendrick  v.  Lindsay,  93  U.  S.  143,  23 

Wis.     Cutler  V.   Hurlbut,  29  Wis.  L.  Ed.  855. 

152.  Ala.     Sims  v.  Hertzfeld,  10  So.  227. 

2  2  Armstrong  v.  Aragon,  79  P.  291,  95  Ala.  145. 

13  N.  M.  19;    Fisher  v.  Porter,  77  IS.  Conn.     Whitney  v.  First  Ecclesias- 

W.  112.  11  S.  D.  311.  tical  Soc.  in  Brooklyn,  5  Conn.  405. 

23  Giermann  v.  St.  Paul,  M.  &  M.  111.     Heiusen  v.  Lamb,  117  111.  549, 

Ry.  Co.,  43  N.  W.  483,  42  Minn.  5.  7  N.  E.  75. 

24G:irtside  Coal   Co.  v.  Turk,   147  Ind.     Friedliue  v.    State,   93    Ind. 

Til.  120,  .".5  X.  E.  467;    Diezi  v.  G.  H.  366. 

Hammond  Co.,  00  N.  E.  353,  156  Ind.  Kan.     Hillis  v.  First  Nat  Bank,  54 

5S3.     S<>e  Ciimmings  v.  Railway  Mail  Kan.  421,  38  P.  565. 

Ass'n  (Iowa)  177  N.  W.  466.  Mich.     Rasch  v.  Bissell,  52  Mich. 

20  Ind.       Kawlings      v.      Vreeland  455,  18  N.  W.  216. 


197  DIRECTING  VERDICT  §  109 

the  court  to  direct  a  verdict  for  him.^'  On  the  other  hand,  plain- 
tiff is  entitled  to  a  directed  verdict  only  when,  giving  to  the  de- 
fendant the  benefit  of  every  inference  that  can  fairly  be  drawn 
from  the  evidence,  it  is  insufficient  to  authorize  a  verdict  in  his 
favor,^*  and  where  there  is  some  conflict  in  the  evidence  as  to 
material  issues  it  is  error  to  direct  a  verdict  for  the  plaintiff."^ 

§  108.     Rule  in  equity 

Where,  in  a  suit  in  equity,  issues  of  fact  are  submitted  to  a 
jury  for  decision,  the  general  rule  is  that  the  court  may,  in  a 
proper  case,  direct  a  verdict ;  this  rule  applying  whether  the  par- 
ties are,^"  or  are  not,^^  entitled  to  a  jury  trial  as  of  right,  and 
where  a  jury  is  impaneled  merely  as  a  body  advisory  to  the  court, 
to  assist  it  in  determining  disputed  facts,  the  court  may  direct 
a  verdict,  although  the  evidence  is  conflicting.^^ 

B.  Direction  in  Criminal  Cases 

Form  and  requisites  of  request  for  direction  of  verdict,  see  post,  §  4S1. 

§  109.  Power  and  duty  of  court,  in  general,  to  direct  verdict 
of  acquittal 
In  the  majority  of  jurisdictions,  and  even  in  some  jurisdictions 
in  which  the  jury  are  the  judges  of  the  law,  the  rule  is,  in  crim- 
inal prosecutions,  that  where  there  is  no  proof  reasonably  tending 
to  sustain  the  charge,  or  where  the  evidence  is  so  weak  and  de- 
fective that  a  verdict  based  upon  it  cannot  be  sustained,  the  court 
has  power  to,^^  and  should,^*  at  least  upon  request,^^  direct  the  jury 

27  Bagley  v.  Cleveland  Rolling  Mill  ss  state  v.  Trove,  27  N.  E.  878,  1 
Co.  (C.  C.  N.  Y.)  21  F.  159:  INct  v.  Ind.  App.  55.3;  Daniel  v.  Common- 
Dakota  Fire  &  Marine  Ins.  Co.,  1  wealth,  186  S.  W.  489,  170  Ky.  693: 
S.  D.  462,  47  N.  W.  532.  Blankenship    v.    Commonwealth,    145 

2  8  Fire    Ass'n    of    Philadelphia    v.  S.    W.    752.    147    Kv.    768;     Common- 

Mechlowitz   (C.   C.   A.   N.    Y.)   266   F.  wealth  v.  Murphy,  109  S.  W.  3-53,  33 

322 ;    Citizens'  &  People's  Nat.  Bank  Ky.  Law  Rep.  141 :   People  v.  Gressor 

V.    Louisville   &   N.    R.   Co.    (Fla.)   85  (Sup.)  124  N.  Y.  S.  581. 

So.  916.  £ffect    of    admissions    by    state. 

2  9  Phillips  v.  Jacobs  (Ga.  App.)  103  Where,  by  the  opening  statement  for 
S.  E.  686;  Central  Nat,  Bank  v.  J^'.  the  prosecution  in  a  criminal  trial, 
W.  Drosten  Jewelry  Co.,  220  S.  W.  and  after  a  full  opportunity  for  the 
511,  203   Mo.   App.   646.  coiTection  of  any  ambiguity,  error,  or 

3  0  Ely  V.  Early,  94  N.  C.  1.  omission  in  the  statement,  a   fact  is 
31  Hess     V.     Miles,     70     Mo.     203;      clearly     and     deliberately     admitted 

Sparks  v.  Ross,  65  A.  977,  72  N.  J.  Eq.  which  must  necessarily  prevent  a  con- 

762;    Pier  v.  Prouty,  67  Wis.  218,  30  viction  and  require  an  acquittal,  the 

N.  W.  232.  court   may.   upon   its  own  motion    or 

3  2  Galvin  v.  Palmer,  113  Cal.  46,  45  that  of  counsel,  close  the  case  by  di- 

P.   172;     Robinson   v.   Drydon.   24    S. ' 

W.    448,    118   Mo.    534;     Baldwin    v.  S4,  35  See  notes  34  and  35  on  fol- 

Taylor,  166  Pa.  507,  31  A.  250.  lowing  page. 


§  109 


INSTRUCTieNS  TO  JURIES 


198 


to  return  a  verdict  of  not  guilty.     Under  this  rule,  where  there  is 
no   substantial   evidence  of   facts  excluding  every   hypothesis   ex- 


recting  a  verdict  for  the  accused. 
United  States  v.  Dietricli  (C.  C.  A. 
Neb.)  120  F.  G76. 

Directing  clerk  to  enter  verdict. 
The  court  has  no  power  to  direct  the 
clerk  to  act  for  the  jury.  State  v. 
Ford.  S3  S.  E.  S31,  168  N.  C.  165. 

3  4  U.  S.  (C.  C.  N.  Y.)  United  States 
V.  Fullerron.  Fed.  Cas.  No.  15,176,  7 
Blatchf.  177 ;  ^  (D.  C.  N.  Y.)  United 
States  V.  Hayden,  Fed.  Cas.  No.  15,- 
333,  52  How.  Prac.  471. 

Ala.  Cobb  v.  State,  85  So.  870,  17 
Ala.  App.  479;  Coudry  v.  State,  16 
Ala.  App.  192,  76  So.  476;  Jackson 
A-.  State,  69  So.  97,  178  Ala.  76 ;  Green 
v.  State,  68  Ala.  539. 

Ind.  State  v.  McCaffrey,  103  N. 
E.  801,  181  Ind.  200 ;  State  v.  Banks, 
48  Ind.  197. 

Kan.  State  v.  Gibbs,  181  P.  569, 
105  Kan.  52. 

Ky.  Savior  v.  Commonwealth,  166 
S.  W.  254.  158  Kv.  768;  Common- 
wealth V.  Boaz,  131  S.  W.  782,  140 
Kv.  715 ;  Wilson  v.  Commonwealth, 
121  S.  W.  430. 

Me.      State   v.   Davis,   101   A.   208, 

116  Me.  260;  State  v.  Benson,  98  A. 
561,  115  :Me.  549;  State  v.  Grondin, 
94  A.  947,  113  Me.  479;  State  v.  Simp- 
son, 92  A.  898,  113  Me.  27. 

Mich.  People  v.  Miuney,  119  N. 
W.  918,  155  Mich.  534. 

Mo.  State  v..  Young,  140  S.  W. 
873,  237  Mo.  170;  State  v.  Daubert, 
42  Mo.  242. 

Mont.  State  v.  Welch,  55  P.  927, 
22   Mont.   92. 

N.  Y.  People  v.  Smith,  147  N.  Y. 
S.  541.  84  Misc.  Rep.  348. 

N.  C.  State  v.  Norman,  68  S.  E. 
917,  153  N.  C.  591;    State  v.  Green, 

117  N.  C.  695,  23  S.  E.  98. 

Okl.  Eggloston  V.  State,  127  P. 
264,  8  Okl.  Cr.  264;  Nash  v.  State, 
126  P.  260.  8  Okl.  Cr.  1 ;  Huffman  v. 
State,  119  P.  644,  6  Okl.  Cr.  476; 
Cummins  v.  State,  117  I*.  1099.  6  Okl. 
Cr.  180 :  I'ilgrim  v.  State,  104  P.  383, 
3  Okl.  Cr.  49 ;  Shires  v.  State,  99  .V. 
1100.  2  Okl.  Cr.  89. 

Pa.  Pauli  V.  Commonwealth,  89 
Pn.  4.'i2. 

Utah.  State  v.  Gordon,  70  P.  882, 
2«:  rtah,  15. 


£ffect  of  proof  of  corpus  delicti. 

Though  the  corpus  delicti  is  proved 
beyond  a  reasonable  doubt,  a  general 
charge  for  defendant  should  be  given 
when  there  is  no  legal  evidence  con- 
necting him  with  the  commission  of 
the  crime  as  charged.  Martin  v. 
State,  85  So.  42,  17  Ala.  App.  310. 

Right  to  directed  verdict  at 
close  of  evidence  for  state.  The 
refusal  to  direct  a  verdict  of  not 
guilty  is  proper,  where  the  evidence 
is  not  all  in.  State  v.  May,  68  S.  E. 
1062,  153  N.  C.  600.  Whatever  the 
state's  evidence,  a  court  is  not  bound 
to  direct  a  verdict  of  acquittal  until 
the  conclusion  of  all  the  testimony. 
Commonwealth  v.  George,  13  Pa.  Su- 
per. Ct.  542.  A  motion  for  directed 
verdict  at  close  of  government's  case 
is  waived  by  accused's  introduction 
of  evidence,  but  waiver  does  not  de- 
prive him  of  right  to  have  sufficiency 
in  law  of  entire  evidence  considered 
upon  like  motion  at  close  of  all  testi- 
mony. Kasle  V.  United  States  (C.  C. 
A.  Ohio)  233  F.  878,  147  C.  C.  A.  552. 

Dismissal  of  prosecution.  Where 
the  trial  court  finds  it  is  necessary 
to  advise  a  verdict  of  not  guilty,  he 
should  discharge  the  jury  and  dis- 
miss the  prosecution.  Findley  v. 
State,  145  P.  1107,  11  Okl.  Cr.  275. 
A  motion  by  defendants  in  a  criminal 
case  that  they  be  discharged  upon 
the  ground  that  the  evidence  is  not 
sufficient  to  establish,  in  law,  the  of- 
fense charged,  calls  for  the  judgment 
of  the  court  on  the  question  whether 
the  evidence,  in  any  view,  could  estab- 
lish the  crime  charged ;  and,  if  it 
could  not,  it  is  the  court's  duty  to 
withdraw  such  charge  from  the  jury, 
and  dismiss  defendants  from  further 
prosecution  thereunder.  Devov  v. 
State,  99  N.  W.  455,  122  Wis.  148. 

35  U.  S.  (C.  C.  A.  W.  Va.)  Duff  v. 
United  States,  185  F.  101,  107  C.  C. 
A.  319. 

Ky.  Bailev  v.  Commonwealth,  113 
S.   W.  140.   1.30  Ky.  301. 

N.  Y.  People  v.  Bennett,  49  N.  Y. 
137:  Reynolds  v.  People,  41  How. 
Prac.  179. 

Okl.  High  V.  State,  101  P.  115,  2 
Okl.  Cr.  101,  28  L.  R.  A.  (N.  S.)  162. 


199 


DIRECTING  VERDICT 


109 


cept  that  of  guilt,^^  or  where  there  is  clear  proof  of  facts  negativ- 
ing an  essential  element  of  guilt,^'  or  where  the  proof  fails  to 
show  the  corpus  delicti,^*  or  where  the  evidence  of  the  state  con- 
sists solely  of  the  uncorroborated  testimony  of  an  accomplice,^* 
the  court  should  direct  a  verdict  for  the  accused ;  and  where  the 
facts  in  support  of  the  pleas  of  former  acquittal  and  once  in  jeop- 
ardy are  not  in  dispute  the  court  should  direct  a  verdict  under 
the  pleas.^*^ 

In  a  few  jurisdictions,  in  which  the  court  has  power  to  direct 
a  verdict  of  acquittal,  the  rule  is  that  a  defendant  is  not  entitled 
as  of  right  to  an  instructed  verdict  of  not  guilty j^"^  the  matter  of 
such  a  direction  being  regarded  ordinarily  as  within  the  discre- 
tion of  the  trial  court.*^    The  appellate  court,  however,  when  the 


Pa.  Commonwealth  v.  Tost,  46  A. 
845,  197  Pa.  171. 

W.  Va.  State  v.  Phillips,  93  S.  E. 
828.  80  W.  Va.  748,  L.  R.  A.  191SA, 
1164. 

3<i  Isbell  V.  United  States  (C.  C. 
A.  Old.)  227  F.  788,  142  C.  C.  A.  312 ; 
Union  Pacific  Coal  Co.  v.  United 
States  (C.  C.  A.  Utah)  173  F.  737,  97 
C.  C.  A.  578;  Starkes  v.  State,  64 
So.  158,  11  Ala.  App.  268. 

3  7  State  V.  Martini,  78  A.  12,  80 
N.  J.  Law,  685. 

ssWaide  v.  State,  162  P.  1139.  13 
Okl.  Cr.  165;  State  v.  Brown,  88  S. 
E.  21,  103  S.  C.  437,  L.  R.  A.  1916D, 
1295. 

3  9  Reynolds  v.  State,  127  P.  731, 
14  Ariz.  302  ;  Lane  v.  Commonwealth, 
121  S.  W.  486,  134  Ky.  519;  Thomp- 
son V.  State,  132  P.  695,  9  Okl.  Cr. 
525. 

Rule  in  Maryland.  There  is  no 
practice  which  would  authorize  the 
court  to  discharge  defendants  on  mo- 
tion because  the  only  evidence  against 
them  is  the  uncorroborated  evidence 
of  accomplices.  Luery  v.  State,  81 
A.  681,  116  Md.  284,  Ann.  Cas.  1913, 
161. 

Rule  in  Wisconsin.  When  there 
is  no  evidence  against  accused  except 
the  uncorroborated  testimony  of  ac- 
complices, it  is  discretionary  with  the 
trial  court  whether  to  direct  an  ac- 
quittal. Murphy  v.  State.  102  N.  W. 
1087,  124  Wis.  635;  Black  v.  State, 
59  Wis.  471,  18  N.  W.  457. 

4  0  Strom  V.  Territory,  94  P.  1099. 12 
Ariz.  26,  judgment  athrmed  99  P.  275, 


12  Ariz.  109,  and  170  F.  423.  95  C.  C. 
A.  593 ;  Commonwealth  v.  Brown,  28 
Pa.  Super.  Ct.  296. 

41  Fla.  Yarbrough  v.  State,  83  So. 
873;  Long  v.  State,  S3  So.  293,  78 
Fla.  464;  Drayton  v.  State,  82  So. 
801,  78  Fla.  254;  Wells  v.  State,  77 
So.  879,  75  Fla.  229;  Davis  v.  State, 
76  So.  675,  74  Fla.  100;  Bennett  v. 
State,  07  So.  125,  68  Fla.  494 :  Hughes 
v.  State,  55  So.  463,  61  Fla.  32 ;  Ryan 
V.  State,  53  So.  448,  60  Fla.  25;  Mene- 
fee  V.  State,  51  So.  555,  59  Fla.  316. 

Ga.  O'Neal  v.  State,  99  S.  E.  891, 
24  Ga.  App.  160;  Bishop  v.  State,  90 
S.  E.  369,  18  Ga.  App.  714 ;  Sheffield 
V.  State,  90  S.  E.  356,  18  Ga.  App. 
(97;  Stonecypher  v.  State,  88  S.  E. 
719,  17  Ga.  App.  818;  Wobbington  v. 
State,  86  S.  E.  417,  17  Ga.  App.  267; 
Bell  V.  State,  84  S.  E.  150.  15  Ga. 
App.  718;  Scott  V.  State.  82  S.  E.  370, 
14   Ga.   App.   806:    Hudson   v.    State, 

81  S.  E.  362,  14  Ga.  App.  490;  Har- 
vev  V.  State,  70  S.  E.  141,  S  Ga.  App. 
660. 

Compare  Hunter  v.  State,  79  S.  E. 
752,  13  Ga.  App.  651. 

4  2  U.  S.  (C.  C.  A.  X.  C.)  Breese  v. 
United  States,  106  F.  080,  45  C.  C.  A. 
535,  judgment  reversed  on  rehearing 
108  F.  804,  48  C.  C.  A.  36. 

Fla.  McCray  v.  State,  34  So.  5, 
45   Fla.   80. 

Md.  Ridgely  v.  State.  75  Md.  510, 
23  A.  1099 ;  Goldman  v.  State,  75  Md. 
621,   23  A.  1097. 

N.  J.     State  V.  Metzger,  82  A.  330, 

82  X.  J.  Law,  749,  State  v.  Lieber- 
man,  79  A.  331,  80  N.  J.  Law,  506, 


109 


INSTRUCTIO^'S  TO  JURIES 


200 


whole  record  is  returned,  is  required  to  consider  whether  the  de- 
fendant has  suffered  manifest  wrong  and.  injustice  in  the  exer- 
cise by  the  trial  court  of  such  discretion,*^  and  where  the  state 
admits  that  it  has  not  proved  the  charge  laid  in  the  indictment 
it  will  be  legal  error  to  refuse  a  request  for  a  directed  verdict  for 
defendant."*^ 

Where  the  evidence  reasonably  tends  to  show  the  guilt  of  de- 
fendant of  the  offense  charged  against  him,*^  or  where  enough 
is  proved  by  the  state  to  require  the  defendant  to  introduce  any 
evidence,  the  court  has  no  right  to  direct  an  acquittal.*^  The 
court  may  properly  refuse  to  direct  a  verdict  of  acquittal  on  the 
ground  of  lack  of  independent  direct  and  express  evidence  of  the 
capacity  of  the  defendant  to  commit  the  crime  charged,  since  such 
capacity  is  a  question  for  the  jury  from  the  age,  appearance  and 


judgmeut  affirmed  82  A.  1134,  82  N. 
J.  Law,  748. 

R.  I.  State  V.  Longbottom,  103  A. 
099;  State  v.  Collins,  52  A.  990,  24 
R.  I.  242. 

43  state  V.  Brown,  60  A.  1117,  72 
X.  J.  Law,  354. 

4  4  state  V.  Raymond,  78  A.  761,  78 
N.  J.  J^iiv:,  61. 

4  5  u.  S.  (C.  C.  A.  Mich.)  Higgins 
V.  United  States,  1S5  F.  710,  lOS  C. 
C.  A.  48;  (C.  C.  A.  Neb.)  Matters  v. 
U.  S.,  261  F.  826. 

Ala.  Suttles  v.  State,  74  So.  400, 
15  Ala.  App.  582;  Chappell  v.  State, 
73  So.  134,  15  Ala.  App.  227;  Bush  v. 
State,  07  So.  847,  12  Ala.  App.  260; 
Mangum  v.  State,  47  So.  104,  156  Ala. 
95;  Dillard  v.  State,  44  So.  396,  151 
Ala.  92 ;  Ferguson  v.  State,  43  So. 
16,  149  Ala.  21;  Payne  v.  State,  42 
So.  9S8.  148  Ala.  609;  Hargrove  v. 
State,  41  So.  972,  147  Ala.  97,  119 
Am.  St.  Rep.  60,  10  Ann.  Cas.  1126; 
(Ulyard  v.  State,  98  Ala.  59,  13  So. 
:;91:  I'ellum  v.  State,  89  Ala.  28,  8 
So.  83. 

Me.  State  V.  Cady,  82  Me.  426,  19 
A.  908. 

Mass.  Commonwealth  v.  Brooks, 
164  Mass.  397,  41  N.  E.  660. 

Mo.     State  v.  Warner,  74  Mo.  83. 

Neb.  K(X}nigstein  v.  State,  173  N. 
W.  603,  103  Neb.  580;  Alt  v.  State, 
129  N.  W.  432.  88  Neb.  259,  35  L.  R. 
A.   (N.   S.)  1212. 

N.  M.  State  v.  Wilson,  1S4  P.  531, 
25  N.  M.  439. 


N.  C.  State  v.  Dobbins,  62  S.  E. 
635,  149  N.  C.  465. 

Ohio.  State  V. '  Gross,  110  N.  E. 
466.  91  Ohio  St.  161. 

Okl.  Radke  v.  State  (Cr.  App.) 
187  P.  500 ;  State  v.  Duerksen,  129  P. 
881,  8  Okl.  Cr.  601,  52  L.  R.  A.  (N.  S.) 
1013;  Faggard  v.  State,  104  P.  930, 
3  Okl.  Cr.   159. 

S.  C.  State  V.  Franklin,  60  S.  E. 
953,  80  S.  C.  332,  judgment  affirmed 
Franklin  v.  State  of  South  Carolina, 
30  S.  Ct.  640,  218  U.  S.  161,  54  L.  Ed. 
980. 

S.  D.  State  v.  Egland,  121  X.  W. 
798,  23  S.  D.  323,  139  Am.  St.  Rep. 
1006. 

Wash.  State  v.  Welty,  118  P.  9, 
65  Wash.  244;  State  v.  Wilson,  10 
Wasli.   402,   .39   P.   106. 

Effect  of  testimony  of  accom- 
plice. In  a  prosecution  for  robbery, 
where  an  accomplice  testified  posi- 
tively as  to  defendant's  participation^ 
and  was  sufliciently  corroborated  to 
support  a  conviction,  the  court  prop- 
erly refused  to  instruct  an  ac(iuittal. 
Perrv  v.  State,  155  S.  W.  263,  69  Tex. 
Cr.   R.   644. 

Bffect  of  variance.  Variance  be- 
tween allegations  of  indictment  and 
proof  does  not  entitle  defendant  to 
affirmative  charge.  Benjamin  v. 
State,  81  So.  855,  17  Ala.  App.  77, 
certiorari  denied  Ex  parte  Benjamin, 
82  So.  893,  203  Ala.  696. 

4  6  State  V.  Jones,  IS  Or.  256,  22 
P.  840. 


201  DIRECTING   VERDICT  §  m 

conduct  of  the  accused,*'  and  in  some  jurisdictions  the  rule  is 
stated  to  be  that  if  there  is  any  evidence,  however  slight,  conduc- 
ing to  show  the  guilt  of  the  accused,  the  court  should  not  give 
such  a  direction.** 

§  110.  Rule  that  court  has  no,  power  to  direct  verdict  of  acquittal 
In  a  few  jurisdictions,  usually  by  reason  of  particular  statutory 
provisions,  the  court  has  no  power  to  direct  or  advise  the  jury  to 
return  a  verdict  of  not  guilty.*'^  In  Illinois  this  is  the  rule,  under 
the  statutory  provision  that  the  jury  shall  be  judges  of  the  law 
and  the  fact ;  it  not  being  considered  improper,  however,  for  the 
court,  if  the  evidence  is  thought  insufficient  to  support  a  verdict 
of  guilty,  to  so  advise  the  state's  attorney  that  he  may  exercise 
his  discretion.^** 

§  111.     Rule  that  court  may  advise  the  jury  to  acquit 

In  some  jurisdictions  there  are  statutory  provisions  that  if 
the  court,  at  any  time  after  the  evidence  on  either  side  is  closed, 
deems  it  insufficient  to  warrant  a  conviction,  it  may  advise  the 
jury  to  acquit;  the  jury,  however,  not  being  bound  by  the  advice. 
Under  such  provisions  it  is  usually  held  that  the  court  has  no 
authority  to  direct  the  jury  to  find  a  verdict  of  not  guilty.^^  But 
where  the  conditions  prescribed  by  the  statute  are  present  it  will 
be  the  duty  of  the  court  to  advise  the  jury  to  acquit,  notwith- 
standing the  lack  of  binding  force  of  such  advice,^'^  and  in  one  ju- 

4  7  state  V.  Vineyard,  101  S.  E.  440,  pie  v.  Zurek,  115  N.  E.  644,  277  111. 

85  W.  Va.  293.  621. 

4  8  Ky.     Ratliff    v.    Commonwealth,  si  Cal.     People  v.  StoU,  77  P.  SIS, 

206  S.  W.  497,  182  Ky.  246;    Pace  v.  143  Cal.  6S9;    People  v.  Roberts,  45 

Commonwaalth,    186   S.   W.    142,    170  P.  1016,  114  Cal.  67 ;    People  v.  Dan- 

Ky.    560;     Commonwealth    v.    Little.  iels,  105  Gal.  262,  3S  P.  720. 

131  S.  W.  387,  140  Ky.  550 ;    Spencer  Idaho.     State  v.  Peck,  95  P.  515. 

V.    Commonwealth    (Ky.)    122    S.    W.  14  Idaho,   712;     State  v.   Wright,  85 

SOO;    Bennett  v.  Commonwealth,  118  P.  493,   12  Idaho,   212;    Territory  v 

S.    W.   332.   133    Ky.    452;     Common-  Neilson,  2   Idaho   (Hash.)    614,  23  P. 

wealth  V.  Murphy,  109  S.  W.  353,  33  537. 

Ky.    Law    Rep.    141;     Crawford    v.  c  2  people  v.  Ward,  79  P.  448,  145 

Commonwealth,  35  S.  W.  114.  Cal.  736;    State  v.  Downing   1.30  P. 

49  State  V.  Dudenhefor,  47  So.  614,  461,  23  Idaho,  540;  McLaushlin  v. 
122  La.  288;  State  v.  Albertson,  128  State  (Okl.  Cr.  App.)  193  P.  1010; 
N.  W.  1122,  20  N.  D.  512 ;  State  v.  State  v.  Evans  (Okl.  Cr.  App.)  186  P. 
Wright,  126  N.  W.  1023,  20  N.  D.  216,  735 ;  Shannon  v.  State,  160  P.  1131, 
Ann.  Cas.  1912C,  795;    State  v.  Guf-  12  Okl.  Cr.  App.  584. 

fey,    163    N.    W.    679,    39    S.    D.    84;  Requisites   of  motion   to   advise 

State  V.  Stone,  137  N.  W.  606,  30  S.  acquittal.     The  statute  only  author- 

I>-    23.  izes  the  court  to  advise  the  jury  to 

50  People  V.  Kafpovich,  123  N.  E.  acquit,  and  provides  that  they  shall 
324,  288  111.  268;  People  v,  Dettmer-  not  be  liound  by  his  advice,  yet, 
ing,  116  N.  E.  205,  278  111.  580;    Peo-  where    there    is    no    competent    evi- 


112 


INSTRUCTIONS   TO   JURIES 


202 


risdiction  it  is  held  that  the  court  may  direct  an  acquittal  if  the 
evidence  is  wholly  insufficient  to  sustain  a  conviction;  the  statu- 
tory provision  not  applying  in  such  case.^^ 

§  112.     Rule  that  court  has  no  power  to  direct  conviction 

The  almost  universal  rule  is  that,  where  the  defendant  has 
pleaded  not  guilty,  the  court  has  no  power  to  require  the  jury  to 
render  a  verdict  of  guilty,^  no  matter  how  clear  and  undisputed 
the  evidence  may  be,^^  and  even  in  a  case  of  the  most  trivial  im- 
portance.''** 


dence  of  tlie  corpus  delicti,  so  that 
it  becomes  the  duty  of  the  court  to 
advise  an  acquittal,  the  fact  thai 
counsel,  moving  orally  at  the  close  of 
the  people's  case,  uses  the  word  "in- 
struct." instead  of  "advise."  does  not 
justifv  a  denial  of  the  motion.  Peo- 
ple V."  Ward,  79  P.  44S,  145  Cal.  736. 
What  constitutes  close  of  evi- 
dence. The  opening  statement  is 
not  evidence,  within  the  statutory 
provision  that,  "at  any  time  after 
the  evidence  on  either  side  is  closed," 
the  court  may  advi.se  the  jury  to  ac- 
quit. People  V.  StoU,  77  P.  81S,  143 
■Cal.  6S9. 

53  state  V.  Gomez,  190  P.  982,  oS 
Mont.   177. 

54  U.  S.  (C.  G.  A.  Ark.)  Cummins 
V.  United  States,  232  F.  844,  147  C. 
C.  A.  38;  (C.  C.  A.  Cal.)  Blair  v. 
United  States,  241  F.  217,  154  C.  C. 
A.  137,  reversing  judgment  (D.  C.) 
United  States  v.  Blair-Murdock  Co., 
228  F.  77 ;  (C.  C.  Kan.)  United  States 
V.  Tavlor,  11  F.  470. 

Ark.  Burton  v.  State,  203  S.  W. 
1023.  13.5  Ark.  164;  Snead  v.  State, 
203  S.  W.  703,  134  Ark.  303;  Wylie 
V.  State,  199  S.  AV.  905,  131  Ark.  572. 

Conn.  State  v.  Buonomo,  87  A. 
977.  87  Conn.  285. 

111.  People  V.  Koehler,  146  111. 
App.  541. 

Kan.  State  v.  Wilson,  64  P.  23, 
62  Kan.  621,  52  L.  R.  A.  679. 

Miss.  Woods  V.  State,  32  So.  998, 
81  Miss.  164. 

Mo.  State  v.  McXamara,  110  S. 
W.   10f)7.  212  Mo.  150. 

Mont.  State  v.  District  Court, 
Silver  I5ow  County,  119  P.  1103,  44 
Mont.  318,  Ann.  Cas.  1913B,  396. 

N.  Y.  Howell  V,  People,  5  Hun. 
620. 


N.  C.  State  v.  All^y,  104  S.  E. 
365.  180  N.  C.  663 ;  State  v.  Godwin, 
59  S.  E.  132,  145  N.  C.  461,  122  Am. 
St.  Rep.  467 ;  State  v.  Hill,  53  S.  E. 
311.  141  N.  C.  769;  State  v.  Win- 
chester, 113  N.  C.  641,  18   S.  E.  657. 

Pa.  Commonwealth  v.  Havrilla, 
38  Pa.  Super.  Ct.  292. 

Tenn.  Shipp  v.  State,  161  S.  W. 
1017,  128  Tenn.  499. 

Tex.  Manning  v.  State,  145  S.  W. 
938,  66  Tex.  Cr.  R.  ISO;  Potts  v. 
State,  74  S.  W.  31,  45  Tex.  Cr.  R. 
45,  2  Ann.  Cas.  827. 

Wash.  State  v.  Holmes,  122  P. 
345,  68  Wash.  7. 

Rule  in  Pennsylvania.  It  is  only 
under  very  exceptional  circumstanc- 
es, if  ever,  that  the  court  will  be  jus- 
tified in  giving  binding  directions  to 
the  jury  to  convict  the  defendant  in 
a  criminal  case.  Under  no  circum- 
stances may  this  be  done,  without 
giving  him  a  fait'  opportunity  to 
present  all  of  his  relevant  and  ma- 
terial testimony,  and  according  to 
him  the  constitutional  right  to  be 
heard  by  his  counsel  upon  the  ques- 
tion. Commonwealth  v.  Gamble,  36 
Pa.  Super.  Ct.  146. 

5  5  u.  S.  (C.  C.  A.  111.)  Konda  v. 
United  States,  166  F.  91,  92  C.  C.  A. 
75,  22  L.  R.  A.    (N.  S.)  304. 

Ga.     Tucker  v.   State,  57  Ga.  503. 

Ky.  Lucas  v.  Commonwealth,  82 
S.  W.  440,  118  Ky.  818,  26  Ky.  Law 
Rep.  740. 

Mont.  State  v.  Koch,  85  P.  272, 
.33  Mont.  490,  8  Ann.  Cas.  804. 

6  0  People  V.  Walker,  91  N.  E.  806. 
198  N.  Y.  329,  reversing  judgment 
118  N.  Y.  S.  1132,  134  App.  Div. 
909. 


203  DIRECTING   VERDICT  §  113 

An  instruction  that,  if  the  jury  believe  the  evidence,  they  will 
find  the  defendant  guilty,  is  not  a  directed  verdict  within  the 
above  rule,^''  and  a  statement  by  the  judge  in  his  charge  that  in 
his  opinion  it  is  the  duty  of  the  jury  to  convict  in  view  of  the  un- 
contradicted testimony  does  not  amount  to  a  direction  to  convict, 
and  in  some  jurisdictions  where  the  court  is  permitted  to  com- 
ment on  the  evidence  is  regarded  as  within  his  judicial  privilege 
and  duty.^  In  other  jurisdictions,  however,  where  such  comment 
is  allowed,  such  a  statement  is  considered  improper,  as  likely  to 
mislead  the  jury  into  the  belief  that  they  are  directed  to  bring 
in  a  verdict  of  guilty.^* 

§  113.     Qualifications  of  rule  that  court  cannot  direct  conviction 

In  Alabama  it  has  been  held  that  where  the  evidence  is  in  writ- 
ing, and  consists  of  a  written  agreement  of  the  parties,  signed  by 
counsel,  with  respect  to  the  facts  upon  which  the  case  is  tried, 
and  the  facts  so  agreed  upon  establish  the  defendant's  guilt  as  a 
matter  of  law,  the  court  may  charge  directly  upon  the  evidence, 
without  referring  its  credibility  to  the  jury.^" 

In  Arkansas,  where  the  courts  adhere  to  the  doctrine  of  the 
inability  of  the  trial  judge,  in  a  trial  for  an  offense  punishable 
either  by  fine  or  imprisonment,  to  direct  a  conviction,*'^  the  rule 
has  been  laid  down  that  in  misdemeanor  cases,  where  the  punish- 
ment is  by  fine  only,  the  court  may  direct  a  verdict  of  guilty, 
when  the  facts  are  undisputed,  and  when  from  all  the  evidence 
guilt  is  the  only  inference  that  can  be  drawn.^^ 

In  Michigan,  while  a  verdict  of  guilty  must  be  rendered  by  the 
jury  after  opportunity  for  deliberation,  where  the  defendant  has 
pleaded  not  guilty,  and  the  facts  are  not  conceded,^^  and  the  court 
has  no  power  to  compel  the  jury  to  follow  advice  or  a  direction  to 
convict,*^  the  court  has  the  power  to  instruct  the  jury  that  it  is 

Mo.     State  V.  Picker,  64  Mo.  App.  5  9  Breese  v.   United   States,   (C.   C. 

126.  A.  N.  C.)  108  F.  804,  48  C.  C.  A.  36. 

N.    M.     Territory    v.    West,   99    P.  eo  Ligou  v.   State,  39   So.   662,   145 

343,  14  N.  M.  546.  Ala.  659. 

cn?*."^;    P^'ll^l^);,^'''*"^^^*'.^!  ^'-  ^'  oiSnead  v.   State,  203  S.   W.   703, 

806,   198   N.   1.   329,   reversing   juag-       ^34   vt-j-    qqq 

nfv'.no'   ""•    ^'    ^-    ''"''    '"'    ^'''''  e.  Roberts 'v.  State,  106  S.  W.  952. 

N.    C.     State  v.    Riley,   113   N.   C.  rfv,       7         ^  it  o-  ,,-  ^ 

648    18  S    E    168  g.!  people  v.  Collison,  85  Mich.  105, 

dr.     State  V.   Reed,  97   P.   627,  52  if  ^;^'-  2^-'    ^^l'^<^  ^'-  Curry,  128 

Or.   377.  N.   W.  213,  163  Mich.   ISO,   30  L.   R. 

57  Everett    v.    Williams,    67    S.    E.  ^-    i^-   S.)   892. 
265,   152  N.   C.  117.  64. People  v.  Warren,  81  N.  W.  360, 

5  8  State  V.    Seifert,   92   A.   345,   86  122  Mich.  504,  SO  Am.  St.  Rep.  582; 

N.    J.   Law,   706.    affirming   judgment  People   v.   North,   117  N.  W.   63,  153 

(Sup.)  88  A.  947,  85  N.  J.  Law,  104.  Mich.   612. 


§  114 


INSTRUCTIONS  TO  JURIES 


204 


their  duty  to  bring  in  a  verdict  of  guilty,  if  the  court  thinks  the 
evidence  warrants  such  an  instruction,^^  and  in  misdemeanor 
cases,  where  the  facts  are  undisputed,  it  is  not  considered  revers- 
ible error  to  direct  a  verdict  of  guilty.®® 


C.   DiRKCTiNG  VERDICT'  OR  DECLARING  LaW  IF  THE  JURY   BELIEVE 

THE  Evidence 
§114.     In  civil  cases 

Where  the  evidence  is  conflicting,  or  more  than  one  inference 
can  be  drawn  therefrom,  it  is  error  to  instruct  that,  if  the  jury 
believe  the  evidence  or  believe  certain  witnesses,  they  shall  find 
for  one  party  or  the  other,  since  such  an  instruction  virtually  sub- 
mits to  the  jury  only  the  question  of  the  credibility  of  the  wit- 
nesses and  prevents  them  from  construing  the  evidence,®'  and  the 
court  should  refuse  to  give  such  a  charge  unless  the  party  asking 
it  wholly  abandons  that  part  of  his  evidence  in  conflict  with  that 
of  his  adversary.®*  But  where  there  is  no  conflict  in  the  evidence, 
and  the  facts  in  issue  are  directly  proved  by  the  evidence  of  one 
party  or  the  other,  or  are  a  necessary  and  inevitable  inference  of 
law  from  such  evidence,®^  and  therefore  the  case  turns  solely  upon 


6  5  People  V.  Neumann,  48  N.  W. 
290,  85  Mich.  98. 

6  6  People  V.  Neumann,  85  Mich. 
98,  48  N.  W.  290;  People  v.  Collison, 
48  N.  W.  292,  85  Mich.  105;  People 
V.  Neal.  106  N.  W.  857,  143  Mich. 
271. 

67  Ala.  Central  of  Georgia  Ry. 
Co.  V.  Bagley.  55  So.  894,  173  Ala. 
611;  United  States  Life  Ins.  Co.  v. 
Lesser,  28  So.  646,  126  Ala.  568; 
Louisville  &  N.  R.  Co.  v.  Malone,  109 
Ala.  509.  20  So.  33;  Nelson  v.  War- 
ren, 93  Ala.  408,  8  So.  413;  Sublett 
V.  Hodges,  88  Ala.  491,  7  So.  296; 
Sultzner  v.  State,  43  Ala.  24. 

Ga.     Jarrett  v.  Arnold,  30  Ga.  323. 

Idaho.  Ralston  v.  Plowman,  1 
Idaho,  595. 

Ky.  Bucklin  v.  Thompson,  1  J. 
J.  ]Marsh.  223;  McPherson  v.  Ilick- 
mans,  1  T.  B.  Mon.  170;  Western  & 
Southern  Life  Ins.  Co.  v.  Kaiser,  13 
Ky.  Law  Rep.  (abstract)  206. 

Md.     Cook  V.  Duvall,  9  Gill,  460. 

N.  Y.  Reilly  v.  Tliird  Ave.  R.  Co. 
fSup.)  16  Misc.  Rep.  11,  37  N.  Y. 
S.  593;    Dolan  v.  President,  etc.,  of 


Delaware  &  H,  Canal  Co.,  71  N.  T. 
285. 

N.  C.  Everett  v.  Receivers  of 
Richmond  &  D.  R.  Co.,  27  S.  E.  991, 
121  N.  C.  519. 

W.  Va.  Dickeschied  v.  Exchange 
Bank,  28  W.  Va.  340. 

Tlie  proper  form  of  instruction 
in  such  case  is  to  require  that  the 
belief  of  the  jury  arise  "from"  the 
evidence.  Louisville  &  N.  R.  Co.  v. 
Sherrell.  44  So.  631,  152  Ala.  213. 

6  8  Gibson  v.  J.  Snow  Hardware 
Co.,  94  Ala.  346,  10  So.  304 ;  Carter 
V.  Shorter,  57  Ala.  2.53;  Williams  v. 
Hartshorn.  30  Ala.  211;  Knight  v. 
Bell,  22  Ala.  198. 

60  Ala.  Birmingham  Ry.,  Light  & 
Power  Co.  v.  Rutledge,  39  So.  338, 
142  Ala.  195 ;  Emrich  v.  Gilbert  Mfg. 
Co..  35  So.  322.  138  Ala.  316. 

N.  C.  Proffitt  ^Mercantile  Co.  v. 
State  :Mut.  Fire  Ins.  Co..  97  S.  E. 
476,  176  N.  C.  545;  Cowell  v.  Phoe- 
nix Ins.  Co.,  36  S.  E.  184,  126  N.  C. 
684 ;  Nelson  v.  Atlanta  Home  Ins. 
Co.,  27  S.  E.  38,  120  N.  C.  302;  Gai- 
ther  V.  Ferebee,  60  N.  C.  303. 

Vt.  Lindsay  v.  Lindsay,  11  Vt. 
621. 


205 


DIRECTING  VERDICT 


§  115 


the  credibility  of  the  witnesses,  it  will  be  proper  in  some  juris- 
dictions to  give  such  an  instruction/"  and  it  is  not  improper  to 
charge  in  effect  that,  if  the  jury  find  the  facts  as  they  are  claimed 
to  be  by  a  party,  he  is  entitled  to  a  verdict,  since  this  involves  a 
determination  by  the  jury  whether  they  will  believe  the  evidence 
of  one  side  or  the  other  whenever  there  is  a  conflict.'^ 

§  115.     In  criminal  cases 

Where  there  is  some  evidenc-e  tending  to  show  the  guilt  of  a 
defendant  in  a  criminal  prosecution,  an  instruction  that  if  the 
jury  believe  the  evidence  they  must  find  a  verdict  of  not  guilty  is 
erroneous,  as  invading  their  province,'^  and  a  charge  affirmative 
of  guilt,  predicated  upon  a  belief  of  the  evidence  by  the  jury, 
should  not  be  given  where  there  is  any  evidence  upon  which  an 
acquittal  can  be  based,  or  where  the  facts  pointing  to  guilt  rest 
in  inference  only."^  Such  an  instruction  will  be  erroneous,  where 
the  evidence  only  tends  to  show  the  guilt  of  the  defendant.'* 
Where  the  evidence  is  without  conflict  and  justifies  a  conviction, 
it  is  not  error  in  some  jurisdictions  to  instruct  that,  if  the  jury 
believe  the  evidence  beyond  a  reasonable  doubt,  they  should  find 
a  verdict  of  guilty.'®  In  one  jurisdiction,  however,  it  is  held  that, 
while  such  a  charge  may  not  be  error  under  some  circumstances, 


7  0  Ala.  Bryan  v.  Ware,  20  Ala. 
687;  McKenzie  v.  Stevens,  19  Ala. 
691. 

Ky.  Swartzwelder  v.  United 
States  Bank,  1  J.  J.  Marsh.  38. 

Me.     Todd  v.  Whitney,  27  Me.  480. 

N.  C.  Wool  V.  Bond,  118  N.  G.  1, 
23  S.  E.  923;  I^ve  v.  Gregg,  117  N. 
G.  467.  23  S.  E.  332. 

Pa.  Daubert  v.  Pennsylvania  K. 
R..  155  Pa.  178,  26  A.  108. 

Direction  as  to  amount  of  re- 
covery. Where  damages  for  breach 
of  contract  are  unliquidated  and 
cannot  be  liquidated  with  absolute 
certainty,  it  is  error  to  instruct  tliat, 
if  the  jury  believe  plaintiff's  uncon- 
tradicted testimony,  they  must  find 
in  his  favor  for  the  amount  claimed. 
Pearce  v.  Bond,  71  Pa.  Super.  Gt. 
501. 

71  Kleiner  v.  Third  Ave.  R.  Go.,  56 
N.  E.  497,  162  N.  Y.  193,  reversing 
judgment  57  N.  Y.  S.  1140,  38  App. 
Div.  623. 

7  2  Ala.  Smith  v.  State.  72  So.  316, 
197  Ala.  193;  Brock  v.  State  (App.) 
61  So.  474 ;   Scott  v.  State,  43  So.  181, 


150  Ala.  59;  Moss  v.  State.  40  So. 
340,  146  Ala.  686;  Bell  v.  State,  37 
So.  281,  140  Ala.  57;  Frost  v.  State, 
27  So.  251.  124  Ala.  85;  Keller  v. 
State,  26  So.  323.  123  Ala.  94 ;  With- 
ers v.  State.  23  So.  147.  117  Ala.  89. 

Instruction  predicated  on  be- 
lief in  defendant's  testimony. 
Where  on  a  criminal  prosecution  the 
evidence  as  to  the  commission  of  the 
offense  was  in  contlict.  defendant's 
testimony  showing  him  not  guilty,  it 
was  proper  to  refuse  to  instruct  that 
if  the  jury  believed  defendant's  evi- 
dence they  should  acquit.  Stevens 
V.  State,  75  So.  708.  16  Ala.  App. 
116;  Shepherd  v.  State,  33  So.  266, 
133  Ala.  9. 

7  3  Clemmons  v.  State.  52  So.  467, 
167  Ala.  20 ;  State  v.  Windlev,  100  S. 
E.  116,  178  N.  C.  670;  State  v.  Green, 
26  S.   E.  234,  48  S.  C.  136. 

74  Brewer  v.  State,  21  So.  355,  113 
Ala.  106. 

7  5  Ala.  Rogers  v.  State,  73  So. 
994,  15  Ala.  App.  483;  Warren  y. 
State,  72  So.  624.  197  Ala.  313 ;  -Mar- 
tin T.  State,  5S  So.  S3,  3  Ala.  App.  90 ; 


§116 


INSTRUCTIONS  TO  JURIES 


20G 


or  at  least  not  reversible  error/^  it  is  subject  to  criticism,  in  that 
it  only  leaves  to  the  jury  the  question  of  the  truth  of  the  evidence, 
and  does  not  permit  them  to  draw  the  conclusions  of  fact  result- 
ing- therefrom.'' 


D'.  Directing  Verdict  or  Declaring  Law  on  a  Hypothetical 
Statement  of  Facts,  or  if  Certain  Facts  are  Found 

Necessity  of  instructions  grouping  facts  for  purpose  of  declaring  law  thereou 
or  directing  verdict,  see  post,  §  285. 

§116.     In  civil  cases 

In  civil  cases  it  is  proper  for  the  court  to  charge,  on  conflicting 
evidence,  that,  if  the  jury  believe  from  the  evidence  that  certain 
facts  exist,  certain  legal  consequences  will  follow,  or  that  they 
mav  or  should  then   find  for  one  party  or  the  other;''*    such   a 


Gilmore  v.  State.  37  So.  359,  141  Ala. 
51 ;  Parrisli  v.  State,  36  So.  1012,  139 
Ala.  16;  Thompson  v.  State,  21  Ala. 
48. 

N.  J.  Derby  v.  State,  37  A.  614, 
eo  N.  J.  Law,  258. 

Instructions  held  not  improper. 
It  is  not  reversible  error  for  the 
court  to  say  to  the  jury  that  if  they 
believe  the  evidence  of  the  witnesses 
of  the  commonwealth,  "as  to  what 
they  saw,  and  as  to  the  admissions 
made  by  the  defendant  afterwards, 
we  thinli  you  should  conclude  that 
the  facts  as  charged  in  the  indict- 
ment are  sustained  by  the  evidence," 
as  it  leaves  the  jury  free  to  pass  on 
the  issues  of  fact  arising  under  the 
evidence.  Commonwealth  v.  Ding- 
man,  26  Pa.  Super.  Ct.  615. 

Conviction  on  defendant's  tes- 
timony. When  defendant  testifies 
in  hi.s  own  behalf,  the  court  may 
charge  that,  if  the  jury  believe  his 
testimony,  they  may  find  him  guil- 
ty, where  such  charge  is  justified  by 
the  evidence.  State  v.  Woolai'd,  25 
S.  I-:.  719,  119  N.  C.  779.  But  such 
a  charge  will  be  error  if  it  does 
not  appear  that  the  testimony  of 
the  defendant,  if  ti-ue,  established 
every  fact  essential  to  warrant  a 
conviction.  Commonwealth  v.  Hull, 
65  Pa.  Super.  Ct.  450. 

-'••  State  v.  Vines,  93  N.  C.  493,  53 
Am.  Rep.  466. 

T7  State  V.  Seaboard  Air  L/ine  Ry., 
r>9  S.  E.  1048,  145  N.  C.  570;    State 


V.  Simmons,  56  S.  E.  701,  143  N.  C. 
613. 

7  8U.  S.  Stitt  V.  Huidekopers,  17 
Wall.  384,  21  D.  Ed.  644. 

Ala.  American  Oali  Extract  Co. 
V.  Rvan,  112  Ala.  337,  20  So.  644; 
Carlisle  v.  Hill,  16  Ala.  398 ;  Irey  v. 
Phifer,  11  Ala.  535. 

Ark.  Thompson  v.  Southern  Lum- 
ber Co.,  148  S.  W.  537,  104  Ark.  196 ; 
Eureka  Stone  Co.  v.  Knight,  100  S. 
W.   878,   82  Ark.   164. 

Cal.  Arundell  v.  American  Oil- 
fields Co.,  160  P.  159,  31  Cal.  App. 
218 ;  Rvan  v.  Los  Angeles  Ice  & 
Cold  Storage  Co.,  112  Cal.  244,  44  P. 
471,  32  L.  R.  A.  524. 

111.  East  St.  Louis  Connecting 
Rv.  Co.  V.  Eggman,  48  N.  E,  981,  170 
111.  5.38,  62  Am.  St.  Rep.  400.  affirm- 
ing judgment  Egmann  v.  East  St. 
Louis  Connecting  Ry.  Co.,  65  111.  App. 
345;  Ladd  v.  Piggot,  114  111.  647,  2 
N.  E.  503. 

Ind.  Fitzpatrick  v.  Papa,  89  Ind. 
17 ;    Bundy  v.  McKnight,  48  Ind.  502. 

Mo.  Britton  v.  City  of  St.  Louis, 
120  Mo.  437,  25  S.  W.  366;  Hamilton 
v.  Home  Ins.  Co.,  94  Mo.  353,  7  S. 
W.  261;  Clemens  v.  Collins.  14  Mo. 
604;  Price  v.  Barnard,  70  Mo.  App. 
175. 

N.  C.  Barringer  v.  Burns,  108  ^s. 
C.  606,  13  S.  E.  142. 

Pa.  Ham  v.  Delaware  &  II.  Canal 
Co.,  142  Pa.  617,  21  A.,  1012. 

S.  C.  Sandford  v.  Seaboard  Air 
Line  Ry.,  01  S.  E.  74,  79  S.  C.  519; 


207 


DIRECTING  VERDICT 


117 


charge  not  being  within  the  rule  against  instructing  on  the  facts 
or  on  the  weight  of  the  evidenpe.'*^ 

§  117.     In  criminal  cases 

The  rule  in  criminal  cases,  as  in  civil,  is  that  a  charge  on  a 
hypothetical  statement  of  facts,  declaring  the  legal  result  thereof, 
or  stating  that,  if  the  jury  find  the  existence  of  certain  facts,  cer- 
tain legal  conclusions  will  follow,  is  not  a  charge  on  the  facts, 
and  does  not  invade  the  province  of  the  jury.**    Accordingly  the 

found  for  a  much  less  sum  it  was 
held  that  both  clauses  were  address- 
ed to  the  amount  of  damages  in 
case  the  jury  found  for  plaintiffs,  and 
were  not  a  dii-ect  charge  to  find  for 
plaintiffs,  or  misleading.  Ellis  v. 
Kirkpatrick  &  Sklles,  74  S.  W.  57, 
32  Tex.  Civ.  App.  243.  Where  the  is- 
sue was  whether  jobs  were  placed  by 
a  foreign  corporation  or  by  a  local 
company  of  the  same  name,  an  in- 
struction that,  if  the  local  company 
in  placing  jobs  acted  as  agent  of  the 
foreign  corporation,  the  verdict  must 
be  against  the  local  company,  was 
within  the  rule  permitting  a  state- 
ment of  facts  hypothetically.  La 
Fitte  V.  :McNeel  Marble  Co.,  70  S.  E. 
1013,  88  S.  O.  378. 

7  0  SipntPll  V.  Southern  Ry.,  49  S  E 
215,  70  S.  C.  183;  Sims  v.  Southeni 
Ky.  Co.,  37  S.  E.  836,  .59  S.  C.  246: 
Jenkins  v.  Charleston  St.  Rv.  Co.,  36 
S.  E.  703,  58  S.  C.  373;  Staley  v. 
Stone,  92  S.  W.  1017,  41  Tex.  Civ 
App.  299. 

8  0  Cal.  People  v.  Creeks.  149  P. 
821,  170  Cal.  308 ;  People  v.  Kelly,  79 
P.  846,  146  Cal.  119. 

Ga.  Densley  v.  State.  99  S.  Ju. 
895,  24  Ga.  App.  136;  Yarborough  v. 
State,  86  Ga.  396,  12  S.  E.  650. 

lia.  State  v.  Mitchell,  41  La.  Ann. 
1073,  6  So.  785 ;  State  v.  Lenares,  12 
La.  Ann.  226, 

Me.  State  v.  Beal,  48  A.  124,  94 
Me.  520. 

Nev.  State  v.  Anderson,  4  Nev. 
265. 

N.  H.  State  v.  Davison,  64  A.  761, 
74  N.  H.  10. 

S.  C.  State  v.  Duncan,  68  S.  E. 
684.  86  S.  C.  370,  Ann.  Cas.  1912A, 
1016;  State  v.  Jones,  67  S.  E.  160, 
86  S.  C.  17;  State  v.  Mills,  60  S.  E. 
6&4,  79  S.  C.  187;    State  v.  Nelson,  60 


Boyd  v.  Blue  Ridge  Ry.  Co.,  43  S.  E. 
817,  65  S.  C.  326;  Lagrone  v.  Tim- 
merman,  46   S.   C.  372.  24   S.    E.  290. 

Tex.     Andrews  v.  Parker,  48  Tex. 
94. 

W.  Va.     Baltimore  &  O.  R.  Co.  v. 
Skeels,  3  W.  Va.  556. 

Instructions  lield  proper  ivitli- 
in  rule.  An  instruction  that  if 
plnintiff  has  established  a  complete 
title  and  a  better  title  than  defend- 
ant, she  is  entitled  to  recover  the 
land.  Mitchell  v.  Cleveland,  57  S.  E. 
33,  76  S.  C.  432.  An  instruction  that 
if  in  approaching  the  crossing  de- 
fendant's employes  discovered  plain- 
tiff, and  caused  an  unnecessary  blast 
of  the  whistle  to  be  sounded,  that  if 
it  was  reasonably  apparent  to  them 
that  such  blast  was  calculated  to 
frighten  the  horse  and  cause  it  to 
run  away  and  injure  plaintiff,  that 
if  such  whistling  was  negligence  and 
frightened  the  horse,  causing  it  to 
run  away,  etc.,  and  that  if  such  neg- 
ligence was  the  proximate  cause  of 
the  injury,  to  find  for  plaintiff,  is 
not  objectionable  as  charging  what 
acts  or  omissions  constituted  negli- 
gence. Paris  &  G.  N.  Ry.  Co.  v. 
Calvin  (Tex.  Civ.  App.)  103  S.  W. 
428,  judgment  affii-med  (Sup.)  106 
S.  W.  871,  101  Tex.  291.  Where,  in 
an  action  for  a  certain  sum  as  com- 
missions for  the  sale  of  a  light- 
ing plant,  the  court  charged  that  if 
the  jury  found  for  plaintiff's,  and 
they  had  a  contract  with  defendants 
either  express  or  implied,  for  such 
sum,  the  jury  should  find  the  amount 
so  expressed  or  implied  by  the  con- 
tract, but,  if  there  was  no  contract 
for  a  certain  sum  as  commissions, 
they  should  find  such  an  amount  as 
was  a  reasonable  compensation  for 
the  sei*vices  performed,  and  the  jury 


117 


INSTRUCTIONS  TO  JURIES 


208 


court  may  in  its  charge  group  the  constituent  elements  of  the 
offense  which  is  the  subject  of  the  prosecution,  and  instruct  that 
if  these  are  proved  beyond  a  reasonable  doubt  the  jury  should 
convict  the  accused,^^  and  if  not  proved  they  should  acquit.^^ 


S.  E,  307,  79  S.  C.  97 ;  State  v.  Whit- 
tle, 37  S.  E.  923,  59  S.  C.  297 :  State 
V.  Auffhtrey,  27  S.  E.  199.  49  S.  C. 
2S5:  State  v.  Aughtry,  26  S.  E.  619, 
49  S.  C.  285. 

Tex,  Reese  v.  State.  203  S.  W. 
769,  83  Tex.  Cr.  R.  394;  Lester  v. 
State.  154  S.  W.  554,  69  Tex.  Cr. 
R.  426;  Pace  v.  State  (Cr.  App.)  79 
S.  W.  .531;  Williams  v.  State,  77  S. 
W.  215.  45  Tex.  Cr.  R.  477;  Monee- 
veis  V.  State  (Cr,  App.)  70  S.  W.  94. 

Instrnctions  proper  ivithin 
rule.  An  instruction,  on  a  trial  for 
keeping  and  maintaining  a  gaming 
house,  that  the  state  relies  on  certain 
facts  from  which  the  jury  must  reach 
certain  conclusions,  that  if  the  jury 
go  to  a  private  house  in  a  city  ahout 
2  o'clock  in  the  day  and  see  the  fam- 
ily sitting  around  the  table  in  the 
dining  room,  with  food  on  the  table, 
they  would  conclude  that  those  peo- 
ple were  at  dinner,  and  that  they 
can  tell  a  gambling  den  from  the 
facts  shown  and  reach  their  con- 
clusion. State  V.  Lane.  63  S.  E.  612, 
82  S.  C.  144.  A  charge,  in  a  prose- 
cution for  assault  with  intent  to  kill, 
in  which  defendant  claimed  that  he 
was  insane  from  a  blow  on  his  head 
by  the  prosecuting  witness  when  he 
did  the  cutting,  but  prosecuting  wit- 
ness claimed  that  accused  was  at- 
tacking him  with  a  knife  when  he 
struck  accused,  that  if  accused  was 
insane  from  the  blow  when  he  cut 
prosecuting  witness  he  was  not  respon- 
sible unless  he  was  at  fault  in  bring- 
ing on  the  difficulty  was  not  objec- 
tionable for  hypothesizing  whether 
accused  was  at  fault.  State  v.  Coyle, 
67  S.  E.  24,  86  S.  C.  81,  138  Am.  St. 
Rep.  1022.  An  instruction,  in  a 
homicide  case,  where  the  defense  was 
that  the  killing  was  in  self-defense 
while  defendants  were  attempting  to 
arrest  deceased,  who  was  an  escaped 
convict,  that  if  a  convict  take  a  gun 
from  a  guard  forcibly  for  the  purpose 


of  making  safe  his  escape,  but  not 
feloniously  with  intent  to  appropri- 
ate the  same  to  his  own  use,  the  of- 
fense would  not  be  robbery,  and  not 
a  felony.  State  v.  ^Tiittle,  37  S.  E. 
923,  59  S.  C.  297.  An  instruction  on 
manslaughter,  that  if  the  jury  should 
conclude  from  the  evidence  that  ac- 
cused wilfully  and  intentionally  shot 
deceased  because  she  had  thrown  up 
negroes  to  him,  or  because  she  had 
loaned  her  mule,  or  had  drunk  or 
was  drinking  whisky,  he  was  guilty 
of  murder.  State  v.  Taylor,  34  S.  E. 
939.  56  S.  C.  360. 

Charge  on  right  of  self-defense. 
A  charge  that  if  the  jury  believe  that 
defendant  cursed  deceased,  and  told 
him  he  was  going  to  kill  him,  and 
said  this  as  soon  as  he  saw  deceased, 
and.  further,  that  defendant,  immed- 
iately after  using  this  language,  shot 
deceased,  then  defendant  could  not 
be  acquitted  on  the  plea  of  self-de- 
fense, is  not  error,  as  invading  the 
province  of  the  jury.  Logan  v.  State, 
43  So.  10,  149  Ala.  11.  In  a  homicide 
case,  an  instruction  that  if,  before 
accused  threatened  to  shoot  deced- 
ent, the  latter  attempted  to  seize 
or  handle  a  gun  in  such  a  manner  as 
to  induce  accused  to  believe  that 
decedent  intended  to  shoot  him,  ac- 
cused could  shoot  until  it  reasonably 
appeared  to  him  that  he  was  free 
from  danger ;  but,  if  he  began  shoot- 
ing before  decedent  had  made  a  hos- 
tile demonstration,  he  was  not  justi- 
fied in  self-defense,  is  not  on  the  weight 
of  the  evidence  and  is  proper ;  the 
evidence  showing  that  accused  began 
the  shooting  without  provocation. 
Arnwine  v.  State,  114  S.  W.  796,  54 
Tex.  Cr.  R.  213;    Id.,  114  S.  W.  802. 

81  Ga.  Blumenthal  v.  State,  49  S. 
E.  597,  121  Ga.  477 ;  Bradley  v.  State, 
48  S.  E.  981,  121  Ga.  201;  Thomas 
V.   State,  90  Ga.   437,   16   S.    E.   94; 

82  State  V.  Butts,  78  N.  W.  087,  107 
Iowa,  653. 


209 


DIRECTING  VERDICT 


§  117 


Such  a  statement  should  not  embody  any  facts  not  proved  be- 
yond a  reasonable  doubt.^^  The  manner  of  the  giving  of  it  should 
not  be  such  as  to  be  likely  to  influence  the  minds  of  the  jury  with 
respect  to  w^hat  facts  have  been  proved  in  the  case,^*  and  the 
court  in  giving  it  should  not  intimate  that  one  witness  is  more 
credible  than  another,  or  that  the  jury  ought  to  believe  any  par- 
ticular testimony,^^  and  the  court  should  caution  the  jury  that 
they  are  not  to  assume  the  existence  or  nonexistence  of  any  of 
the  facts  included  in  such  statement.*® 


Hill  V.  State,  63  Ga.  578,  36  Am.  Rep. 
120. 

111.  Bleich  V.  People,  81  N.  E.  36, 
227  111.  SO. 

Ind.  McNulty  v.  State,  81  N.  E. 
109,  40  Ind.  App.  113;  Bloom  v.  State, 
58  N.  E.  81,  155  Ind.  292. 

Miss.  Hemingway  v.  State,  68 
Miss.  371,  8  So.  317. 

N.  Y.  People  V.  Grotty,  47  N.  Y. 
S.  845,  22  App.  Div.  77. 

Tex.  Lewis  v.  State,  162  S.  W. 
866,  72  Tex.  Cr.  R.  377;  Dickson  v. 
State,  146  S.  W.  914,  66  Tex.  Cr.  R. 
270;  Gavinia  v.  State,  145  S.  W.  594, 
65  Tex.  Cr.  R.  572:  Hernandez  v. 
State  (Cr.  App.)  145  S.  W.  596 ;  Hen- 
derson V.  State,  117  S.  W.  825,  55 
Tex.  Cr.  R.  640 ;  Valles  v.  State  (Cr. 
App.)  71  S.  W.  598;    Crook  v.  State, 

45  S.  W.  720,  39  Tex.  Cr.  R.  252. 
Wash.     State  v.   Gohl,  90  P.   259, 

46  Wash.  408. 

Instructions  proper  xidthin 
rule.  An  instruction  to  convict  de- 
fendant "if  yon  believe  from  the  evi- 
dence beyond  a  reasonable  donbt  that 
at  the  time  in  question  he  committed 
an  assault,  or  aided  or  advised  tlie 
assault  upon  the  prosecuting  witness 
for  the  purpose  of  robbery,  and  that 
in  making  the  assault  he  intended 
to  use  whatever  force  might  be  nec- 
INST.TO  Juries— 14 


essary  to  overcome  the  prosecuting 
witness  and  accomplish  his  purpose 
— that  of  robbei-y."  State  v.  Fenton, 
70  P.  741,  30  Wash.  325.  An  insti-uc- 
tion  that  if  defendant  took  hold  of 
the  prosecutrix,  and  tore  oyien  her 
coat,  and  seized  her  arm,  with  intent 
to  have  carnal  intercourse  against 
her  will,  and  with  the  intent  of  ac- 
complishing his  object  at  all  events, 
without  regard  to  any  resistance  she 
would  make,  he  was  guilty  of  an  a^ 
sault  with  intent  to  commit  rape. 
State  v.  Urie,  70  N.  W.  603,  101  Iowa, 
411. 

Hypothesizing  proof  of  allega- 
tions of  indictment.  Where  the 
allegations  of  an  indictment  are  le- 
gally sufficient  to  describe  the  act 
charged,  it  is  not  error  to  instruct 
the  .I'uiT  that  on  proof  thereof  beyond 
a  reasonable  doubt  it  must  convict. 
Walker  v.  State.  52  S.  E.  319,  124 
Ga.  97;  McCaucrhev  v.  State,  59  N. 
E.  169.  156  Ind.  41. 

8  3  Danford  v.  State.  43  So.  593,  53 
Fla.  4. 

8  4  Sharpe  v.  State,  48  Ga.  16; 
State  v.  Durr,  39  La.  Ann.  751,  2  So. 
546. 

8  5  Thomas  v.  State,  86  S.  W.  404, 
74  Ark.  431. 

80  People  V.  Chadwick,  76  P.  884, 
143  Cal.  116. 


118 


INSTRUCTIONS  TO  JURIES 


210 


CHAPTER  IX 
GENERAL  CONSIDERATIONS  AS  TO  NECESSITY  OF  INSTRUCTIONS 

§  118.     General  rule  requiring  instructions  to  juries. 

119.  Some  limitations  upon  the  general  rule  requiring  instructions. 

120.  Necessity  of  general  instructions  in  addition  to  those  given  on  request. 

§  118.     General  rule  requiring  instructions  to  juries 

The  general  rule  is,  both  in  civil^  and  in  criminal  cases,-  that 
it  is  the  right  of  the  parties  to  demand  and  the  duty  of  the  court 
to  give  instructions  to  the  jury  within  proper  limits,  and  where 
the  court  refuses  to  answer  separately  requests  presented  by 
counsel  it  is  necessary  that  proper  instructions  be  given  on  all  the 
principles  of  law  which  necessarily  arise  in  the  case.^  In  some 
jurisdictions  statutory  provisions  make  it  the  dut}^  of  the  court 
to  charge  the  "law  of  the  case,"  by  which  is  meant  the  substantial 
issues  of  the  case.*  In  a  criminal  case  any  doubt  as  to  the  pro- 
priety of  instructions  should  be  resolved  in  favor  of  the  accused,^ 
and  the  fact  that  the  defendant  has  offered  no  evidence  in  his  own 
behalf  does  not  bar  him  from  asserting  the  right  to  have  proper 
instructions   given 


6 


1  Fla.  Seaboard  Air  Line  Ry.  Co. 
V.  Kay,  74  So.  523,  73  Fla.  .554. 

Ind.  Pittsburgh,  C,  C.  &  St.  L.  Ry. 
Co.  V.  Cottman,  101  N.  E.  22,  52  Ind. 
App.  661 ;   Welch  v.  Watts,  9  Ind.  115. 

Mont.  T.  C.  Power  &  Bro.  v.  Turn- 
er, 97  P.  950,  37  Mont.  521. 

Tex.  Beaumont,  S.  L.  &  W.  Ry. 
Co.  V.  Myrick  (Civ.  App.)  208  S.  W. 
935;  Whaley  v.  McDonald  (Civ.  App.) 
194  S.  W.  409;  Lyon  v.  Bedgood,  117 
S.  W.  897,  54  Tex.  Civ.  App.  19. 

Va.     Brooke  v.  Young,  3  Rand.  106. 

2  Cal.  People  v.  Fox  (App.)  185  P. 
211. 

Ga.     Thomas  v.  State,  67  Ga.  767. 

Ind.  Bloom  V.  State,  58  N.  E.  81, 
155  Ind.  292;  Parker  v.  State,  35  N. 
E.  110."),  136  Ind.  284. 

Ky.  King  v.  Commonwealth,  220 
S.  W.  755.  187  Ky.  782;  Ileilman  v. 
Commonwealth,  84  Kv.  457,  1  S,  W. 
731,  8  Ky.  Law  Rop.'451,  4  Am.  St. 
Rep.   207. 

La.  State  v.  Tucker,  38  La.  Ann. 
536. 


Mass.  Commonwealth  v.  Knee- 
land,  20  Pick.  206. 

Mo.  State  v.  Chick,  221  S.  W.  10, 
282  Mo.  51;  State  v.  Stonum.  62  Mo. 
596;    State  v.  Matthews,  20  Mo.  55. 

Neb.  Young  v.  State,  104  N.  W. 
867.  74  Nel).  346.  2  L.  R.  A.  (N.  S.)  66. 

N.  M.  Territory  v.  Baca,  71  P.  460, 
11  N.  M.  559. 

N.  C.  State  v.  Fulford,  32  S.  E. 
377,  124  N.  C.  798. 

N.  D.  State  v.  Lesh,  145  N.  W.  829, 
27  N.  D.  165. 

Or.  State  v.  Reed,  97  P.  627,  52  Or. 
377. 

Tenn.  Lang  v.  State,  16  Lea,  433, 
1  S.  W.  318. 

Tex.  Curry  v.  State.  4  Tex.  App. 
574 ;    Xoland  v.  State.  3  Tex.  App,  .598. 

3  Jacobs  v.  Curtis  (Pa.)  11  Leg.  Int. 
27. 

4  Gibson  &  Cunningham  v.  Purifoy, 
120  S.  W.  1047,  56  Tex.  Civ.  App.  379. 

5  Gambrell  v.  State,  46  So.  138,  92 
Miss.  728,  17  L.  R.  A.  (N.  S.)  291,  131 
Am.  St,  Rep,  549.  16  Ann.  Cas.  147. 

«  Frazier  v.  Commonwealth  (Ky,) 
114  S.  W.  268. 


211 


NECESSITY    OF    INSTRUCTIONS    IN    GENERAL 


§118 


In  the  performance  of  this  duty  the  court  should  nistruct  as 
to  just  what  the  jury  is  to  decide  giving  the  law  applicable  to  the 
case  and  calling  their  attention  to  whatever  is  necessary  and 
proper  to  guide  them  to  a  right  decision.'  Such  duty  requires 
the  court  to  tell  the  jury  what  facts  are  admitted  of  record,«  and 
to  instruct  on  all  the  material  issues  presented  by  the  pleadmgs 
^nd  the  evidence,^  and  upon  every  point  pertment  to  the  issues 
so  raised  i»     The  jury  should  not  be  left  to  determine  the  issues 


7U.  S.  (O.  C.  A.  Mo.)  Nortliern 
Central  Coal  Co.  v.  Hughes,  224  F. 
57  139  C.  C.  A.  619 ;  (C.  C.  A.  Tenu.) 
Massee  v.  Williams,  207  F.  222,  124 
C    C    A.  492. 

'Ark.*  Hot  Springs  St.  Ry.  Co.  v. 
Hildreth,  82  S.  W.  245,  72  Ark.  572. 

Conn.     Beardsley  v.  Irving.  71  A. 

580,  81  Conn.  489;   Wilson  v.  Town  of 

Granby,  47  Conn.  59,  36  Am.  Rep.  51. 

Ga.     Moody  v.  Davis,  10  Ga.  403. 

111.     Sampsell  v.  Kybczynski,  82  N. 

E.  244,  229  HI.  75. 

Ind.  Henry  v.  Epstein,  95  N.  E. 
275,  50  Ind.  App.  660. 

Iowa.  Bruckshaw  v.  Chicago,  R.  I. 
&  P.  Ry.  Co.,  155  N.  W.  273,  173  Iowa, 
207;  Blades  v.  Des  Moines  City  Ry. 
Co  123  N.  W.  1057.  146  Iowa,  580; 
Wise  V.  Outtrim,  117  N.  W.  264,  139 
Iowa,  192,  130  Am.  St.  Rep.  301. 

S.  C.  Osteen  v.  Southern  Ry.  Co., 
86  S.  E.  30,  101  S.  C.  532,  L.  R.  A. 
1916A.  505. 

W.Va.  Davis  v.  Webb,  33  S.  E.  97, 
46  W.  Va.  6. 

sDwight  Mfg.  Co.  V.  Word,  75  So. 
979  200  Ala.  221 ;  Barton  v.  City  of 
Odessa,  82  S.  W.  1119,  109  Mo.  App. 
76;  Butcher  v.  Death,  15  Mo.  271. 

0  Ga.  Savannah  Electric  Co.  v. 
Johnson,  76  S.  E.  1059,  12  Ga.  App. 
154. 

Neb.  Kimball  v.  Lanning,  16o  N. 
W.  890,  102  Neh.  63. 

N.  Y.  Jacobson  v.  Fraade,  107  N. 
Y.  S.  706,  56  Misc.  Rep.  631. 

N.  C.     Patterson  v.  North  Carolina 

Lumber  Co.,  58  S.  E.  437,  145  N.  C.  42. 

Ohio.     Baltimore   &    O.    R.    Co.   v. 

Lockwood,  74  N.  E.  1071,  72  Ohio  St. 

"*  Okl.     Tubby  v.  State,  178  P.  491,  15 
Okl.  Cr.  496. 

Tex.  Flewellen  v.  State,  204  S.  W. 
657,  S3  Tex.  Cr.  R.  568. 


Utak.  McKinney  v.  Carson,  99  P. 
660,  35  Utah,  180. 

W.  Va.  State  v.  Alie,  96  S.  E. 
1011,  82  W.  Va.  601. 

In  North  Carolina  the  court  is  re- 
quired by  statute,  held  to  be  manda- 
tory, to  submit  the  issues  "arising  on 
the  pleadings."  Burton  v.  Rosemary 
Mfg.  Co.,  43  S.  E.  480,  132  N.  C.  17. 
And,  while  a  party  cannot  complain 
because  a  particular  issue  was  not 
submitted  to  the  jury  unless  he  ten- 
dered it,  the  issues  submitted  must  in 
themselves  be  sufficient  to  dispose  of 
the  controversy  and  enable  the  court 
to  proceed  to  judgment.  Falkner  v. 
Pilcher  &  Co.,  49  S.  E.  945,  137  N.  C. 
449. 

10  111.  Mississippi  Valley  Traction 
Co.  V.  Coburn,  132  111.  App.  624 :  Wil- 
liams V.  Watson,  71  111.  App.  130. 

Ind.  Jared  v.  Goodtitle,  1  Blackf. 
29. 

Me.     Lapish  v.  Wells,  6  Greenl.  175. 
N.  C.     Allen    v.    Durham    Traction 
Co.,  56  S.  E.  942,  144  N.  C.  288. 

N.  D.  Putnam  v.  Prouty,  140  N. 
W.  93,  24  N.  D.  517. 

Ohio.  Lytle  v.  Boyer,  33  Ohio  St. 
506. 

Pa.  Freeman  v.  Pennock,  1  Watts, 
405,  note,  3  Pen.  &  W.  317,  note. 

Tex.  Galveston,  H.  i^  S.  A.  Ry.  Co. 
V.  Worth  (Civ.  App.)  107  S.  W.  958. 

Vt.  Rowell  V.  Town  of  Vershire, 
62  Vt  405,  19  A.  990,  8  L.  R.  A.  708 ; 
Vaughan  v.  Porter,  10  Vt.  266. 

Va.  Lemons  v.  Harris,  80  S.  E. 
740,  115  Va.  809;  Lynchburg  Tele- 
phone Co.  v.  Booker,  50  S.  E.  148,  103 
Va.  594. 

Matters  upon  which  instructions 
required  within  rule.  Where,  in 
an  action  for  injury  to  plaintiffs  busi- 
ness bv  false  representations,  the 
court   withdrew   the  plaintiffs   claim 


118 


INSTRUCTIONS  TO  JURIES 


212 


for  themselves,"  but  should  be  clearly   and  concisely  told  what 
material  facts  must  be  found  to  authorize  or  bar  a  recovery/-  and 
if  there  is  no  evidence  to  support  a  particular  count  of  a  declara-" 
tion  the  jury  should  be  instructed  to  disregard  such  count.^^    The 


to  recover  because  of  contracts  in  re- 
straint of  trade,  with  a  long  discus- 
sion of  tlie  proper  construction  of  the 
law  in  regard  thereto,  and  the  charge 
failed  to  furnish  sufficient  guidance 
as  to  the  facts  necessary  to  warrant 
a  recovery,  or  as  to  the  measure  or 
elements  of  damage,  there  was  such 
a  failure  to  charge  as  to  vital  issues 
as  to  authorize  reversal  of  an  order 
denying  a  new  trial.    Virtue  v.  Cream- 
ery Package  Mfg.  Co.,  142  N.  W.  930, 
123  Minn.  17,  L.  R.  A.  191.5B,  1179, 
reargument   denied   142   N.   W.   1136, 
123  Minn.  17,  L.  R.  A.  191.5B,   1195. 
Where,  in  an  action  for  injuries  to  a 
servant,  defendant  pleaded  negligence 
of  plaintiff's  fellow   servants  as  the 
proximate  cause  of  her  injuries,  and 
such  defense  was  not  submitted  by  the 
court's  main  charge,  it  was  its  duty  to 
give  special  charges  on  such  issue  if 
there  was  any  evidence  to  support  the 
defense,  and  the  request  embodied  a 
,  correct  enunciation  of  the  law  appli- 
cable thereto.    G.  A.  Duerler  Mfg,  Co. 
V.  Eichhorn,  99  S.  W,  715,  44  Tex.  Civ. 
App.   638.     Where,  in  an  action  for 
personal  injuries,  there  was  evidence 
tending  to  show  that  plaintiff's  blad- 
der trouble  resulted  from  the  improp- 
er use  of  a  catheter,  it  was  error  to 
refuse  to  instruct  that  if  the  trouble 
was  not   caused   directly   by  his   in- 
juries, but  from  the  improper  use  of 
the  catheter,  or  any  other  cause  not 
connected  with  the  accident,  he  could 
not  recover  for  such  trouble,  though 
the    court    instructed    that    plaintiff 
could  only  recover  for  injuries  proxi- 
mately resulting  from  the  alleged  neg- 
ligence.   Missouri,  K.  &  T.  Ry.  Co.  of 
Texas  v.  Smith  (Tex.  Civ.  App.)  101 
S.  W.  4.13. 

In  cases  of  felony,  the  court  is  re- 
quired to  charge  the  law  upon  every 
phase  of  the  case;  and  a  conviction 
for  murder  should  be  set  aside  for  a 
failure  to  cliarge  the  law  of  homicide 
by  negligence,  where  it  is  applicable 
to  facts  put  in  evidence.  Mlistou  v. 
State,  10  Tex.  App.  361. 


Construction  of  ■written  instru- 
ments. It  is  the  duty  of  the  court, 
on  request,  to  instruct  the  jury  as  to 
the  legal  effect  of  all  written  instru- 
ments which  are  the  subject  of  the 
controversy  and  the  basis  of  the  suit, 
or  which  are  in  evidence  before  the 
jury. 

Ala.  Earbee  v.  Craig,  1  Ala.  607; 
Branch  Bank  at  Mobile  v.  Bovkin,  9 
Ala.  320 ;   Long  v.  Rogers,  17  Ala.  540. 

Fla.  Ropes  v.  Minshew,  41  So.  53S, 
51  Fla.  299. 

111.     Montag  V.  Linn,  23  111.  551. 

R.  I.  Wheeler  v.  Schroeder,  4  R.  I. 
383. 

Tenn.  Kendrick  v.  Cisco,  13  Lea, 
247 ;  Louisville  &  N.  R.  Co.  v.  McKen- 
na,  13  Lea,  280. 

Tex.  Houston  &  T.  C.  Ry.  Co.  v. 
Shirley,  89  Tex.  95,  31  S.  W.  291; 
Coyle  V.  McXabb  (App.)  18  S.  W.  198. 

Va.  Norwich  Lock  Mfg.  Co.  v. 
Hockaday,  16  S.  E.  877,  89  Va.  557. 

11  Kohr  V.  Metropolitan  St.  Ry.  Co., 
92  S.  W.  1145,  117  Mo.  App.  302 ;  Boyd 
V.  St.  Louis  Transit  Co.,  83  S.  W.  287, 
108  Mo.  App.  303 ;  Ferris  v.  Marshall, 
96  N.  W.  602,  1  Neb.  (Unof.)  377. 

Withdraival  of  certain  counts  of 
petition.  An  instruction  withdraw- 
ing certain  counts  of  a  petition  from 
the  consideration  of  the  jury,  and 
stating  that  the  verdict  must  be  baswl 
on  the  remaining  count,  is  erroneous, 
unless  the  issues  presented  by  such 
count  are  defined  in  the  instructions. 
Blackmore  v.  Missouri  Pac.  Ry.  Co., 
62  S.  W.  993,  162  Mo.  455. 

12  Krieger  v.  Aurora.  E.  &  C.  R.  Co., 
90  N.  E.  266,  242  111.  544 ;  Mouoghuu 
V.  Bowers,  171  N.  W.  38,  185  Iowa, 
708;  Henry  v.  Disbrow  Mining  Co., 
128  S.  W.  .841,  144  Mo.  App.  350. 

13  Bachmann  v.  Southern  Coal  & 
Mining  Co.,  165  111.  App.  485;  Rich- 
mond Railway  &  Electric  Co.  v. 
Bowles,  92  Va.  738,  24  S.  E.  388.  Com- 
pare Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Kelly 
(Tex.  Civ.  App.)  34  S.  W.  140. 


:213 


NECESSITY  OP   INSTRUCTIONS  IN   GENERAL 


118 


court  should  submit  all  issues  of  fact  raised  by  the  pleadings  and 
evidence,  and  not  merely  such  as  are  supported  by  a  preponder- 
ance of  the  evidence/*  and  the  jury  should  be  instructed  on  the 
precise  issues  of  fact  in  the  case,  whether  the  verdict  is  to  be 
special  or  general;^®  the  submission  of  a  case  on  special  issues 
not  depriving  a  party  of  the  right  to  have  the  attention  of  the  jury 
affirmatively  called  to  an  issue  asserted  by  him  which  has  evi- 
dence to  support  it.^®  Facts  or  principles  of  law  which  have  an 
important  bearing  on  the  case  should  be  brought  to  the  notice  of 
the  jury,  although  the  arguments  of  counsel  have  failed  to  cover 
them,^'^  and  the  fact  that  the  court  has  reason  to  believe  that  the 
jury  is  familiar  with  the  particular  proposition  of  law  involved 
in  the  case  on  trial  will  not,  as  a  general  rule,  justify  it  in  refusing 
to  instruct  thereon  if  so  requested.^*  The  trial  judge  should  be 
careful,  not  only  to  state  all  appropriate  rules  of  law,  but  to  point 
out  their  relevancy  with  sufficient  explicitness  to  enable  the  jury 
intelligently  to  apply  the  law  to  the  facts.^* 

Either  party  is  entitled  to  have  an  instruction  given  presenting 
his  theory  of  the  case,  if  it  has  support  in  the  pleadings  and; evi- 
dence,^® and  the  court  may  be  required  affirmatively  to  state  the 


14  Hutchinson  Purity  Ice  Cream  Co. 
V.  Des  Moines  City  Ry.  Co.,  154  N.  W. 
890,  172  Iowa,  527 ;  Parks  v.  Sullivan 
(Tex.  Civ.  App.)  1.52  S.  W.  704. 

15  Village  of  Madison ville  v.  Rosser, 
28  Ohio  Cir.  Ct.  R.  834. 

16  Texas  Baptist  University  v.  Pat- 
ton  (Tex.  Civ.  App.)  145  S.  W.  1063; 
International  &  G.  N.  R.  Co.  v.  Jack- 
son, 103  S.  W.  709,  47  Tex.  Civ.  App, 
26,  rehearing  denied  105  S.  W.  67. 

1 7  Bailey  v.  Poole,  35  N.  C.  404. 

18  Wolfe  V.  Ives,  76  A.  526,  83  Conn. 
174,  19  Ann.  Cas.  752. 

19  Commonwealth  v.  Principatti,  104 
A.  53,  260  Pa.  587. 

2  0  Ark.  Western  Coal  &  Mining 
■Co.  v.  Harrison,  182  S.  W.  525,  122 
Ark.  125;  Taylor  v.  McClintock,  112 
S.  W.  405,  87  Ark.  243. 

Cal.  Raymond  v.  Hill,  143  P.  743, 
368  Cal.  473;  Tognazzini  v.  Freeman. 
123  P.  540,  18  Cal.  App.  468;  Wani- 
orek  V,  United  Railroads  of  San  Fran- 
cisco, 118  P.  947,  17  Cal.  App.  121; 
Buckley  v.  Silverberg,  45  P.  804,  113 
Cal.  673. 

Colo.  Denver  City  Tramway  Co.  v. 
Doyle,  167  P.  777,  63  Colo.  500. 


Conn.  Murphy  v.  Connecticut  Co., 
81  A.  961,  84  Conn.  711. 

Ill,  Keokuk  &  H.  Bridge  Co.  v. 
Wetzel,  81  N.  E.  864.  228  111.  253,  af- 
firming judgment  130  111.  App.  81; 
Klofski  V.  Railroad  Supply  Co.,  85  N. 
E.  274,  235  III.  146,  affirming  judg- 
ment Railroad  Supply  Co.  v.  Klofski, 
138  111.  App.  468;  Illinois  Cent.  R. 
Co.  V.  McDaniel,  199  111.  App.  282; 
Casey  v.  Grand  Trunk  Western  Ry. 
Co.,  165  111.  App.  108;  Kokoshkev  v. 
Chicago  City  Ry.  Co.,  162  111.  App.  613. 

Ind.  Baltimore  &  O.  R.  Co.  v.  Peck, 
101  N.  E.  674,  .53  Ind.  App.  281. 

Iowa.  Biggs  V.  Seufferleln,  145  N. 
W.  507,  164  Iowa,  241,  L.  R.  A.  1915F, 
673. 

Kan.  Binkley  v.  Dewall,  58  P. 
1028,  9  Kan.  App.  891. 

Ky.  Louisville  &  N.  R,  Co.  v.  Mc- 
Coy, 197  S.  W.  801,  177  Ky.  415;  Pack 
V.  Camden  Interstate  Rv.  Co.,  157  S. 
W.  906,  154  Ky.  535;  Julius  Winter, 
Jr.,  &  Co.  v.  Forrest,  140  S.  W.  1005, 
145  Ky   581. 

Md.  Lion  v.  Baltimore  Citv  Pass 
Ry.  Co.,  44  A.  1045,  90  Md.  266,  47  L. 
R.  A.  127. 

Mich.     American  Cushman  Tel.  Co. 


§  118 


INSTRUCTIONS   TO  JURIES 


214 


negative  side  of  an  issue.-^  If  a  party  has  two  or  more  theories 
of  a  cause  of  action  or  defense,  each  of  which  has  some  support  in 


V.  Noble,  56  N.  W.  1100,  98  Mich.  67 ; 
Miller  v.  Miller,  56  N.  W.  348,  97 
Mich.  151:  Wildey  v.  Crane,  36  N. 
W.  734,  69  Mich.  17;  Comstock  v.  Nor- 
ton. 36  Mich.  277. 

Minn.  Defoe  v.  St.  Paul  City  Ry. 
Co.,  65  Minn.  319,  68  N.  W.  35. 

Mo.  Boles  V.  Dunham  (App.)  208  S. 
W.  480  ;  Rooker  v.  Deering  Southwest- 
ern Ry.  Co.  (App.)  204  S.  W.  556 ;  Col- 
lins V.  Rankin  Farms  (App.)  180  S.  W. 
1053;  National  Warehouse  &  Storage 
Co.  v.  Toomey,  163  S.  W.  558,  181  Mo. 
App.  64. 

Neb.  Mentz  v.  Omaha  &  C.  B.  St. 
Rv.  Co.,  170  N.  W.  889,  103  Neb.  216, 
rehearing  denied  173  N.  W.  478,  103 
Neb.  216;  McKennan  v.  Omaha  &  C. 
B.  St.  R.  Co..  146  N.  W.  1014,  95  Neb. 
643;  Hancock  v.  Stout,  28  Neb.  301, 
44  N.  W.  446. 

Nev.  Crosman  v.  Southern  Pac. 
Co.,  173  P.  223,  42  Nev.  92;  Zelavin 
V.  Tonopah  Belmont  Development  Co., 
149  P.  188,  39  Nev.  1. 

N.  J.  Scott  V.  Mitchell,  41  N.  J. 
Law,  346. 

N.  M.  Cerrillos  Coal  R.  Co.  v.  Des- 
crant,  49  P.  807,  9  N.  M.  49. 

N.  Y.  Kearns  v.  Brooklyn  Heights 
R.  Co.,  69  N.  Y.  S.  856,  60  App.  Div. 
631. 

Okl.  Brlstow  V.  Central  State 
Bank  (Sup.)  173  P.  221;  Mountcastle 
v.  Miller  (Sup.)  166  P.  1057;  Menten 
V.  Richards,  153  P.  1177,  54  Okl.  418 ; 
Spurrier  Lumber  Co.  v.  Dodson,  120 
P.  934,  30  Okl.  412. 

Or.  De  Vol  v.  Citizens'  Bank,  179 
P.  282,  92  Or.  606,  rehearing  denied 
181  P.  985,  92  Or.  606;  Cerrano  v. 
Portland  Ry.,  Light  &  Power  Co.,  126 
1\  37.  02  Or.  421 ;  Ayer  v.  Moon,  117 
P.  991,  59  Or.  .599. 

Tenn.  :\remphis  St.  Rv.  Co.  v. 
Newman,  69  S.  W.  269,  108  Tenn.  666. 

Tex.  Southern  Traction  Co.  v. 
Jones  (Civ.  App.)  209  S.  W.  457; 
Southwestern  Telegraph  &  Telephone 
Co.  V.  Andrews  (Civ.  App.)  178  S.  W. 
574;  "Warren  v.  Kimmoll  (Civ.  App.) 
141  S.  W.  159;  Bangle  v.  Missouri,  K. 
&  T.  Ry.  Co.  of  Texas  (Civ.  App.)  140 
S.  W.  374  ;  Pecos  &  N.  T.  Rv.  Co.  v. 
Bivin.s,   K:o  S.  W.   210,  61   Tex.   Civ. 


App.  170:  International  &  G.  N.  R. 
Co.  V.  Williams  (Civ.  App.)  129  S.  W. 
847;  Barnes  v.  Dallas  Consol.  Electric 
St.  Ry.  Co.  (Sup.)  128  S.  W.  367,  re- 
versing judgment  Dallas  Consol.  Elec- 
tric St.  Ry.  Co.  V.  Barnes  (Civ.  App.) 
119  S.  W.  122. 

Utah.  Pratt  v.  Utah  Light  &  Trac- 
tion Co.,  169  P.  868;  Martineau  v. 
Hanson,  155  P.  432,  47  Utah,  549. 

Va.  Baylor  v.  Hoover,  97  S.  E.  309, 
123  Va.  659 ;  Norfolk  &  W.  Ry.  Co.  v. 
Parrish,  89  S.  E.  928,  119  Va.  670; 
Virginia  Ry,  &  Power  Co.  v.  McDem- 
mick,  86  S.  E.  744,  ;117  Va.  862 ;  Adam- 
son's  Adm'r  v.  Norfolk  &  P.  Traction 
Co.,  69  S.  E.  1055,  111  Va.  556. 

Wash.  Gabrielson  v,  Hague  Box  & 
Lumber  Co.,  104  P.  635,  55  Wash.  342, 
133  Am.  St.  Rep.  1032. 

W.  Va.  Angrist  v.  Burk,  87  S.  E. 
74,  77  W.  Va.  192. 

Wyo.  Taylor  v.  Stockwell,  145  P. 
743,  22  Wyo.  492,  rehearing  denied  147 
P.  328,  22  Wyo.  492. 

Illustrations  of  instructions  re- 
quired under  rule.  In  an  action  by 
a  passenger  for  injuries  received  while 
alighting,  where  the  court  authorized 
a  verdict  in  favor  of  plaintiff  if  the 
jury  believed  that  the  train  was  start- 
ed without  giving  reasonable  time  to- 
plaintiff  to  alight  therefrom,  defend- 
ant was  entitled  to  have  given  a  re- 
quested instruction  which  was  the 
converse  of  such  instruction.  Cincin- 
nati, N.  O.  &  T.  P.  Ry.  Co.  v.  Francis, 
220  S.  W.  739,  187  Ky.  703.     Where 

21  Galveston,  H.  &  S.  A.  Ry.  Co.  v. 
Wilson  (Civ.  App.)  214  S,  W.  773; 
Gammase  v.  Gamer  Co.  (Com.  App.) 
213  S.  W.  930,  setting  aside  judgment 
(Com.  App.)  209  S.  W.  389.  which  re- 
versed (Civ.  App.)  Gamer  Co.  v.  Gam- 
mage,  102  S.  W.  980 ;  Southern  Trac- 
tion Co.  V.  Jones  (Civ.  App.)  209  S. 
W.  457;  Quanah,  A.  &  P.  Ry.  Co.  v. 
Lancaster  (Civ.  App.)  207  S.  W.  606; 
Sherrill  v.  Union  Lumber  Co.  (Civ. 
App.)  207  S.  W.  149:  Northern  Texas 
Traction  Co.  v.  Moberlv  (Civ.  App.) 
109  S.  W.  483;  Wimherly  v.  State, 
22  Tex.  App.  506,  3  S.  W.  717 ;  Irvine 
V.  State,  20  Tex.  App.  12. 


2to  NECESSITY  OF   INSTRUCTIONS   IN   GENERAL  §  119 

the  evidence,  he  has  a  right  to  instructions  covering  all  of  such 
theories ;  -^  and  a  party  has  a  right,  not  only  to  tender  his  own 
theory  of  the  cause,  but  likewise,  without  waiving  his  own  theory, 
to  tender  instructions  to  meet  the  theory -of  the  opposite  party .~=* 

In  a  criminal  case  the  trial  judge  must  state  the  contentions 
of  both  the  state  and  the  defendant,-*  and  charge  on  all  the  is- 
sues made  by  the  testimony,  whether  the  same  are  raised  by  the 
testimony  of  the  accused  or  some  other  witness,-^  and  the  con- 
tentions of  the  defense  regarding  which  instructions  are  to  be 
given  are  not  confined  exclusively  to  the  contentions  of  the  de- 
fendant in  his  statement  to  the  jury,  but  include  such  as  may  be 
made  and  argued  ^by  his  counsel  before  the  court  and  jury,-**  and 
the  trial  court  should  fairly  and  freely  submit  for"  the  considera- 
tion of  the  jury  any  issue  or  theory,  favorable  to  the  accused,  pre- 
sented by  the  evidence.^^ 

In  some  jurisdictions  the  court  may  be  required  to  declare  to 
the  jury  its  judicial  knowledge  of  relevant  facts.^^ 

§  119.     Some  limitations  upon  the  general  rule  requiring  instruc- 
tions 

The  rule  that  a  party  has  a  right  to  have  the  jury  instructed 
upon  his  theory  of  the  case  does  not  apply,  if  his  theory  is  con- 
trary to  the  law  applicable  to  the  case.~^  The  trial  court  is  not 
required  to  give  a  formal  statement  of  the  issues  to  the  jury;    it 

derailment  of  a  train  is  alleged  to  be  law  therein  embodied  are  sound.     St. 

due  t©  the  negligence  of  defendant  in  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Hatch,  94 

certain  specified  particulars,  and  the  S,  W.  671,  116  Tenn.  580. 

railroad  offers  evidence  of  facts  which  -  -  Stevens  &   Elkins   v.  Lewis-Wil- 

it    claims    caused    the   accident,    and  son-Hicks  Co.,  182  S.  W.  840,  168  Ky. 

which  would  relieve  it  from  responsi-  648,  judgment  modified  on  rehearing 

bility,  the  court  should  present  both  185  S.  W.  873,  170  Ky.  238;    Crow  v. 

theories  to  the  jury.     St.  Louis  &  S.  Burgin  (Miss.)  38   So.  625;    Miller  «& 

F.  R.  Co.  v.  Posten,  124  P.  2,  31  Okl.  Co.  v.  Lyons,  74  S.  E.  194,  113  Va.  275. 

821.  2  3  Ziehme  v,  Metz,  157  111.  App.  543. 

Right  of  accused.     Defendant  in  a  2  4  Parks  v.  State,  100  S.  E.  724,  24 

criminal  case  is  entitled  to  a  proper,  Ga.  App.  243 ;    Banks  v.  State,  89  Ga. 

specific  instruction  applied  to  the  facts  75,  14  S.  E,  927 ;   Snowden  v.  State,  12 

of  the  case  developed  by  the  evidence,  Tex.  App.  105,  41  Am.  Rep.  667 ;  Davis 

notwithstanding  the  giving  of  a  gen-  v.  State,  10  Tex.  App.  31. 

eral  instruction  on  the  essential  ele-  25  Medford  v.  State,  216  S.  W.  175, 

ments  of  the  offense  and  the  necessity  86  Tex.  Cr.  R.  237. 

of  establishing  them  beyond  a  reason-  26  Autrey  v.  State,  100  S.  P].  782,  24 

able  doubt.    Hipes  v.  State,  73  Ind.  39.  Ga.  App.  414. 

It  is  held,   however,    that  where  srpeyton  v.   State,   183  P.  639,   16 

the  court  correctly  lays  down  the  law  Okl.  Cr.  410;  Jones  v.  State,  216  S.  W. 

applicable  to  the  case,  without  under-  884,  86  Tex.  Cr.  R.  371. 

taking  to  state  the  theory  of  either  28  State   v.    Magers,   57  P.   197,   35 

party,  it  is  not  error  to  refuse  instruc-  Or.  520. 

tions    embracing    the   theory    of   one  29  Sturm  v.  Central  Oil  Co.,  156  111. 

party,  even  though  the  propositions  of  App.  165. 


INSTRUCTIONS  TO  JURIES 


216 


§  119 

being  sufficient  if  it  directs  the  jury  as  to  the  facts  necessary  to 
justify  a  recovery  and  states  what  will  defeat  a  recovery .^^  It  is 
proper  to  refuse  instructions  which  are  not  necessary  to  enable 
the  jury  to  perform  their  duty.^^  Only  such  instructions  should 
be  requested  as  bear  upon  the  law  of  the  case  and  will  aid  the 
jury  in  trying  and  determining  the  issues,  as  unnecessary  instruc- 
tions afford  opportunities  for  error  and  are  burdensome  to  the 
courts,  and  are  calculated  to  confuse  and  mislead  the  jury.^^  Thus 
a  refusal  to  charge  as  to  an  obvious  fact,'^^  or  on  a  matter  of  fact 
which  has  been  made  plain  by  the  evidence  and  as  to  which  no 
doubt  can  exist  in  the  minds  of  the  jury,  is  not  error ;3*  nor  is  it 
error  to  refuse  to  charge  as  to  matters  of  common  knowledge  and 


3  0  Kenny  v.  Bankers'  Accident  Ins. 
Co.  of  Des  Moines,  113  N.  W.  566,  136 
Iowa,  140. 

31 U.  S.  (C.  C.  Mass.)  Locke  v. 
United  States,  Fed.  Cas.  No.  8,442,  2 
Cliff.  574. 

Cal.  Cody  v.  Market  St.  Ky.  Co., 
S2  P.  666.  148  Cal.  90. 

Fla.  Randall  v.  Parramore,  1  Fla. 
409. 

Mo.  Corbitt  V.  Mooney,  84  Mo.  App. 
645. 

N.  C.  Duckworth  v.  Orr,  36  S.  E. 
150,  126  N.  C.  674. 

Tex.  Stark  v.  Burkitt  (Civ.  App.) 
120  S.  W.  939. 

Wasli.  Lambert  v.  La  Conner 
Trading  &  Transportation  Co.,  79  P. 
008.  37  Wash.  113. 

Wis.  Burns  v.  Town  of  Elba,  32 
Wis.  605. 

In  Oregon,  a  statute  requiring  the 
court,  in  charging  the  jury,  to  state 
all  matters  of  law  which  the  court 
thinks  necessary  for  their  informa- 
tion in  giving  their  verdict,  does  not 
make  it  the  duty  of  the  court,  in  the 
absence  of  a  request,  to  charge  on  all 
collateral  matters.  State  v.  Smith,  83 
P.  SO.'),  47  Or.  485. 

Instractions  Turith  respect  to  dis- 
position of  an  accused,  acquitted 
on  ground  of  insanity.  Under  a 
statute  providing  that  in  charging  the 
jury  the  court  must  state  to  them  all 
matters  of  law  which  are  necessary 
for  their  information  in  giving  their 
verdict,  it  is  not  necessary  to  instruct 
as  to  what  is  done  \\ith  one  acquitted 
on  the  ground  of  insanity,  but  defend- 
ant's counsel,  in  argument,  may  call 


attention     thereto.      Copenhaver     v. 
State,  67  N.  E.  453,  160  Ind.  540. 

Where  an  affidavit  for  continu- 
ance was  admitted  as  the  deposi- 
tion of  the  absent  witness,  and  as 
such  read  to  the  jury,  it  was  not  error 
for  the  court  not  to  instruct  them  spe- 
cially that  it  was  to  be  treated  as  the 
deposition.  Deitz  v.  Regnier,  27  Kan. 
94. 

Effect  of  pleadings.  Although  it 
is  the  province  of  the  court  to  deter- 
mine from  the  pleadings  what  allega- 
tions are  admitted  or  denied,  instruc- 
tions to  tbe  jury  on  the  effect  of  the 
pleadings  can  only  be  demanded  as  of 
right  when  a  necessity  for  tliem  ex- 
ists. Fannon  v.  Robinson,  10  Iowa, 
272;    Potter  v.  Wooster,  Id.,  334. 

But  a  new  trial  will  be  granted, 
where  the  jury  is  not  instructed  by 
the  court,  on  the  ground  that  the  case 
is  too  clear  for  one  of  the  parties  to 
render  such  instruction  useful,  and 
the  jury  find  for  the  other  party. 
Page  V.  Pattee,  6  Mass.  459. 

3^  Farnsworth  v.  Tampa  Electric 
Co..  57  So.  2.33,  62  Fla.  166;  State  v. 
Donnelly,  1.30  Mo.  642,  32  S.  W.  1124. 

The  extent  of  the  court's  duty 
to  instruct  is  to  give  such  instruc- 
tions as  are  correct  in  law,  adapted  to 
the  issues,  and  sufficient  for  the  guid- 
ance of  the  jury.  Baer  v,  Baird  Mach. 
Co.,  79  A.  673,  84  Conn.  269. 

3  3  People  V.  Scott,  141  P.  945,  24 
Cal.  App.  440;  Keys  v.  State,  70  So. 
457,  110  Miss.  433. 

3  4  Bell  V.  Chicago.  B.  &  Q.  Ry.  Co., 
74  Iowa,  343,  37  N.  W.  768;  Edwards 
V.   Schreiber,  153  S.  W.  69,  168  Mo. 


217 


NECESSITY   OF  INSTRUCTIONS   IN   GENERAL 


§11'J 


experience  of  all  men  who  have  arrived  at  years  of  discretion,^'""' 
and  it  is  proper  to  refuse  an  instruction  on  a  matter  as  much 
within  the  knowledge  of  the  jury  as  of  the  judge. ^*^  It  is  not  the 
province  of  the  court  to  give  to  the  jury  a  statement  which  is  true 
as  a  matter  of  fact,  and  is  a  plain  common-sense  proposition,  but  is 
not  a  legal  proposition.^'"  The  court  is  not  required  to  instruct 
the  jury  as  to  matters  of  art  or  science,^*  and  is  not  bound  to  tell 
the  jury  that,  according  to  the  principles  of  natural  philosophy  or 
of  physics,  one  fact  necessarily  results  as  a  consequence  from  an- 
other fact.2®  Xhe  reasons  for  the  giving  of  instructions  need  not 
be  _  incorporated  therein,*"  and  the  giving  of  a  wrong  reason  for 
an  'instruction  otherwise  correct  will  not  render  it  improper." 

A  statute  which  provides  that  the  court  shall  give  such  instruc- 
tions upon  the  law  as  may  be  necessary  cannot  be  considered 
mandatory  to  the  extent  of  making  it  obligatory  upon  the  court 
to  instruct  as  to  the  law  of  a  case,  where  no  instructions  are 
asked  and  no  questions  of  law  are  involved.*^  In  criminal  cases  in 
some  jurisdictions  the  court  cannot  be  required  to  instruct  as  to 


App.  197:  Fanners'  Bank  v.  Fudge, 
82  S.  W.  1112,  109  Mo.  App.  186; 
Missouri,  K.  &  T.  Ry.  Co.  of  Texas  v. 
Box  (Tex.  Civ.  App.)  93  S.  W.  134; 
Thomson  Bros.  v.  Lynn,  81  S.  W.  330, 
36  Tex.  Civ.  App.  79. 

3  5  u.  S.  (C.  C.  A.  Arli.)  Lesser  Cot- 
ton Co.  V.  St.  Louis,  I.  M.  &  S.  Ry.  Co., 
114  F.  133,  52  C.  C.  A.  95. 

Cal.  In  re  Nutt's  Estate,  185  P. 
593,  181  Cal.  522;  Higginsv.  Williams, 
45  P.  1041,  114  Cal.  176;  Davis  v.  Mc- 
Near.  101  Cal.  606,  36  P.  105. 

Iowa.  Bailey  v.  City  of  Le  Mars, 
179  N.  W.  73. 

Mo.  Williams  v.  St.  Louis,  M.  &  S. 
E.  R.  Co.,  96  S.  W.  307,  119  Mo.  App. 
663 ;  State  v.  Garth,  65  S.  W.  275,  164 
Mo.  553. 

Advising  jury  to  consult  togeth- 
er. That  part  of  defendant's  request- 
ed instruction  to  effect  that  .iury 
should  consult  with  one  another  about 
the  case,  the  evidence,  etc.,  and  in  case 
of  difference  of  opinion  talk  over  the 
case  carefully,  etc.,  involved  a  mere 
commonplace,  and  its  refusal  was  not 
error,  especially  where  court  charged 
to  that  effect.  People  v.  Epperson,  176 
P.  702,  38  Cal.  App.  486. 

3  6  Birmingham  Railway  &  Electric 


Co.  V.  Wildman,  24  So.  548,  119  Ala. 
547. 

3  7  Oglesby  v.  Missouri  Pac.  Ry.  Co., 
150  Mo.  137,  37  S.  W.  829,  reversed  on 
rehearing  51  S.  W.  758,  150  Mo.  137. 

Statement  as  to  mental  capacity 
of  boy.  A  request  to  charge  that  the 
undisputed  evidence  shows  that  intes- 
tate was  a  bright  boy  of  his  age  and 
had  more  mental  capacity  than  the 
average  hoy  of  his  age  was  properly 
refused  as  asserting  no  proposition 
of  law.  Moss  V.  Mosley,  41  So.  1012, 
148  Ala.  168. 

3  8  Rowland  v.  Marine  Ins.  Co.  of 
Alexandria  (C.  C.  D.  C.)  Fed.  Cas.  No. 
6,798,  2  Cranch,  C.  C.  474;  Sewanee 
Min.  Co.  V.  Best,  3  Head  (Tenn.)  701. 

3  9  Case  V.  Weber,  2  Ind.  108. 

4  0  King  Solomon  Tunnel  &  Develop- 
ment Co.  V.  Mary  Verna  Mining  Co., 
127  P.  129,  22  Colo.  App.  528:  Strong 
V.  Kadlec,  163  111.  App.  298 ;  Corn  Ex- 
change Nat.  Bank  v.  Ochlare  Orchards 
Co.,  150  N.  W.  651,  97  Neb.  536. 

41  Marion  v.  State,  20  Neb.  233,  29 
N.  W.  911,  57  Am.  Re]i.  825 :  Rupp  v. 
Orr,  31  Pa.  517 ;  State  v.  Garvin,  26 
S.  E.  570,  48  S.  C.  258. 

42  Hamill  v.  Hall,  4  Colo.  App.  290, 
35  P.  927. 


§    120  INSTRUCTIONS  TO  JURIES  218 

the   law,*^   and    in    some   other   jurisdictions    instructions   are    not 
recjuired  in  prosecutions  for  misdemeanors.^* 

§  120.  Necessity  of  general  instructions  in  'addition  to  those 
given  on  request 
In  some  jurisdictions  the  court  need  not  instruct  generally  of 
its  own  motion,  in  addition  to  giving  requested  instructions,*^ 
where  the  instructions  so  given  sufficiently  cover  the  case  i***  but, 
if  the  instructions  given  on  request  contain  only  separate  and  dis- 
connected propositions,  a  failure  to  give  a  general  charge  in  the 
court's  own  language  will  be  erroneous,*'  and  in  some  jurisdic- 
tions there  are  mandatory  statutes  requiring  the  court  at  the  con- 
clusion of  arguments  of  counsel  to  give  general  instructions  to 
the  jury."*^ 

43  Esterline  v.  State,  66  A.  269.  105  Anderson  (Tex.  Civ.  App.)  130  S.  W. 
Md.  629:  Baltimore  &  Y.  Turnpike  261;  Dejarnette  v.  Commonwealtli,  75 
Road  V.  State,  63  Md.  573,  1  A.  285.  Va.  867. 

44  state  V.  Poundstone,  124  S.  W.  4oNeihardt  v.  Kilmer,  12  Neb.  35, 
79,  140  Mo.  App.  399 ;    State  v.  O'Con-  iq  x.  W.  531. 

nor,  65  Mo.  App.  324  :    Goode  v.  State,  ,„ -n,  '        t^  i         -.-i    /-vi  ■     /-.• 

171  S.  W.  714,  75  Tex.  Cr.  R.  550.  '' ^  oof'^Vn   ^   o'l'c  ' 

45  Reasoner  v.  Brown,  19  Ark.  234;       ^^-  ^^-  '^^-^'  ^  ^-  ^'  ^-  '^■^^• 

Davis  V.  Michigan  Cent.  R.  Co.,  Ill  4  8  Cleveland  v.  Emerson,  99  N,   E. 

X.  W.  76,  147  Mich.  479;    Steiner  v.      796,  51  Ind.  App.  339. 


219       -  APPLICABILITY   TO   PLEADINGS   AND   EVIDENCE  §  121 


CHAPTER  X 

RELxVTION  AND  APPLICABILITY  OF  INSTRUCTIONS  TO  PLEADINGS 

AND  EVIDENCE 

A.  Rule  Agaiinst  Giving  Abstract   Instbuctions 
§  121.     In  general. 

122.  Limitations  of  rule. 

123.  Specilic  applications  of  rule. 

124.  AVhat  are  abstract  instructions. 

B.     Instructions  as  Affected  or  Controlled  by  the  Ple'adings 
1.  In   Civil   Cases 

125^     Rule  that  instructions  must  not  be  broader  than  the  pleadings. 

126.  Scope  of  rule  against  broadening  issues  by  instructions. 

127.  Instructions  on  matters  outside  the  pleadings,  but  shown  by  the  evi- 

dence. 

128.  Declaring  legal  effect  of  evidence  not  pertinent  to  issues  raised  by  the 

pleadings. 

129.  Effect  of  failure  to  object  to  evidence  upon  issues  outside  scope  of 

pleadings. 

130.  Specific  applications  of  rule  against  broadening  issues. 

131.  Rule  that  instructions  must  not  be  narrower  than  the  pleadings. 

132.  Instructions  considered  with  reference  to  complaint  containing  more 

than  one  count. 

2.  In  Criminal  Cases 

133.  Rule  that  instructions  should  conform  to  allegations  of  indictment  or 

to  issues  raised  by  pleadings. 

134.  Limitations  of  rule. 

135.  Instructions  on  conspiracy,  although  not  alleged  in  indictment. 

136.  Instructions  where  indictment  contains  more  than  one  count,  or  where 

several  distinct  criminal  acts  are  proved. 

C.    Applicability  of  Instructions  to  the  Evidence 

137.  Rule  that  instructions  must  be  based  on  the  evidence. 

138.  Rule  in  criminal  eases. 

139.  Evidence  excluded  or  withdrawn,  or  improperly  admitted. 

140.  Sufficiency  of  evidence  to  support  instructions. 

141.  Who  to  determine  question  of  sufficiency  of  evidence. 

142.  Effect  of  violation  of  rule. 

D.     Instructions  Excluding  or  Ignoring  Issues,  Defenses,  or  Evidence 

143.  General  rule. 

144.  Ignoring  evidence. 

145.  Limitations  oi  rule. 


A.  Rule  against  Giving  Abstract  Instructions 

§121.     In  general 

The  practice  of  announcing  correct  general  principles   of  law, 
without  applying  them  to  particular  phases  of  the   evidence,   is 


121 


INSTRUCTIONS  TO  JURIES 


220' 


not  to  be  commended,^  and  the  modern  tendency  is  to  depart 
from  the  former  practice  of  giving  general  or  abstract  instruc- 
tions and  to  charge  in  as  specific  and  concrete  a  form  as  possible.^' 
Instructions,  therefore,  which  announce  mere  abstract  principles 
of  law,  without  specific  application  to  the  case  in  hand,  are  prop- 
erly refused,^  and  while,  if  the  principle  enunciated  is  correct  and 


1  Southern  Anthracite  Coal  Co.  v. 
Bowen,  124  S.  W.  1048,  93  Ark.  140. 

2  Louisville  &  N.  R.  Co.  v.  King's 
AdmT,  115  S.  W.  196,  131  Ky.  347. 

3  Ala.  Atlanta  B.  &  A.  R.  Co.  v. 
Ballard,  82  So.  470,  203  Ala.  220; 
Mobile  County  v.   Linch,  73   So.  423, 

198  Ala.  57. 

Ark.  Helena  Gas  Co.  v.  Rogers, 
147  S.  W.  473.  104  Ark.  59;  Ong 
Chair  Co.  v.  Cook,  108  S.  W.  203,  85 
Ark.  390. 

Cal.  Conlin  v.  Southern  Pae.  R. 
Co.,  182  P.  67,  40  Cal.  App.  733; 
Schmidt  v.  Union  Oil  Co.  of  Califor- 
nia, 149  P.  1014,  27  Cal.  App.  366. 

Conn.  Kelley  v.  Town  of  Torring- 
ton,  68  A.  855,  80  Conn.  378. 

Fla.  American  Mfg.  Co.  v.  A.  H. 
McLeod  &  Co.,  82  So.  802,  78  Fla. 
162. 

111.  People  V.  Adams,  124  N.  E. 
.")75,  289  111.  339 ;  Thome  v.  Southern 
Illinois  Ry.  &  Power  Co.,  206  111.  App. 
262;  Sanboeuf  v.  Murphy  Const.  Co., 
202  111.  App.  548;   Born  v.  Schrieber, 

199  111.  App.  101;  Hardin  v.  City  of 
Moline,  179  111.  App.  101;  Fisher  v. 
Leesman,  168  111.  App,  606;  Grimm 
V.  Donk  Bros.  Coal  &  Coke  Co.,  161 
111.  App.  IQl ;  King  v.  Gray,  160  111. 
App.  259 ;  Perido  v.  Chicago,  B.  & 
Q.  R.  Co.,  144  111.  App.  446. 

Iowa.  Withey  v.  Fowler  Co.,  145 
X.  W.  923,  164  Iowa,  377. 

Kan.  Lebanon  State  Bank  v.  Gar- 
ber,  181  P.  572,  105  Kan.  44;  State 
V.  Menllcott,  9  Kan.  257. 

Ky.  Burton  Const.  Co.  v.  Metcalfe, 
172  S.  W.  698,  162  Ky.  366;  City  of 
Louisville  v.  Uebelhor,  134  S.  W.  152, 
142  Ky.  151. 

Md.  Mutual  Life  Ins.  Co.  of  New 
York  V.  Murray,  75  A.  348,  111  Md. 
000. 

Micli.  Fors  v.  Fors,  123  N.  W.  579, 
159   Mich.  156. 

Minn.  McClure  v.  Village  of 
Browns  Valley,  173  N.  W.  672,  143 
Minn.  3.39,  5  A.  L,  R.  1168. 


Mo.  Seago  v.  Paul  Jones  Realty 
Co.,  170  S.  W.  372,  185  Mo.  App.  292. 

N.  H.  Osgood  V.  Maxwell,  95  A. 
954,  78  N.  H.  35. 

N.  Y.  Hine  v.  Bowe,  114  N.  Y.  350,. 
21  N.  E.  733. 

N.  C.  Edwards  v.  Western  Union 
Telegraph  Co.,  60  S.  E.  900,  147  N. 
C.  126. 

Tex.  Prentice  v.  Security  Ins.  Co. 
(Civ.  App.)  153  S.  W.  925. 

Utah.  Emelle  v.  Salt  Lake  City, 
181  P.  266,  54  Utah,  360. 

Vt.  Green  v.  StockweB,  89  A.  870, 
87  Vt.  459. 

Va.  Washington  &  O.  D.  Ry.  v. 
Ward's  Adm'r,  89  S.  E.  140,  119  Va. 
334. 

W.  Va.  State  v.  Ringer,  100  S.  E. 
413,  84  W.  Va.  546. 

Wis.  Blankavag  v.  Badger  Box 
&  Lumber  Co.,  117  N.  W.  852,  136 
Wis.  380. 

Compann^  liability  of  a  corpo- 
rate litigant  to  tliat  of  an  indi- 
vidual. In  an  action  against  a  town, 
based  upon  its  alleged  negligence  in 
constructing  and  maintaining  certain 
culverts  across  the  grade  of  one  of  its 
highways,  whereby  surface  water  was 
collected  and  discharged  upon  the 
plaintiff's  land,  to  her  injury,  the 
trial  court  did  not  err  in  refusing  to 
charge  the  jury  that  a  town,  in  the 
disposition  of  surface  water,  has  the 
same  rights,  and  is  subject  to  the 
same  liabilities,  as  an  individual,  for 
the  reason  that  it  was  an  abstract 
proposition.  Oftelie  v.  Town  of  Ham- 
mond, 80  N.  W.  1123,  78  Minn.  275. 

In  Ohio  it  is  held,  however,  that 
if  a  request  is  a  correct  statement 
of  the  law  and  pertinent  to  the  issue 
it  should  be  given,  notwithstanding 
the  request  is  an  abstract  proposition 
of  law  and  requires  construction  as 
to  its  application.  Cleveland,  P.  & 
E,  R.  Co.  V.  Nixon,  21  Ohio  Cir.  Ct. 
R.  736,  12  O.  C.  D.  79. 


221 


APPLICABILITY  TO   PLEADINGS   AND   EVIDENCE 


§121 


applicable  to  the  case,  it  may  be  sometimes  proper  to  give  such 
an  instruction,*  the  general  rule  is  that  it  is  objectionable  and 
should  not  be  given.^  On  the  contrary,  instructions  should  be 
predicated  upon  the  issues  made  by  the  pleadings  and  the  facts 
appertaining  to  such  issues,  furnished  by  competent  evidence 
introduced  at  the  trial.«  A  charge  which  applies  to  the  facts  of 
a  case  the  rules  of  law  which  govern  the  issues,  and  states  the 
questions  which  the  jury  must  answer,  is  more  useful  than  ab- 
stract propositions  or  dissertations  on  sound  theories,  concerning 
the  application  of  which  to  the  issues  the  jury  are  left  in  doubt.' 
Accordingly    instructions    which    submit    to    the    jury    issues    not 


4U.  S.  (C.  C.  A.  Mich.)  Curcuru 
V.  Peninsular  Electric  Light  Co.,  258 
F.  7S5,  170  C.  C.  A.  79. 

Ala.  McCutcheu  v.  Loggins,  109 
Ala.  457,  19   So.  810. 

Fla.  Gracy  v.  Atlantic  Coast  Line 
R.  Co.,  42  So.  903,  53  Fla.  350. 

111.  Lipsey  v.  People.  81  N.  E.  348, 
227  111.  364;  Riggin  v.  Keck,  203  111. 
App.  87 ;  Hoehn  v.  East  Side  Levee 
&  Sanitary  Dist.,  203  111.  App.  48; 
Eaton  V.  Marion  County  Coal  Co.,  173 
111.  App.  444,  judgment  affirmed  101 
N.  E.  58,  257  111.  567 ;  East  St.  Louis 
Ry.  Co.  V.  Gray,  135  111.  App.  642; 
Olcese  V.  Mobile  Fruit  &  Trading  Co., 
112  111.  App.  281.  judgment  affirmed 
71  N.  E.  1084,  211  111.  539 ;  Norton  v. 
Volzke,  54  111.  App.  545;  Little  v. 
Munson,  54  111.  App.  437. 

Ind.  Grand  Rapids  &  I.  Ry.  Co. 
V.  .Jaqua,  115  N.  E.  73,  66  Ind.  App. 
113;    Behymer  v.  State,  95  Ind.  140. 

Mo.  Cool  V.  Petersen,  175  S.  W. 
244,  189  Mo.  App.  717. 

Neb.  Strong  v.  State,  88  N.  W. 
772,  63  Neb.  440. 

Tenn.  Knoxville  Iron  Co.  v.  Dob- 
son,  15  Lea,  409. 

Tex.  Martinez  v.  Bruui  (Civ.  App.) 
216  S.  W.  655;  Goldstein  v.  Cook 
(Civ.  App.)  22  S.  W.  762. 

W.  Va.  State  v  Long,  108  S.  E. 
279. 

5  Ala.  Montgomen -Moore  Mfg. 
Co.  v.  Leith.  50  So.  210,  162  Ala.  246. 

Ark.  Warren  Vehicle  Stock  Co. 
v.  Siggs,  120  S.  W.  412,  91  Ark.  102. 

Ga.  Clements  v.  Citizens'  Bank- 
ing Co.  of  Eastman,  85  S.  E.  935,  16 
Ga.  App.  636. 

111.     Cleveland,  C,  C.  &  St.  L.  Ry. 


Co.  v.  Henry,  143  111.  App.  265,  judg- 
ment affirmed  Henry  v.  Cleveland,  C, 
C.  &  St.  L.  Ry.  Co.,  86  N.  E.  231,  236 
111.  219 ;  Diefenthaler  v.  Hall,  116  111. 
App.  422. 

Ind.  Town  of  Salem  v.  Goller,  76 
Ind.  291. 

Iowa.  IMitchell  v.  Des  Moines  Citv 
Ry.  Co.,  141  N.  W.  43,  161  Iowa,  100. 

Kan.  Meyer  v.  Reimer,  70  P.  869, 
65  Kan.  822. 

Ky.  American  Book  Co.  v.  Archer, 
186  S.  W.  672,  170  Ky.  744. 

Mo.  Hudgings  v.  Burge  (App.)  194 
S.  W.  886;  Edwards  v.  Lee,  126  S. 
W.  194,  147  Mo.  App.  38;  State  v. 
Elsey,  100  S.   W.  11,  201  Mo.  561. 

Mont.  Sui-man  v.  Cruse,  187  P. 
890. 

N.  H.  Smith  v.  Bank  of  New  Eng- 
land. 54  A.  385,  72  N.  H.  4. 

Okl.  Holmes  v.  Halstid.  183  P. 
969,  76  Okl.  31 ;  Chickasaw  Compress 
Co.  v.  Bow,  149  P.  1166,  47  Okl.  576. 

Utah.  State  v.  Anselmo,  148  P. 
1071,  46  Utah,  137;  Smith  v.  Clark, 
106  P.  653,  37  Utah.  116,  26  L.  R.  A. 
(N.    S.)   953,    Ann.   Cas.    1912B,    1.366. 

Va.  Newport  News  &  O.  P.  Ry. 
&  Electric  Co.  v.  McConnick,  56  S. 
E.  281,  106  Va.  517. 

W.  Va.  Frank  v.  Monongahela 
Valley  Traction  Co.,  83  S.  E.  1009,  75 
W.  A^a.  364 ;  Claiborne  v.  Chesapeake 
&  O.  Ry.  Co.,  33  S.  E.  262,  46  W.  Va. 
363. 

6  Louisville  &  N.  R.  Co.  v.  Moore, 
150  S.  W.  849,  150  Ky.  692. 

7  Frizzell  v.  Omaha  St.  Ry.  Co.  (C. 
C.  A.  Neb.)  124  F.  176,  59  C.  C.  A. 
382;  Abbitt  v.  Lake  Erie  &  W.  Ry. 
Co.,  50  N.  E.  729,  150  Ind.  498. 


121 


INSTRUCTIONS   TO  JURIES 


'^22 


authorized  or  made  by  the  pleading^s  or  evidence  are  erroneous,^ 
and  it  is  proper  to  refuse  instructions  which,  although  correctly 


8  Ariz.  Gila  Valley  G.  &  N.  R.  Co. 
V.  Lyon,  71  P.  857,  8  Ariz.  118. 

Ark.  St.  Louis,  I.  M.  &  S.  R.  Co. 
V.  Thurman,  161  S.  W.  1054,  110  Ark. 
188. 

Cal.  Crabbe  v.  Mammoth  Channel 
Gold  Mining  Co.,  143  P.  714,  168  Cal. 
500. 

Colo.  Globe  Exp.  Co.  v.  Taylor, 
158  P.  717,  61  Colo.  430 ;  Creighton  v. 
Campbell,  149  P.  448,  27  Colo.  App. 
120;  Atchison,  T.  &  S.  F.  Ry.  Co.  v. 
Adcock,  88  P.  180,  38  Colo.  369. 

Ga.  Union  Cotton  Mills  v.  Harris, 
87  S.  E.  1029,  144  Ga.  716 ;  Adams  v. 
Greeson,  85  S.  E.  936,  16  Ga.  App. 
649;  Mallett  &  Nutt  v.  Watkins,  64 
S.  E.  999,  132  Ga.  700,  131  Am.  St. 
Rep.  226;  Savannah  Electric  Co.  v. 
Elarbee,  64  S.  E.  570,  6  Ga.  App.  137. 

Idaho.  Austin  v.  Brown  Bros.  Co., 
164  P.  95,  30  Idaho,  167;  Exchange 
State  Bank  v.  Taber,  145  P.  1090, 
26  Idaho,  723. 

III.  Lyons  v.  Joseph  T.  Ryerson 
&  Son,  90  N.  E.  288.  242  111.  409; 
Himrod  Coal  Co.  v.  Clingan,  114  111. 
App.  568 ;  Wabash  R.  Co.  v.  Stewart, 
87  111.  App.  446. 

Ind.  Lake  Erie  &  W.  R.  Co.  v. 
Beals,  98  N.  E.  453,  50  Ind.  App.  450 ; 
Black  V.  Duncan,  60  Ind.  522. 

Iowa.  Miller  v.  Jones,  159  N.  W. 
671,  178  Iowa,  168;  Hardwick  v. 
Hardwick,  106  N.  W.  639,  130  Iowa, 
2.30;  Blackmau  v.  Kessler,  81  N.  W. 
185,  110  Iowa,   140. 

Kan.  First  Nat.  Bank  of  Arkan- 
sas City  V.  Skinner,  62  P.  705,  10 
Kan.  App.  517. 

Ky.  Polk  V.  Brown,  10  Ky.  Law 
Kej).   (abstract)   541. 

Md.  Davison  Chemical  Co.  v.  An- 
drew Miller  Co.,  89  A.  401,  122  Md. 
134 ;  Baltimore  Elevator  Co.  v.  Neal, 
65  Md.  438,  5  Atl.  338. 

Mich.  Comstock  v.  Norton,  36 
Mich.  277. 

Miss.  Fairfield  v.  Ijouisville  &  N. 
i;.  Co.,  48  So.  513,  94  Miss.  887,  136 
Am.   St.  Rop.  Oil. 

Mo.  Small  v.  Polar  Wave  Ice  & 
Fuel  Co.,  162  S.  W.  709,  179  Mo.  App. 
456 ;  Schumacher  v.  Kansas  City 
Breweries  Co.,  152  S.  W.  13,  247  Mo. 


141 ;  Hamilton  v.  Crowe,  175  Mo.  634, 
75  S.  W.  3S9. 

Mont.  Mitchell  v.  Henderson,  97 
P.  942,  37  Mont.  515;  First  Nat. 
Bank  of  Portland  v.  Carroll,  88  P. 
1012,  35  Mont.  302. 

Neb.  Harvey  v.  Harvey,  106  N. 
W.  660,  75  Neb.  557;  Thorn  v.  Dodge 
County,  90  N.  W.  763,  64  Neb.  845; 
Rath  V.  Rath,  89  N.  W.  612,  2  Neb. 
(Unof.)  600;  Omaha  Loan  &  Trast 
Co.  V.  Douglas  County,  86  N.  W.  936, 
62  Neb.  1 ;  Swift  &  Co.  v.  Holoubek, 
84  N.  W.  249,  60  Neb.  784,  modified 
on  rehearing  86  N.  W.  900,  62  Neb. 
31. 

N.  Y.  Traynor  v.  New  York  Cent. 
&  H.  R.  R.  Co.,  140  N.  Y.  S.  625,  155 
App.  Div.  600;  Franklin  v.  Hoadley, 
130  N.  Y.  S.  47,  145  App.  Div,  228. 

N.  C.  Frick  Co.  v.  Boles,  84  S.  E. 
1017.  168  N.  C.  654. 

Ohio.  Cincinnati  Traction  Co.  v. 
Forrest,  75  N.  E.  818.  73  Ohio  St.  1. 

Okl.  St.  Louis  &  S.  F.  Rv.  Co.  v. 
Dobyns,  157  P.  735,  57  Okl.  643. 

Or.  Ringue  v.  Oregon  Coal  Co., 
75  P.  703,  44  Or.  407. 

Pa.  Saunders  v.  Philadelphia 
Rapid  Transit  Co.,  87  A.  420,  240  Pa. 
^66. 

S.  C.  Daniels  v.  Florida  Cent.  & 
P.  R.  Co.,  39   S.   E.  762,  62  S.  C.  1. 

Tenn.  Louisville  &  N.  R.  Co.  v. 
Satterwhite,  79  S.  W.  106,  112  Tenn. 
185. 

Tex.  Biard  &  Scales  v.  Tyler 
Building  &  Loan  Ass'n  (Civ.  App.)  147 
S,  W,  1168 ;  Ramsey  &  Montgomery  v. 
Empire  Timber  &  Lumber  Co.,  134  S, 
W,  294,  63  Tex,  Civ,  App.  576;  Set- 
tle V.  San  Antonio  Traction  Co.  (Civ. 
App.)  126  S.  W.  15;  Houston,  E.  &  W. 
T.  Ry,  Co.  v.  Dolan  (Civ,  App.)  84  S. 
W.  297;  Galveston,  H.  &  S.  A.  Ry. 
Co.  v.  Herring  (Civ.  App.)  36  S.  W. 
129 ;  Hartford  Fire  Ins.  Co.  v.  Josey, 
6  Tex.  Civ,  App.  290,  25  S.  W,  685. 

Wash.  Kenworthy  v.  Richmond, 
149  P.  348,  86  Wash.  127 ;  Buyken  v. 
Lewis  Const.  Co.,  99  P.  1007,  51 
Wash.  627. 

W.  Va.  Wilhelm  v.  Parkersburg. 
M,  &  I.  Ry.  Co.,  82  S,  E.  1089,  74  W. 
Va.   678. 


223 


APPLICABILITY   TO   PLEADINGS    AND   EVIDENCE 


121 


stating  the  law,  are  inapplicable  to  the  issues  and  the  evidence.* 
An  instruction  stating  an  abstract  proposition  of  law  not  perti- 
nent and  necessary  to  the  case  as  made,  and  not  applicable  to 
any  inquiry  legitimately  before  the  jury  tends  rather  to  confuse 


9U.  S.     (C.  C.  A.  Mich.)  Farmers' 

6  Merchants'  Bank  of  Vaudalia,  111., 
V.  Maines,  195  F.  62,  115  C.  C.  A.  64 ; 
(C.  C.  A.  Ohio)  William  Sebald  Brew- 
ing Co.  V.  Tompkins,  221  F.  895.  137 
C.  C.  A.  465;  (C.  C.  A.  Tenn.)  Mem- 
phis St.  Rv.  Co.  V.  Illinois  Cent.  R. 
Co.,  242  F.  617,  155  C.  C.  A.  307. 

Ala.  Hampton  v.  Tant,  73  So.  825, 
15  Ala.  App.  463:  Robinson  v.  Crot- 
well,  57  So.  23,  175  Ala.  194 ;  South- 
ern Ry.  Co.  V.  W.  T.  Adams  Machin- 
ery Co.,  51  So.  779,  165  Ala.  436. 

Ark.  Bocquin  v.  Theurer,  202  S. 
W.  845.  133  Ark.  448;  Graves  v. 
Melio,  99  S.  W.  80,  81  Ark.  347. 

Cal.  Shelton  v.  Michael,  160  P. 
578,  31  Cal.  App.  328 ;  In  re  Budan's 
Estate,  104  P.  442,  156  Cal.  230. 

Conn.  Goldman  v.  New  York,  N. 
H.  &  H.  R.  Co.,  75  A.  148,  S3  Conn.  59. 

Ga.  Central  of  Georgia  Ry.  Co. 
V.  Cooper,  82  S.  E.  310,  14  Ga.  App. 
738:    Deen  v.  Wheeler,  67  S.  E.  212, 

7  Ga.  App.  507. 

Idaho.  Henry  v.  Jones,  1  Idaho, 
48. 

111.  Martin  v.  Hertz,  79  N.  E.  558, 
224  111.  84.  affii-ming  judgment  118 
111.  App.  297;  Leonard  v.  Excelsior 
Motor  &  Mfg.  Co.,  187  111.  App.  81; 
Kohn  V.  Clarkson.  182  111.  App.  519; 
Schwartz  v.  Anheuser-Busch  Brewing 
Ass'n,  182  111.  App.  338;  Pley  v.  La- 
vette.  167  111.  App.  494;  James  v. 
Conklin  &  Hill,  158  111.  App.  640; 
Farley  v.  Wabash  R.  Co.,  153  111. 
App.  493. 

Ind.  Evansville  Rys.  Co.  v.  Cook- 
sey,  112  N.  E.  541,  63  Ind.  App.  482; 
Plummer  v.  Indianapolis  Union  Ry. 
Co.,  104  N.  E.  601,  56  Ind.  App.  615; 
Ross  V.  Thompson.  78  lud.  90. 

Kan.  City  of  Abilene  v.  Hendricks, 
36  Kan.  196,'  13  Pac.  121. 

Mass.  Coles  v.  Boston  &  M.  R.  R., 
Ill  N.  E.  893,  223  Mass.  408;  Hod- 
gens  V.  Sullivan,  95  N.  E.  969,  209 
Mass.  533. 

Me.     Ross  V.  Maine  Cent.  R.  Co., 


96  A.  223,  114  Me.  287 ;  Lunge  v,  Ab- 
bott. 95  A.  942,  114  Me.  177. 

Mich.  Schoenberg  v.  Boigt,  36 
Mich.  310. 

Mo.  Ludwig  V.  H.  D.  Williams 
Cooperage  Co.,  136  S.  W.  749,  156  Mo. 
App.   117. 

Mont.  Townsend  v.  City  of  Butte, 
109  P.  969,  41  Mont.  410. 

Neb.  Usher  v.  American  Smelting 
&  Refining  Co.,  150  N.  W.,  814,  97 
Neb.  526;  Boesen  v.  Omaha  St.  Ry. 
Co..  119  N.  W.  771,  S3  Neb.  378. 

N.  C.  Tilghman  v.  Seaboard  Air 
Line  R.  Co.,  83  S.  E.  315,  167  N.  C. 
163. 

Ohio.  Lear  v.  McMillen,  17  Ohio 
St.  464. 

Okl.  Grisso  v.  Crump,  160  P.  453, 
61  Okl.  S3:  Finch  v.  Brown,  111  P. 
391.  27  Okl.  217;  First  Nat.  Bank  v. 
Walworth,  98  P.  917,  22  Okl.  878; 
Citizens'  Bank  of  Wakita  v.  Garnett, 
95  P.  755,  21  Okl.  200. 

Tex.  Northwestern  Nat.  Ins.  Co. 
V.  Westmoreland  (Civ.  App.)  215  S. 
W.  471;  Ablon  v.  Wheeler  &  Motter 
Mercantile  Co.  (Civ.  App.)  179  S. 
W.  527 ;  Freeman  v.  Ortiz  (Civ.  App.) 
136  S.  W.  113;  Birge-Forbes  Co.  v. 
St.  Louis  &  S.  F.  R.  Co.,  115  S.  W. 
333,  53  Tex.  Civ.  App.  55. 

Utah.  Manti  City  Sav.  Bank  v. 
Peterson,  93  P.  566,  33  Utah,  209,  126 
Am.  St.  Rep.  817. 

Vt.  Vermont  Box  Co.  v.  Hanks, 
102  A.  91.  92  Vt.  92 ;  Boville  v.  Dal- 
ton  Paper  Mills,  85  A.  623,  86  Vt.  305. 

Immaterial  matters.  It  is  not 
error  to  refuse  an  instruction  on  an 
immaterial  matter.  Minneapolis  Steel 
tS:  Machinery  Co.  v.  Schalanskv,  165 
P.  289,  100  Kan.  562 ;  Mendenhall  v. 
North  Carolina  R.  Co.,  31  S.  E.  4S0, 
123  N.  C.  275. 

Definitions.  It  was  not  error  to 
refuse  an  instruction  refiuesting  a  def- 
inition of  the  abstract  meaning  of  a 
word,  apart  from  the  connection  in 
which  the  jury  might  find  that  the 
word  was  used.  Way  v.  Greer,  81  N. 
E.   1002,   196   Mass.  237. 


121 


INSTEUCTIONS  TO  JURIES 


224 


than  to  aid  them/"  and  where  it  appears  that  the  giving  of  such 
an  instruction  is  calculated  to  mislead,  or  probably  has  misled  the 
jury  to  the  prejudice  of  the  party  complaining  thereof,  the  judg- 
ment will  be  reversed  and  a  new  trial  granted," 
The  above  rule  applies  to  criminal  cases.^^ 


10  U.  S.  (C.  C.  A.  Ark.)  Salmon  v. 
Helena  Box  Co.,  158  F.  300,  85  C.  C. 
A.  551. 

Ark.  Holt  V.  Leslie,  173  S.  W.  191, 
116  Ark.  433. 

Ga.  Gorman  v.  Campbell,  14  Ga. 
137. 

111.  Bone  Gap  Banking  Co.  v. 
Porter,  203  111.  App.  15;  Sibert  v. 
Shoal  Creek  Coal  Co.,  181  111.  App. 
11;  Latham  v.  Cleveland,  C,  O.  &  St 
L.  Ry.  Co.,  164  111.  App.  559. 

Ind.  T.  Missouri,  K.  &  T.  Ry.  Co. 
V.  Webb,  97  S.  W.  1010,  6  Ind.  T. 
280. 

Iowa.  Long  v.  Ottumwa  Ry.  & 
Light  Co.,  142  N.  W.  1008,  162  Iowa, 
11. 

ninstrations  of  misleading  in- 
structions witiin  rule.  In  an  ac- 
tion for  the  death  of  an  automobile 
driver  at  an  interurban  railroad  cross- 
ing, where  there  was  no  contention 
that  the  driver  did  not  have  a  right 
to  be  where  he  was  and  the  evidence 
barely  supported  an  inference  of  free- 
dom from  contributory  negligence,  it 
was  misleading  to  give  a  correct 
charge  that  the  driver  had  a  right 
equal  to  the  interurban  company  to 
use  the  street,  from  which  the  jury 
might  have  inferred  it  was  not  negli- 
gence for  him  to  go  upon  the  crossing 
as  he  did.  Galveston-Houston  Elec- 
tric Ry.  Co.  V.  Patella  (Tex.  Civ. 
App.)  222   S.  W.  615. 

11  Ala.  State  v.  Vance,  80  Ala. 
356;  Beck  v.  State,  80  Ala.  1;  Her- 
ring V.  Skaggs,  73  Ala.  446. 

Ark.  X.  P.  Sloan  Co.  v.  Barham, 
211  S.  W.  381,  138  Ark.  350. 

Cal.  Slaughter  v.  Fowler,  44  Cal. 
195. 

Colo.  White  v.  City  of  Trinidad, 
52  P.  214,  10  Colo.  App.  327. 

111.  Richter  v.  Tegtmeyer,  167  111. 
App.  478 ;  Pierce  v.  Decatur  Coal  Co., 
151  111.  App.  47;  Gilbert  v.  People, 
121  111.  App.  423. 

Ind.     Terre  Haute,  I.  &  E.  Trac- 


tion Co.  V.  Ellsbury  (App.)  123  N.  E. 
810. 

Kan.  Zimmerman  v.  Knox,  8  P. 
104,  34  Kan.  245 ;  Raper  v.  Blair,  24 
Kan.  374. 

Mass.  Cunningham  v.  Davis,  175 
Mass.  213,  56  N.  E.  2. 

Mo.  Grout  V.  Central  Electric  R. 
Co.,  131  S.  W.  891,  151  Mo.  App.  330 ; 
De  Donato  v.  Morrison,  61  S.  W.  641, 
160  Mo.  581. 

Mont.  St.  John  v.  Taintor,  182 
P.   129,  56   Mont.  204. 

Neb.  Sabin  v.  Cameron,  117  N.  W. 
95,  82  Neb.  106  ;  Esterly  v.  Van  Slyke, 
21  Neb.  611,  33  N.  W.  209. 

N.  M.  Cerrillos  Coal  R.  Co.  v. 
Deserant,  49  P.  807,  9  N.  M.  49. 

N.  Y.  Holley  v.  A.  W.  Haile  Mo- 
tor Co.,  177  N.  Y.  S.  429,  188  App. 
Div.  798. 

Ohio.  Cincinnati  Traction  Co.  v. 
Fon-est,  75  N.  E.  818,  73  Ohio    St.  1. 

Or.  Rosenwald  v.  Oregon  City 
Transp.  Co.,  163  P.  831,  84  Or.  15. 

S.  C.  Holmes  v.  Weinheimer,  44 
S.  E.  82,  66  S.  O.  18. 

Va.  Pasley  v.  English,  10  Grat. 
236. 

An  instruction,  even  tkougk 
correct  as  a  proposition  of  law,  if 
misleading  as  to  the  issues,  inapplic- 
able to  the  evidence,  and  calculated 
to  prejudice  the  substantial  rights  of 
the  losing  party,  cannot  be  held  to  be 
a  harmless  error.  Perot  v.  Cooper, 
17  Colo.  80,  28  P.  391,  31  Am.  St.  Rep. 
258. 

12  U.  S.  Battle  v.  United  States, 
28  S.  Ct.  422,  209  U.  S.  36,  52  L.  Ed. 
670,  affirming  judgment  United  States 
v.  Battle  (C.  C.  Ga.)  154  F.  540. 

Ala.  Minor  v.  State,  74  So.  98,  15 
Ala.  App.  556;  Osborn  v.  State,  73 
So.  985,  198  Ala.  21;  Jones  v.  State, 
09  So.  06,  193  Ala.  10;  Anderson  v. 
State  (Sup.)  68  So.  56;  Forman  v. 
State,  67  So.  583,  190  Ala.  22 ;  Kirk- 
wood  V.  State,  63  So.  990,  184  Ala.  9, 
denying  certiorari  02  So.  1011,  8  Ala. 
App.  108 ;    Smith  v.  State,  02  So.  864, 


225 


APPLICABILITY   TO   PLEADINGS   AND    EVIDENCE 


§   122 


§  122.     Limitations  of  rule 

On  the  other  hand,  as  the  foregoing  statement  implies,  the  giv- 
ing of  such  an  instruction  will  not  constitute  ground  for  reversal, 


183  Ala.  10;  Brooks  v.  State,  62  So. 
569,  8  Ala.  App.  277,  judgment  re- 
versed 64  So.  295,  185  Ala.  1 ;  Lewis 
v.  State,  59  So.  577,  178  Ala.  26; 
Hosey  v.  State,  59  So.  549,  5  ALa.  App. 
1;  Faulk  v.  State,  59  So.  225,  4  Ala. 
App.  177;  Cardwell  v.  State,  56  So. 
12,  1  Ala.  App.  1;  Thomas  v.  State, 
47  So.  257,  156  Ala.  166;  Phillips  v. 
State,  47  So.  245,  156  Ala.  140 ;  Wash- 
ington V.  State,  46  So.  778,  155  Ala.  2 ; 
Hays  v.  State,  46  So.  471,  155  Ala.  40; 
Lawson  v.  State,  46  So.  259,  155  Ala. 
44;  Fowler  v.  State,  45  So.  913,  155 
Ala.  21;  Reynolds  v.  State,  45  So. 
S94,  154  Ala.  14;  Pate  v.  State,  43 
So.  343,  150  Ala.  10;  Simmons  v. 
State,  40  So.  660,  145  Ala.  61;  Nor- 
dan  V.  State,  39  So.  406,  143  Ala. 
13;  Barnes  v.  State,  111  Ala.  56,  20 
So.  565 :  Scales  v.  State,  96  Ala.  69, 
11  So.  121;  Bostic  v.  State,  94  Ala. 
45,  10  So.  602;  Floyd  v.  State,  82 
Ala.  16,  2  So.  683;  Street  v.  State, 
67  Ala.  87 ;  Leonard  v.  State,  66  Ala. 
461;  Bain  v.  State,  61  Ala.  75;  Glenn 
v.  State,  60  Ala.  104;  Beasley  v. 
State,  59  Ala.  20;  Drake  v.  State,  51 
Ala.  30;  Clark  v.  State,  49  Ala.  37; 
Molette  V.  State,  49  Ala.  18;  Taylor 
v.  State,  48  Ala.  157;  Stephen  v. 
State,  40  Ala.  67;  Donohoo  v.  State, 
36  Ala.  281;  Aikin  v.  State,  35  Ala. 
399;  Brister  v.  State,  26  Ala.  107; 
Murray  v.   State,  18  Ala.  727. 

Ariz.  Groce  v.  Territory,  94  P. 
1108,  12  Ariz.  1. 

Ark.  Beavers  v.  State,  54  Ark, 
336,  15  S.  W.  1024 ;  Johnson  v.  State, 
36  Ark.  242 ;  Harris  v.  State,  34  Ark. 
469. 

Cal.  People  v.  Ashland,  128  P. 
798,  20  Cal.  App.  168;  People  v. 
Carroll,  128  P.  4,  20  Cal  App.  41; 
People  V.  Emmons,  95  P.  1032,  7  Cal. 
App.  685;  People  v.  Donnolly,  77  P. 
177,  143  Cal.  394 ;  People  v.  Buckley, 
77  P.  169,  143  Cal.  375;  People  v. 
Hawes,  98  Cal.  648,  33  P.  791;  People 
V.  Murphy,  47  Cal.  103;  People  v. 
Kelly,  46  Cal.  356 ;  People  v.  Sa^chez, 
24  Cal.  17 ;  People  v.  Hurley,  8  Cal. 
390. 

INST.TO  Juries— 15 


D.  C.  United  States  v.  Lee,  4 
Mackey,  489,  54  Am.  Rep.  293. 

Fla.  Robertson  v.  State,  60  So. 
118,  64  Fla.  437;  Peeler  v.  State,  59 
So.  899,  64  Fla.  385;  West  v.  State, 
46  So.  93,  55  Fla.  200;  Washington 
v.  State,  21  Fla.  328 ;  Irvin  v.  State, 
19  Fla.  872;  Gladden  v.  State,  12  Fla. 
562. 

Ga.  Lindsav  v.  State,  76  S.  E.  369, 
138  Ga.  818;  Jackson  v.  State,  18  S. 
E.  298,  91  Ga.  271,  44  Am.  St.  Rep. 
22 ;  Bell  v.  State,  69  Ga.  752 ;  Brown 
v.  State,  28  Ga.  199  ;  Johnson  v.  State, 
26  Ga.  611;  Pressley  v.  State,  19  Ga. 
192 ;  Boyd  v.  State,  17  Ga.  194 ;  Mc- 
Coy V.  State,  15  Ga.  205. 

Idaho.  Territory  v.  Evans,  2  Idaho, 
425.  17  P.  139. 

111.  People  V.  Williams,  88  N.  E. 
1053,  240  111.  633;  Spears  v.  People, 
77  N.  E.  112,  220  111.  72,  4  L.  R.  A. 
(N.  S.)  402;  Conn  v.  People,  116  111. 
458,  6  N.  E.  463 ;  DevUn  v.  People, 
104  111.  504. 

Ind.  Brown  v.  State,  105  Ind.  385, 
5  N.  E.  900;  Bissot  v.  State,  53  Ind. 
408. 

Iowa.  State  v.  Cessna,  153  N.  W. 
194.  170  Iowa,  726,  Ann.  Cas.  1917D, 
289;  State  v.  Phipps,  95  Iowa,  487, 
64  N.  W.  410 ;  State  v.  Thompson,  45 
Iowa,  414. 

Kan.  State  v.  Lahore,  103  P.  106, 
80  Kan.  664;  State  v.  Whitaker,  35 
Kan.  731,  12  P.  106;  State  v.  Medli- 
cott,  9  Kan.  257;  Lewis  v.  State,  4 
Kan.  296. 

Ky.  Gamble  v.  Commonwealth, 
151  S.  W.  924,  151  Ky.  372;  Day  v. 
Commonwealth,  110  S.  W.  417,  33  Ky. 
Law  Rep.  560 ;  Greer  v.  Common- 
wealth, 63  S.  W.  443.  Ill  Ky.  93,  23 
Ky.  Law  Rep.  489;  Deatley  v.  Com- 
monwealth, 29  S.  W.  741,  16  Ky.  Law 
Rep.  893. 

I*a.  State  V.  Warton,  67  So.  350, 
136  La.  516;  State  v.  Caron.  42  So. 
960,  118  La.  349:  State  v.  Tibbs,  20 
So.  735,  48  La.  Ann.  1278;  State  v. 
Brackett,  12  So.  129,  45  La.  Ann.  46 ; 
State  v.  Beck,  6  So.  431,  41  La.  Ann. 
584;   State  v.  Prlmeaux,  2  So.  423,  39 


122 


INSTRUCTIONS  TO  JURIES 


22G 


where  no  prejudice  is  shown  to  the  party  complaining  of  it,  and 


La.  Ann.  673 ;  State  v.  Simmons,  38 
La.  Ann.  41:'  State  v.  Daly,  37  La. 
Ann.  576:  State  v.  Ford,  37  La.  Ann. 
443;  State  v.  RiculQ,  35  La.  Ann. 
770:  State  v.  Thomas,  34  La.  Ann. 
10S4. 

Me.  State  v.  Wilkinson.  76  Me. 
317;  State  v.  Robinson,  39  Me.  150; 
State  V.  Hall,  39  Me.  107. 

Mass.  Commonwealth  v.  John  T. 
Connor  Co.,  110  N.  E.  301,  222  Mass. 
299,  L.  R.  A.  1916B,  1236,  Ann.  Cas. 
191SC,  337. 

Mich.  People  V.  Considine,  105 
Mich.  149,   63  N.   W.   196. 

Minn.  State  v.  Ronk,  98  N.  W. 
334,  91  Minn.  419 ;  State  v.  Staley,  14 
Minn.  105  (Gil.  75). 

Miss.  Wood  V.  State,  64  Miss. 
761,  2  So.  247;  Browning  v.  State,  30 
Miss.  656 ;  Pi-eston  v.  State.  25  Mi.ss. 
383:^  McDaniel  v.  State,  8  Smedes  & 
M.  401,  47  Am.  Dec.  93. 

Mo.  State  v.  Hohnes,  144  S.  W. 
417,  239  Mo.  469  ;  State  v.  MeXamara, 
110  S.  W.  1067,  212  Mo.  150;  State 
V.  Campbell,  109  S.  W.  706,  210  Mo. 
202,  14  Ann.  Cas.  403;  State  v.  Harris, 
150  Mo.  56,  51  S.  W.  481;  State  v. 
Chambers,  87  Mo.  406 ;  State  v.  Ger- 
ber,  SO  Mo.  94 ;  State  v.  Wilforth,  74 
Mo.  528,  41  Am.  Rep.  330;  State  v. 
Ware,  62  Mo.  597 ;  State  v.  Stockton, 
61  Mo.  382;  State  v.  Bailey.  57  Mo. 
131 ;  State  v.  Rose,  32  Mo.  346  ;  State 
V.  Ross,  29  Mo.  32 ;  State  v.  Houser, 
28  Mo.  2.33;  Wein  v.  State,  14  Mo. 
125 :    Nicholas  v.  State,  6  Mo.  6. 

Mont.  State  v.  Mitten,  92  P.  969, 
36  Mont.  376. 

Neb.  Steinkuhler  v.  State,  109  N. 
W.  395,  77  Neb.  .331 ;  Marion  v.  State, 
20  Neb.  233,  29  N.  W.  911,  57  Am. 
Rep.  825;    Caw  v.  People,  3  Neb.  357. 

Nev.  State  v.  Ah  Loi,  5  Nev.  99; 
State  V.  Squaires,  2  Ner.  226. 

N.  J.  State  V.  Skillman,  70  A.  83, 
76  N.  J.  Law,  464,  judgment  attii-med 
76  A.   1073,   77  N.  J.  Law,  804. 

N.  M.  Territory  v.  Baker,  4  N. 
>L  (.Tolins.)  117,  13  P.  30. 

N,  Y.  People  v.  McCallam,  3  N. 
Y.  Cr.  R.  1S9. 

N.  C.  State  v.  Lambert,  93  N.  C. 
618;  State  v.  McCurry.  63  N.  C.  33; 
State  V.  Murph,  60  N.  C.  129;  State 
V.  Clara,  53  N.  C.  25 ;   State  v.  Harri- 


son, 50  N.  C.  115;  State  v.  Cain,  47 
N.  C.  201 ;  State  v.  Peace,  46  N.  C. 
251 :  State  v.  Rash,  34  N.  C.  382,  55 
Am.  Dec.  420. 

Ohio.     Lewis  v.  State,  4  Ohio,  389. 

Okl.  Kirk  x'.  Territory,  60  P.  797, 
10  Okl.  46. 

Or.     State  v.  Glass,  .5  Or.  73. 

S.  C.     State  V.  Petsch,  43  S.  C.  132, 

20  S.  E.  993. 

Tenn.  Crabtree  v.  State,  1  Lea, 
267. 

Tex.  Davis  v.  State.  151  S.  W. 
313,  68  Tex.  Cr.  R.  259:  Pettis  v. 
State.  1.50  S.  W.  790,  08  Tex.  Cr.  R. 
221;  Woodward  v.  State,  111  S.  W. 
941,  54  Tex.  Cr.  R.  86;  Moore  v. 
State,  110  S.  W.  911,  53  Tex.  Cr.  R. 
559 ;  Baker  v.  State,  108  S.  W.  665,  53 
Tex.  Cr.  R.  14 :  Hooten  v.  State.  108 
S.  W.  651,  53  Tex.  Cr.  R.  6;  Ballew 
V.  State  (Cr.  App.)  34  S.  W.  616; 
Arbuthnot  v.  State,  34  S.  W.  269,  38 
Tex.  Cr.  R.  509 ;  Ratigan  v.  State.  33 
Tex.  Cr.  R.  301,  26  S.  W.  407;  San- 
chez V.  State  (Cr.  App.)  21  S.  W.  45; 
Levy  V.  State,  28  Tex.  App.  203,  12 
S.  W.  596,  19  Am.  St.  Rep.  826;  Mc- 
Vey  V.  State,  23  Tex.  App.  659,  5  S. 
W.  174;  Sparks  v.  State,  23  Tex.  App. 
447.  5  S.  W.  135 ;    Bramlette  v.  State, 

21  Tex.  App.  611,  2  S.  W.  765.  57  Am. 
Rep.  622  ;  Adams  v.  State,  34  Tex.  526  ; 
Seal  V.  State,  28  Tex.  491;  Daniels  v. 
State,  24  Tex.  389;  Burrell  v.  State, 
18  Tex.  713;  Jones  v.  State,  13  Tex. 
168,  62  Am.  Dec.  5.50:  Stewart  v. 
State,  15  Tex.  App.  598 ;  Williams  v. 
State,  13  Tex.  App.  285,  46  Am.  Rep. 
237;  Scott  v.  State,  10  Tex.  App. 
112 :  Priesmuth  v.  State,  1  Tex.  App. 
480;  Rogers  v.  State.  1  Tex.  App. 
187 ;    Dorsey  v.  State,  1  Tex.  App.  33. 

Va.  Hill  V.  Commonwealth,  88  Va. 
633,  14  S.  E.  330.  29  Am.  St.  Rep.  744. 

Wash.  Yelm  Jim  v.  Territory,  1 
Wash.  T.  63. 

W.  Va.  State  V.  Prater,  43  S.  E. 
230.  52  W.  Va.  1-32;  State  v.  Thomp- 
son. 21  W.  Va.  741. 

Wis.  Firmeis  v.  State,  61  Wis. 
140,  20  N.  W.  603. 

Illustrations  of  instructions 
held  objectionable  as  abstract. 
An  instruction  eoutaining  a  general 
dissertation  on  the  rights  of  accused  to 
life  and  liberty,  the  duties  of  jurors. 


l'2i 


APPLICABILITY   TO    PLEADINGS   AND   EVIDENCE 


122 


it  appears   that  the   jury   could   not  have   been   misled   thereby,^^ 


and  the  importance  of  convicting  the 
Suilty,  informing  the  jury  as  to  tlie 
method  by  whicli  they   were  chosen, 
the  reason  why  tliey  were  impaneled, 
and  that  they  were  selected  as  intel- 
ligent,  and   qnalitied   jurors.     People 
V.   Davidson,   SS   N.    E.    505,   240  111. 
191.     An  instruction  that  the  policy 
of  the  law  deems  it  better  that  many 
guilty    persons    shall    escape    rather 
than  one  innocent   person   should  be 
convicted    and    punished.      People   v. 
Darr,  179  111.  App.  130,  judgment  af- 
firmed 104  N.  E.  3S9,  2G2  111.  202.     A 
charge   that   the   plea   of  insanity  is 
sometimes  resorted   to   where  aggra- 
vated   crimes   have    been    committed 
oinder    circumstances    which    render 
hopeless  all  other  means  of  evading 
punishment,    and    while    such    proof, 
when  satisfactorily  established,  should 
be  viewed  as  a  full  and  complete  de- 
fense, yet  it  should  be  examined  into 
with  great  care.    People  v.  Methever, 
64   P.   481,   132   Cal.   326.      A   charge 
that  if  any  of  the  state's  witnesses 
had  exhibited  bias  against  defendant, 
or  anger,  and  had  satisfied  the  jury 
that  they  had  not  testified  truly  and 
were  not  worthy  of  belief,    and    tlie 
jury   thought   their  testimony  should 
be  disregarded,  they  might  disregard 
it  altogether.    Wright  v.  State,  47  So. 
201,    156   Ala.    lOS.      A    charge    that 
flight   of   defendant   might   or   might 
not    be    considered    a    circumstance 
tending  to  prove  guilt,  depending  on 
its    prompting   motive,    whether    con- 
sciousness of  guilt  and  apiorehension 
of  justice  or  other  and  more  innocent 
motive,   and   the  jury  might  look   to 
the  fact  that  he  gave  himself  up.    Bon- 
durant  v.  State,  27  So.  775, 125  Ala.  31. 
A   charge,    in    a    prosecution   for   as- 
sault,  that,  where  personal  property 
is  wrongfully  withheld  from  an  own- 
er, such  owner  can  obtain  possession 
by  peaceable  means,  or,  if  it  comes 
to  his  hands,  he  has  a  right  to  hold 
it  against  the  woi-ld.    People  v.  Johns, 
190  111.  App.  367.    An  instruction  that 
the  mere  possession  "of  any  article," 
whether  it  can  or  cannot  be  used,  in 
the  perpetration  of  a  crime,  is  not  of 
itself    sufHcient    to    convict    accused, 
but    is    merely    a    circumstance,    etc. 
People  V.  Weber,  S6  P.  671,  149  Cal. 


325.  A  charge,  in  a  prosecution 
against  an  agent  for  embezzlement  of 
money,  that  the  jury  could  not  con- 
vict defendant  unless  the  evidence  sat- 
isfied them  beyond  all  reasonable  doubt 
that  defendant  embezzled  money  of  his 
principal,  and  that,  if  the  evidence 
should  convince  them  that  he  embezzl- 
ed checks  and  property,  but  no  money, 

13  U.  S.  (C.  C.  A.  Minn.)  North- 
ern  Pac.  R.  Co.  v.  Teeter,  63  F.  527, 
11  C.  C.  A.  332. 

Ala.  Robinson  v.  Crotwell,  57  So. 
23,  175  Ala.  194. 

Ark.  C.  H.  Smith  Tie  &  Timber 
Co.  v.  Weatherford,  121  S.  W.  943,  92 
Ark.  6. 

Conn.  Smith  v.  Carr,  16  Conn. 
450. 

Fla.  Florala  Sawmill  Co.  v.  Smith, 
46  So.  332,  55  Fla.  447. 

111.  Carney  v.  Marquette  Third 
Vein  Coal  Min.  Co.,  103  N.  E.  204, 
260  III.  220,  affirming  judgment  175 
111.  App.  139;  People  v.  Fuller,  87 
N.  E.  336,  238  111.  116,  affirming  judg- 
ment 141  111.  App.  374;  Wallace  v. 
City  of  Farmington,  S3  N,  E.  ISO,  231 
111.  2.32;  Chicago,  R.  I.  &  P.  Ry.  Co.  v. 
Rathneau,  SO  N.  E.  119,  225  111.  278,  af- 
firming judgment  124  111.  App.  427 ; 
Tuttle  V.  Robinson,  78  111.  332  ;  People 
V,  Mullen,  179  111.  App.  262 ;  Neumann 
V.  Neumann,  147  111.  App.  218;  Com- 
erford  v.  Morrison,  145  111.  App.  615. 

Iowa.  McGregor  v.  Armill,  2 
Iowa,  30. 

Mo.  Hemphill  v.  Kansas  City, 
100  Mo.  App.  563,  75  S.  W.  179; 
Clark  V.  Cox,  118  Mo.  652,  24  S.  W. 
221 :    Dodds  v.  Estill,  32  Mo.  App.  47. 

Mont.  Hogan  v.  Shuart,  11  Mont. 
49S,  28  P.  969. 

N.  C.  Evans  v.  Howell,  84  N.  C. 
460. 

Or.     Salmon  v.  Olds,  9  Or.  4SS. 

Tex.  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Reagan  (Civ.  App.)  34  S.  W.  796. 

Wash.  Carstens  v.  Stetson  & 
Post  Mill  Co.,  14  Wash.  643,  45  P. 
313. 

Charge  in  favor  of  party  com- 
plaining. A  party  cannot  complain 
of  an  inapplicable  charge,  which  is 
in  his  favor,  if  it  have  anv  effect. 
Mulligan  v.  Bailey,  28  Ga.  507. 


122 


INSTRUCTIONS  TO  JURIES 


228 


this  rule  applying  in  criminal  cases/*  and  it  is  not  error  to  state 


he  could  not  be  convicted.     Willis  v. 
State,   33   So.  226,   134  Ala.   429.     A 
charge,  in  a  prosecution  for  gaming, 
that  the  mere  fact  that  money  was 
on  the  table  where  a  game  of  cards 
was  being  played,  without  some  evi- 
dence to  show  that  it  was  being  bet 
or  staked  on  the  game,  would  author- 
ize   a    conviction.      Butler    v.    State, 
58   S.    E.    1114,  2   Ga.   App.    623.     A 
charge,   in    a   prosecution    for   homi- 
cide,   that    it'  was    for    the   jury    to 
say    whether    the    same   punishment 
should  be  inflicted  on  the  defendant, 
who  had  taken  the  life  of  a  turbulent, 
revengeful,     bloodthirsty,     dangerous 
man,   who  had  recently,  only  a  few 
hours  before,   violated   and  outraged 
the  person   of   defendant,  as  though 
the  deceased  had  been  a  man  of  good 
character    and    peacable    disposition. 
Harrison   v.    State    (Ala.)   40    So.    57. 
Where,  in  a  prosecution  for  theft  ot 
a    horse,    the    evidence    conclusively 
showed  that  it  was  in  possession  of 
a  certain  person,  and  there  was  no 
testimony  that  it  was  in  the  posses- 
sion of  any  one  else,  it  was  not  error 
to  refuse  an  instruction  that  if  the 
horse  was  in  the  possession  of  some 
other  person,  or  there  was  a  reason- 
able doubt  as  to  whether  it  was  in 
the  possession  of  such  person  at  the 
time  it  was  stolen,  defendant  should 
be  acquitted.     Garcia  v.  State  (Tex. 
Gr.  App.)  61  S.  W.  122.    On  a  prose- 
cution for  horse  theft,  where  the  tes- 
timony   of    the    prosecuting    witness 
showed    that    he    had    the    exclusive 
care  and  control  of  the  animal,  an  in- 
struction   that,    if    the    horse    taken 
from  prosecutor  was  at  the  time  of 
the  taking  in  the  possession  and  con- 
trol of  a  certain  other  person,  defend- 
ant should  be  acquitted,  was  properly 
refused.  Wingo  v.  State  (Tex.  Gr,  App.) 
75  S.  W.  29.     A  charge,   in  a  prose- 
cution  for   larceny,    that   the   recent 
possession  of   stolen   property,   while 
not  alone   suflicient  evidence  to  find 
the   possessor    thereof   guilty   of   the 
crime  of  having  stolen  such  property, 
may  be  taken  into  consideration,  with 
all  the  other  evidence  in  the  case,  in 
deternuning  guilt,  and,  if  the  defend- 
ant offers  evidence  in  explanation  of 
his  possession,  it  is  for  the  jury  to 


say  under  all  the  evidence  whether 
or  not  such  explanatory  evidence  is 
reasonable.     State  v.  Trosper,  109  1'. 
858,  41  Mont.  442.    Refusal  to  charge 
that  defendant,  indicted  for  perjury, 
should  be  acquitted  unless  the  state 
had  proved  beyond  a  reasonable  doubt 
that  the  court  had  jurisdiction  of  the 
action  in  which  the  perjury  was  com- 
mitted was  proper,  where  it  appeared 
from  the  record  of  such  case  in  evi- 
dence that  the  court  had  jurisdiction, 
and  defendant  made   no   attempt  to 
prove    the    contrary.      Thompson    v. 
People,  59  P.  51,  26  Golo.  496.    Where 
defendant,  in  a  trial  for  robbery,  de- 
nied all  knowledge  of  the  transaction, 
the  court  did  not  err  in  refusing  an 
instruction    authorizing    a    conviction 
of  petit  larceny,  since  defendant  was 
either    innocent    of    any    oifense    or 
guilty   of   robbery.     State  v.   Moore, 
106  Mo.   480,    17   S.  W.  658.     Where 
the  prosecution  has  made  no  attempt 
to  compel  accused  to  submit  to  a  sec- 
ond physical   examination,   the  right 
to  do  so  is  a  mere  abstract  question, 
and  the  refusal  of  an  instruction  that 
the  privilege  of  the  accused  as  a  wit- 
ness does  not  extend  to  such  physical 
circumstances    as   may   exist   on   his 
body  or  about  his  person  is  not  error. 
State  V.  Mehojovich,  43  So.  660,  118 
La.   1013.     Where,   in   a   prosecution 
for  homicide,  there  was  no  evidence 
to   implicate  any  other  person   than 
accused  in  the  crime,  the  court  prop- 
erly refused  an  absti'actly  correct  in- 
struction that  the  failure  of  the  evi- 
dence to  disclose  any  other  criminal 
agent  than  accused  was  not  a  circum- 
stance to  be  considered  in  detei*mln- 
ing  whether  he  was  guilty  of  the  crime 
charged,   but  that  he  was  presumed 
to   be   innocent   until   his    guilt    was 
established,    and   he   was    not   to    be 
prejudiced    by    the    inability    of    the 
commonwealth    to    point    any    other 
criminal   agency,   nor   was   he  called 

n  People  v.  Dean,  58  Hun,  610,  12 
N.  Y.  S.  749 ;  Welch  v.  State,  185  P. 
119,  16  Old.  Gr.  513;  State  v.  Selby, 
144  P.  657,  73  Or.  378 ;  Keed  v.  Com- 
monwealth, 36  S.  E.  399,  98  Va.  817 ; 
Whitehurst  v.  Gommonwealth,  79  Va. 
556 ;    State  v.  Long,  108  S.  E.  279. 


229 


APPLICABILITY   TO   PLEADINGS  AND    EVIDENCE 


122 


correctl}^  an  abstract  proposition  of  law,  in  the  absence  of  any 
request  that  it  be  explained  or  enlarged  upon  /^  ^or  is  it  error  to 
.make  an  abstract  statement  of  legal  principles,  for  the  purpose 
of  illustrating  and  emphasizing  the  rules  governing  the  points 
in  issue,^^  if  the  use  of  such  illustration  is  not  misleading^^  and  the 
announcement  by  an  instruction  of  an  abstract  proposition  of  law 
is  not  cause  for  reversal,  if  another  part  of  such  instruction  or 
other  instructions  apply  such  proposition  to  the  facts  of  the  case.^* 


on  to  vindicate  his  own  innocence  by 
naming  tlie  guilty  party.  Jessie  v. 
Commonwealth,  71  S.  E.  612,  112  Va. 
887. 

lustractions  held  not  improper 
as  being  abstract.  A  charge,  in  a 
prosecction  for  burglary,  that  the 
confessions  of  a  defendant  while  un- 
der arrest  cannot  lawfully  be  used 
against  him,  even  when  they  show  or 
tend  to  show  his  guilt,  unless  the  de- 
fendant in  connection  with  such  con- 
fessions makes  statements  of  facts 
that  are  found  to  be  true  and  that 
conduce  to  establish  his  guilt,  such 
as  the  finding  of  stolen  property,  and 
that,  if  the  jury  find  beyond  a  rea- 
sonable doubt  that  the  defendant 
made  the  statements  which  the  state 
claims  that  he  made  in  the  presence 
of  the  witnesses  M.  and  S.,  and  that 
the  same  show  or  tend  to  show  his 
guilt,  they  will  not  consider  said 
statements,  or  any  part  of  them, 
against  the  defendant  for  any  pur- 
pose, unless  they  further  find  beyond 
a  reasonable  doubt  that  the  defend- 
ant in  connection  with  said  state- 
ments made  a  statement  of  facts  as 
to  the  whereabouts  of  the  watch 
which  has  been  introduced  in  evi- 
dence, and  that  said  statement  was 
found  to  be  true,  and  that  said  state- 
ment conduces  to  establish  his  guilt 
of  the  offense  of  burglary  alleged. 
Smith  V.  State,  111  S.  W.  939,  53 
Tex.  Cr.  R.  643.  A  charge,  in  a  prose- 
cution for  burglary,  that  the  princi- 
pal witness  was  an  accomplice,  and 
that  they  could  not  convict  upon  his 
testimony  alone,  that  they  must  be- 
lieve it  to  be  time,  and  find  other  cor- 
roborating evidence  other  than  the 
fact  of  the  commission  of  the  crime. 
Pitts  v.  State,  132  S.  W.  801,  60  Tex. 
Cr.  R.  524. 


15  Hanson  v.  Gaar,  Scott  &  Co.,  70 
N.  W.   853,  68  Minn.   68. 

IB  Ga.  Smith  v.  Central  R.  & 
Banking  Co.,  SO  Ga.  526,  5  S.  E.  772. 

Ind.  Foss-Schneider  Brewing  Co. 
V.  McLaughlin,  5  Ind.  App.  415,  31 
N.  E.  838. 

Mass.  Jones  v.  Root,  6  Gray, 
435 ;  Melledge  v.  Boston  Iron  Co., 
5  Cnsh.  158,  51  Am.  Dec.  59. 

Mo.  McGrew  v.  IVIissouri  Pac.  Ry. 
Co..  109  Mo.  582.  19  S.  W.  .53. 

S.  C.  Baker  v.  Hornik.  35  S.  E. 
524.  57  S.  C.  213. 

Tenn.  West  I\Iemphis  Packet  Co. 
V.  White,  41  S.  W.  583,  99  Tenn.  256, 
38  L.  R.  A.  427. 

17  Mason  v.  Southern  Rv.  Co.,  36 
S,  E.  440.  .58  S.  C.  70.  53  L.  R.  A. 
913.  79  Am.  St.  Rep.  826.  rehearing 
denied  37  S.  E.  226,  58  S.  C.  582. 

18  Central  of  Georgia  Ry.  Co.  v. 
Blackman.  68  S.  E.  .339.  7  Ga.  App. 
766:  First  Nat.  Bank  v.  Gatton.  50 
N.  E.  121,  172  111.  625.  affirming  71 
III.  App.  323:  Burdoin  v.  Town  of 
Trenton,  116  Mo.  358.  22  S.  W.  728: 
McGrew  v.  Missouri  Pac.  Rv.  Co.,  100 
Mo.  582.  19  S.  W.  53. 

Instructions  clearly  advising 
,1ury  in  the  concrete.  *When  cor- 
rect abstract  propositions  of  law  are 
given,  and  the  instructions,  consid- 
ered together,  advise  the  jury  clear- 
ly and  in  the  concrete,  the  abstract 
propositions  do  not  necessarily  viti- 
ate the  charge.  Denver  Tramway 
Co.  v.  Owens,  20  Colo.  lur.  36  P.  848. 
Defendants  cannot  comjilain  that,  in 
an  action  for  the  killing  of  decedent 
by  blasting,  the  court  embodied  in 
the  cliarge.  as  an  abstract  proposi- 
tion, what  is  known  as  the  "rule  of 
the  prudent  man"  in  response  to  its 
requests,    where,   in   specific   instruc- 


1.23 


INSTRUCTIONS   TO   JURIES 


230 


§  123.     Specific  applications  of  rule 

The  above  rule  has  been  applied  to  instructions  on  the  question 
of  the  existence  of  the  relation  of  carrier  and  passenger/^  or  of 
the  relation  of  partnership,-"  on  the  question  of  a  dual  agency,"^ 
on  the  issue  of  the  delivery  of  a  deed,~'  on  the  question  whether 
the  rule  of  caveat  emptor  applied,^^  on  the  effect  of  a  railroad 
ticket,^*  on  the  effect  of  a  custom,^"  on  the  duties  of  a  carrier,^" 
on  the  question  whether  a  train  was  run  at  excessive  speed,^'  on 
the  ejection  of  a  passenger  by  force,-^  on  the  issue  of  gross  neg- 
ligence,-''  on  the  right  to  recover  for  wantonness,  as  distinguished 
from  negligence,^®  on  the  issue  of  the  negligence  of  an  employer 
in  selecting  servants,^^  on  the  duty  of  a  master  to  make  rules,^' 
on  the  duty  of  a  master  to  guard  machinery,^-*  on  the  question 
of  the  assumption  of  risk,^*  on  the  question  of  contributory  neg- 
ligence,^^ on  the  question  of  the  invalidity  of  a  contract  as  against 
public  policy,^''  on  the  issue  of  bad  faith  or  fraud,^^  on  questions 
arising   under   the   statute   of   frauds,^*   on   the    defense    of   ultra 


M.  &  1. 
Ysi.  613. 
12     Ky. 

141     P. 

W. 


tions,  the  conrt  correctly  applies  the 
law  of  negligence  and  contributory 
regligence  to  the  facts  of  the  case. 
Blackwell  v.  Lvnchburg  &  D.  R.  Co., 
Ill  N.  C.  151.  16  S.  E.  12.  17  L.  R.  A. 
729.  ?.2  Am.   St.  Rep.  786. 

19  Hains   v.   Parkersbnrg. 
Ry.  Co.,  84  S.  E.  92.S.  75  W. 

2  0  Pearson    v.    Campbell, 
Law  Rop.    (abstract)  6.37. 

21  Schwartz    v.     Meschke, 
175.  92  Kan.  e.oO. 

2  2  Irvin    V.     Johnson,    320    S. 
10S5.  56  Tex.   Civ.   App.   492. 

23  Mastin  v.  Bartholomew,  92  P. 
682,   41   Colo.   328. 

2  4Dixori  V.  New  England  R.  R., 
GO  N.  E.  581.  179  Mass.  242. 

2  s  Pierce  v.  Ailcen  (Tex.  Civ.  App.) 
146    S.    W.    950. 

2«  Sullivan  v.  Fugazzi,  79  N.  E.  775, 
193  I\Iass.  518. 

2  7  Hamnian  v.  Illinois  Cent.  R. 
Co..  188  111.  App.  414. 

2  8  Missouri,  K.  &  T.  Ry.  Co.  of  Tex- 
as V.  Meyers  (Tex.  Civ.  App.)  35  S. 
W.  421. 

20Coe  V.  Ricker,  101  N.  E.  76,  214 
Mass.  1.M2.  45  L.  R.  A.  (N.  S.)  .30; 
Ann.  ("as.  191 4 B,  1178. 

80  Cameron       v.       Duluth-Superior 


Traction  Co..  102  N.  W.  20R.  94  Minn. 
104 ;  Holwerson  v.  St.  Louis  &  S.  Ry. 
Co..  157  ^\c.  216.  57  S.  W.  770,  50 
L.  R.  A.  850. 

31  Austin  &  N.  W.  Ry.  Co.  v.  Flan- 
nagan  (Tex.  Civ.  App.)  40  S.  W.  1043. 

3  2  Oklahoma  Portland  Cement  Co. 
V.  Brown,  146  P.  6,  45  Okl.  476; 
Lawrence's  Adm'r  v.  Hyde,  88  S.  E. 
45,  77  W.  Va.  639. 

33  Radic  V.  Thomas  .Jackson  &  Co., 
146  N.  W.  136,  178  Mich.  618. 

3  4  Springfield  Electric  Light  & 
Power  Co.  v.  Mott,  120  111.  App.  39. 

3  5  Carpenter  v.  Village  of  Dickey, 
143  N.  W.  964,  26  N.  D.  176. 

3G  Snow  V.  Penobscot  River  Ice  Co., 
77  'Sic.  55. 

3  7  Rara  Avis  Gold  &  Silver  Mm. 
Co.  V.  Bouscher,  9  Colo.  385,  12  P. 
4.33 ;  Bayer  Steam  Soot  Blower  Co. 
V.  City  of  Milan  (Mo.  App.)  199  S. 
W.  712;  Hewitt  v.  Steele,  118  Mo. 
463.  24  S.  W.  440;  Purtle  v.  Casey, 
n  Mont.  229,  28  P.  .305;  Addleman 
v.  Manufacturers'  Light  &  Heat  Co., 
89    A.   674,    242   Pa.    587. 

3s  Ridcnour  v.  H.  C.  Dexter  Chair 
Co.,  95  N.  E.  409,  209  :\Iass.  70 ;  Hug- 
gins  V.  Carey  (Tex.  Civ.  App.)  149 
S.  W.  390. 


231 


APPLICABILITY   TO   PLEADINGS   AND   EVIDENCE 


§  124 


vires,^*  on  act  of  God  as  a  defense,^''  on  the  question  of  waiver,'*^ 
on  the  unreliability  of  verbal  admissions,*'  on  elements  cf  dam- 
ages,**^ on  mitigation  of  damages,**  on  punitive  damages,*^  and 
on  the  right  to  recover  the  reasonable  value  of  services.*** 

§  124.     What  are  abstract  instructions 

Whether  an  instruction  is  abstract  must  be  determined  by  ref- 
erence to  the  evidence  and  to  the  -instructions  as  a  whole.*'     An 


3  9  Citv  Council  of  Augusta  v. 
OAvens.  36  S.  E.  8.30.  Ill  Ga.  464. 

io  City  of  Cuthbert  v.  Gunn,  04  S. 
E.  6.37,  21  Ga.  App.  442;  St.  Louis 
Southwestern  Ry.  Co.  of  Texas  v. 
Eewellen  Bros.  (Tex.  Civ.  App.)  116 
S.   W.  116. 

41  German  Ins.  Co.  v.  Goodfriend, 
97  S.  W.  109S,  30  Ky.  T^aw  Rep.  218. 

4  2  Thomas  v.  Paul,  87  Wis.  607,  5S 
N.  W.  1031. 

43  U.  S.  (Sup.)  American  R.  Co. 
of  Porto  Rico  v.  Didricksen.  33  S. 
Ct.  224,  227  U.  S.  14.".  ^7  L.  Ed.  4.56. 

Ga.  Sammons  v.  Wilson.  92  S.  E. 
9.50.  20  Ga.  App.  241;  City  Council 
of  Augusta  V.  Owens,  36  S.  E.  830, 
111   Ga.  464. 

Ind.  Cleveland,  C,  C.  &  St.  L. 
Ry.  Co.  V.  Griswold,  97  N.  E.  10.30,  51 
Ind.  App.  497. 

lo'OT'a.  Kesley  v.  Cowell,  91  Iowa, 
256,  59  N.  W.  48,  51  Am.  St.  Rep. 
344. 

Mo.  Vanderbeck  v.  Wabash  Ry. 
Co.,  133  S.  W.  1178,  154  Mo.  App. 
321 ;  Moellman  v.  Gieze-Henselmeier 
Lumber  Co.,  114  S.  W.  1023,  1.34  Mo. 
App.  485;  Barr  v.  Kansas  City,  105 
Mo.  550,  16  S.  W.  483. 

N.  Y,  Weber  v.  Kingsland,  21  N. 
Y.  Super.  Ct.  415. 

N.  D.  Swords  v.  McDonell,  154 
N.  W.  258.  31  X.  D.  494;  Selland  v. 
Nelson,  132  N.  W.  220,  22  N.  D.  14. 

Or.  Scheurmann  v,  Mathison,  136 
P.  330,  67  Or.  419. 

Tex.  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Jackson,  69  S.  W.  89,  29  Tex.  Civ. 
App.  342 ;  Missouri  Pac.  Ry.  Co.  v. 
Mitchell,  75  Tex.  77,  12  S.  W.  810. 

Wash.  Paysse  v.  Paysse,  146  P. 
840,  84  Wash.  351. 

Wis.  Dralle  v.  Town  of  Reeds- 
burg,  122  N.  W.  771,  140  Wis.  319. 

44  Steiuman  v.  John  Hall  Tailor- 
ing Co.,  163  P.  452,  99  Kan.  699. 


4  5  Wilson  V.  Atlantic  Coast  Line  R. 
Co..  55  S.  E.  257,  142  N.  C.  333 ;  Reed 
V.  Coughran,  111  N.  W.  559,  21  S.  D. 
257. 

4G  Eernth  v.  Smith,  127  X.  W.  427, 
112  Minn.  72. 

4"  Cook  V.  Danaher  Lumber  Co.. 
112  P.  245,  61  Wash.  118. 

Illustrations  of  abstract  in- 
structions -witliin  rule.  In  an  ac- 
tion by  a  wife  to  cancel  a  deed  to  her 
bi'Other-in-law  alleged  to  have  been 
procured  by  coercion  of  her  husband, 
where  the  effect  of  a  conveyance  by 
a  wife  of  her  separate  estate  to  her 
husband's  creditor  to  pay  the  hus- 
band's debts  was  not  involved  under 
the  pleadings  and  evidence,  it  was 
error  to  charge  upon  such  subject, 
though  the  charse  correctly  stated 
the  law,  ]McClellan  v.  INTcClellan.  68 
S.  E.  1025.  1.35  Ga.  95.  A  charge,  in 
an  action  agniust  a  president  of  a 
bank  for  misleading  a  depositor  in 
relation  to  Its  financial  condition, 
that  fraud  must  be  proved,  and  is 
never  presumed.  Giddings  v.  Baker, 
80  Tex.  308.  16  S.  W.  .33.  In  an  ac- 
tion against  a  telephone  company 
for  negligently  permitting  its  wires 
along  a  public  highway  to  remain 
down  so  as  to  endanger  the  safety 
of  the  traveling  public,  an  instruc- 
tion that  the  company,  if  not  other- 
wise negligent,  is  not  responsible  for 
damages  resulting  from  an  unusual 
storm,  which  could  not  have  been 
reasonably  foreseen  and  its  conse- 
quences guarded  against,  is  properly 
refused,  because  it  fails  to  apply  the 
law  stated  to  any  issue  or  evidence 
in  the  case.  Snee  v.  Clear  Lake  Tel- 
ephone Co.,  123  X.  W.  729,  24  S.  D. 
361.  In  an  action  against  a  tele- 
phone company  for  the  death  of  a 
city  lineman  while  at  work  on  the 
company's   pole,   an    instruction    that 


124 


INSTRUCTIONS  TO  JURIES 


232 


instruction  is  not  abstract  if  there  is  any  evidence  from  which  the 


where  an  employ^  chooses  a  dan- 
jrerous  way  of  performing  his  work, 
instead  of  a  safe  way,  which  was 
equally  open  to  him.  he  is  guilty  of 
negligence  which  will  preclude  recov- 
ery, was  properly  refused,  being  ap- 
plicable only  to  the  relation  of  mas- 
ter and  servant,  which  was  not  in- 
volved. Lundy  v.  Southern  Bell  Tel- 
ephone &  Telegraph  Co.,  72  S.  E.  558, 
90  S.  C.  25.  A  request  for  a  ruling 
in  a  writ  of  entry  that  demandants, 
to  recover,  must  rely  on  the  strength 
of  their  own  title  and  not  on  the 
weakness  of  the  tenant's.  Merrick  v. 
Betts,  101  N.  E.  131,  214  Mass.  223. 
An  instruction,  in  an  action  on  a 
contract,  that  "if  the  jury  think  that 
any  circumstance  proven  in  the  case 
is  of  greater  weight  in  determining 
any  issue  than  the  oral  testimony 
of  witnesses  they  are  at  liberty  to 
so  decide."  Hale  Elevator  Co.  v.  Hale, 
98  111.  App.  430,  affirmed  66  N.  E. 
249,  201  111.  131.  An  instruction  that 
the  opinion  of  expert  witnesses,  if 
opposed  to  the  physical  facts  prov- 
ed, must  give  way  to  such  physical 
facts.  Starett  v.  Chesapeake  &  U. 
By.  Co..  110  S.  W.  282,  33  Ky.  Law 
Rep.  309.  An  instruction  which  tells 
the  jury  that  they  should  consider 
the  evidence  "in  the  light  of  the 
knowledge  which  you  have  obtained 
as  men  of  affairs."  Gormley  v.  Har- 
tray,  105  111.  App.  625.  In  an  injury 
action,  predicated  wholly  upon  tne 
statutes  of  Wisconsin  abolishing  the 
fellow  servant  doctrine  as  respects 
railroad  employment,  and  tried 
throughout  upon  the  theory  of  lia- 
bility thereunder,  it  was  error  to  sub- 
rait  the  case  to  the  jury  upon  the 
question  whether  defendant  was  lia- 
ble under  the  fetleral  employer's  lia- 
bilitv  act  (Act  April  22,  1008.  c.  149, 
35  Stat.  65  fU.  S.  Comp.  St.  §§  8657- 
8665]).  Creteau  v.  Chicago  &  N.  W. 
By.  Co.,  129  N.  W.  855,  113  Minn. 
418.  An  instruction,  in  an  action  by 
a  servant  for  personal  injuries  to  the 
effect  that  an  employer  is  under  no 
greater  obligation  to  look  after  the 
safety  of  a  ser\-ant  than  the  servant 
is  to  look  after  his  own  safety.  West- 
ern  Stone   Co.   v.   Muscial,  63  N.  E. 


664,  196  111.  382,  89  Am.  St.  Bep. 
325,  affirming  judgment  96  111.  App. 
288.  An  instruction,  in  an  action  to 
recover  for  the  death  of  plaintiff's 
intestate  by  suffocation  while  work- 
ing in  defendant's  mine,  that  if  the 
injury  re.sulted  from  the  consequenc- 
es of  a  certain  act  or  omission,  but 
only  by  means  of  an  intervening 
cause,  from  which  cause  the  injury 
followed  as  a  direct  consequence,  the 
law  will  refer  the  damage  to  the 
last  cause.  Alabama  Cousol.  Coal  & 
Iron  Co.  V.  Heald,  154  Ala.  580,  45 
So.  686.  Charges  that  there  could  be 
no  recovery  in  an  action  for  negli- 
gently constructing  and  maintaining 
a  drain,  if  the  city  used  due  diligence 
in  selecting  the  site.  City  of  Mont- 
gomery v.  Stephens,  69  So.  970,  14 
Ala.  App.  274.  An  instruction,  in 
an  action  against  a  city  for  injuries 
ocrasioned  by  negligence  of  a  bridge 
tender  employed  by  the  city  and  that 
of  a  helper  employed  by  the  tender 
personally,  that  the  city  is  not  liable 
for  the  acts  of  persons  not  in  its 
employ.  City  of  Chicago  v.  O'Slalley, 
63  N.  E.  652,  196  111.  197,  affirming 
judgment  95  111.  App.  355.  Where 
the  evidence  of  partnership  was  in  is- 
sue, but  it  was  not  a  case  of  partner- 
ship established  by  circumstantial  evi- 
dence, an  instruction  that  it  is  not  nec- 
essary that  a  partnership  be  estab- 
lished by  direct  evidence,  that  it  may 
be  shown  by  circumstances  or  by 
facts  in  evidence  from  which  a  part- 
nership may  be  inferred,  was  prop- 
erly refused  as  abstract.  Rector  v. 
Bobins.  102  S.  W.  209.  82  Ark.  424. 
An  instruction  that  the  law  will  not 
infer  payment  from  the  facts  tending 
to  prove  it,  however  fully  they  sup- 
port such  an  inference.  Hays  v. 
Hays.  97  N.  E.  198,  49  Ind.  App.  298. 
A  charge  that  the  degree  of  care  re- 
quired of  a  railroad  company  is  that 
used  by  a  good  specialist  In  the  same 
business.  Norfolk  &  W.  B.  Co.  v. 
Burge,  84  Va.  63,  4  S.  E.  21.  In  an 
action  against  a  railroad  company  for 
an  injury  at  a  crossing,  a  charge  in 
effect  tliat  if  the  jury  should  find  that 
the  maintenance  of  gates  and  watt  h- 
mcn  at  the  crossing  was  reasonably 


233 


APPLICABILITY  TO   PLEADINGS  AND   EVIDENCE 


124 


jury  might  infer  the  existence  of  the  fact  supposed.**    An  instruc- 


necessary,  and  that  tliey  were  not 
provided,  defendant  would  be  negli- 
gent, was  erroneous,  where  there 
was  no  allegation  or  proof  that  the 
maintenance  of  gates  at  the  crossing 
was  either  authorized  or  required  by 
any  governmental  authority,  or  that 
gates  were  the  only  practical  means 
of  rendering  the  crossing  safe,  or 
other  showing  that  would  malie  a 
failure  to  maintain  gates  at  the 
crossing  negligence  as  matter  of  law. 
Atlantic  Coast  Line  R.  Co.  v.  Wal- 
lace, 54  So.  893.  61  Fla.  93.  An  in- 
sti'uction,  in  an  action  against  )a 
.railroad  for  injuries  through  fright- 
ening a  horse  at  a  crossing,  as  to  the 
duty  of  defendant  to  use  care  at  the 
crossing,  where  the  view  of  the 
tracks  was  obstmcted.  Culbertson  v. 
St.  rx)uis,  I.  M.  &  S.  Ry.  Co.  (Mo. 
App.)  178  S.  W.  269.  Instructions 
making  it  a  defense  in  replevin,  if 
defendant  paid  part  of  the  purchase 
price  when  plaintiff  bought  the  ar- 
ticles, and  plaintifC  did  not  repay  or 
tender  to  defendant  the  amount  paid 
by  him,  and  intimating  that  defend- 
ant might  be  the  owner  of  the  arti- 
cles by  virtue  of  such  payment  for 
plaintiff,  if  plaintiff  then,  or  later, 
made  a  gift  of  the  articles  to  de- 
fendant, are  erroneous,  as  inapplica- 
ble to  the  case ;  defendant  malting 
no  claim  of  a  lien,  and  not  basing 
his  title  or  right  of  possession  on  a 
gift.  Woods  V.  Latta,  88  P.  402,  35 
Mont.  9.  Where  the  only  issue  in 
an  action  was  whether  the  defendant 
purchased  a  jack  of  the  plaintiff,  and 
there  is  evidence  that  it  was  of  some 
value,  an  instruction  that  plaintiff 
was  entitled  to  a  verdict  modified  so 
as  to  include  the  conditions  that  the 
animal  was  without  any  value  at  the 
time  of  the  alleged  sale,  and  that  the 
plaintiff  made  no  misrepresentation 
as  to  its  qualities,  is  erroneous  as 
being  inapplicable  to  the  issues  and 
evidence.  Brown  v.  Emerson,  134  S. 
W.  1108,  155  Mo.  App.  459.  In  an 
action  against  a  street  railroad  for 
the  death  of  a  fireman  in  a  collision 
between  a  hose  wagon  and  a  car,  it 
was  not  error  to  refuse  an  instruc- 
tion   that,    in    determining    whether 


plaintiff's  intestate  was  guilty  of 
contributory  negligence,  the  jury 
should  not  take  into  account  the  in- 
stinct of  self-preservation,  where  the 
attention  of  the  jury  was  not  in  any 
way  called  to  such  doctrine.  Mc- 
Bride  v.  Des  Moines  City  Ry.  Co., 
109  N.  W.  618,  134  Iowa,  398.  Whern 
the  only  issue  raised  by  the  pleadings 
and  evidence,  in  an  action  for  inju- 
ries in  a  collision  with  defendant's 
street  car,  was  whether  those  in 
charge  of  the  car  used  all  reasonable 
efforts  to  prevent  the  accident  after 
they  saw,  or  should  with  reasonable 
care  have  seen,  plaintiff's  peril,  an 
instruction  as  to  the  relative  rights 
of  way  of  the  parties  at  the  place  of 
the  accident  was  erroneously  given 
because  having  no  relation  to  the  is- 
sues. Grout  V.  Central  Electric  Rv. 
Co.,  131  S.  W.  891.  151  Mo.  App.  330. 
Where,  in  an  action  for  injuries  to 
a  traveler  on  a  defective  highway, 
the  answer  charged  contributory  neg- 
ligence of  plaintiff  herself,  and' there 
was  ample  ground  for  a  finding  that 
the  vehicle  was  overloaded,  a  re- 
quested charge  that  there  was  no 
pretense  that  plaintiff  was  guilty  of 
want  of  ordinary  care,  and  that  the 
question  related  only  to  the  driver, 
plaintiff's  son,  was  properly  refused. 
Yollmer  v.  Town  of  Fairbanks,  132 
N.  W.  542,  146  Wis.  630.  Where, 
in  trespass  for  unlawful  taking  and 
retention  of  plaintiff's  cattle,  coun- 
sel, in  opening  for  the  defense,  stat- 
ed that  he  did  not  claim  that  defend- 
ant had  the  right,  under  the  statute, 
to  take  the  cattle  out  of  the  higliway, 
but  that  he  claimed  that  they  were 
trespassing  on  defendant's  premises 
when  taken,  and  plaintiff's  evidence 
showed  that  they  were  on  the  high- 
way, but  not  running  at  large,  when 
defendant  toolv  them ;  the  cattle  be- 
ing watched  by  him  and  his  family, 
this    being    contradicted    by    defend- 

4  8  Arkadelphia  Lumber  Co.  v.  As- 
man,  107  S.  W.  1171,  85  Ark.  568; 
.Jacksonville  Electric  Co.  v.  Cubbage, 
51  So.  139,  58  Fla.  287;  Brechcr  >. 
Chicago  Junction  Ry.  Co.,  119  IlL 
App.  554. 


125 


INSTRTJCTIOXS   TO   JURIES 


234 


tion  in  the  language  of  the  statute  under  which  an  indictment  was 
found  cannot  be  considered  abstract/^  nor  is  an  instruction  ab- 
stract if,  according  to  the  theory  of  one  party,  supported  by  some 
competont  evidence,  it  is  not  abstract.^" 

B.  In'structions  as  Affected  or  Controlled  by  the  Pleadixgs 

1.  In  Civil  Cases 

§  125.     Rule    that    instructions    must    not   be    broader    than    the 
pleadings 
With  an  exception  to  be  hereafter  noted.  Post,  §  129,  the  general 
rule  is  that  instructions  to  juries  in  civil  cases  should  be  limited  to 
the  questions  presented  by  the  pleadings,^^  and  that  instructions- 


ant's  evidence,  going  to  show  that 
they  were  on  his  premises  at  the 
time,  it  was  held  that  an  instruction 
that,  if  they  were  running  at  large  on 
the  highway,  defendant  had  the 
right  to  take  them  into  his  custody. 
was  properly  refused,  as  not  based 
on  the  evidence  or  theory  of  defense. 
Ekhmd  v.  Toner,  80  X.*^W.  791.  121 
Mich.  687.  An  instruction,  in  an  ac- 
tion of  trover,  that  if  the  parties  had 
heon  putting  wood  along  a  railroad, 
and  the  defendants  had  been  taking 
it  lip  in  parcels,  then  the  defendants 
had  the  right  to  act  on  this  plan,  and 
taking  up  the  wood  paid  for  by  the 
defendants  would  not  make  them  lia- 
ble in  trover.  Nashville.  C.  &  St.  L. 
Ry.  T.  Walley,  41  So.  1.34,  147  Ala. 
697.  An  instruction,  in  an  action  on 
a  note  which  a  bank  purchased  in 
the  regular  course  of  business,  the 
transaction  not  being  usurious,  that 
a  bank  which  charges  usury  in  dis- 
counting a  note  cannot  be  a  bona  fide 
purchaser.  Hudson  v.  Tlopton  State 
Rank,  75  So.  695,  16  Ala.  App.  101. 
Where,  in  an  action  for  damages 
through  the  maintenance  of  a  dam,  it 
neither  appeared  from  the  pleadings 
nor  from  the  testimony  that  plaintiff 
was  seeking  damages  that  could 
have  been  avoided  i)y  him,  a  request- 
ed instruction  as  to  plaintiff's  duty 
to  lessen  the  loss  by  properly  drain- 
ing the  land  if  he  could  reasonably 
have  done  so  was  properly  refused. 
Auten  V.  Catawba  Power  Co.,  65  S. 


E.  274,  84  S.  C.  399.  judgment  modi- 
fied on  rehearing.  66  S.  E.  ISO,  84  S. 
C.  .399.  An  instruction,  in  an  action 
for  deflecting  surface  water  into  a 
sink  hole,  causing  injury  to  plain- 
tiff's spring,  defining  a  known  ana 
well-defined  channel.  Killian  v.  Kil- 
lian,  57  So.  825,  175  Ala.  224.  An 
instruction  in  a  will  contest  that  un- 
due influence  and  mental  capacit.v 
cannot  be  separated,  where  the  tes- 
tatrix is  of  advanced  age  and  suf- 
fering from  a  disease  affecting  her 
brain  and  vital  powers.  Hayes  v. 
Moulton,  80  N.  E.  215,-  194  Mass.  157. 

4  9  White  V.  People,  53  X.  E.  570, 
179  111.  356. 

5  0  Strickland  v.  Smith,  198  S.  W. 
690.  131  Ark.  350. 

51  U.  S.  (C.  C 
V.  Beach,  191  F. 
566. 

Ark.  St.  Louis  &  S.  F.  Pt.  Co.  v. 
Vaughan,  105  S.  W.  573,  84  Ark.  311. 

Colo.  Reynolds  v.  Hart,  94  P.  14, 
42  Colo.  150. 

Conu.  Eckler  v.  Wake,  88  A.  369, 
87  Conn.  70S. 

Fla.  Town  of  De  Funiak  Springs 
V.  Perdue,  68  So.  234,  69  Fla.  326. 

Ga.  Southern  Ry.  Co.  v.  Oiaai- 
bers,  55  S.  E.  37,  126  Ga.  404,  7  U 
R.  A.    fX.  S.)  926. 

Idaho.  Tarr  v.  Oregon  Short 
Line  R.  Co.,  93  P.  957,  14  Idaho,  192, 
125  Am.  St.  Rep.  151. 

111.  Kendall  v.  Chicago  Rys.  Co., 
185  111.  App.  145. 


A.  N.   J.)     Morris 
34,    111    C.    C.    A. 


235 


APPLICABILITY   TO   PLEADINGS   AND   EVIDENCE 


§  125 


submitting  to  the  jury  matters  outside  of  the  issues  made  by  the 
pleadings  are  not  only  properly  refused,'^-  but  constitute  positive 


Kam.  Oil  Well  Supply  Co.  v. 
Johnson,  98  P.  3S1,  78  Kan.  7f)l. 

Ky.  Mathis  v.  Bank  of  Taylors- 
ville,  124  S.  W.  876,  136  Ky.  634. 

Md.  Coughlin  v.  Blaul,  87  A. 
766,  120  Md.  28;  Darby  Candy  Co. 
of  Baltimore  City  v.  Hoffberger,  73 
A.  565,  111  v\Id.  84. 

Minn.  Hostetter  v.  Illinois  Cent. 
Ry.  Co.,  115  N.  W.  748,  104  Minn.  25. 
Mo.  Lorton  v.  Trail  (App.)  216 
S.  W.  54;  Silverthoi-ne  v.  Summit 
Lumber  Co.,  176  S.  W.  441,  100  Mo. 
App.  716 ;  Alexander  v.  Missouri 
Pae.  Ry.  Co.,  165  S.  W.  1156,  178  Mo. 
App.  184. 

N.  Y.  Newman  v.  Acme  Metal 
Ceilins-  Co.  (Sup.)  134  N.  Y.  S.  518. 
.'-.2  u.  S.  (C.  C.  A.  Ohio)  Beaver 
Hill  Coal  Co.  V.  Lassilla.  176  F.  725, 
100  C.  C.  A.  283;  Republic  Iron  & 
Steel  Co.  V.  Yanuszka,  166  F.  684, 
92  C.  C.  A.  280. 

Ala.  Alabama  Steel  &  Wire  Co. 
V.  Griffin,  42  So.  1034.  149  Ala.  423. 

Ariz.  Ewiug  v.  United  States,  89 
P.  593,  11  Ariz.  1. 

Ark.  Southwestern  Telegraph  & 
Telephone  Co.  v.  Abeles.  126  S.  W. 
724,  94  Ark.  254,  140  Am.  St.  Rep. 
115,  21  Ann.  Cas.  1006;  St.  Louis.  I. 
M.  &  S.  Ry.  Co.  V.  Fambro,  114  S.  W. 
2.30,    88    Ark.    12. 

Cal.  Medlin  v.  Spazier,  137  P. 
1078,  23  Cal.  App.  242;  De  Gottardi 
V.  Donati,  99  P.  492,  155  Cal.  109. 

Colo.  Rice  V.  Van  Why,  111  P. 
599,  49  Colo.  7. 

Conn.  Billings  v.  McKenzie,  89 
A  344,  87  Conn.  617;  Leone  v.  I.  & 
F.  Motor  Car  Co.,  80  A.  520,  84  Conn. 
463. 

D.  C.  Washington,  A.  &  M.  V.  R. 
Co.  V.  Fincham,  40  App.  D.  C.  412. 

Fla.  Jacksonville  Electric  Co.  v. 
Sloan,  42  So.  516.  52  Fla.  257. 

Ga.  Georgia,  F.  &  A.  Ry.  Co.  v. 
Sasser,  61  S.  E.  505,  4  Ga.  App.  276. 
Ind.  Lake  Erie  &  W.  R.  Co.  v. 
Sanders  (App.)  125  N.  E.  793 ;  Cleve- 
land, C,  C.  &  St.  L.  Ry.  Co.  v.  Smith, 
97  N.  E.  164,  177  Ind.  524;  .l^ltna 
Life  Ins.  Co.  v.  Bockting,  79  N.  E. 
524,  39  Ind.  App.  586. 


Iowa.  Dugane  v.  Hvezda  Pokro 
ku  No.  4,  119'^  N.  W.  141. 

Kan.  Reynolds  v.  Curry,  105  P. 
437,  81  Kan.  443. 

Ky.  Minor  v.  Gordon.  188  S.  W. 
768,  171  Ky.  790,  modifying  judg- 
ment on  rehearing  1S6  S.  W.  480, 
170  Ky.  609;  Turner  &  Frazer  v. 
Frazier,  163  S.  W.  245,  157  Ky.  388; 
Edge  V.  Ott,  152  S.  W.  764,  151  Ky. 
672 ;  Eirk's  Adm'r  v.  Louisville  Ry. 
Co.,  98  S.  W.  293,  30  Ky.  Law  Rep. 
325. 

Me.  Smith  v.  Tilton,  101  A.  722, 
116  Me.  311;  Lunge  v.  Abbott,  95 
A.  912.  114  Me.  177. 

Micli.  In  re  Keene's  Estate,  155 
N.  W.  514,  189  Mich.  97,  Ann.  Cas. 
191SE,  367;  RuthrufiC  v.  Faust,  117 
N.  W.   902,   154   Mich.   409. 

Minn.  Foot,  Schulze  &  Co.  v. 
Porter,  154  N.  W.  1078,  131  Minn. 
224;  Evertson  v.  McKay,  144  N.  W. 
950.  124  Minn.  260. 

Mo.  Cotner  v.  St.  Louis  &  S.  F, 
R.  Co.,  119  S.  W.  610.  220  Mo.  284: 
National  Tube  Works  Co.  v.  Ring 
Refrigerating  &  Ice  Mach.  Co.,  98 
S.  W.  620,  201  Mo.  30. 

Mont.  Smith  v.  Barnes,  149  P. 
963,  51  Mont.  202.  Ann.  Cas.  1917D, 
.330;  Marron  v.  Great  Northern  Ry. 
Co..   129    P.    1055.   46   Mont.   593. 

N.  C.  Martin  v.  Knight,  61  S.  E, 
447.  147  N.  C.  564. 

Okl.  Cassingham  v.  Berry,  150 
P.  139. 

Or.  Clearwater  v.  Forrest,  143  P. 
998.  72  Or.  312 ;  Zanello  v.  Smith  & 
Watson  Iron  Works,  124  P.  660.  G2  Or. 
213. 

Pa.  Foringer  v.  New  Kensington 
Stone  Co.,  72  A.  797,  223  Pa.  425. 

R.  I.  Eagle  Brewing  Co.  v.  Col- 
aluca,  94  A.  680,  38  R.  I.  224. 

S.  C.  Gibson  v.  Atlantic  Coast  Line 
R.  Co..  70  S.  E.  1030,  88  S.  C.  360; 
Craig  Milling  Co.  v.  Cromer,  67  S.  E. 
289,  85  S.  C.  350;  Auten  v.  Catawba 
Power  Co.,  65  S.  E.  274,  84  S.  C.  399, 
.iudsment  modified  on  rehearing,  66  S. 
E.  ISO,  84  S.  C.  399. 

S.  D.  Comeau  v.  Hurley,  123  N. 
W.  715,  24  S.  D.  275. 


INSTRUCTIONS   TO  JURIES 


23G 


error,53  which  ordinarily  will  work  a  reversal,'^  as  being  calculat- 
ed to  mislead  the  jury.^^ 


Tenn.  Fletcher  v.  Louisville  & 
X.  R.  Co..  49  S.  W.  739,  102  Tenn.  1. 

Tex.  Smith  v.  Bryan  (Civ.  App.) 
204  S.  W.  ?,^d :  Petty  v.  City  of  San 
Antonio  (Civ.  App.)  181  S.  W.  224; 
Hartley  v.  Marino  (Civ.  App.)  158 
S.  W.  1156:  Ripley  v.  Ocean  Accident 
&  Guarantee  Coi-poranou  (Civ.  App.) 
146  S.  W.  974:  Temple  Electric 
Light  Co.  V.  Halliburton  (Civ.  App.) 
136  S.  W.  584:  San  Antonio  Light 
Pub.  Co.  V.  Lewy.  113  S.  W.  574.  52 
Tex.  Civ.  App.  22;  Galveston,  PI.  & 
H.  R.  Co.  V.  Alberti.  103  S.  W.  609, 
47  Tex.  Civ.  App.  32. 

Utah.  Larson  v.  Calder's  Park 
Co..  180  P.  509.  54  Utah.  .325,  4  A. 
L.  R.  731:  Edd  v.  Tnion  Pac.  Coal 
Co..  71  P.  215,  25  Utah,  293. 

Vt.  Bancroft  v.  Town  of  East 
Mouti>elier,  109  A.  39,  94  Vt.  163: 
l>ou glass  &  Yarnum  v.  Village  of 
Morrisville,  95  A.  810,  89  Vt.  393. 

Va.  Norfolli  Southern  R.  Co.  v. 
Croclver,  84  S.  E.  681,  117  Va.  327. 

Wash.  Loveland  v.  Jenkins-Boys 
Co..  95  P.  490.  49  Wash.  .369:  Starr 
V.  .T:tna  Life  Ins.  Co.,  87  P.  1119,  45 
Wash.  128. 

Wis.  Tavlor  v.  Northern  Coal  & 
Dock  Co..  152  X.  W.  465,  161  Wis. 
223.  Ann.  Cas.  1916C,  167:  Ryan  v. 
Oshknsh  Gaslight  Co.,  120  N.  W.  264, 
138  Wis.  466. 

ss  Ala.  Alfibama  Great  Southern 
R.  Co.  V.  McWhorter,  47  So.  84,  156 
Ala.  269;  Garth  v.  Alabama  Traction 
Co..  42  So.  627,  148  Ala.  96. 

Ark.  Helena  Hardwood  Lumber 
Co.  V.  Maynard,  138  S.  W.  469.  99 
Ark.  377. 

Ga.  Rawlincs  v.  Cohen,  85  S.  E. 
851.  143  Ga.  726. 

Idaho.  Smith  v.  Graham.  164  P. 
3.54.  30  Idaho.  132. 

Ind.  Lake  Erie  «&  W.  R.  Co.  v. 
Real.,.  98  N.  E.  453,  50  Ind.  App.  4.50 ; 
Cleveland.  C,  C.  &  St.  L.  Ry.  Co.  v. 
Powers,  SO  X.  E.  485,  173  Ind.  105." 
denyinc  rehearing  88  N.  E.  1073,  173 
Ind.  10.5. 

Iowa.  Garvey  v.  Boody-Holland  & 
Nfw,  1.55  X.  W.  1027,  176  Iowa.  273. 

Mo.  Williamson  v.  Kansas  City 
Stock   Yards   (App.)   217   S.    W.    614; 


Emerson-Brantingham  Implement  Co. 
V.  Simpson,  217  S.  W.  559.  205  Mo. 
App.  56:  Riley  v.  City  of  Independ- 
ence, 167  S.  W.  1022,  258  Mo.  671,  Ann. 

54  Fla.  Pensacola  Electric  Termi- 
nal Ry.  Co.  V.  Haussman,  40  So.  196, 
51  Fla.  286. 

111.  Chicago  City  Ry.  Co.  v.  Schae- 
fer.  121  111.  App.  .334. 

Ind.  Southern  Ry.  Co.  v.  Crone.  99 
N.  E.  762,  51  Ind.  App.  300. 

Neb.  ,  Farmers'  &  Merchants'  Bank 
V.  Upham,  37  Xeb.  417,  55  N.  W.  1044. 

N.  Y.  McLewee  v.  Hall,  103  X.  Y. 
639.  8  X.  E.  486;  Horgan  v.  Rapid 
Transit  Subway  Const.  Co.  (Sup.)  146 
X.  Y.  S.  219. 

Ohio.  Cincinnati  Traction  Co.  v. 
Stephens,  79  X.  E.  235,  75  Ohio  St. 
171 ;  Cincinnati  Traction  Co.  v.  John- 
son. 30  Ohio  Cir.  Ct.  R.  702. 

Tex.  St.  Louis  Southwestern  Ry. 
Co.  of  Texas  v.  Evans  (Civ.  App.)  158 
S.  W.  1179;  St.  Louis,  B.  &  M.  Ry. 
Co.  V.  Maddox  (Civ.  App.)  152  S.  W. 
225. 

5  5  Gibbs  V.  Wall,  10  Colo.  153,  14 
Pac.  216:  Dolson  v.  Dunham,  104  X. 
W.  964,  96  Minn.  227;  Sooby  v.  Postal 
Telegraph-Cable  Co.  (Mo.  App.)  217 
S.  W.  877;  Kingfisher  Xat.  Bank  v. 
Johnson,  98  P.  343,  22  Okl.  228. 

Impossibility  of  telling  from 
verdict  Tvhether  jury  misled. 
Where  the  complaint  in  an  action  for 
injuries  to  a  servant  while  operating 
an  unguarded  machine  charged  mere- 
ly a  negUgent  failure  to  warn  the 
servant  as  to  the  dangers  incident  to 
the  work,  without  claiming  that  the 
machine  was  defective,  the  submission 
to  the  jury  of  the  issue  whether  the 
machine  was  dangerous  to  employes 
when  engaged  in  their  ordinary  duties 
of  operating  it,  and  reading  in  con- 
nection therewith  a  statute  requiring 
the  guarding  of  specified  machinery, 
was  erroneous,  necessitating  a  revers- 
al, it  being  impossible  to  tell  from  the 
verdict  whether  the  jury  based  their 
conclusion  of  negligence  on  the  failure 
to  warn,  or  on  the  unguarded  condi- 
tion of  the  machine.  Keena  v.  Ameri- 
can Box  Toe  Co.,  128  X.  W.  858,  144 
Wis.  231. 


237 


APPLICABILITY  TO   PLEADINGS   AXD   EVIDENCE 


126 


§  126.     Scope   of   rule   against  broadening  issues   by  instructions 
The  above  rule  applies,  as  has  already  been  shown  to  an  instruc- 
tion which  is  correct  as  an  abstract  proposition  of  law,  but  which 


Cas.  1915D,  74S;  Bryan  v.  United 
States  Incandescent  Lamp  Co..  159  S. 
■\Y.  754,  176  Mo.  App.  71C  :  Kellog.s  v. 
City  of  Kirksville,  112  S.  W.  296.  132 
Mo.  App.  519. 

Mont.  Chan  v.  Slater,  82  P.  657, 
33  Mont.  155. 

Neb.  Norfolk  Beet-Sngar  Co.  v. 
Highr.  76  X.  W.  566.  56  Neb.  162. 

N.  J.  Duel  V.  Mansfield  Plumbing 
Co..  92  A.  367.  S6  X.  J.  Law.  5S2. 

N.  M.  Bank  of  Commerce  v. 
Broyles,  120  P.  670.  16  X.  M.  414. 

N.  Y.  Limerick  v.  Holdsworth.  139 
X.  Y.  S.  737.  154  App.  Div.  747. 

OMo.  Cincinnati  Traction  Co.  v. 
Kroger,  30  Ohio  Cir.  Ct.  R.  654. 

Okl.  Comanche  Mercantile  Co.  v. 
Wheeler  &  Motter  Mercantile  Co..  155 
P.  5S3.  55  Okl.  32S:  Chicago.  Rock 
Island  &  P.  Ry.  Co.  v.  ilailes.  152  P. 
1131.  52  Okl.  27S. 

Or.  Ingram  v.  Carlton  Lumber 
Co.,  152  P.  256,  77  Or.  633;  Oberlin  y. 
Oregon-Washington  R.  &  Xavigation 
Co..  142  P.  554,  71  Or.  177. 

Pa.  Monier  v.  Philadelphia  Rapid 
Transit  Co..  75  A.  1070-.  227  Paj  273. 

S.  C.  Fanning  v.  Stroman,  101  S. 
E.  S61.  113  S.  C.  495. 

S.  D.  Christiernson  v.  Hendrie  & 
Bolthoff  Mfg.  &  Supply  Co.,  12S  X.  W. 
603.  26  S.  D.  519. 

Tex.  Schaff  v.  Holmes  (Civ.  App.) 
215  S.  W.  864 :  Scruggs  v.  E.  L.  Wood- 
lev  Lumber  Co.  (Civ.  App.)  179  S.  W. 
S97. 

Utah.  Lochhead  v.  Jensen,  129  P. 
347.  42  Utah.  99. 

Va.  Baltimore  &  O.  R.  Co.  v.  Lee, 
55  S.  E.  1.  106  Va.  32. 

W.  Va.  Britton  v.  South  Penn  Oil 
Co.,  SI  S.  E.  525,  73  W.  Va.  792. 

Instructions  erroneous  ii^tliui 
rule.  Where  a  hill  of  particulars  al- 
leged that  defendant  contracted  to 
take  good  care  of  the  horse  and  colt  of 
plaintiff  intrusted  to  his  keeping,  and 
that  said  horse  and  colt  sickened  and 
died  for  want  of  proper  care  and  at- 
tention, it  was  held  that  it  was  error 
to  instruct  the  jury  under  such  plead- 
ings, over  the  objection  of  the  defend- 


ant, what  the  duty  of  defendant  would 
have  been  if  they  should  find  that 
.special  and  extra  care  had  been  con- 
tractefl  for.  Ran-som  v.  Getty.  14  P. 
4S7.  37  Kan.  75.  In  an  action  for  the 
unlawful  killing  of  a  dog.  where  it 
was  not  contended  that  dogs  were  not 
property,  an  instruction  that  dogs 
were  property  under  the  laws  of  the 
state  was  erroneous,  being  upon  a 
matter  not  in  issue.  Brisco  v.  Laugh- 
lin.  143  S.  W.  65.  161  Mo.  App.  76. 
Where  it  is  alleged  that  the  damage  to 
a  shipment  of  bananas  resulted  from 
negligence  and  delay,  followed  by  spe- 
cific allegations  ascribing  the  damages 
to  the  failure  to  stop  the  car  as  per 
contract,  it  is  error  to  submit  to  the 
jury  as  a  separate  ground  of  recovery 
the  failure  to  ice  the  car.  Houston  & 
T.  C.  R.  Co.  v.  Corsicana  Fruit  Co. 
(Tex.  Civ.  App.)  170  S.  W.  849.  Where 
the  petition  in  an  action  against  a 
shipper  of  calves  in  consequence  of 
their  having  been  put  into  pens  infect- 
ed with  a  contagious  disease  alleged 
that  the  carrier  had  been  notified  that 
the  pens  had  been  quarantined,  and 
had  permitted  the  shipper,  in  igno- 
rance of  the  fact,  to  place  his  calves 
therein,  the  court  erred  in  submitting 
as  a  ground  of  recovery  the  duty  of 
the  carrier  to  have  suitable  shipping 
and  feeding  pens,  since  no  such  ground 
was  averred  in  the  petition.  Texas  & 
P.  Ry.  Co.  V.  Beal  &  Self.  97  S.  W. 
329,  43  Tex.  Civ.  App.  5SS.  Where,  in 
an  action  against  a  carrier  for  the 
penalty  imposed  by  a  statute  for  de- 
lay in  the  tran.sportation  of  freight, 
the  court  submitted  the  issue,  what 
amount,  if  any.  is  the  plaintiff  entitled 
to  recover  of  defendant  on  account  of 
the  failure  to  promptly  ship  the 
freight,  a  charge  that  if  the  jury  be- 
lieved the  evidence  they  should  an- 
swer the  issues,  "•Yes,"  was  erroneous, 
for  the  charge  and  the  issue  did  not 
correspond,  and  the  response  directed 
to  be  made  was  inappropriate  to  the 
issue.  Davis  v.  Southern  Ry.  Co.,  60 
S.  E.  722,  147  X.  C.  68.  In  an  action 
against  a  railroad  company  which  had 


126 


INSTRUCTIONS  TO  JURIES 


238 


is  inapplicable  to  any  issue  in  the  case,^  and  requires  the  instruc- 


contracted  with  the  county  court  to 
transport  sick  persons  to  the  pest- 
house  by  such  a  pei'son.  instructions 
for  plaintiff  based  on  the  theory  of  an 
Implied  contract,  and  which  ignore  the 
special  contract  alleged  in  the  decla- 
ration, should  be  refused.  Jenkins  v. 
Chesapeake  &  O.  Ry.  Co.,  57  S.  E. 
48,  61  W.  Va.  597,  49  L.  R.  A.  (N.  S.) 
1166.  11  Ann.  Cas.  967.  In  an  action 
for  injuries  to  a  passenger,  received 
■while  attempting  to  enter  the  middle 
door  of  a  car,  caused  by  falling  into 
a  space  between  the  door  and  the  sta- 
tion platform,  an  instruction  charging 
that  if  defendant  could  have  opened 
the  end  doors  of  the  car  and  taken  the 
passengers  in  there  with  safety,  but 
failed  to  do  so,  because  it  was  not  pay- 
ing attention  to  the  safety  of  the  pas- 
sengers, its  failure  to  do  so  would  be 
negligence,  was  erroneous,  as  not  jus- 
tified by  the  issues,  where  neither  the 
pleadings  nor  the  evidence  raised  any 
issue  as  to  the  company's  duty  to  open 
the  end  doors.  Plummer  v.  Boston 
Elevated  Ry.  Co.,  84  N.  E.  849,  198 
Mass.  499.  Where,  in  an  action  on  a 
note  and  mortgage,  there  was  no  plea 
of  non  est  factum,  and  plaintiff  pro- 
duced in  evidence  the  note  and  mort- 
gage, it  was  error  to  submit  to  the 
jury  the  question  whether  defendant 
executed  the  note  and  mortgage. 
Walker  v.  Tomlison,  98  S.  W.  906,  44 
Tex.  Civ.  App.  446.  Where  the  issues 
made  by  the  pleadings  in  an  action  on 
notes  given  for  an  engine  covered  by  a 
chattel  mortgage  was  that  the  prop- 
erty was  seized  and  sold  under  the 
terms  of  the  mortgage,  and  a  sum 
realized  in  excess  of  the  indebtedness, 
it  was  error  to  submit  the  case  upon 
the  theory  that  plaintiff  had  wrongful- 
ly converted  the  mortgaged  ])roperty. 
Aultman  &  Taylor  Muclihiery  Co.  v. 
Forest,  130  P.  1086,  23  Colo.  App.  558. 
Where,  in  an  action  on  a  note  given 
for  a  policy  premium,  the  answer  did 
not  allege  that  plaintiff  represented  to 
defendant  that  there  would  be  any 
stipulations  in  the  r>olicy  that  were 
not  contained  in  it,  especially  one  that 
she  would  receive  7  per  cent,  per  an- 
num intore.st  on  premiums  paid,  an  in- 
struction that,  if  plaintiff  represented 


to  defendant  that  the  policy  would 
contain  such  stipulation  which  de- 
fendant helieved  to  be  true,  and  by 
reason  thereof  was  induced  to  execute 
the  note,  they  should  find  for  defend- 
ant, was  erroneous.  Sympson  v.  Bell, 
(Ky.)  112  S.  W.  1133.  In  an  action  for 
breach  of  contract  by  which  plaintiff 
agreed  to  dig  a  well  300  feet  deep, 
where  plaintiff  alleged  that  the  Avell 
was  dug  286  feet  deep  when  the  drill 
was  accidentally  lost,  and  that  plain- 
tiff offered  to  drill  another  well  near 
by  without  charge,  which  offer  was 
refused,  and  sought  recovery  for  dig- 
ging 300  feet  at  the  contract  price,  or, 
in  the  alternative,  reasonable  compen- 
sation for  the  work  actually  done,  it 
was  error  to  authorize  recovery  on 
the  basis  of  what  the  well  dug  was  ac- 
tually worth  to  defendant.  Mitchell 
V.  Boyce  (Tex.  Civ.  App.)  120  S.  W. 
1016.  Where  plaintiff  contracted  to 
drill  a  well  not  less  than  200  nor  more 
than  400  feet,  at  the  option  of  defend- 
ant, who  was  to  furnish  the  casing,  no 
payment  to  be  made  if  he  abandoned 
the  work  before  completion,  it  was  er- 
ror, in  an  action  for  compensation  for 
a  partially  completed  well  in  which 
plaintiff  alleged  that  he  ceased  work 
because  defendant  notified  him  to  do 
so,  to  instruct  that  if  it  became  neces- 
sary to  use  casing  in  drilling  the  well, 
and  defendant  failed  or  refused  for 
an  unreasonable  length  of  time  to  fur- 
nish it,  plaintiff  could  recover.  Le- 
master  v.  Southern  Missouri  Rv.  Co., 
99  S.  W.  500, 122  Mo.  App.  313.  Where 
a  complaint  was  construed  as  stating 
a  cause  of  action  for  defendant's  fail- 
ure to  satisfactorily  perform  a  serv- 
ice contract  to  locate  plaintiff  on  cer- 
tain public  lands  under  the  Stone  and 
Timl)er  Act,  instructions  that  if  de- 
fendant's representations  were  mate- 
rially false,  and  plaintiff  did  not 
know  and  had  no  means  of  knowing 
that  they  were  false,  but  relied  on 
them  as  being  true,  and  defendant 
knew  this  and  plaintiff  suffered  dam- 
ages thereby,  it  was  immaterial 
whether  defendant  made  the  represen- 
tations willfully  or  intentionally,    or 

cc  See  note  56  on  page  243. 


239 


APPLICABILITY   TO   PLEADINGS   AND   EVIDENCE 


126 


tions  to  be  confined  to  the  issues  raised  by  the  pleadings,  although 


not,  for  he  bad  uo  right  to  make  even 
a  mistake  in  facts  so  material  to  the 
contract  except  under  tlie  penalty  of 
responding  in  damages,  and  also  that 
plaintiff  could  not  recover  unless  de- 
fendant or  his  agent  made  false  rep- 
resentations to  plaintiff,  and  plaintiff 
actually  relied  thereon,  and  that  it 
must  also  be  shown  that  plaintiff"  paid 
something  to  defendant  or  his  agent 
which  in  equity  and  good  conscience 
he  ovight  to  return,  etc.,  were  inappro- 
priate and  erroneous.  Noble  v.  Jjit)by, 
129  N.  W.  791,  144  Wis.  632.  In  per- 
sonal injury  action,  an  instruction 
stating  that  the  jury  should  not  be 
influenced  by  sympathy  nor  the  rela- 
tive financial  condition  of  the  parties 
is  properly  refused,  where  punitive 
damages  are  not  claimed.     Riverside 

6  Dan  River  Cotton  Mills  Co.  v.  Car- 
ter, 74  S.  E.  183,  113  Va.  346.  Where, 
in  an  action  on  a  bond  for  liquidated 
damages  for  breach  of  contract,  the 
petition  prayed  for  judgment  for  the 
amount  of  the  bond,  without  praying 
in  the  alternative  for  the  actual  dam- 
ages sustained  by  the  breach,  and 
without  praying  for  general  relief,  it 
was  error  to  give  a  charge  pennitting 
a  recovery  of  actual  damages.  Work 
V.  Cross  (Tex,  Civ.  App.)  98  S.  W:  208. 
Where  the  action  was  for  brokers' 
commissions,  and  not  for  damages  by 
reason  of  a  revocation  of  their  agency, 
instructions  submitting  the  latter  is- 
sue to  the  jury  were  erroneous. 
Knudson  &  Richardson  v.  Laurent,  140 
N.  W.  392,  159  Iowa,  189.  In  eject- 
ment, alleging  plaintiff's  reliance  on  a 
demise  from  herself  as  sole  heir  of 
her  father,  who  died  in  possession, 
and  that  defendant  claimed  under  her 
father,  and  that  his  deed  to  defend- 
ant's remote  grantor  was  a  forgery, 
an  instruction  that  fraud  may  not  be 
presumed,  but  that  slight  circumstanc- 
es may  carry  conviction  thereof,  was 
inapplicable  to  any  issue.  Cowart  v. 
Strickland,  100  S.  E.  447,  149  Ga.  397, 

7  A.  L.  R.  1110.  Where,  in  an  action 
for  the  destruction  of  property  by  fire, 
plaintiff's  statement  alleged  that  the 
negligent  throwing  of  sparks  causing 
the  fire  occurred  between  2:30  and 
3:15  p.  m.,  it  was  error  to  charge  that 


the  jury  could  find  that  the  spark 
causing  the  fire  might  have  fallen  on 
the  premises  "at  any  time  prior  to  2 
o'clock."  Oakdale  Baking  Co.  v.  Phil- 
adelphia &  R  Ry.  Co.,  91  A.  358,  244 
Pa.  463.  In  an  action  of  deceit 
against  a  bank  president  for  falsely 
representing  the  bank's  condition, 
thereby  inducing  the  plaintiff's  ac- 
ceptance of  its  stock,  which  defend- 
ant had  purchased  for  him,  it  is  error 
to  instruct  that  if  defendant  made 
false  representations  concerning  the 
institution's  financial  condition,  "or" 
as  to  the  real  ownership  of  the  stock, 
he  would  be  liable;  false  representa- 
tion as  to  ownership  not  being  counted 
on  in  the  declaration.  Cahill  v.  Apple- 
garth,  56  A.  794,  98  Md.  493.  In  suit 
by  hotel  guest  for  money  deposited 
with  hotel,  where  defendant,  under 
general  issue,  set  up  no  bailment  and 
the  case  was  tried  on  that  theory,  it 
was  not  error  to  refuse  instruction  on 
the  theory  of  gratuitous  bailment. 
Adler  V.  Planters'  Hotel  Co.  (Mo.  App.) 
181  S.  W.  1062.  Where,  in  an  action 
for  rent  under  a  lease  for  the  time  aft- 
er defendants  had  abandonejl  the 
premises,  there  was  no  i^-sue  tendered 
in  the  answer  that  defendants  had 
abandoned  the  property  with  plain- 
tiff's consent,  but  the  answer  pleaded 
that  the  lease  had  been  obtained  by 
fraud,  and  the  judge  charged  that, 
if  the  jury  found  the  lease  was  valid, 
they  were  bound  to  find  for  plaintiff 
in  the  sum  of  $150  for  rent,  whereupon 
defendants'  counsel  asked  the  court  if 
that  would  be  tnie  if  defendants  aban- 
doned the  premises  by  consent,  to 
which  the  court  replied  in  the  nega- 
tive, and  added  that,  if  there  M'as 
an  agreement  for  surrender,  defend- 
ants were  entitled  to  a  deduction  for 
the  term  for  which  the  promises  wervi 
abandoned  by  plaintiff's  consent,  it 
was  held  that  such  instruction  was 
erroneous  as  not  within  the  issues. 
Swayne  v.  Feliei,  79  A.  62,  84  Conn. 
147.  Where,  in  slander,  plaintiff's  rep- 
utation was  not  attacked  or  involved, 
a  charge  that  the  jury  would  accept  as 
true  the  allegation  that  he  had  the 
reputation  of  being  an  honest  man, 
and  had  never  been  suspected  of  any 


126 


INSTRUCTIONS  TO  JURIES 


240 


these  be  immaterial."     Such   rule  precludes  the   court   from   in- 


dishonest  practices,  was  properly  re- 
fused. Lindsey  v.  St.  Louis,  I.  M.  & 
S.  Ry.  Co.,  129  S.  W.  807,  95  Ark.  534. 
An  instruction  as  to  ttie  master's  duty 
to  furnish  safe  machinery  and  there- 
after exercise  care  to  ascertain  its 
condition  is  outside  the  issue;  the  tlie- 
ory  of  the  servant's  complaint  for  in- 
jury being  the  master's  unkept  prom- 
ise to  repair.  National  Motor  Vehicle 
Co.  V.  Pake,  109  N.  E.  787,  60  Ind. 
App.  366.  Where  an  employ^  suing 
for  a  personal  injury  did  not  claim 
that  it  was  negligence  for  the  employ- 
er to  fail  to  do  one  of  three  things 
specified,  provided  one  or  two  of  the 
things  were  supplied,  an  instruction 
that  a  failure  to  do  any  one  of  the 
things  was  actionable  negligence  was 
erroneous.  Burrows  v.  Likes,  166  S. 
W.  643,  ISO  Mo.  App.  447.  It  is  not 
error,  in  an  action  for  the  death  of  a 
servant,  to  refuse  instructions  on  con- 
tributory negligence,  where  the  com- 
plaint was  based  on  the  theory  of  last 
clear  chance;  that  necessarily  involv- 
ing an  admission  of  contributory  neg- 
ligence. Doichinoff  v.  Chicago,  M.  & 
St.  P.,Ry.  Co.,  154  P.  924,  51  Mont. 
582.  Wliere  the  cause  of  action  plead- 
ed was  based  on  negligence,  it  was  er- 
ror to  submit  it  to  the  jury  on  the 
theory  that  it  was  for  a  nuisance. 
Sandzig  v.  Eckstein  (Sup.)  132  N.  Y. 
S.  727.  Instruction  regarding  imput- 
ed negligence  was  properly  refused 
where  that  issue  had  been  excluded 
for  failure  to  plead  it.  Angell  v.  Chi- 
cago, R.  I.  &  P.  Ry.  Co.,  156  P.  763,  97 
Kan.  688,  rehearing  denied  157  P. 
1190,  98  Kan.  268.  Where  a  mining 
company  sued  for  injuries  to  an  em- 
ploy6  pleaded  contributory  negligence 
in  general  terms  only,  an  instruction 
on  contributory  negligence  based  on 
the  loading  of  a  car  in  a  particular 
monner  was  properly  refused.  Jellico 
Coal  Mining  Co.  v.  Lee,  151  S.  W. 
26,  151  Ky.  53.  If  plaintiff  does  not 
claim  a  right  to  recover  because  of 
the  violation  of  an  ordinance  in  evi- 
dence, it  is  not  error  to  refuse  an  in- 
struction to  the  effect  that  no  recov- 
ery could  be  predicated  upon  a  viola- 
tion of  such  ordinance.  Sehrt  v. 
Sampsell,  167  111.   App.  628.     In  an 


action  for  injuries  to  plaintiff  by  the 
use  of  pads,  purchased  from  defend- 
ant and  advertised  as  a  cure  for  rup- 
ture, but  containing  injurious  ingredi- 
ents, an  instruction  predicated  on  the 
relation  of  physician  and  patient,  and 
holding  defendant  responsible  for 
failure  to  exercise  the  care  and  skill 
of  average  physicians,  was  erroneous, 
as  not  justified  by  the  pleadings. 
Harmon  v.  Plapao  Laboratories  (Mo. 
App.)  218  S.  W.  701.  Where,  in  an 
action  against  a  physician  for  mal- 
practice, it  was  not  suggested  that 
plaintiff  had  suffered  any  injury  to 
his  general  health,  an  instruction  au- 
thorizing the  jury,  in  fixing  the  dam- 
ages, to  take  into  consideration  the 
impairment  of  plaintiff's  health  in  ad- 
dition to  the  injury  sustained  by  him 
was  erroneous,  because  foreign  to  the 
issues.  Albertson  v.  Lewis,  109  N. 
W.  705,  132  Iowa,  243.  In  a  suit 
against  a  railway  company  for  a  nui- 
sance, counting  on  unnecessary  noises 
made  by  passing  locomotives,  it  was 
error  to  predicate  plaintiff's  right  to 
recover  on  unusual  noises.  Passons  v. 
Missouri,  K.  &  T.  Ry.  Co.  of  Texas 
(Tex.  Civ.  App.)  137  S.  W.  435.  In 
an  action  against  a  railroad  to  recov- 
er damages  for  a  death  caused  by  in- 
testate being  struck  by  a  train  while 
crossing  the  defendant's  track,  it  is 
error  for  the  court  to  instruct  the  jury 
on  the  theory  of  willful  or  wanton 
recklessness  on  part  of  defendant ;  it 
not  being  alleged  in  the  pleadings  that 
defendant  was  willfully  or  wantonly 
negligent.  Wabash  R.  Co.  v.  Larrick, 
84  111.  App.  520.  Where,  in  an  action 
against  a  railway  company  for  injury 
to  a  traction  engine  by  a  collision  with 
a  train,  the  declaration  stated  a  cause 
of  action  based  on  noncompliance  with 
a  statute  requiring  every  railroad  to 
keep  the  engineer  on  the  lookout 
ahead,  and  to  sound  the  whistle,  put 
the  brakes  down,  etc.,  on  an  obstruc- 
tion appearing  on  the  track,  an  in- 
struction defining  the  duty  of  the  com- 
pany, on  seeing  the  traction  engine 
approaching  the  track  under  such  cir- 
cumstances  as   to    indicate   that   the 

6  7  Hooker  v.  Johnson,  6  Fla.  730. 


241 


APPLICABILITY  TO   PLEADINGS  AND   EVIDENCE 


126 


structing  on  issues  made  by  the  pleadings,  but  which  have  .been 


driver  thereof  had  not  seen  or  heard 
the  approach  of  the  train,  and  that 
he  would  probably  enter  on  the  track 
just  as  if  the  train  were  not  coming, 
was  erroneous,  because  not  justified 
by  the  pleadings.     Chesapeake  ^  N. 
Ry.  V.  Crews,  99  S.  W.  368,  118  Tenn. 
52     Where  the  petition  in  an  action 
against  a  raih-oad  company  for  the 
destruction  of  property  by  fire,  set  by 
sparks  from  an  engine,  merely  alleg- 
ed   a    failure  to   properly   equip   the 
engine  with  the  best  and  most  approv- 
ed spark  arresters  in  general  use,  and 
a  failure  to  properly  operate  the  en- 
gine, the   court   properly   refused   to 
charge  that  it  was  the  duty  of  the 
company  to  exercise  ordinary  care  to 
keep  the  spark  arresters  on  its  en- 
gines in  good  repair.     Lam  &  Rogers 
V    St.  Louis  Southwestern  Ry.  Co.  of 
Texas  (Tex.  Civ.  App.)  142  S.  W.  977. 
"Where  the  negligence  alleged  in  an 
action  against  a  railroad  company  for 
injuries  bv  frightening  a  team  engag- 
ed in  grading  the  track  and  causing 
them  to  run  into  plaintiff  was  in  per- 
mitting  the   engine  to  unnecessarily 
emit  steam  so  as  to  cause  a  loud  and 
unusual  noise,  it  was  error  to  submit 
the  issue  of  negligence  in  failing  to 
discontinue  the  noise  by  the  steam, 
after  the  engineer  saw,  or  by  exercis- 
ing reasonable  care  could  have  dis- 
covered, that  it  was  frightening  the 
horses.    Maynard  v.  Chicago,  B.  &  Q. 
R.  Co.,  137  S.  W.  58,  155  Mo.  App. 
352.     In  an  action  for  breach  of  an 
express  warranty  in  a  sale  of  person- 
alty, the  court  should  limit  plaintiff's 
right  to  recovery  to  breach  of  the  ex- 
press warranty  pleaded,  and  it  was 
error  to  charge  on  an  implied  war- 
ranty not  pleaded.    Burgess  v.  Felix, 
140  P.  IISO,  42  Okl.  193.    In  action  by 
buyer  of  lambs  for  sellers  failure  to 
-     perform,  wherein  the  seller  counter- 
claimed  for  the  buyer's  breach,   the 
buyer  was  liable  on  the  seller's  coun- 
terclaim  if   the  seller  had  in   truth 
complied     with     the     contract,     even 
though   the   buyer   honestly   rejected 
the  lambs  offered  as  falling  below  his 
construction   of  the  requirements   of 
the  contract,  and  instructions  relative 
to   the  buyer's   right   to   recover  the 
INST.TO  Juries— 16 


part  of  the  price  paid  in  case  of  an 
honest  rejection  were  not  pertinent  to 
the  issues.     Stanfield  v.  Arnwine,  ISd 
P.  759,  94  Or.  381.     Where,  in  an  ac- 
tion for  the  price  of  a  furnace  and  in- 
stallation work,  the  sole  issues  were 
with  reference  to  plaintiffs'  perform- 
ance  and   defendants'    rescission   be- 
cause of  the  failure  of  the  furnace  to 
comply  with  the  contract,  defendants 
having  interposed  no  counterclaim,  in- 
structions that,  if  the  furnace  did  not 
complv   with   the   contract.    i)laintiffs 
were  entitled  to  recover  the  difference  ^ 
between  the  contract  price,  etc.,  and 
compensation  for  defendants'  damag- 
es sustained,  were  erroneous,  as  not 
within  the  issues.    Helm  &  Van  Eman 
V.  Loveland,  113  N.  W.  1082, 136  Iowa, 
504.    Where,  in  an  action  for  the  val- 
ue   of    certain    potatoes,    defendant, 
while  admitting  the  order,  denied  that 
the  potatoes  shipped  were  of  the  qual- 
ity specified,  and  alleged  that,  when 
received,  they  were  so  decayed  as  to 
be  not  marketable,  and  that  plaintiff, 
on  being  notified,  authorized  defend- 
ant as  their  agent  to  sell  the  potatoes 
for  their  account  for  the  best  price 
obtainable    and    remit    the    proceeds, 
which  defense  was  denied  by  reply,  it 
was  held  that  the  pleadings  raised  no 
issue  of   fraud  or  misrepresentation 
inducing  the  subsequent  contract  al- 
leged  in   the   answer,    and    that   the 
court  erred  in  charging  that,  if  such 
sulisequent  contract  was  made  by  de- 
fendant's deceit  or  fraudulent  repre- 
sentations, the  original  contract  must 
o-overn   in   the   determination    of   the 
controversv.    G.  G.  Liebhardt  Produce 
Co.  V.  Gibbs,  106  P.  6,  46  Colo.  613. 
While  it  is  a  rule  of  grammatical  con- 
struction that  relative,  qualifying,  or 
limiting  words  or  clauses  are  to  be 
referred  to  the  next  preceding  ante- 
cedent, where  there  is  only  one  ante- 
cedent there  is  no  reason  for  construc- 
tion   as  the  words  or  clauses  are  of 
necessity  referable  to  the  only  ante- 
cedent •   and  hence,  where  the  several 
allegations  of  negligence  in  a  petition 
are  all  predicatetl  ou  a  preceding  alle- 
gation that  plaintiff  was  injured  by  a 
street   car    while   \\'alking   over   and 
along  a  certain  street,  it  is  error  to 


126 


INSTRUCTIONS  TO  JURIES 


242 


withdrawn  or  abandoned  by  the  parties,^*  and  makes  it  proper  to 


give  a  charge  based  upon  the  hypothe- 
sis that  plaintiff,  when  injuretl,  was 
lying  on  the  street  with  his  feet  on 
one  of  the  rails  of  the  car  track.  San 
Antonio  Traction  Co.  v.  Kelleher,  107 
S.  W.  64,  48  Tex.  Civ.  App.  421.  The 
only  negligence  pleaded,  in  an  action 
for  collision  of  an  automohile  with  a 
team  on  a  highway  being  an  unlawful 
rate  of  speed  of  the  machine,  submis- 
sion of  the  questions  of  a  vigilant 
watch  being  kept  by  defendant,  and 
of  failure  to  keep  one  having  been  the 
cause  of  the  accident,  was  error. 
•Raybourn  v.  Phillips,  140  S.  W.  977, 
160  Mo.  App.  534.  Where,  in  an  ac- 
tion for  damages  from  an  error  in  a 
telegram,  resulting  in  the  plaintiff  real 
estate  brokers  selling  property  at  a 
sum  which  left  them  no  commission, 
plaintiffs  did  not  plead  a  binding  con- 
tract of  sale,  it  was  error  to  instruct 
on  what .  constitutes  such  a  contract. 
Levy  Bros.  v.  Western  Union  Tele- 
graph Co.,  135  P.  423,  .39  Okl.  416. 
Where  the  complaint  alleged  a  con- 
version of  plaintiff's  tools  by  defend- 
ant, and  the  conversion  was  the  con- 
trolling issue  presented,  an  instruction 
which  assumed  that  plaintiff's  cause 
of  action  was  based  on  the  neglect  of 
defendant  in  breaking  and  leaving 
open  plaintiff's  tool  chest  was  errone- 
ous because  not  presented  by  the 
pleadings.  Berman  v.  Kling,  71  A. 
.507,  81  Conn.  403.  In  an  action  to 
forfeit  an  option  to  purchase  water 
rights,  or  in  case  a  forfeiture  cannot 
be  had,  for  damages,  an  instruction 
proceeding  on  the  theory  that  it  is  an 
action  for  the  purchase  price  of  the 
water  rights  is  erroneous.  Gard  v. 
Thompson,  123  P.  497,  21  Idaho,  485. 
An  instruction  based  on  the  theory 
of  a  waiver  is  erroneous  when  the 
waiver  is  not  pleaded.  Rawlings  v. 
St.  Louis  &  S.  F.  R.  Co.  (Mo.)  175  S. 
W.  935.  In  action  on  note  given  for 
bank  stock,  defended  on  the  ground 
that  it  was  ohtained  by  fraud  and  was 
without  consideration,  where  no  waiv- 
er of  defense  of  failure  of  considera- 
tion was  pleaded,  it  was  not  error  to 
refuse  instmction  on  waiver.  Atchi- 
son Savings  Bank  v.  Potter,  164  P. 
149,  100  Kan.  407. 


After  a  cause  lias  gone  to  tlie 
jury,  a  plaintiff  cannot  interpose  and 
recover  upon  a  new  cause  of  action 
by  means  of  an  instruction.  Lawson- 
V.  Van  Auken,  6  Colo.  52. 

Discovered  peril.  As  plaintiff  can 
recover  only  on  the  negligence  alleged, 
it  is  error,  where  the  petition  does  not 
state  a  cause  of  action  under  the  hu- 
manitarian doctrine,  to  submit  that 
question  to  the  jury.  Wilder  v.  Wa- 
bash R.  Co.,  146  S.  W.  837,  164  Mo. 
App.  114;  ivnapp  v.  Dunham  (Mo. 
App.)  195. S.  W.  1062;  Cleveland,  P. 
&  E.  R.  Co.  V.  Nixon,  21  Ohio  Cir.  Ct, 
R.  736,  12  O.  C.  D.  79;  Texas  &  P. 
Ry.  Co.  V.  Knox  (Tex.  Civ.  App.)  75 
S.  W.  543;  Rio  Grande,  S.  M.  &  P. 
Ry.  Co.  V.  Martinez,  87  S.  W.  853,  39 
Tex.  Civ.  App.  460. 

Question  of  estoppel.  The  ques- 
tion of  estoppel  not  being  raised  by 
the  pleadings,  an  instniction  thereon 
is  properly  refused.  Bankers'  Trust 
Co.  of  Amarillo  v.  Cooper,  Merrill  & 
Lumpkin  (Tex.  Civ.  App.)  179  S.  W. 

5  8  u.  S.  (C.  C.  A.  Ohio)  Toledo,  St. 
L.  &  W.  R.  Co.  V.  Kouutz.  168  F.  8-32, 
94  C.  C.  A.  244. 

Ala.  Louisville  &  N.  R.  Co.  v.  Hub- 
hard,  41  So.  814,  148  Ala.  45. 

Ga.  McWhorter  v.  O'Neal,  51  S.  E. 
288,  123  Ga.  247. 

Iowa.  Hansen  v.  Kline,  113  N.  W. 
504,  136  Iowa,  101. 

Kan.  Cobe  v.  Coughlin  Hardware 
Co.,  112  P.  115,  83  Kan.  522,  31  L.  R. 
A.  (N.  S.)  1126. 

Ky.  Sandv  Valley  &  E.  Rv.  Co.  v. 
Hushes,  194  S.  W.  .344.  175  Ky.  320, 
modifying  opinion  188  S.  W.  894,  172 
Kv.  65;  Purdom  v.  Brussells,  66  S.  W. 
22.  23  Ky.  Law  Rep.  1796. 

Md.  Dudderar  v.  Dudderar,  82  A. 
453,  116  Md.  605 ;  Dronenburg  v.  Har- 
ris, 71  A.  81,  108  Md.  597. 

Mo.  Buster  Brown  Co.  v.  North- 
]\Iehornay  Furniture  Co.,  126  S.  W. 
988.  140  Mo.  App.  707. 

Neb.  Gray  V.  Chicago,  St.  P.,  M.-& 
O.  R.  Co.,  134  N.  W.  961.  90  Neb.  795 ; 
Columbus  State  Bank  v.  Crane  Co., 
76  N.  W.  557,  56  Neb.  317. 

Tex.  Inland  v.  Chanilierlin,  120  S. 
W.  1040,  56  Tex.  Civ.  App.  256. 


243 


APPLICABILITY   TO   PLEADINGS   AND   EVIDENCE 


V26 


refuse  instructions  on  issues  eliminated  by  the  court,^''  or  on  is- 
sues raised  by  pleas  or  replications  to  which  demurrers  have  been 


541.  In  the  alisenee  of  pleading  of 
equitable  estoppel  in  an  action  to  en- 
join and  recover  damages  for  trespass 
upon  land,  requested  instruction  on 
equitable  estoppel  was  properly  re- 
fused. Fort  V.  Wiser,  201  S.  W.  7, 
179  Ky.  706.  In  an  action  of  trespass 
to  try  title,  where  the  plaintiff  in  no 
way  raised  the  issue  in  his  pleadings 
that  the  defendant's  grantor  was  es- 
topped from  conveying  the  laud  to  the 
defendant,  and  the  only  issue  was 
whether  defendant's  grantor  had  exe- 
cuted a  prior  conveyance,  it  was  prop- 
er not  to  submit  an  issue  of  estoppel 
of  the  defendant's  grantor  to  the  jury. 
Hannay  v.  Harmon  (Tex.  Civ.  App.) 
137  S.  W.  406. 

Instructions  not  improper  ^vitb- 
in  rule.  When  the  allegations  show- 
ed that  the  earning  capacity  of  the  in- 
jured person  was  necessarily  impair- 
ed, it  is  sufficient  to  justify  a  submis- 
sion of  the  issue,  even  though  it  has 
not  been  alleged  in  terms  that  the 
earning  capacity  was  impaired.  San 
Antonio  Traction  Co.  v.  Cassanova 
(Tex.  Civ.  App.)  154  S.  W.  1190.  In- 
struction authorizing  recovery  on 
proof  of  one  of  two  grounds  of  negli- 
gence averred,  and  making  no  refer- 
ence to  the  other,  is  not  open  to  criti- 
cism of  broadening  the  issues.  Kaen- 
ter  V.  Missouri  Pac.  Ry.  Co.  (Mo.  App.) 
218  S.  W.  349.  In  an  action  against  a 
street  railway  for  injuries  to  a  van 
driver  in  crossing  its  track,  petition 
alleging  the  existence  of  an  establish- 
ed custom  to  stop  cars  at  a  certain 
point,  and  then  alleging  that  plaintiff 
started  across  the  track  before  a  car, 
in  the  exercise  of  due  care,  "relying 
upon  said  custom,"  sufficiently  alleged 
knowledge  of  the  custom  by  plaintiff 
to  justify  an  instruction  submitting 
the  question  of  such  knowledge.  Har- 
rington V.  Kansas  City  Rys.  Co.  (Mo. 
App.)  217  S.  W.  879.  It  was  not  error 
to  submit  whether  the  street  car,  on 
which  a  deceased  passenger  was  in- 
jured, started  "suddenly  and  with 
great  force,"  though  the  petition  alleg- 
ed that  the  car  started  with  "a  jerk" ; 
there  being  no  practical  difference  in 
the  expressions.     Johnson   v.   Metro- 


politan St.  Ry.  Co.,  164  S.  W.  128,  177 
Mo.  App.  298. 

5  6  U.  S.  (C.  C.  A.  Va.)  J.  W.  Bish- 
op Co.  V.  Dodson,  152  F.  128,  81  C.  C. 
A.  346. 

Ala.  Duncan  v.  St.  Louis  &  S.  F. 
R.  Co.,  44  So.  418,  152  Ala.  118 :  Green 
v.  Brady,  44  So.  408,  152  Ala.  507; 
Birmingham  R.,  Light  &  Power  Co.  v. 
Moore,  43  So.  841,  151  Ala.  327 ;  Wood- 
stock Iron  Works  v.  Kline,  43  So.  362, 
149  Ala.  391;  Central  of  Georgia  Ry. 
Co.  V.  McNab,  43  So.  222,  150  Ala. 
332;  Alabama  City,  G.  &  A.  Rv.  Co. 
V.  Bates,  43  So.  98,  149  Ala.  487. 

Ariz.  Ewing  v.  United  States,  89 
P.  593,  11  Ariz.  1. 

Ark.  Dunham  v.  H.  D.  Williams 
Cooperage  Co.,  X03  S.  W.  386,  83  Ark. 
395;  R.  A.  Faulkner  &  Co.  v.  Cook, 
103  S.  W.  384,  83  Ark.  205 ;  St.  Louis 
&  S.  F.  Ry.  Co.  V.  Crowder,  103  S. 
W.  172,  82  Ark.  562;  Bagnell  Tie  & 
Timber  Co.  v.  Goodrich,  102  S.  W. 
228,  82  Ark.  547. 

Colo.  Denver  Consol.  Electric  Co. 
V.  Walters,  89  P.  815,  39  Colo.  301; 
Id.,  89  P.  820,  39  Colo.  318. 

Conn.  Joyce  V.  Joyce,  67  A.  374, 
SO  Conn.  88. 

Ga.  Coweta  County  v.  Central  of 
Georgia  Ry.  Co.,  60  S.  E.  1018,  4  Ga. 
App.  94 ;  McGregor  v.  Battle,  58  S.  E. 
28,  128  Ga.  577,  13  L.  R.  A.  (N.  S.) 
185;  Humphreys  v.  Smith.  58  S.  E. 
26,  128  Ga.  549;  Green  v.  Wright,  57 
S.  E.  965,  1  Ga.  App.  194 ;  Overstreet 
V.  Nashville  Lumber  Co.,  56  S.  E. 
650,  127  Ga.  458. 

Idaho.  Johnson  v.  Fraser,  2  Idaho 
(Hash.)  404,  18  P.  48. 

111.  Hoffman  v.  Stephens,  109  N. 
E.  994,  269  111.  376;  Cal.  Hirsch  & 
Sons  Iron  &  Rail  Co.  v.  Coleman,  81 
N.  E.  21,  227  111.  149,  affirming  judg- 
ment 128  111.  App.  245;  Commercial 
State  Bank  of  Forreston  v.  Folkerts, 
200  111.  App.  385;  Coal  Belt  Electric 
Ry.  Co.  v.  Young,  126  111.  App.  651; 

5  9  Rose  v.  Winnsboro  Nat.  Bank,  41 
S.  C.  191,  19  S.  E.  487;  Gulf.  C.  & 
S.  F.  Ry.  Co.  v.  Warner,  54  S.  W.  1064. 
22  Tex.  Civ.  App.  167. 


§  126 


INSTRUCTIONS  TO  JURIES 


244 


sustained,^®  or  on  issues  raised  by  a  count  of  a  complaint  which 
has  been  dismissed,''^  and  it  is  proper  to  refuse  instructions  which 
would  raise  immaterial  issues.^-    It  is  proper  to  refuse  an  instruc- 


Quincy  Horse  Ry.  &  Carrying  Co.  v, 
Raukin,  123  111.  App.  472. 

Ind.  Indianapolis  Traction  &  Ter- 
minal Co.  V.  Beckman,  81  N.  E.  82,  40 
Ind.  App.  100;  Goodbar  v.  Lidikey, 
35  N.  E.  691,  136  Ind.  1,  43  Am.  St. 
Rep.  296. 

Ky.  Spinks  v.  Turley.  103  S.  W. 
321,  31  Ky.  Law  Rep.  676 ;  Hutchison 
V.  City  of  Maysville,  100  S.  W.  331,  30 
Ky.  Law  Rep.  1173. 

Md.  Dick  V.  Biddle  Bros.,  66  A.  21, 
105  Md.  308. 

Mich.  Pierson  v.  Illinois  Cent.  R. 
Co.,  112  N.  W.  923,  149  Mich.  167; 
Smitley  v.  Pinch,  112  N.  W.  686,  148 
Mich.  670. 

Minn.  Wilcox  v.  Chicago,  M.  &  St. 
P.  R,   Co.,  24  Minn.  269. 

Mo.  State  ex  rel.  Shipman  v.  Al- 
len, 103  S.  W.  1090.  124  Mo.  App.  465 ; 
Council  V.  St.  Louis  &  S.  F.  R.  Co., 
100  S.  W.  57,  123  Mo.  App.  432; 
O'Gara  v.  St.  Louis  Transit  Co.,  103  S. 
W.  54,  204  Mo.  724,  12  L.  R.  A.  (N.  S.) 
840,  11  Ann.  Cas.  850;  Masterson  v. 
St.  Louis  Transit  Co.,  103  S.  W.  48, 
204  Mo.  507. 

Mont.  First  Nat.  Bank  v.  Carroll, 
88  P.  1012,  35  Mont.  302;  Howie  v. 
California  Brewery  Co.,  88  P.  1007, 
35  Mont.  264. 

Okl.  Williams  v.  Arends,  157  P. 
313,  57  Okl.  556 ;  Grosshart  v.  Shaffer, 
152  P.  441,  52  Okl.  204. 

Or.  Robert  v.  Parrish,  17  Or.  583, 
22  P.  136. 

R.  I.  De  Coursey  v.  Rhode  Island 
Co.,  67  A.  431. 

Tex.  Nash  v.  Noble,  102  S.  W.  736, 
46  Tex.  Civ.  App.  .369;  Prewitt  v. 
Southwestern  Telegraph  &  Telephone 
Co.,  101  S.  W.  812,  46  Tex.  Civ.  App. 
123;  Boll  V.  Keays  (Civ.  App.)  100  S. 
W.  813;  Thompson  v.  Hicks  (Civ. 
App.)  100  S.  W.  357. 

Vt.  Smith  V.  Central  Vermont  Ry. 
Co.,  07  A.  535,  80  Vt.  208. 

Instructions  properly  refused 
within  rule.  In  an  action  for  inju- 
ries to  a  jiiissonger,  wliere  the  ques- 
tion whether  plaintiff's  damages 
should  be  abated   because  they  had 


been  negligently  allowed  to  accumu- 
late was  not  in  issue,  the  refusal  of  a 
charge  that  it  was  plaintiff's  duty  not 
to  aggravate  his  injuries  by  negli- 
gence, and  to  use  reasonable  care  to 
cure  his  injuries,  though  correct  in 
the  abstract,  was  not  error.  Birming- 
ham Ry.,  Light  &  Power  Co.  v.  An- 
derson, 50  So.  1021,  163  Ala.  72. 
Where,  in  an  action  for  the  price  of 
jewelry,  the  sole  issue  was  whether 
defendants  could  reject  the  jewelry, 
and  there  was  no  issue  before  the  juiy 
as  to  their  refusal  to  accept  a  show 
case,  an  instruction  that  the  delivery 
of  the  case  to  a  public  carrier  proper- 
ly consigned  to  defendants  constituted 
a  delivery  to  them,  while  abstractly 
correct,  was  properly  refused.  Ameri- 
can Standard  Jewelry  Co.  v.  R.  J.  Hill 
&  Son,  117  S.  W.  781,  90  Ark.  78. 

6  0  Southern  Ry.  Co.  v.  Bynum,  69 
So.  820,  194  Ala.  190;  Fike  v.  Strat- 
ton,  56  So.  929,  174  Ala.  541 ;  Alabama 
Great  Southern  R.  Co.  v.  Hanbury,  49 
So.  467,  161  Ala.  358 ;  Western  Union 
Telegraph  Co.  v.  Benson,  48  So.  712, 
159  Ala.  254. 

The  court  may,  however,  caution 
the  jury  not  to  consider  matter 
stricken  on  demurrer.  Georgia  Ry.  & 
Electric  Co.  v.  Gatlin,  82  S.  E.  888,  142 
Ga.  293. 

Plea  erroneously  sustained 
against  demurrer.  Where  the  court 
has  erroneously  sustained  a  plea 
against  a  demurrer,  it  is  error,  there 
being  evidence  to  support  the  plea, 
to  refuse  to  instruct  that  if  the  facts 
alleged  in  the  plea  are  found  to  be 
true  the  verdict  must  be  for  the  de- 
fendant, as  the  instructions  may  not 
change  the  issues  as  develope^^l  by  the 
pleadings.  Pratt  Consol.  Coal  Co.  v. 
Davidson,  55  So.  886,  173  Ala.  667. 

61  Hill  V.  Elmore,  79  So.  148,  16  Ala. 
App.  474;  Merrielees  v.  Wabash  R. 
Co.,  163  Mo.  470,  63  S.  W.  718 ;  Jack- 
son V.  Southwest  Missouri  R.  Co.,  156 
S.  W.  1005,  171  Mo.  App.  430. 

6  2  state  V.  Ewing,  121  P.  834,  67 
Wash.  395;  State  v.  Clark,  41  S.  E. 
204,  51  W.  Va.  457. 


245  ArPLICABILITY   TO   PLEADINGS   AND   EVIDENCE  §  126 

tion  which  is  not  proper  as  to  certain  counts  of  a  pleading,  al- 
though proper  as  to  other  counts  if  the  scope  of  the  instruction  is 
not  limited  to  the  latter  counts,*^  and  the  court  is  not  required  to 
instruct  on  a  plea  which  presents  no  defense,  although  not  met 
with  objection  or  demurrer.^* 

The  above  rule  applies  to  instructions  defining  the  liability  of 
a  party  who  has  been  dismissed  from  the  case,^^  and  the  fact  that 
the  counsel  for  both  parties  have,  in  their  arguments,  treated  the 
case  as  embracing  certain  issues,  does  not^  exempt  them  from  the 
operation  of  such  rule.®® 

A  general  denial  is  sufficient  to  require  the  submission  of  any 
defensive  issue  raised  by  the  evidence,  which  is  not  required  by 
statute  or  rules  of  pleading  to  be  specifically  pleaded  f^  but  where 
a  reply  sets  up  new  matter,  which  constitutes  a  departure  from 
the  original  cause  of  action  alleged  in  the  complaint,  the  rule  is 
that  an  instruction  submitting  such  new  matter  to  the  jury  is 
erroneous,®*  unless  the  trial  proceeds  without  any  objection  being 
made  on  account  of  such  departure,  in  which  case  instructions 
presenting  the  issues  raised  by  the  replication  are  proper.®^  In 
some  jurisdictions  a  party  is  entitled  to  have  the  jury  instructed 
that  it  should  not  consider  any  other  matters  than  those  alleged 
in  the  complaint.'*'     Ordinarily  a  judgment  will  not  be  reversed 

6  3  Dudley  v.  Peoria  Ry.  Co.,  153  111.  '"''•  Galveston,  H.  &  S.  A.  Ry.  Co.  v. 

App.  619.  Wilson  (Tex.  Civ.  App.)  214  S.  W.  77?.. 

Charge   o£  both   negligence   and  6  8  Brasel    v.    W.    T.    Letts    Box    & 

intentional     wrong     in     separate  Cooperage  Co.   (Mo.  App.)   220   S.  W. 

counts.     Where  both  negligence  and  984;    Merrill  v.  Suing,  92  N.  W.  618, 

wanton     or     intentional     injury     are  66  Neh.  404. 

charged  in  separate  counts,  a  charge  6  9  Loucks  v.  Davies,  96  P.  191,  43 

that   plaintiff   cannot   recover   unless  Colo.  490. 

wantonness  and  willfulness  are  shown  7  o  Baltimore  &  O.  E.  Co.  v.  Lock- 
is  erroneous,  unless  confined  to  the  wood,  74  N.  E.  1071,  72  Ohio  St.  586. 
count  alleging  wantonness.  Birming-  Circumstances  under  which  such 
ham  Railway  &  Electric  Co.  v.  Pink-  instruction  required.  Where,  in  an 
ard,  26  So.  880,  124  Ala.  372.  Where  action  by  a  servant  to  recover  from 
both  wanton  or  intentional  wrong  and  his  master  for  personal  injuries,  a 
negligence  are  alleged  in  separate  failure  to  guard  machinery  was  not 
counts  of  a  petition,  a  charge  as  to  alleged  as  negligence,  and  there  was 
contributory  negligence,  not  confined  no  evidence  as  to  this  being  an  ele- 
to  the  count  alleging  negligence,  is  ment  of  negligence,  but  a  juror  ques- 
properly  refused.  Birmingham  Rail-  tioned  a  witness  as  to  the  failure  to 
way  &  Electric  Co.  v.  Pinkard,  26  So.  guard  the  machine  in  question,  and 
880,  124  Ala.  372.  volunteered   the   information    that   it 

64  Newman    v.    McComb,    71    S.    E.  was  practicable  to  guard  it,  the  refus- 

624,  112  Va.  408.  al  of  a  rcipiested  charge  that  the  jury 

6  5  Ford  v.  Drake,   127  P.  1019,   46  could  not  consider  such   failure  was 

Mont.  314.  held    reversible    error,    as    the    court 

66  Martin  v.  Nichols,  56  S.  E.  995,  was  not  al)le  to  say  that  the  verdict 

:127  Ga.  705.  was   not   based   on    such    extraneous 


127 


INSTRUCTIONS  TO  JURIES 


246 


because  of  the  giving  of  instructions  on  matters  outside  of  the 
scope  of  the  pleadings,  if  the  jury  has  not  been  misled  thereby  or 
the  complaining  party  has  not  been  prejudiced."^ 

§  127.     Instructions  on  matters  outside  the  pleadings,  but  shown 
by  the  evidence 

The  above  rule''~  applies  to  an  instruction  submitting  questions 
not  within  the  issues  raised  by  the  pleadings,  although  evidence 
upon  such  questions  has  been  admitted,  but  improperly  so,  and 
over  objection,"^  and, in  a  considerable  number  of  the  cases  it  is 
held  without  qualification  that  the  instructions  should  not  be 
broader  than  the  pleadings,  whatever  be  the  scope  of  the  evi- 
dence."^ 


matter.  Hockaday  v.  ScMoer,  94  A, 
526,  125  Md.  677. 

71  Dunlap  V.  May,  42  Minn.  309,  44 
N.  W.  119:  McClary  v.  Stull,  44  Neb, 
175,  62  N.  W.  501 ;  Canfield  v.  Hard, 
5S  Vt,  217,  2  A.  136;  Lemke  v.  Mil- 
waukee Electric  Rv.  &  Light  Co.,  136 
X.  W.  286,  149  Wis.  535. 

Affirmative  showing  of  no  preju- 
dice. Tliough  the  cliarge  of  the  court 
may  present  issues  not  raised  by  the 
pleadings,  yet,  if  it  appears  affirma- 
tively from  the  record  that  the  finding 
of  the  jury  was  not  influenced  there- 
by, the  case  will  not  ordinarily  be 
reversed.  Texas  Cent.  Ry.  Co,  v.  Clif- 
ton, 2  Willson,  Civ.  Cas.  Ct,  App.  § 
490. 

'2  Ante,  §  125. 

7  3  Miller  v,  Prussian  Nat.  Ins.  Co., 
122  N.  W.  1093,  158  Mich.  402 ;  Bank 
of  Commerce  v.  Broyles,  120  P.  670, 
16  N.  M.  414;  Parrish  v.  Fishel,  139 
N.  Y.  S,  10.33,  155  App.  Div,  911. 

7  4  Ga.  Stanford  v.  Murphy,  63  Ga. 
410. 

ni.  Hackett  V.  Chicago  City  Ry. 
Co.,  85  N.  E.  320,  235  111.  116,  revers- 
ing  judgment  Chicago  City  Ry.  Co.  v. 
Hackett,  130  111.  App.  594. 

Compare,  Consolidated  Coal  Co.  of 
St.  Louis  v.  Bokamp,  54  N.  E.  567,  181 
111.  9,  affirming  judgment  75  111.  App. 
605. 

Kan.  Atchison,  T.  &  S.  F.  R.  Co. 
V.  Miller,  39  Kau.  419,  18  Pac.  4SG. 


Ky.  O'Kain  v.  Davis,  216  S.  W. 
354,  186  Ky,  184. 

Mo.  Stumpf  v.  United  Rys.  Co.  of 
St,  Louis  (Mo,  App.)  227  S.  W,  852; 
Simms  v,  Dunham  (App.)  203  S.  W. 
652:  Young  v,  Dunlap,  190  S,  W,  1041, 
195  Mo.  App.  119;  State  ex  rel.  Cen- 
tral Coal  &  Coke  Co.  v.  Ellison,  195  S. 
AV.  722,  270  Mo.  645,  quashing  judg- 
ment (App.)"  Goode  V.  Central  Coal  & 
Coke  Co.,  186  S.  W,  1122;  Scrivner 
V.  Missouri  Pac,  Rv.  Co.,  169  S,  W,  83, 
260  Mo.  421 ;  Hufft  v,  St.  Louis  &  S. 
F.  R.  Co.,  121  S.  W.  120,  222  Mo.  286; 
Matson  v,  Frazer,  48  Mo,  App.  302. 

N.  D.  vniliams  A'.  Beneke,  153  N. 
W.  411,  30  N,  D.  538, 

S.  D.  Smith  v.  Mutual  Cash  Guai-- 
antv  Fire  Ins,  Co.,  113  N,  W,  94,  21 
S,  D,  433, 

Tex.  Miller  v.  Layne  &  Bowler  Ca. 
(Civ.  App.)  151  S.  W,  .341;  Missouri, 
K,  &  T.  Ry.  Co,  of  Texas  v.  Brown 
(Civ.  App.)  147  S.  W.  1177 :  Smith  v. 
F.  W.  Heitman  Co.,  98  S,  W,  1074,  44 
Tex,  Civ,  App.  358. 

Duty  to  amend.  If  the  evidence 
shows  a  different  state  of  facts  from 
those  contained  in  the  pleadings,  and 
a  party  to  the  suit  desires  instructions 
in  accordance  with  those  facts,  he 
must  first  amend  his  pleadings  by 
leave  of  court.  Budd  v.  Hoffheimer, 
52  Mo.  297. 


247  APPLICADILITY   TO   PLEADINGS   AND   EVIDENCE  §  129 

§  128.     Declaring  legal  effect  of  evidence  not  pertinent  to  issues 
raised  by  the  pleadings 

As  wc  have  seen,  it  is  generally  true  that  the  instructions 
should  not  be  broader  than  the  issues  made  by  the  pleadings,  or 
present  issues  not  raised  thereby.  Such  general  rule,  however, 
has  its  qualifications.  The  jury  is  not  supposed  to  know,  and  in 
practice  does  not  in  fact  know,  the  issues  raised  by  the  pleadings, 
except  in  the  most  general  way,  when  viewed  from  a  legal  stand- 
point. To  them  all  the  evidence  introduced,  unless  excluded  by 
the  court,  is  to  be  considered  as  having  a  bearing  on  the  case.  It 
is  therefore  proper  to  limit,  explain,  and  declare  the  legal  effect 
of  particular  evidence  by  the  instructions,  although  the  issues  to 
which  such  evidence  is  pertinent  are  not  v/ithin  the  scope  of  the 
pleadings.'" 

§  129.  Effect  of  failure  to  object  to  evidence  upon  issues  outside 
scope  of  pleadings 
While  there  are  conflicting  authorities^®  in  a  considerable  num- 
ber of  jurisdictions,  an  exception  to  the  above  rule  exists  in  those 
cases  where  evidence  is  admitted  without  objection  upon  issues 
not  within  the  scope  of  the  pleadings,  in  which  event  the  court 
may,'^'  and  should  "'^  in  these  jurisdictions,  charge  upon   such  is- 

7  5  Price  v.  St.  Louis,  I.  M.  &  S.  Ry.  Minn.     Qualy  v.  Johnson,  S3  N.  W. 

Co.,  170  S.  W.  925.  185  Mo.  App.  4.32.  39.3,  SO  Minn.  408. 

7G  Latourette  v.  Meldrum,  90  P.  503,  Mo.     Menefee  v.  Diggs,   172  S.  W. 

49  Or.  397;    Coos  Bay.  R.  &  E.  R.  &  427,  186  Mo.  App.  659. 

Nav.  Co.  V.  Si2;lin,  26  Or.  387,  38  Pac.  Mont.     McCabe   v.   City  of  Butte. 

192;     First    Nat.    Bank    of    Ogden   v,  125  P.  133,  46  Mont.  65. 

Taylor,  114  P.  529,  38  Utati,  516.  Neb.     Herpolslieimer  v.  Acme  Har- 

Instruction          not          required.  vester  Co.,  119  N.  W.  30,  S3  Neb.  53. 

Though  evidence  of  matters  hot  in  is-  N.  Y.    Brusie  v.  Pecli  Bros.  &  Co., 

sue  is  admitted  without  objection,  the  135  N.  T.  622,  32  N.  E.  76;    Phillii>s 

court  is  not  bound  to  instruct  thereon.  v.  Lewis,  86  Hun,  241,  33  N.  Y.  Supp. 

Baldwin  v.  Wallvor,  21  Conn.  168.  258. 

7  7  u.   S.     (C.  C.   Iowa)   Voellier  v.  S.  C.    Davis  v.  Atlanta  &  C.  A.  L. 

Chicago,  M.  &  St.  P.  Ry.  Co.,  116  F.  7  8  Hinsen  v    Kline    113  N    W    504 

S67,    reversed   Chicago,   M.   &   St.   P.  .oIt          im     -i^  l^  '    }?■          •rw 

Ry.  Co.  V.  Voelker,  129  F.  522,  65  O.  ^^^r^^o     179  ?  17^    Misim-i    O 

n\        <\       ,  If  r'S-      T        r.  &  GJ-  Ry-  Co.  V.  Parker,  151  P.  325,  50 

Colo.     Nati^oual  Mut    Fire  Ins    Co.  Qkl.  491 ;    Missouri  River  Transp.  Co. 

v.  Sprague,  92  P.  227,  40  Colo.  344.  ,..  Minneapolis  &  St.  L.  Rv.  Co .  147 

Iowa.     Andrews  v.  Chicago  G.  W.  n.  W.  82,  34  S.  D.  1;    Sjong  v.  Occi- 

Ry.  Co.,  105  N.  W.  404,  129  Iowa,  dental  Fish  Co.,  138  P.  313,  78  Wash.  4. 
162 ;    Noble  v.   White,   72  N.   W.  556,  Because  of  the  state  of  the  evi- 

103  Iowa,  352 ;    Rogers  v.  Millard,  44  dence   it  may   be   necessary   for   the 

Iowa,  466.  court  to  disregard  the  issue  as  made 

Ky.  Louisville  &  N.  R.  Co.  v.  Wal-  by  the  pleading,  and  instruct  accord- 
den,  74  S.  W.  694.  ing  to  the  issue  made  by  the  evidence. 

La.      Gayarre   v.    Tunnard,    9    La.  Hansen  v.  Kline,  113  N.  W,  504,  136 

Ann.  254.  Iowa,    101. 


130 


INSTRUCTIONS   TO  JURIES 


248 


sues.  One  who,  over  objection,  introduces  testimony  upon  an 
issue  not  raised  by  the  pleadings,  cannot  object  to  the  giving  of  a 
charge  based  upon  such  testimony.'*^ 

§  130.     Specific  applications  of  rule  against  broadening  issues 

Under  the  above  rule,  in  a  common-law  action  for  negligent 
delay  in  the  shipment  of  live  stock,  an  instruction  based  upon  a 
cause  of  action  given  by  a  statute  relating  to  the  feeding  and 
watering  of  stock  while  in  transit  is  erroneous.*"  When  the  com- 
plaint only  declares  on  an  express  contract,  it  is  proper  to  refuse 


Ry.  Co.,  41  S.  E.  468,  63  S.  C.  370; 
Id.,  il  S.  E.  892,  63  S.  C.  577. 

S.  D.  Totten  v.  Stevenson,  135  N. 
W.  715,  29  S.  D.  71. 

Tex.  McKee  v.  Garner  (Civ.  App.) 
168  S.  W.  1031 ;  see  Galveston.  H.  &  S. 
A.  Ry.  Co.  v.  Washington,  63  S.  W. 
534,  94  Tex.  510,  affirming  judgment 
63   S.  W.  538,  25  Tex.  Civ.  App.  600. 

Wash.  Zolawenski  v.  City  of  Aber- 
deen, 129  P.  1090,  72  Wash.  95 ;  Wil- 
liams V.  Wurdemann,  128  P.  639,  71 
Wash.  390  ;  Johnson  v.  Caughren,  104 
P.  170,  55  Wash.  125,  19  Ann.  Cas. 
1148 ;  Schwaninger  v.  E.  J,  McNeeley 
cVc  Co.,  87  P.  514,  44  Wash.  447. 

Instructions  proper  tTitliin  rule. 
In  an  action  for  death  by  wrongful 
act,  defendant  cannot  object  that  the 
j^etition  does  not  authorize  the  sub- 
mission to  the  jury  of  the  question 
whether  the  engine  which  ran  over 
deceased  was  so  far  distant  when  he 
stepped  on  the  track  that  those  In 
charge  ought  to  have  seen  him,  where 
it  asked  an  instruction  involving  the 
same  question,  and  both  parties  in- 
troduced evidence  on  that  issue.  Hilz 
v.  Missouri  Pac.  Ry.  Co.,  101  Mo.  36, 
13  S.  W.  946.  An  instruction  as  to 
provocation  or  justification  of  slander- 
ous words  is  proper  where  the  evi- 
dence, admitted  without  objection, 
.'^hows  that  the  words  were  uttered  in 
a  street  fight  in  response  to  a  taunt 
by  plaintiff,  and  the  fact  that  the  an- 
swer to  the  complaint  consisted  of  de- 
nials only  of  the  slanderous  words 
alleged  did  not  render  the  instruction 
outside  the  issue.  Childs  v.  Childs,  94 
I*.  660,  40  Wash.  27. 

Effect  of  examination  of  writ- 
nesses  and  oral  argument.  As  un- 
derstood by  the  jury,  contentions 
can  be  presented  outside  of  the  plead- 


ings, by  the  course  of  the  examina- 
tion of  the  witnesses  and  by  oral  ar- 
gument, and  if  an  instruction  reciting 
such  a  contention  is  not  harmful  to 
the  party  complaining  thereof,  it  will 
not  be  ground  for  new  trial.  Georgia 
S.  &  F.  Ry.  Co.  V.  Perry,  69  S.  E.  493, 
8  Ga.  App.  427. 

Testimony  of  party  inconsistent 
with,  his  pleadings.  Instnictions 
which  adopt  the  theory  of  a  party  in 
his  testimony  on  the  trial  are  proper, 
though  such  testimony  is  inconsistent 
with  his  pleadings.  Boerner  Fry  Co. 
V.  Mucci,  138  N.  W.  866,  158  Iowa, 
315. 

Amendment  of  pleadings.  Where 
an  instruction  not  authorized  by  the 
original  petition  is  authorized  by  the 
evidence  admitted  without  objection 
and  by  the  petition  as  amended,  the 
sriving  of  such  instruction  is  not  error. 
St.  Louis  &  S.  F.  R.  Co.  v.  Davis,  132 
P.  337,  37  Okl.  340. 

Irrelevant  testimony.  It  is  held, 
however,  that  the  rule  that  incompe- 
tent testimony,  admitted  without  ob- 
jection, becomes  competent,  does  not 
apply  to  irrelevant  evidence  admitted 
without  objection,  and  the  court,  not- 
withstanding the  admission  of  irrel- 
evant testimony,  must  confine  the  is- 
sues submitted  to  the  jury  to  those 
made  by  the  pleadings.  Heiden  v. 
Atlantic  Coast  Line  R.  Co.,  65  S.  E, 
987,  84  S.   C.  117. 

In  Texas,  where  the  later  deci- 
sions support  the  text,  there  are  early 
decisions  the  other  wav.  Farenthold 
V.  Tell,  113  S.  AV.  635,  52  Tex.  Civ. 
App.   110. 

7  9  Bowen  v.  Carolina,  C.  G.  &  C. 
Ry.  Co.,  34  S.  C.  217,  13  S.  E.  421. 

80  McFall  v.  Chicago.  B,  &  Q.  R. 
Co.,  168  S.  W.  341,  181  Mo.  App.  142. 


249 


APPLICABILITY  TO   PLEADINGS   AND    EVIDENCE 


§  130 


an  instruction  that  there  can  be  no  recovery  in  this  case  on  an  im- 
plied contract.*^  So  where,  in  an  action  for  goods  sold,  the  plea  of 
the  defendant  is  based  solely  on  the  breach  by  the  plaintiflf  of  cer- 
tain alleged  express  warranties,  it  is  error  to  instruct  on  the  sub- 
ject of  implied  warranties.*"  So  when,  in  an  action  on  a  note 
given  for  the  price  of  an  article,  the  issue  is  w'hether  the  plaintiff 
is  a  bona  fide  holder,  it  will  be  error  to  authorize  a  recovery  for 
the  fair  market  value  of  the  article.*^  So  the  court  should  not 
submit  to  the  jury  the  question  whether  a  defendant  is  negligent 
in  a  particular  in  which  no  negligence  is  alleged,**  and  where,  in 


81  Cable  Co.  v.  Shelby,  81  So.  818, 
208  Ala.  28. 

8  2  Whitlook  Printing  Press  Mfg.  Co. 
V.  Williams,  99  S.  B.  312,  23  Ga.  App. 
761. 

83  Pratt  V.  Rounds,  169  S.  W.  848, 
160  Ky.  358. 

84  m.  Guthorle  v.  Chicago  Rys. 
Co.,  211  111.  App.  390;  Wabash  B. 
Co.  V.  Warren,  113  111.  App.  172; 
Northern  Milling  Co.  v.  Mackey,  99 
111.  App.  57,  affirmed  Mackey  v.  North- 
ern Milling  Co.,  71  N.  E.  448,  210  111. 
115 ;  Chicago  &  A.  R.  Co.  v.  Gore,  9« 
111.  App.  553 ;  Illinois  Cent.  R.  Co.  v. 
Chicago  Title  &  Trust  Co.,  79  111.  App. 
623;  Lebanon  Coal  &  Machine  Ass'n 
V.  Zerwick,  77  111.  App.  486 ;  Chicago, 
B.  &  Q.  R.  Co.  V.  Libey,  68  111.  App. 
144. 

Ky.  Ballard  &  Ballard  Co.  v. 
Durr,  177  S.  W.  445,  165  Ky.  632; 
Proctor  Coal  Co.  v.  Beaver's  Adm'r, 
152  S.  W.  965.  151  Ky.  839. 

Mo.  Walling  v.  Missouri  Stair 
Co.  (App.)  227  S.  W.  879;  Gibson  v. 
City  of  St.  Joseph  (App.)  216  S.  W. 
50 ;  Baldwin  v.  Kansas  City  Rys.  Co. 
(App.)  214  S.  W.  274;  Oliver  v.  St. 
Louis-San  Francisco  Ry.  Co.  (App.) 
211  S.  W.  699 ;  State  ex  rel.  National 
Newspapers'  Ass'n  v.  Ellison  (Sup.)  176 
S.  W.  11;  Gabriel  v.  Metropolitan 
St.  Ry.  Co.,  148  S.  W.  168,  164  Mo. 
App.  56 ;  Craton  v.  Huntzinger,  147 
S.  W.  512,  163  Mo.  App.  718;  Green 
v.  United  Rys.  Co.  of  St.  Louis,  145 
S.  W.  861,  165  Mo.  App.  14;  Gibson 
V.  Freygang,  87  S.  W.  3,  112  Mo.  App, 
594 ;  Schroeder  v.  St.  Louis  Transit 
Co.,  85  S.  W.  968,  111  Mo:  App.  67. 

N.  Y.  Steuger  v.  Buffalo  Union 
Furnace  Co.,  05  N.  Y.  S.  793,  109  App. 
Div.  183. 


Tex.  Lancaster  v.  Tudor  (Civ. 
App.)  222  S.  W.  990;  Galveston,  II.  & 
S.  A.  Ry.  Co.  V.  Wilson  (Civ.  App.) 
214  S.  W.  773;  Houston  &  T.  C.  R. 
Co.  v.  Crowder  (Civ.  App.)  152  S.  W. 
183;  Walker  v.  Metropolitan  St.  Ry. 
Co.  (Civ.  App.)  151  S.  W.  1142 ;  Kan- 
sas City  M.  &  O.  Rv.  Co.  of  Texas  v. 
Guinn  (Civ.  App.)  146  S.  W.  959. 

Illustrations  of  instructions  im- 
proper \(ritliin  rule.  Where  plain- 
tiff's statement  of  claim  alleged  that 
the  negligence  causing  the  accident 
was  that  of  the  conductor  in  starting 
the  car,  it  was  error  to  give  an  in- 
struction authorizing  a  verdict  for 
plaintiff  if  the  motorman  started  the 
car  suddenly.  Lerch  v.  Hershey 
Transit  Co.,  92  A.  693,  246  Pa.  473. 
In  an  action  for  injuries  to  a  passen- 
ger, where  the  only  issue  was  as  to 
negligence  of  a  porter  in  closing  the 
vestibule  dooi*,  causing  plaintiff's  fall, 
an  instruction,  submitting  an  issue  as 
to  lial)ility  for  misinformation  by  the 
conductor,  for  which  plaintiff  made 
no  claim,  was  eri-or.  Smith  v.  Chi- 
cago, R.  I.  &  P.  Ry.  Co.,  159  N.  W. 
963,  134  Minn.  404.  Where,  in  an 
action  for  injuries  to  a  servant,  the 
petition  alleged  negligence  in  order- 
ing plaintiff  to  adjust  a  defective  bolt 
on  an  angle  bar  on  defendant's  rail- 
road track,  and  negligence  on  the  part 
of  the  section  boss  in  placing  his 
weight  on  a  bar  being  held  by  plain- 
tiff, an  instruction  as  to  the  l)olt  hole 
being  too  large  for  the  bolt,  was  er- 
roneous, as  a  departure  from  the  pe- 
tition. Browning  v.  Chicago,  R.  I.  <fc 
P.  Ry.  Co.,  94  S.  W.  315,  118  Mo.  App. 
449.  In  an  action  for  injuries  to  a 
pedestrian  by  being  struck  by  an  au- 
tomobile, the  acts  cf  negligence  being 


130 


INSTRUCTIONS  TO  JURIES 


250 


an  action  for  personal  injuries,  the  only  negligence  alleged  is  the 
failure  to  do  certain  specified  things,  an  instruction  which  refers 
merely  to  want  of  ordinary  care  and  prudence  is  too  general.*^" 
Under  the  above  rule,  where  an  action  is  based  upon  the  theory 
of  a  wanton  and  willful  act  by  the  defendant,  the  court  should  not 
give  instructions  authorizng  a  recovery  on  proof  merely  of  neg- 
ligence,^'' nor,  in  such  case,  should  it  charge  on  contributory  neg- 
ligence.*^ So  an  instruction  authorizing  a  recovery  for  fraud 
should  be  limited  to  the  specific  acts  of  fraud  alleged.** 

It  is  error  to  instruct,  and  proper  to  refuse  to  instruct,  concern- 


limited  to  improper  speed  and  failure 
to  warn,  the  court  erred  in  authoriz- 
ing a  recovery  for  failure  to  exercise 
reasonable  care  to  avoid  injury  to 
plaintiff,  if  it  appeared  to  be  immi- 
nent. Capell  V.  New  York  Transp. 
Co.,  135  N.  Y.  S.  691,  150  App.  Div. 
723.  Where  a  complaint  for  injuries 
to  a  pedestrian  on  a  city  street  made 
no  charge  that  defendant's  wagon 
was  lieing  driven  at  improper  speed, 
a  requested  charge,  predicated  in  part 
on  a  finding  of  excessive  speed,  was 
properly  refused.  Delovage  v.  Old 
Oregon  Creamery  Co.,  147  P.  392,  76 
Or.  430,  motion  to  retax  costs  denied 
149  P.  317,  76  Or.  430.  Where  com- 
plaint alleged  negligence  solely  in 
permitting  hole  in  flooring,  which 
caused  plaintiff  to  trip  and  injure  his 
thumb  on  a  nail,  an  instruction  that 
plaintiff  should  recover  if  either  hole 
or  nail  caused  accident  is  erroneous. 
Stutzman  v.  Sargent,  165  N.  Y.  S. 
643.  The  answer  in  an  action  for 
collision  pleading  certain  specific  acts 
as  contributory  negligence,  not  hav- 
ing alleged  that  plaintiff  could  have 
stopped  his  team  in  time  to  avoid  the 
collision  after  seeing  the  engine,  a 
charge  precluding  recovery  if  he  by 
care  could  have  stopped  it  was  prop- 
erly refused.  St.  Louis  Southwestern 
Ry.  Co.  of  Texas  v.  Tarver  (Tex.  Civ. 
App.)  150  S.  W.  958.  Where  a  peti- 
tion for  an  accident  at  crossing  does 
not  allege  that  certain  obstructions  to 
the  view  were  negligently  placed  on 
the  right  of  way,  but  were  only  set 
forth  as  a  basis  for  avoiding  imputa- 
tion of  contributory  negligence,  an  in- 
struction basing  the  liability  of  the 
cf)mpany  on  its  negligence  in  so  ob- 
structing the  view  is  erroneous.  Chi- 
cago. It,  I.  &  P.  Ry.  Co.  v.  Assman,  83 


P.  1091,  72  Kan.  378.  Where  plaintiff 
alleges,  as  ground  of  recovery  for  in- 
juries at  a  crossing,  specified  acts  of 
negligence  of  the  railroad  company  in 
failing  to  give  proper  signals  and  the 
running  at  a  reckless  rate  of  speed, 
the  court  is  not  warranted  in  sub- 
mitting, as  an  additional  ground  of 
recovery,  negligence  of  the  defendant 
in  permitting  obstructions  to  the  view 
to  remain  on  its  right  of  way.  Mis- 
souri Pac.  Ry.  Co.  v.  Griffith,  76  P. 
436,  69  Kan.  130.  In  an  action  for 
injuries  by  a  street  car,  an  instruc- 
tion is  defective  in  referring  to  the 
failure  to  keep  the  car  under  control, 
when  no  such  avennent  was  made  in 
the  petition.  Heinzle  v.  Metropolitan 
St.  Ry.  Co.,  81  S.  W.  848,  182  Mo. 
528, 

Rule  ivhere  allegation  of  negli- 
gence  general.  If  the  allegation  of 
negligence  is  general,  it  is  permissible 
by  instructions  to  authorize  a  recov- 
ery on  the  finding  of  any  specific  acts 
of  negligence  proven  by  the  evidence 
and  coming  within  the  general  state- 
ment. Bergfeld  v.  Kansas  City  Rys. 
Co.  (Mo.)  227  S.  W.  106. 

8  5  United  Rys.  &  Electric  Co.  of 
Baltimore  v.  Crain,  91  A.  405,  123 
Md.  332. 

8G  Tognazzini  v.  Freeman,  123  P. 
540, -IS  Cal.  App.  468;  Southern  Ry. 
Co.  V.  Wiley,  71  S.  E.  11,  9  Ga.  App. 
249;  Consolidated  Coal  Co.  of  St. 
Louis  V.  Stein,  122  III.  App.  310; 
Union  City  v.  Murphy,  96  N.  E.  584, 
176  Ind.  597;  Chattaroi  R.  Co.  v. 
Leftwich's  Adm'r,  7  Ky.  Law  Rep. 
(abstract)    165. 

87  Southei-n  Ry.  Co.  v.  Fricks,  71 
So.  701,  196  Ala.  61. 

8  8  Wells  V.  Houston,  57  S.  W.  584, 
23  Tex.  Civ.  App.  629. 


251 


APPLICABILITY   TO   PLEADINGS   AND   EVIDENCE 


130 


ing  defenses  not  pleaded.*^  Thus  instructions  as  to  the  defense 
of  contributory  negligence  should  not  be  given,  and  are  properly 
reiused,  where  there  is  no  plea  of  that  defense,*^*^  and  a  charge  on 


so  Cal.  Peters  v.  McKay  &  Co.,  68 
P.   47S,   136  Cal.  73. 

Colo.  Denver  Auto  Goods  Co.  v. 
Peerless  Radiator  Co.,  163  P.  855,  62 
Colo.  549. 

Conn.  Johnson  County  Sav.  Bank 
V.  Walker,  72  A.  579,  82  Conn.  24. 

Ga.  American  Ins.  Co.  v.  Bailey 
&  Musgrove,  65  S.  E.  160,  6  Ga.  App. 
424. 

111.  Cope  V.  Brentz,  190  111.  App. 
504. 

Iowa.  Vernon  v.  Iowa  State  Trav- 
eling Men's  Ass'n,  138  N.  W.  696, 
158  Iowa,  597;  Duffey  v.  Consolidated 
Block  Coal  Co.,  124  N.  W.  609,  147 
Iowa,  225,  30  L.  R.  A.  (N.  S.)  1067. 

Ky.  Benge's  Adm'r  v.  Creech,  192 
S.  W.  817,  175  Ky.  6;  Chesapeake 
&  O.  Ry.  Co.  V.  Vaughn,  115  S.  W. 
217. 

Mass.  Letchworth  v.  Boston  & 
M.  R.  R.,  108  N.  E.  500,  220  Mass. 
560. 

Mo.  Bauer  v.  Weber  Implement 
Co.,  129  S.  W.  59,  148  Mo.  App.  652; 
United  Zinc  Cos.  v.  General  Accidents 
Assur.  Corporation,  Limited,  of  Perth, 
Scotland.  128  S.  W.  836,  144  Mo.  App. 
380;  Miller  v.  Missouri  Fire  Brick 
Co.,  119  S.  W.  976,  139  Mo.  App.  25. 

Ohio.  Louisville  &  C.  Packet  Co. 
V.  Long,  34  Ohio  Cir.  Ct.  R.  72,  judg- 
ment affii-med  106  N.  E.  1066,  88 
Ohio  St.  569. 

Or.  Wolf  V.  Hougham,  125  P.  301, 
62  Or.  264. 

S.  D.  Williamson  v.  Aberdeen  Au- 
tomobile &  Supply  Co.,  155  N.  W.  2, 
36  S.  D.  387. 

Tex.  Texas  &  Pacific  Coal  Co.  v. 
Er\-in  (Civ.  App.)  212  S.  W.  234; 
Sherman  Ice  Co.  v.  Klein  (Civ.  App.) 
195  S.  W.  918 ;  Villareal  v.  Passmore 
(Civ.  App.)  145  S.  W.  1086;  Galves- 
ton, H.  &  S.  A,  Ry.  Co.  V.  Brown,  77 
S.  W.  832,  33  Tex.  Civ.  App.  589. 

Instructions  properly  refused 
witMn  rule.  In  an  action  against 
a  railway  for  breach  of  contract  to 
carry  a  dead  body,  an  instruction 
that,  if  the  body  would  not  in  any 
event  have  been  shipped  without  pro- 
vision for  an  attendant  to  accompany 


it,  and  plaintiff  knew  thereof  and  did 
not  make  any  arrangements  for  an 
attendant,  she  could  not  recover  was 
properly  refused,  where  there  was  no 
pleading  that  failure  to  ship  was  due 
to  such  failure  of  plaintitf.  Missouri, 
K.  &  T.  Ry.  Co.  of  Texas  v.  Linton, 
141  S.  W.  129.  In  an  action  for  in- 
juries to  plaintiff  in  alighting  from 
a  train,  where  plaintiff's  right  to  re- 
cover in  the  absence  of  a  contract  of 
carriage  was  not  raised  in  the  plead- 
ings, a  charge  that  if  defendant  was 
not  bound  to  stop  its  train  where 
plaintiff  attempted  to  alight,  to  allow 
passengers  to  alight,  in  the  absence 
of  a  contract  to  stop  for  that  purpose, 
and  if  plaintiff  was  riding  on  the 
train  from  the  point  to  which  his  tick- 
et read  to  the  place  where  he  alight- 
ed without  payment  of  fare,  he  took 
the  risk  of  alighting  safely,  though 
defendant's  agent  pennitted  him  to 
ride  without  payment  of  fare,  was 
properly  refused  as  tendering  an  is- 
sue not  within  the  pleadings.  Cornell 
V.  Chicago.  R.  I.  &  P.  Ry.  Co.,  128 
S.  W.  1021,  143  Mo.  App.  598.  In  an 
action  for  breach  of  warranty  that 
hogs  were  free  from  cholera,  where 
the  seller  did  not  in  his  answer  allege 
that  theie  had  been  any  want  of  care 
on  the  part  of  the  buyers  in  treating 
the  hogs  after  disease  was  discovered, 
such  issue  cannot  be  submitted  to  the 
jury.  Stanley  v.  Day,  215  S.  W.  175, 
185  Ky.  362. 

Defense  inconsistent  Ti^itli  the- 
ory of  party.  An  instruction,  based 
on  a  defense  not  pleaded,  is  properly 
overruled,  where  no  amendment  of 
the  pleading  to  conform  to  proof  was 
sought,  and  such  defense  was  incon- 
sistent with  defendant's  position 
throughout  trial.  Tuthill  v.  Sherman, 
165  N.  W.  4,  39  S.  D.  464.  A  defend- 
ant cannot  complain  of  a  failure  to 
charge  on  a  theory  inconsistent  with 
his  defense.  Jenness  v.  Simpson,  78 
A.  886,   84  Vt.   127. 

9  0  Ala.  Adams  v.  Crim,  58  So. 
442,  177  Ala.  279;  Birmingham  Ry., 
Light  &  Power  Co.  v.  Demmins,  57 
So.  404,  3  Ala.  App.  359 ;   Birmingham 


§  131 


INSTRUCTIONS  TO  JURIES 


252 


contributory  negligence  should  be  confined  to  the  specific  acts 
of  contributor}''  negligence  pleaded,  and  should  not  submit  to  the 
jury  any  other  acts  of  negligence. ^^  An  instruction  on  the  measure 
of  damages  should  limit  them  to  those  alleged  in  the  declara- 
tion.^- 

§  131.     Rule   that  instructions   must   not   be   narrower   than   the 

pleadings 

An  instruction  which   narrows  the   issues  as  presented  by  the 

pleadings,  so  as  to  not  permit  a  party  to  take  full  advantage  of 

them,   is   ordinarily   erroneous,^^   and   is   properly   refused;^*   and 


Ry.,  Light  &  Power  Co.  v.  Fisher,  55 
So.  995,  173  Ala.  623;  Louisville  & 
N.  R.  Co.  V.  Mulder,  42  So.  742,  149 
Ala.   676. 

Ark,  Western  Union  Telegraph 
Co.  V.  Wilson,  133  S.  W.  845,  97  Ark. 
198. 

Ga.  Southern  Ry.  Co.  v.  Weather- 
by,  93  S.  E.  31,  20  Ga.  App.  399. 

Ky.  Smith  v.  Padueah  Traction 
Co.,  200  S.  W.  460,  179  Ky.  322; 
Louisville  &  N.  R.  Co.  v.  Mattingly, 
57  S.  W.  620,  22  Ky.  Law  Rep.  489. 

Mich.  Pruner  v.  Detroit  United 
Ry.,  154  N.  W.  4,  187  Mich.  602, 

Mo.  Dignum  v.  Weaver  (App.)  204 
S.  W.  560 ;  Loomis  v.  Metropolitan 
St.  Ry.  Co.,  175  S.  W.  143,  188  Mo. 
App.  203 ;  Zalotuchin  v.  Metropolitan 
St.  Ry.  Co.,  106  S.  W.  548,  127  Mo. 
App.  577. 

N.  C.  Kivett  V.  Western  Union 
Telegraph  Co.,  72  S.  E.  388,  156  N.  C. 
296. 

Ohio.  Cincinnati  Traction  Co.  v. 
.Tamison,  32  Ohio  Cir.  Ct.  R.  336. 

Or.  Adams  v.  Portland  Ry.,  Light 
&  Power  Co.,  171  P.  219,  87  Or.  602, 
L.  R.  A.  1918D,  526. 

S.  C.  Moore  v.  Greenville  Trac- 
tion Co.,  77  S.  E.  928,  94  S.  C.  249; 
Bolton  V.  Western  Union  Telegraph 
Co..  57  S.  E.  543,  76  S.  C.  529. 

Tex,  Ft.  Worth  &  D.  C.  Ry.  Co.  v. 
Koeran  (Civ.  App.)  149  S.  W.  355: 
Kansas  City,  M.  &  O.  Ry.  Co.  of 
Texas  v.  Barnhart  (Civ.  App.)  145  S. 
W.  1049:  Cox  v.  Steed.  131  S.  W. 
246,    02   Tex.   Civ.    App.    193. 

Rnle  w^here  plaintiff's  oxen  evi- 
dence shews  his  negligence.  An 
instruction  on  contriinitory  negli- 
Konco  may  be  given,  though  such  neg- 
ligence is  not  i»l<^ided,  where  plaintill  s 
own    evidence    shows    that    he    was 


guilty  of  negligence  which  contribut- 
ed to  his  injury.  Pirn  v.  St.  Louis 
Transit  Co.,  84  S.  W.  155,  108  Mo. 
App.  713.  It  is  held,  however,  that 
it  is  not  incumbent  on  the  court  in 
such  a  case  to  instruct  on  contributory 
negligence.  Bruenn  v.  North  Yakima 
School  Dist.  No.  7,  Yakima  County, 
172  P.  569,  101  Wash.  374. 

Effect  of  general  denial  of  alle- 
gations of  freedom  from  fanlt. 
Where  there  is  a  general  denial  of 
allegations  that  plaintiff  was  free 
from  fault  or  was  in  the  exercise  of 
due  care,  it  is  not  essential  that  such 
defense  be  specifically  pleaded  to  re- 
quire proper  instructions  in  regard 
thereto.  Georgia  Ry.  &  Power  Co.  v. 
Freeney,  96  S.  E.  575,  22  Ga.  App. 
457. 

91  Birmingham  Railway  &  Electric 
Co.  V.  City  Stable  Co.,  24  So.  558,  119 
Ala.  615,  72  Am.  St.  Rep.  955 ;  Davis 
V.  Padueah  Ry.  &  Light  Co.,  68  S.  W. 
140,  24  Ky.  Law  Rep.  135,  113  Ky. 
267;  North  Texas  Gas  Co.  v.  Meador 
(Tex.  Civ.  App.)  182  S.  W.  708;  Mis- 
souri, K.  &  T.  Ry.  Co.  of  Texas  v. 
Foster  (Tex.  Civ.  App.)  87  S.  W.  879 ; 
Perez  v.  San  Antonio  &  A.  P.  Ry.  Co., 
67  S.  W.  137,  28  Tex.  Civ.  App.  255; 
International  &  G.  N.  R.  Co.  v.  Locke 
(Tex.  Civ.  App.)  67  S.  W.  1082. 

9  2  Metcalf  V.  Chicago  Sandoval 
Coal  Co.,  211  111.  App.  31;  Haskell  & 
Barker  Car  Co.  v.  Trzop  (Ind.  App.) 
123  N.  E.  182;  Traw  v.  Heydt  (Mo. 
App.)  216  S.  W.  1009 ;  Walker  v.  Kel- 
lar   (Tex.   Civ.   App.)  218  S.   W.   792. 

9"  Krieger  v.  Aurora,  E.  &  C.  R. 
Co..  90  N.  E.  266,  242  111.  544:  Markle- 
witz  V.  Olds  IMotor  Works,  115  N.  W. 
999,  152  Mich.  113. 

9*  Kenvon  v.  Chicago  City  Rv.  Co., 
85  N.   E.  660,  235  111.  406,  affirming 


253  APPLICABILITY  TO   PLEADINGS  AND   EVIDENCE  §  132 

when  the  court  states  to  the  jury  all  the  issues  raised  by  the 
pleadings,  it  must  explicitly  withdraw  an  issue,  or  direct  that  it 
shall  not  be  considered,  in  order  to  justify  its  refusal  to  give  a 
charge  submitting  that  issue.®'* 

Courts,  however,  have  the  undoubted  right  to  narrow  the  issues 
presented  to  the  jury  to  such  as  are  contested,  and  it  is  eminently 
proper  so  to  do.*^^  Accordingly,  where  the  parties  have  given  to  the 
pleadings  a  practical  interpretation  restrictive  of  their  formal  scope, 
an  instruction  conforming  to  such  interpretation  may  be  good,**"  and 
it  m.ay  be  error  to  refuse  an  instruction  based  upon  such  inter- 
pretation.^* Where,  in  a  negligence  case,  the  proof  is  of  separate 
specific  acts  of  negligence,  the  instruction  should  be  restricted  to 
such  specific  acts,  and  should  not  submit  general  negligence  in 
substantially  the  language  of  the  complaint.®** 

§  132.  Instructions  considered  with  reference  to  complaint  con- 
taining more  than  one  count 
Ordinarily  separate  instructions  for  each  count  in  a  complaint 
are  desirable.^  But  it  is  not  incumbent  on  the  court,  in  it^  charge 
to  the  jury,  to  deal  separately  with  the  several  counts  in  the  peti- 
tion, as  though  distinct  and  independent  cases  were  on  trial,  nor 
to  instruct  the  jury  to  inform  the  court  on  which  count  they  find 
in  the  event  they  return  a  verdict  in  favor  of  the  plaintiff.^  The 
failure  of  an  instruction  to  direct  on  which  count  of  the  petition 
there  may  be  a  recovery,  where  such  counts  state  the  same  cause 
of  action,  though  in  different  forms,^  and  where  there  is  evidence 
to  support  each  of  such  counts,  is  not  error.*     But,  where -plain- 

.iudgment    Chicago    City    Ry.    Co.    v.  Pleadings   loosely   drawn   or   in- 

Kenyon,  137  111.  App.  126 ;   Cleveland,  definite.     It  is  proper  to  instruct  in 

C,  C.   &   St.   L.   Ry.   Co.  v.    Christie,  accordance    with    the    interpretation, 

100  N.  E.  299,  178  Ind.  691.  put  by  the  parties  upon  the  pleadings, 

95  Latman  v.  Douglas  &  Co.,  127  N.  where  the  same  are  loosely  drawn  or 

W.  661,  149  Iowa,  699.  indefinite.     Hoyt   v.    Hoyt,   6S   Iowa, 

9  6  Wood  V.  Wells,  61  N.  W.  503,  103  703,  28  N.  W.  27. 

Mich.  320.                            ^r.  -r   ^     .-,.  98McBride  v.   Huckins,  81  A.  528, 

97  Lpgget  V.  Hardmg,  10  Ind^  414 ;  ^g  j^    ^    2O6. 
Struebing    v.    Stevenson,    105    N.    W. 

.341,    129    Iowa,   25:    Reese   v.   Loose-  99  James    v.    Mott    (Mo.    App.)    215 

Wiles  Biscuit  Co.   (Mo.  App.)  224  S,  S.  W.  913. 

W.  63.                   '  1  Arnold   v.    Lutz,    120   N.    W.   121, 

Ignoring  defense  not  covered  by  141    Iowa,    596. 

the  evidence.     An  instruction  which  ,  Gainesville  &  Dahlonega  Electric 

^nores    a    particular    matter    which  ^     ^o.  v.  Austin,   56  S.   E.   254,   127 

would  have  been  a  defense  had  evi-  q      -.qq 

dence  with  respect  thereto  been  in-  '",,'.           ^.   -.-      .    r^        .    ^ 

troduced  is  not  erroneous,  where  no  ^„'e    4"'q1>J"  .no  ^^"1    ^'^"^^o        ' 

such  evidence  was  in  fact  introduced.  "°  ^-    "^-  ^^^'  ^^"^  ^^^-  -^PP-  '*^^- 

Chicago,  B.  &  Q.  R.  Co.  v.  Bautsch,  4  Morris    v.    Bridgeport    Hydraulic 

129  111.  App.  23.  Co.,  47  Conn.  279. 


§  132 


INSTRUCTIONS  TO  JURIES 


254 


tiit  states  the  same  cause  of  action  in  different  counts,  the  court 
should  charge  that,  if  the  jury  finds  for  him  on  one  of  the  counts, 
it  should  find  no  damages,  or  at  the  most  mere  nominal  damages, 
on  the  other  counts.^ 

Where  each  of  several  counts  in  a  complaint  states  a  cause  of 
action,  an  instruction  which  permits  a  recovery  under  any  one  of 
the  counts  is  not  improper,®  and,  on  the  other  hand,  it  is  error  to 
instruct  that  the  plaintiff  must  prove  all  the  material  allegations 
of  each  and  every  count  in  his  complaint.' 

2.  In  Criminal  Cases 

§  133.  Rule  that  instructions  should  conform  to  allegations  of 
indictment  or  to  issues  raised  by  pleadings 
In  a  criminal  case  the  court  should  only  submit  to  the  jury  the 
law  applicable  to  a  state  of  facts  that  is  pertinent  to  the  allega- 
tions of  the  indictment  or  information,*  and  instructions  which 
authorize  a  conviction  or  an  acquittal  of  an  offense  other  than 
that  charged  in  the   indictment  are   erroneous,   and   are   properly 


■"'  Blackmer  &  Post  Pipe  Co.  v.  Mo- 
bile &  O.  R.  Co.,  151  S.  W.  164,  168 
Mo.  App.  22. 

Joinder  of  connt  in  contract 
with  count  in  tort.  Where  plain- 
tiff joins  a  count  in  contract  with  a 
count  in  tort,  for  the  same  cause  of 
action,  the  court  should  instruct  that 
he  can  recover  only  in  one.  Hoist  v. 
Stewart,  161  Mass.  516,  37  N.  E.  755, 
42  Am.  St.  Rep.  442. 

8  Pittsburjr,  C,  C.  &  St.  L.  Rv.  Co. 
V.  Robson,  68  N.  E.  468,  204  111.  254; 
James  S.  Kirk  &  Co.  v.  Jajko,  79  N. 
E.  577.  224  111.  338. 

Evidence  not  justifying  recov- 
ery under  some  counts.  An  in- 
struction that  the  plaintiff  should 
recover,  "if  he  has  made  out  his  case 
as  set  forth  in  his  declaration,"  is  ob- 
jectionable, where  there  are  several 
counts  of  the  declaration,  under  two 
of  which  the  evidence  did  not  justify 
recovery.  North  Chicago  St.  R.  Co. 
V.  Polkey,  106  111.  App.  98. 

7  Haney  v.  Chicago  &  A.  Ry.  Co., 
116  111.  App.  .507,  judgment  aflirmed 
77  N.  E.  509,  221  111.  242;  Gruenen- 
dahl  V.  Consolidated  Coal  Co.,  lOS  111. 
App.  644:  Chicago  &  A.  R.  Co.  v. 
Eselin,  86  111.  App.  94;  Seltzer  v. 
Saxton,  71  111.  App.  229. 


8  Ala.  Crittenden  v.  State,  32  So. 
273,  134  Ala.  145. 

Cal.  People  v.  Barbera,  157  P.  532, 
29  Cal.  App.  604;  People  v.  Cornell, 
155  P.  1026,  29  Cal.  App.  430;  People 
v.  Buckley.  77  P.  169,  143  Cal.  375. 

Fla.  Milligan  v.  State,  78  So.  535, 
75  Fla.   815. 

Okl.  Anderson  v.  State,  164  P. 
128.    13    Okl.    Cr.   264. 

Or.  State  V.  Hamilton,  157  P.  796. 
80  Or.  562. 

Tex.  Miller  v.  State.  195  S.  W. 
192.  81  Tex.  Cr.  App.  237;  Price  v. 
State,  194  S.  W.  827,  81  Tex.  Cr.  App. 
208;  Collins  v.  State,  171  S.  W.  729, 
75  Tex.  Cr.  R.  534 ;  Johnson  v.  State, 
153  S.  W.  875,  69  Tex.  Cr.  R.  107; 
Perkins  v.  State,  138  S.  W.  133,  62 
Tex.  Cr.  R.  508 ;  Powell  v.  State,  131 
S.  W.  590,  60  Tex.  Cr.  R.  201. 

Instructions  improper  Tvithin 
rule.  In  an  arson  trial,  an  instruc- 
tion to  acquit  if  the  jury  had  reason- 
able doiibt  as  to  the  identity  of  a 
corpse  found  in  the  fire  as  being  that 
of  a  particular  person  named  in  the 
information  was  properly  refused, 
where  the  information  did  not  refer 
to  such  person.  Goldberger  v.  People, 
101  P.  407,  45  Colo.  327.  An  instruc- 
tion in  a  prosecution  for  uttering  a 


255 


APPLICABILITY   TO   PLEADINGS   AND   EVIDENCE 


§  133 


refused,^  although  the  evidence  is  such  as  would  warrant  the  jury 
in  finding  the  defendant  guilty  of  another  offense  than  that  al- 
leged.^**  Thus,  under  an  information  charging  the  defendant  with 
only  an  assault,  the  case  should  not  be  submitted  to  the  jury  as 
assault  and  battery, ^^  and  where  an  information  charges  the  de- 
fendant with  keeping  a  disorderly  house,  the  instructions  must 
conform  to  the  allegations  of  the  information  as  to  whether  he 
is  owner  or  merely  a  lessee  of  the  house. ^^  So  where  the  indict- 
ment charges  the  commission  of  an  offense  in  one  of  the  several 
modes  in  which  it  could  be  committed,  the  inculpatory  evidence 
and  the  instructions  must  be  restricted  to  the  particular  mode  al- 
leged,^^  and  where  an  information  charges  defendant  with  the 
commission  of  certain  acts  conjunctively,  an  instruction  which 
authorizes  a  verdict  of  guilty  if  he  did  either  one  of  them  is  er- 
roneous.**    When  the  defendant  is  indicted  alone  as  the  sole  per- 


fraudulent  prospectus  that  defendant 
had  the  right  to  state  that  the  land 
"contained  oil  and  formation  indicat- 
ing oil"  is  properly  modified  by  strik- 
ing out  such  phrase  where  the  plead- 
ings based  the  fraud  on  a  statement 
that  "this  laud  is  made  up  of  more 
certain  indication  of  oil  than  any 
other  oil  field  in  California."  Pec^le 
V.  Merritt,  122  P.  839,  18  Cal.  App.  58, 
rehearing  denied  122  P.  844,  18  Cal. 
App.  58. 

9  Ala.  Willis  V.  State,  33  So.  226, 
134  Ala.  429 ;  Jacobi  v.  State,  32  So. 
158,  133  Ala.  1. 

Ark.  Kelly  v.  State,  145  S.  W.  556, 
102  Ark.  651. 

Fla.  Telfair  v.  State,  50  So.  573, 
58  Fla.  110. 

Miss.  Waller  v.  State,  103  Miss. 
635,  60  So.  725. 

Mo.  State  v.  Lehman,  75  S.  W.  1B9, 
175  Mo.  619;  State  v.  Faulkner,  75 
S.  W.  116,  175  Mo.  546 ;  State  v.  Robb, 
90  Mo.  30,  2  S.  W.  1. 

Neb.  Galloway  v.  State,  129  N.  W. 
987,  88  Neb.  447. 

N.  Y.  People  v.  Wright,  117  N. 
Y.  S.  441,  133  App.  Div.  133. 

Tex.  Johnson  v.  State,  186  S.  W. 
841,  79  Tex.  Cr.  R.  544;  Bodine  v. 
State,  174  S.  W.  609,  76  Tex.  Cr.  R. 
314 :  Fox  V.  State,  135  S.  W.  557,  61 
Tex.  Cr.  R.  341 ;  Emerson  v.  State,  114 
S.  W.  834.  54  Tex.  Cr.  R.  628:  Mauld- 
ing  V.  State,  108  S.  W.  1182,. 53  Tex. 
Cr.  R.  220;    Miller  v.  State  (App.)  18 


S.  W.  197;  Powell  v.  State,  12  Tex. 
App.  238. 

Va.  Lane  v.  Commonwealth,  95  S. 
E.  466,  122  Va.  916. 

Wash.  State  v.  Phillips,  67  P.  608, 
27  Wash.  364. 

10  People  V.  Piercy,  116  P.  322,  16 
Cal.  App.  13. 

11  Johnson  v.  State,  200  S.  W.  982. 
132  Ark.  128;  ShuSield  v.  State,  138 
S.  W.  402,  62  Tex.  Cr.  R.  556. 

12  Goosby  V.  State,  189  S.  W.  143, 
80  Tex.  Cr.  R.  136 ;  Hall  v.  State,  161 
S.  W.  457,  72  Tex.  Cr.  R.  161. 

isGipe  V.  State,  75  N.  E.  881,  165 
Ind.  433,  1  L.  R.  A.  (N.  S.)  419,  112 
Am.  St.  Rep.  238;  Briscoe  v.  State, 
196  S.  W.  1.S3.  81  Tex.  Cr.  R.  419: 
Maloney  v.  State,  125  S.  W.  36,  57 
Tex.  Cr.  R.  435 ;  Randle  v.  State,  12 
Tex.  App.  250. 

Instructions  not  improper  iirith- 
in  rule.  An  instruction  that  if  ac- 
cused, with  a  leather  belt,  being  a 
deadly  weapon,  or  a  weapon  calculat- 
ed to  produce  death  by  the  manner 
in  which  it  was  used,  struck  and  kill- 
ed deceased,  the  jury  should  find  him 
guilty,  was  not  rendered  erroneous 
because  there  was  no  allegation  in 
the  indictment  that  the  bolt  was  a 
deadly  weapon,  or  became  such  from 
the  manner  of  its  use.  Lee  v.  State, 
72  S.  W.  195,  44  Tex.  Cr.  R.  460. 

14  State  V.  Brotzer.  150  S.  W.  1078, 
245  Mo.  499.  Contra.  Cabiness  v. 
State,  140  S.  W.  934,  66  Tex.  Cr.  R. 
409. 


§  133  INSTRUCTIONS  TO  JURIES  256 

petrator  of  a  crime,  an  instruction  permitting  his  conviction  if  he 
was  the  accomplice  or  aider  or  abettor  of  another  is  erroneous.^^ 

When  an  information  is  insufficient  to  charge  the  offense  in- 
tended, although  it  sufficiently  charges  a  lesser  included  oftense, 
an  instruction  which  permits  a  conviction  of  the  higher  offense 
is  reversible  error,  if  the  record  leaves  it  uncertain  of  which  of- 
fense the  defendant  has  been  found  guilty.^^  An  instruction  that 
the  defendant  must  be  acquitted  if  the  jury  have  a  reasonable 
doubt  arising  from  a  consideration  of  all  the  .evidence  of  the 
guilt  of  defendant  of  any  ofifense  is  erroneous  and  misleading, 
as  authorizing  an  acquittal  on  the  existence  of  a  reasonable  doubt 
of  guilt  of  a  crime  not  charged  in  the  indictment.^'' 

The  court  cannot,  however,  be  required  to  -charge  specifically 
that  defendant  cannot  be  convicted  of  a  crime  other  than  the 
one  for  which  he  is  indicted, .  although  there  is  evidence  that  he 
is  guilty  of  another  crime.^* 

§  134.     Limitations   of   rule 

A  violation  of  the  rule  that  the  instructions  must  not  be  broad- 
er that  the  indictment  or  information  will  not  cause  a  reversal, 
where  it  appears  from  the  record  that  the  jury  were  not  m.isled 
to  the  prejudice  of  the  defendant,^^  as  where  the  added  words 
only  impose  a  greater  burden  upon  the  state  than  it  is  required 
to  sustain.-®  Where  there  is  evidence  to  support  an  allegation 
of  the  indictment,  that  the  victim  of  the  crime  was  known 
and  called  by  a  certain  name,  and  there  is  also  evidence  that  he 
was  sometimes  called  by  another  name  than  that  alleged  in  the 
indictment,  it  is  not  improper  to  give  an  instruction  predicated 
upon  a  finding  of  such  other  name.^^ 

15  Hollin  V.  Commonwealth,  1G5  S.  ute  abolishes  all  distinction  between 

W.  407,  1.58  Ky.  427,  L.  R.  A.  1915E,  principals  in  the  second  degree,  and 

608;    Terhune  v.  Commonwealth,  138  accessories  before  the  fact.     State  v. 

S.  W.  274,  144  Kv.  370;    Mullii^an  v.  Orrick,  106  Mo.  Ill,  17  S.  W.  176. 

Commonwealth,  1   S.  W.  417,  84  Ky.  is  Lomax  v.   State,  43  S.  W.  92,  38 

229 ;    Bean  v.  State.  17  Tex.  App.  60.  Tex,  Cr.  R.  318. 

See  State  v.  Morgan,  35  W.  Va.  260, 13  i^  Stewart  v.  State,  31  So.  944,  133 

S.  E.  385.  Ala.  105. 

Effect  of  statute  abolishing  dis-  is  State  v.  McLaughlin,  50  S.  W.  315, 

tinction    between    principals    and  149  Mo.  19. 

accessories.      An    instruction,    on    a  i»  State  v.  Bunyard,  161  S.  W.  756, 

trial   for  murder,   that  defendant,  if  253  Mo.  347. 

present,  aiding  and  abetting  the  kill-  20  Thompkins  v.  Commonwealth,  90 

ing  of  deceased,  is  as  guilty  as  if  he  S.  W.  221,  28  Ky.  Law  Rep.  642;  State 

had  done  the  killing  himself,  is  prop-  v.  Bunyard,  161   S.  W.  756,  253  Mo. 

er,  though  the  indictment  charges  de-  347. 

fendant  as  principal,  and  not  as  ac-  21  Thomas  v.  State,  38  So.  516,  49 

cessory  before  the  fact,  since  the  stat-  Fla.  123. 


257  APPLICABILITY   TO   PLEADINGS   AND   EVIDENCE  §  136 

§  135.  Instructions  on  conspiracy,  although  not  alleged  in  in- 
dictment 
Two  or  more  persons  engaged  in  the  commission  of  crime  may 
be  prosecuted  jointly  or  severally.  Where  only  one  is  prosecuted, 
it  may  he  shown  that  others  were  present  participating  in  the 
criminal  act,  although  not  inckided  in  the  indictment  or  informa- 
tion, so  that  an  instruction  authorizing  the  jury  to  convict  if  they 
find  that  defendant  committed  the  crime  charged  while  acting 
alone  or  in  company  with  others  is  not  broader  than  an  informa- 
tion charging  defendant  alone  with  the  commission  of  the  crime.-'^ 
So  on  trial  of  two  persons  jointly  indicted  for  crime,  it  is  not 
inappropriate  to  charge  on  the  law  of  conspiracy,  where  the  evi- 
dence authorizes  such  an  instruction,  merely  because  the  indict- 
ment does  not  in  terms  allege  a  conspiracy  to  commit  the  crime.~^ 

§  136.     Instructions   where   indictment    contains    more   than   one 
count,  or  where  several  distinct  criminal  acts  are  proved 

In  a  criminal  case,  where  different  counts  in  an  indictment  charge 
only  a  single  offense  and  in  one  degree,  merely  varying  the  state- 
ment of  the  crime  to  conform  to  the  evidence  which  may  be  given, 
the  court  need  not  charge  separately  as  to  each  count,  but  may 
in  one  instruction  refer  to  them  all,  and  tell  the  jury  to  render 
a  verdict  of  guilty  if  they  find  the  defendant  to  have  committed 
the  crime  in  the  manner  charged  in  either  count. ~*  Where  the 
evidence  shows  that  the  defendant  is  guilty,  if  at  all,  under  one 
particular  count  of  the  indictment,  it  is  proper  for  the  court  to 
confine  its  instruction  to  such  count  f^  and  where  the  state  elects 
to  go  the  jury  on  one  of  two  counts  only,  instructions  submitting 
the  remaining  count  are  erroneous,  and  properly  refused."^  In- 
structions based  on  a  count  of  an  indictment  on  which  a  nolle 
prosequi  has  been  entered  are  properly  refused.^'  So  an  instruc- 
tion authorizing  the  jury  to  convict  defendant  on  proof  going  to 
establish  his  guilt  under  an  insufficient  charge  in  the  informa- 
tion is  prejudicial  error,**  and  it  is,  of  course,  proper  for  the  court 
to  ignore   such   a  defective   count  in  submitting   the   case  to  the 

22StatP  V.    Scullin,   84   S.   W.   SG2,  2  6  jolmson  v.  State,  75  So.  278,  16 

185  Mo.  709.  Ala.  App.  72;    State  v.  Young,  183  S. 

23  Dixon  V.  State,  42  S.  E.  357,  116  J-  ,-^^,',26^5   Mo.    723;    Williams   v. 

Ga.    186;     McLeroy    v.    Same,    54    S.  ^tate    143  S.  W.  634    65  Tex.  Cv.  R. 

E.  125,  125  Ga.  240;    Davis  v.  Same,  ^2;   Austin  v.  State,  124  S.  W.  6bb.  57 

54  S.  E.  126,  125  Ga.  299;    Bradley  v.  5'*'-3:  ^r-  R-  623 ;    Ricks  v.    State,  87 

State,  57  S.  E.  237.  128  Ga.  20.  «.  W^345,  48  Tex.  Cr   R.  229 

„     ' ,    .         XT  1,         ,    •^.   ^-,  AT     oAo  -^  Oakley  v.  State,  33  So.  693,  135 

2  4  State  V.  Hollenscheit,  61  Mo.  302.  ^^^    '^9 

2  5  State  V.  Baker,  110  Mo.  7,  19  S.  2  8  Emporly  v.   State,  41  N.  E.  840, 

W.  222,  33  Am.  St.  Rep.  414.  13  Ind.  App.  393. 

Inst. TO  Juries— 17 


136 


INSTRUCTIONS   TO  JURIES 


25S 


jury,-^  and  where  counts  in  an  indictment  charging  the  accused 
as  an  accomplice  and  accessory  are  withdrawn,  it  is  proper  to 
refuse  an  instruction  defining  such  terms.^" 

Where  the  indictment  charges  the  defendant  with  but  one  crim- 
inal act,  and  the  state  gives  evidence  of  several  distinct  criminal 
transactions,  instructions  which  do  not  limit  the  jur}^  to  the  con- 
sideration of  but  one  of  the  offenses  proven  are  erroneous.^^ 

C.  Applicability  of  Instructions  to  the  Evidence 

§  137.     Rule  that  instructions  must  be  based  on  the  evidence   . 

It  is  the  general  rule  that  instructions  must  be  predicated  upon 
the   evidence    in   the   case.^~     The   propriety   of   an    instruction    is 


2  9  Shelton  v.  State,  39  So.  377,  143 
Ala.  9S;  Butler  v.  State  (Tex.  Cr. 
App.)  43  S.  W.  992. 

3  0  Collins  V.  State,  178  S.  W.  345, 
77  Tex.  Cr.  R.  156. 

31  People  V.  Hatch,  109  P.  1097,  13 
Cal.  App.   521. 

3  2  U.  S.  (Sun.)  Wllmin.Jrton  Star 
Mm.  Co.  V.  Fulton.  27  S.  Ct.  412,  205 
U.  S.  60,  51  L».  Ed.  708. 

Ala.  Duncan  v.  St.  Louis  &  S.  F. 
R.  Co.,  44  So.  418,  152  Ala.  118. 

Ark.  Soutliern  Hotel  Co.  v.  Zim- 
merman, 105  S.  W.  873,  84  Ark.  373. 

Cal.  Hamlin  v.  Pacific  Electric 
Ry.  Co.,  89  P.  1109,  150  Cal.  776. 

Colo.  Conquerer  Gold  Min.  ft 
r^Iill  Co.  V.  AshtoR.  90  P.  1124,  39 
Colo.  133. 

D.  C.  Chapman  v.  Capital  Trac- 
tion Co.,  37  App.  D.  C.  479. 

Fla.  Florida  East  Coast  Ry.  Co. 
V.  Carter,  65  So.  254.  67  Fla.  .335, 
Ann.  Cas.  1916E.  1299:  Mullikon  v. 
Harrison.  44  So.  426.  .53  Fla.  2.55; 
Griffine  P.ros-.  Co.  v.  Winfield,  43  So. 
687.  53  Fla.  .589. 

Ga.  Virginia  Bridge  &  Iron  Co. 
V.  Crafts,  .58  S.  E.  .322,  2  Ga.  App. 
126. 

111.  Norton  v.  Clark.  97  N.  ID. 
1079,  2r,3  111.  5.57;  Knlvie  v.  Bunsen 
Co.'il  Co.,  97  N.  E.  688,  2.53  111.  386, 
affirmint:  .iudgment  161  111.  App. 
617:  Owens  v.  City  of  Chicago,  162 
111.  App.  190;  White  v.  St.  Louis 
Transfor  Co..  161  111.  App.  1.33;  King 
V.  (Jray.  160  111.  App.  2.59;  Hettinger 
V.  Drew.  160  111.  App.  204;  Field  v. 
Winheim,    123    111.   App.    227. 


Ind.  City  of  Bloomingtou  v. 
Woodworth,  81  N.  E.  611,  40  Ind. 
App.  373. 

Iowa.  D.  A.  Enslow  &  Son  v.  En- 
nis.  135  N.  W.  110-5,  155  Iowa,  266. 

Kan.  Grubel  v.  Busche,  91  P.  73, 
75  Kan.   820. 

Ky.     Klein  v.  Klein,  101  S.  W.  382, 

31  Ky.  Law  Rep.  28;  Hollingsworth 
V.  Barrett,  102  S.  W.  330,  31  Ky. 
Law  Rep.  428. 

Md.  Garrett  County  Com'rs  v. 
Blackburn,  66  A.  31,  105  Md.  226. 

Mass.  Wood  v.  Skelley,  81  N.  E. 
872.  196  Mass.  114,  124  Am.  St.  Rep. 
516. 

Mo.  Feddeck  v.  St.  Louis  Car 
Co.,  102  S.  W.  675,  125  Mo.  App.  24. 

Mont.  Mason  v.  Northern  Pac. 
Ry.  Co..  124  P.  271,  45  Mont.  474. 

Neb.  Eisentraut  v.  ]Madden,  1.50 
N.  W.  627,  97  Neb.  466,  L.  R.  A. 
1915C.  893 ;  Boesen  v.  Omaha  St.  Ry. 
Co.,  112  N.  W.  614,  79  Neb.  .381. 

N.  D.  McLain  v.  Nurnberg,  112 
N.  W.  243,  16  N.  D.  144. 

Okl.     White  v.  Oliver,  122  P.  156, 

32  Okl.  479. 

S.  C.  Worthy  v.  .Jonesville  Oil 
:Mill.  57  S.  E.  634,  77  S.  C.  69.  11  L. 
R.  A.  (N.  S.)  690,  12  Ann.  Cas.  688; 
Walker  v.  Western  Union  Ti4egraph 
Co.,  56   S.   E.  38,   75   S.   C.   512. 

Tenn.  Three  States  Lumber  Co. 
•V.  Blanks,  102  S.  W.  79,  118  Tenn. 
627. 

Tex.  Trinity  &  B.  V.  Ry.  Co.  v. 
Geary    (Civ.  App.)  144  S.  W.   1045; 


259 


APrLICABILITY   TO   PLEADINGS   AND    EVIDENCE 


§137 


to  be  determined,  not  by  whether  it  embodies  a  correct  state- 
ment of  the  law  upon  a  given  state  of  facts,  but  by  whether  it 
states  the  law  relevant  to, the  issuable  facts  given  in  evidence  on 
the  trial,^^  and  instructions  which  are  not  supported  by  the  evi- 
dence, or  which  submit  to  the  jury  , issues  not  raised  by  it,  or 
which  are  contrary  to  the  facts,  are  usually  erroneous,^*  and  are 
properly  refused. ^^ 


Wichita  Falls  &  W.  Ry.  Co.  v.  Wy- 
rick  (Civ.  App.)  147  S.  W.  694. 

Utah.  Smith  v.  Cannady,  147  P. 
210.  45  Utah,  521;  Jeusen  v.  Utah 
Light  &  Ry.  Co..  1.S2  P.  S.  42  Utah, 
415;  Rogers  v.  Rio  Grande  Western 
Rv.  Co.,  90  P.  1075,  32  Utah,  367, 
125  Am.  St.  Rep.  876:  Belnap  v. 
Widdison,   90   P.   .393,    32    Utah.  246. 

Va.  Neal  &  Binford  v.  Taylor.  56 
S.  E.  590,  106  Va.  651;  Norfolk  & 
W.  Ry.  Co.  V.  Stpcall's  Adm'x,  57  S. 

E.  657,  107  Va.  231. 

Wash.  Brydges  v.  Cunningham, 
124  P.  131,  69  Wash.  8. 

W.  Va.  Willielm  v.  Parkersburg, 
■M.  &  I.  Ry.  Co.,  82  S.  E.  10S9,  74  W. 
Va.  678. 

3  3  Hatton  V.  Hodell  Fiu-niture  Co. 
(Ind.  App.)  125  N.  E.  797. 

34  U.  S.  (C.  C.  A.  Miss.)  Postal 
Telegraph-Cable  Co.  v.  Box,  185  F. 
489,  107  C.  C.  A.  589 ;  (C.  C.  A.  N.  J.) 
Pennsylvania  R.  Co.  v.  Buckley,  210 

F.  268,  127  C.  C.  A.  86. 

Ala.  Alexander  v.  Smith,  61  So. 
68.  180  Ala.  541. 

Ark.  Choctaw.  O.  &  G.  R.  Co.  v. 
Tliompson,  100  S.  W.  83,  82  Ark.  11. 

Cal.  Neher  v.  Hansen,  107  P.  565, 
12  Cal.  App.  370. 

Conn.  Kishalaski  v.  Sullivan.  108 
A.  538.  94  Conn.  196 ;  Carlson  v.  Con- 
necticut Co..  108  A.  531,  94  Conn.  131, 
8  A.  L.  R.  569;  Board  of  Water 
Com'rs  of  City  of  New  London  v. 
Robbins  &  Potter.  74  A.  938,  82  Conn. 
623 :  First  Nat.  Bank  v.  Brenner,  72 
A.  582,   82  Conn.  29. 

Fla.  Farnsworth  v.  Tampa  Elec- 
tric Co.,  57  So.  2.33.  62  Fla.  166. 

Ga.  Bank  of  Lavonia  v.  Bush.  79 
S.  K  459,  140  Ga.  594;  Savannah 
Electric  Co.  v.  Jackson,  64  S.  E.  680.. 
132  Ga.  559. 

Idaho.  Smith  v.  City  of  Rexburg, 
132  P.  1153,  24  Idaho,  176,  Ann.  Cas. 
1915B,  276. 


111.  Kalinski  v.  Williamson  Coun- 
ty Coal  Co.,  104  N.  E.  1097.  263  111. 
257,  reversing  judgment  183  111.  App. 
541 ;  Loescher  v.  Consolidated  Coal 
Co.,  102  N.  E.  196,  2.59  111.  126.  affirm- 
ing judgment  173  111.  App.  526 ;  Mor- 
een V.  Devillez.  212  111.  App.  208; 
Kaufman  v.  Helmick.  212  111.  App. 
10;  Koehn  v.  Tomlinson,  134  111. 
App.  256. 

Ind.  New  York,  C.  &  St.  L.  Ry. 
Co.  V.  Lind,  102  N.  E.  449,  180  Ind.  38. 

Iowa.  Arnold  v.  Ft.  Dodge,  D.  M. 
&  S.  R.  Co.,  173  N.  W.  252,  186  Iowa. 
538 ;  Plantz  v.  Kreutzer  &  Wasem. 
154  N.  W.  785.  175  Iowa,  562 ;  Owens 
V.  Norwood  White  Coal  Co.,  138  N. 
W.  483,  157  Iowa,  389.  reversing 
judgment  on  rehearing  133  N.  W. 
716. 

Kan.  Sly  v.  Powell,  123  P.  881, 
87  Kan.  142. 

Ky.  INIoors  v.  Kentucky  Electrical 
Co..  208  S.  W.  15,  182  Ky.  825 :  Stony 
Fork  Coal  Co.,  v.  Lingar,  153  S.  W. 
6,  152  Ky.  87;  Hartford  iNIill  Co.  v. 
Hartford  Tobacco  Warehouse  Co., 
121  S.  W.  477. 

Me.  Lunge  v.  Abbott,  95  A.  942, 
114  Me.  177. 

Md.  Fast  V.  Austin,  107  A.  54u. 
135  Md.  1:  Anne  Arundel  County 
Com'rs  V.  Carr,  73  A.  668,  111  Md. 
141. 

Mass.  Kerr  v.  Shurtleff,  105  N. 
E.  871,  218  Mass.  167. 

Mich.  Sorensen  v.  Sorensen.  179 
N.  W.  256,  211  Mich.  429;  Lunde  v. 
Detroit  United  Ry.,  143  N.  W.  45, 
177  Mich.  374;  Swift  &  Co.  v.  Mc- 
Mullen,  134  N.  W.  1109,  169  Mich.  1 ; 
Reese  v.  Detroit  United  Ry.,  124  N. 
W.   539,   159   Mich.   600. 

Minn.  Johnson  v.  Smith,  173  N. 
W.  675,  143  Minn.  350;  Burmeister 
V.  Giguere,  153  N.  W.  134,  130  Minn. 

3  5  See  note  35  on  page  267. 


137 


INSTRUCTIONS  TO  JURIES 


260 


As  has  already  been  indicated,  this  rule  applies  to  instructions 


28;  Johnson  v.  Sartell  Bros.  Co.,  150 
N.  W.  784,  128  Minn.  239. 

Miss.  Western  Union  Tel.  Co.  v. 
Robertson,  69  So.  680,  109  Miss.  775; 
McLeod  Lumber  Co.  v.  Anderson 
Mercantile  Co.,  62  So.  274,  105  Miss. 
498. 

Mo.  Simon  v.  Metropolitan  St. 
Ry.  Co.  (App.)  213  S.  W.  147;  Teter 
V.  Central  Coal  &  Coke  Co.,  213  S. 
W.  1.35,  201  Mo.  App.  538 ;  J.  F.  Mey- 
er Mfg.  Co.  V.  Sellers,  182  S.  W.  789, 
192  Mo.  App.  489;  Springfield  Crys- 
tallized Egg  Co.  V.  Springfield  Ice  & 
Refrigerating  Co.,  168  S.  W.  772.  259 
Mo.  604;  Haas  v.  American  Car  & 
Foundry  Co.,  157  S.  W.  1036,  176  Mo. 
App.  314. 

Mont.  Kelley  v.  John  R.  Daily 
Co.,  ISl  P.  326,  56  Mont.  63;  West- 
ern Mining  Supply  Co.  v.  Melzner, 
136  P.  44,  48  Mont.  1(4;  T.  C.  Pow- 
er &  Bro.  V.  Turner,  97  P.  950,  37 
Mont.  521. 

Neb.  Zancanella  v.  Omaha  &  C. 
B.  St.  R.  Co.,  14?  N.  W.  190,  93  Neh. 
774:  Clingan  v.  Dixon  County,  118 
X.    W.    1082,    82    Neb.    808. 

Nev.  Zelavin  v.  Tonopah  Bel- 
mont Development  Co.,  149  P.  188, 
39  Nev.  1 ;  Mirodias  v.  Southern  Pae. 
Co.,  145  P.  912,  38  Nev.  119. 

N.  H.  Hobbs  V.  George  v.  Blan- 
chard  &  Sons  Co.,  70  A.  10S2,  75  N. 
H.  73,  IS  L.  R.  A.   (N.  S.)  939. 

N.  M.  Thayer  v.  Denver  &  R.  G. 
R.  Co.,  154  P.  691,  21  N.  M.  3.30. 

N.  Y.  Geiger  v.  E.  W.  Emery  Co. 
(Sup.)  180  N,  Y.  S.  550;  Rosenberg 
V.  Goldstein  (Sup.)  146  N.  Y.  S. 
1009. 

N.  C.  Craig  &  Wilson  v.  Stewart, 
&  Jonos",  79  S.  E.  1100,  163  N.  C.  531. 

Oliio.  Cincinnati  Traction  Co.  v. 
Jamison.  32  Ohio  Cir.  Ct.  R.  336. 

Okl.  Bilby  v.  Owen  (Sup.)  181  P. 
724;  Hurst  v.  Hill,  122  P.  513,  32 
Okl.  532. 

Or.  State  V.  Stiles,  ICO  P.  126, 
81  Or.  497;  Schumacher  v.  Moffitt, 
142  P.  3.53,  71  Or.  79;  Pacific  Ry.  & 
Nav.  Co.  V.  Elmore  I'acking  Co.,  120 
P.  389,  00  Or.  534,  Ann.  Cas.  1914A, 
371. 

Pa.  Rick  V.  New  York.  C.  &  St. 
L.  R.  Co.,  81  A.  G50,  232  Pa.  553. 


R.  I.  Baran  v.  Silverman,  83  A. 
263,  34  R.  I.  279,  Ann.  Gas.  1914B, 
997. 

S.  D.  Pease  v.  Cochran,  173  N.  W. 
158,  42  S.  D.  130,  5  A.  L.  B.  936; 
Larson  v.  Chicago,  M.  &  P.  S.  Ry. 
Co.,  141  N.  W.  353,  31  S.  D.  512. 

Tex.  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Helms'  Bros.  (Civ.  App.)  211  S.  W. 
597;  Wells  Fargo  &  Co.  Express  v. 
Gentry  (Civ.  App.)  154  S.  W.  363; 
Dupree  &  McCutchan  v.  Texas  &  P. 
Ry.  Co.  (Civ.  App.)  96  S.  W.  647. 

Utali.  Bakka  v.  Kemmerer  Coal 
Co..   134  P.   888,   43  Utah,   345. 

Vt.  Brown  v.  People's  Gaslight 
Co.,  71  A.  204,  81  Vt.  477,  22  L.  R.  A. 
(N.   S.)   738. 

Va.  Whealton  &  Wi  sherd  v. 
Doughty,  72  S.  E.  112,  112  Va.  649. 

Wash.  Rastelli  v.  Henry,  131  P. 
643,  73  Wash.  227;  Gates  v.  Bekins, 
87  P.  505,  44  Wash.  422. 

W.  Va.  Blagg  v.  Baltimore  &  O. 
R.  Co.,  98  S.  E.  526,  83  W.  Va.  449; 
Gay  V.  Gay,  83  S.  E.  75,  74  W.  Va. 
800;  Greer  v.  Arrmgton,  79  S.  E. 
720.  72  W.  Va.  693. 

Wis.  Speliopoulos  v.  Schlick,  109 
N.   W.  568,   129  Wis.  556. 

Wyo.  Justice  v.  Brock,  131  P.  38, 
21  Wyo.  281. 

Instructioas  improper  witliin 
rule.  In  an  action  for  assault  and 
battery,  where  plaintiff  testified  to 
an  assault  amounting  to  rape  and 
defendant  denied  having  or  solicit- 
ing sexual  intercourse  with  her,  or 
even  having  touched  her  person,  a 
request  for  a  charge  on  the  question 
of  consent  was  properly  refused. 
Niebyski  v.  Welcome,  108  A.  341,  93 
Vt.  418.  Instruction  authorizing  ju- 
ry to  consider  defendant's  financial 
condition,  business,  or  station  in 
society,  in  assessing  plaintiff's  dam- 
ages for  assault,  was  unwarranted, 
where  there  was  no  competent  evi- 
dence as  to  such  facts.  Traw  v. 
Hoydt  (Mo.  App.)  216  S.  W.  1009. 
Where  in  an  action  for  damages 
caused  by  the  collapse  of  a  building 
during  alteration,  plaintiff  alleged 
noncompliance  with  an  ordinance  re- 
quiring the  issuance  of  a  building 
permit    before    the    building    altera- 


261 


APPLICABILITY   TO   PLEADINGS   AND   EVIDENCE 


§  13- 


which  correctly  declare  the  law  as  an  abstract  ^proposition,-^"  and 


tions  were  commenced,  and  defend- 
ant sought  to  prove  what  had  been 
done  with  reference  to  securing;  a 
permit  before  tlie  commencement  of 
tlie  work,  but  the  court  sustained 
plaintiff's  objection,  and  stated  that 
he  did  not  see  how  the  permit  was 
material,  as  in  the  view  he  took  of 
the  case  it  would  go  to  the  jury  on 
the  single  proposition  whether  the 
work  was  done  in  a  negligent  man- 
ner, and  the  matter  was  not  again 
referred  to,  but  the  court  charg^^d 
that  in  determining  whether  defend- 
ants were  negligent  the  jury  might 
consider  the  fact  that  the  city  ordi- 
nances required  a  permit  to  be  ob- 
tained, the  fact  that  one  was  not 
obtained,  and  whether  the  omission 
contributed  to  the  injury,  it  was  held 
that  such  instruction  submitted  an 
issue  on  which  defendant  had  not 
been  heard,  and  was  erroneous. 
Western  Real  Estate  Trustees  v. 
Hughes  (C.  C.  A.  Neb.)  153  F.  560. 
82  C.  C.  A.  514.  In  an  action  against 
initial  carrier  and  connecting  car- 
riers for  loss  of  cattle,  the  court 
erred  in  submitting  an  issue  as  to 
the  liability  of  the  connecting  car- 
riers, where  the  evidence  was  undis- 
puted that  the  cattle  were  lost  while 
in  the  hands  of  the  initial  carrier. 
Panhandle  &  S.  F.  Ry.  Co.  v.  Claren- 
don Grain  Co.  (Tex.  Civ.  App.)  215 
S.  W.  866.  Where,  in  an  action 
against  a  carrier  for  injuries  receiv- 
ed by  a  shipper  of  a  horse  in  con- 
sequence of  being  kicked  by  the 
horse  while  in  the  car  with  it,  there 
was  no  pleading  nor  evidence  that 
tlie  shipper  agreed  to  ride  in  the  car 
with  the  horse,  with  the  door  open 
and  the  horse  untied,  and  the  evi- 
dence showed  that  he  protested 
against  so  riding  and  that  he  was 
forced  to  do  so  or  take  the  chances 
of  his  horse  being  injured,  an  in- 
struction that,  if  the  shipper  con- 
sented that  the  car  might  be  moved 
to  a  railroad  yard  with  the  door 
open  and  the  horse  untied,  he  could 
not  recover  was  properly  refused. 
Houston  &  T.  C.  R.  Co.  v.  Wilkins 
(Tex.  Civ.  App.)  98  S.  W.  202.  An 
instruction    in    an    action   against   a 


carrier  for  injury  to  a  passenger  on 
a    second    passenger    attempting    to 

3  0  Colo.  Gray  v.  Sharpc,  67  P.  351, 
17  Colo.  App.  139. 

Ga.  Western  &  A.  R.  Co.  v.  Kinua- 
mon.  67  S.  E.  799,  134  Ga.  217 ;  Bird 
V.  Benton  &  Bros.,  56  S.  E.  450,  127 
Ga.  371. 

111.  Lyons  v.  Joseph  T.  Ryerson  & 
Sou,  90  N.  E.  288,  242  111.  409 ;  Bren- 
nen  v.  Chicago  &  Carterville  Coal  Co., 
89  N.  E.  756,  241  111.  610. 

Ind.  Domestic  Block  Coal  Co.  v. 
De  Armey,  100  N.  E.  675,  179  Ind.  592; 
Indiana  Union  Traction  Co.  v.  Ohne, 
89  N.  E,  507,  45  Ind.  App.  632. 

Iowa.  Scurlock  v.  City  of  Boone, 
121  N.  W.  369.  142  Iowa.  684;  Het- 
land  V.  Bilstad,  118  N.  W.  422,  140 
Iowa,  411. 

Kan.  Gregg  v.  George,  16  Kan. 
546;  Jaedicke  v.  Scrafford,  15  Kan. 
120. 

Mass.  Beckles  v.  Boston  Elevated 
Ry.  Co.,  101  N.  E.  145,  214  Mass.  311. 

Mo.     Roberts  v.  City  of  Piedmont, 

148  S.  W.  119,  166  Mo.  App.  1 ;  Wil- 
liamson v.  St.  Louis  &  M.  R.  R.  Co., 
113  S.  W.  2.39,  133  Mo.  App.  375;  Franz 
v.  Hilterbrand,  45  Mo,  121 ;  Keithley 
V.  Southworth,  75  Mo.  App.  442. 

Nev.     Week  v.  Reno  Traction  Co., 

149  P.  65,  38  Nev.  285. 

N.  J.  Ploeser  v.  Central  R.  Co.  of 
New  Jersey,  105  A.  228,  92  N.  J.  Law, 
490. 

N.  Y.  Hanlon  v.  Central  R.  Co.  of 
New  Jersey,  79  N.  E.  846.  187  N.  Y. 
73,  10  L.  R.  A.  (N.  S.)  411,  116  Am. 
St.  Rep.  591,  10  Ann.  Cas.  366.  affirm- 
ing judgment  96  N.  Y.  S.  1127,  110 
App.  Div,  918. 

N.  C.  Schloss-Bear-Davis  Co.  v. 
Louisville  &  N.  R.  Co.,  88  S.  E.  476, 
171  N.  C.  350. 

Okl.  Fowler  v.  Fowler,  161  P.  227. 
61  Okl.  280,  L.  R.  A.  1917C,  89. 

S.  D.  Klink  v.  Quinu,  156  N.  W. 
797,  37  S.  D,  83. 

Tex.  Stoker  v.  Fugitt  (Civ.  App.) 
113  S.  W.  310 ;  Louisiana  Western  Ex- 
tension Ry.  Co,  V.  Carstens,  47  S.  W. 
36,  19  Tex.  Civ.  App.  190. 

W.  Va.  Bond  v.  National  Fire 
Ins.  Co.,  88  S.  E.  389,  77  W.  Va.  736. 


1  137 


INSTRUCTIONS   TO  JURIES 


262 


the  fact  that  instructions  are  applicable  to  the  issues  raised  by 


slioot  a  third,  making  the  carrier  lia- 
ble if  the  baggage  master  lent  a  pis- 
tol to  the  third  passenger,  who  pro- 
voked tlie  shooting,  knowing  wliy  he 
wanted  the  pistol,  was  eiTor,  where 
there  was  no  evidence  that  the  bag- 
gage master  knew,  or  had  reason  to 
know,  that  the  pistol  was  borrowed 
for  an  ^lnla^^■ful  purpose.  Penny  v. 
Atlantic  Coast  Line  R.  Co..  68  S.  E. 
238.  153  X.  C.  296,  32  L.  R.  A.  (N. 
S.)  1209.  Where  a  boy  12  years  old 
boarded  a  street  car  with  the  permis- 
sion of  the  motorman,  who  had  no 
authority  to  permit  him  to  do  so,  and 
the  conductor,  while  the  car  was  in 
motion,  ordered  the  boy  to  leave, 
and  seized  a  broom  and  advanced 
toward  him  in  a  threatening  manner, 
I'epeating  the  order,  and  the  boy 
dodged,  lost  his  equilibrium,  fell 
from  the  car,  and  was  injured,  it 
was  held  that  the  court  properly  re- 
fused to  charge  tliat,  as  the  boy  was 
not  a  passenger,  it  was  the  duty  of 
the  conductor  to  prohibit  him  from 
riding,  and;  if  the  boy  stepped  from 
the  car  at  the  command  of  the  con- 
ductor, there  could  be  no  recovery ; 
there  being  no  evidence  to  support 
such  instruction.  Drogmund  v.  Met- 
ropolitan St.  Ry.  Co.,  98  S.  W.  1091, 
122  I\Io.  App.  154.  Where  in  an  ac- 
tion by  the  owner  of  a  parcel,  which 
'She  gave  to  a  messenger  employed  by 
defendant  telegraph  company  for  de- 
livery within  the  city,  for  damages 
for  its  misdelivery,  the  court  in- 
structed that,  if  plaintiff  delivered  a 
]iiickage  containing  articles  of  great, 
value,  without  notifying  the  messen- 
ger boy  that  it  contained  articles  of 
great  value,  she  was  negligent,  and 
could  not  recover,  and  further  in- 
structed ihat.  if  no  notice  of  the  con- 
tents of  tlie  package  was  given  to  the 
company,  plaintiff  could  not  recover, 
and  that  it  was  a  matter  of  common 
knowledge  that  defendant's  business 
included  only  the  delivery  of  pack- 
ages of  small  value,  it  was  held  that 
the  instructions  were  erronc^ius  and 
misleadhig,  there  being  no  evidence 
that  tlio  company  liad  esta1)lislied 
any  rules  exempting  it  from  liability 
If  packages  of  ordinary  merchandise 


which  it  engaged  to  deliver  were 
lost,  or  of  any  general  custom  of  com- 
panies engaged  in  a  similar  business 
accepting  only  packages  of  small 
value.  Murray  v.  Postal  Telegraph 
&  Cable  Co.,  96  N.  K  316.  210  Mass. 
188,  Ann.  Cas.  1913C,  1183.  Instruc- 
tions wliich  predicate  a  right  of  re- 
covery on  an  implied  contract  are 
erroneous,  where  the  subject-matter 
of  the  plaintiff's  claim  was  covered 
by  an  express  contract  and  no  im- 
plied contract  has  existed  as  a  mat- 
ter of  law.  Ballard  v.  Shea.  121  111. 
App.  135.  An  instruction  in  an  ac- 
tion on  a  contract  w^herein  defend- 
ants made  counterclaim  for  taxes  al- 
leged to  have  been  paid  by  them, 
that,  if  the  jury  found  that  the  con- 
tention of  defendants  as  to  the  na- 
ture of  the  contract  was  true  and  al- 
so their  claim  for  taxes  paid,  they 
should  allow  the  same,  was  errone- 
ous, where  plaintiffs  on  the  undisput- 
ed evidence  were  not  as  a  matter  of 
law  personally  liable  to  defendants 
for  the  taxes  paid.  Stitt  v.  Rat 
Portage  Lumber  Co..  116  N.  W.  643, 
104  Minn.  347.  In  a  personal  injury 
action,  it  was  error  for  the  court  to 
advise  the  jur.v  that  they  might  al- 
low damages  for  permanent  injury, 
where  there  was  no  sufficient  evi- 
dence that  the  injuries  were  perma- 
nent. Fitzgerald  v.  Detroit  United 
Ry.,  172  N.  W.  608,  206  Mich.  273. 
In  an  action  for  personal  injuries, 
the  charge  of  the  court  that,  if  the 
jury  found  that  plaintiff  had  sus- 
tained injuries  which  made  him  the 
object  of  pity  to  his  fellow  men, 
and  the  object  of  ridicule  to  the 
thoughtless,  and  which  deprived 
him  of  the  comfort  and  companion- 
ship of  his  fellow  men,  the  one 
causing  the  injur.v  should  respond 
in  damages  therefor,  was  held  er- 
ror, in  the  absence  of  evidence  dis- 
closing an  injury  which  would  shock 
the  senses  of  fair-minded  men,  or 
invite  the  imfceling  to  ridicule. 
Lynch  v.  Northern  Pac.  Ry.  Co., 
120  P.  882,  67  Wash.  113.  In  an 
action  for  injuries  to  a  child  caused 
by  defendant's  negligently  leaving  a 
live  wire  in  a  public  place  unguard- 


263 


ArPLICABILITY   TO   PLEADINGS   AND    EVIDENCE 


§13- 


the   pleadings   does   not    prevent   the   application   of   such   rule   to 


pcl,  an  instruction  reqnestefl  by  de- 
fendant that,  if  the  parents  were 
negligent  in  failing  to  provide  proper 
medical  attention,  and  that  this  neg- 
ligence contributed  to  the  injury  com- 
plained of,  plaintiff  could  not  recover 
was  properly  refused,  where  the 
proof  showed  that,  on  the  day  fol- 
lowing the  shock,  and  as  soon  as  the 
serious  nature  of  the  injurj'  was  dis- 
covered, the  parents  called  a  compe- 
tent physician  who  attended  plaintiff 
until  the  day  of  the  trial,  and  that 
another  competent  physician  was 
called  in  consultation  a  few  days  aft- 
er the  accident  and  again  later.  Col- 
orado Springs  Electric  Co.  v.  Soper, 
88  P.  161,  38  Colo.  126.  Where,  in 
an  action  for  the  death  of  a  child  by 
an  electric  shock  on  seizing  a  hanger 
wire  to  light  an  electric  street  lamp, 
there  could  be  no  doubt  that,  if  any 
negligence  of  the  decedent  was  found, 
his  negligence  directly  related  to  the 
injury  and  tJiere  was  no  room  for 
any  intervening  cause,  the  refusal  to 
charge  that,  if  decedent  was  guilty 
of  negligence,  his  negligence  would 
not  defeat  a  recovers*  unless  the  neg- 
ligence contributed  proximately  to 
cause  the  death,  was  not  erroneous. 
Charette  v.  Village  of  L'Anse,  117 
N.  W.  737,  154  Mich.  304.  In  an  ac- 
tion against  an  electric  light  compa- 
ny to  recover  for  the  death  of  plain- 
tiff's husband  caused  by  contact  with 
a  live  wire,  where  there  is  no  evi- 
dence that  the  defendant  maintained 
a  common  nuisance  or  was  guilty  of 
wanton  negligence,  it  is  error  to  refer 
to  the  negligence  of  decedent  as 
"light,"  and  that  of  deff^ndanf  as 
"heavy."  Weir  v.  Haverford  Elec- 
tric Light  Co..  70  A.  S74.  221  Pa. 
611.  In  an  action  of  attachment, 
based'  uix)n  fraud,  an  instruction  as 
to  the  necessity  of  the  plaintiff  acting 
promptly  after  discovery  of  the  false 
representations  and  not  sleeping  on 
his  rights  was  improper,  as  being  in- 
applicable to  the  evidence,  where 
plaintiff  commenced  suit  within  two 
days  after  discovery  of  the'  fraud. 
Lawler  v.  Herren,  210  111.  App.  203. 
An  instruction,  in  an  action  for 
alienation  of  a  wife's  affections,  that 


the  acts  of  the  wife  and  daughter  of 
one  of  the  defendants  in  inducing,' 
plaintiff's  wife  to  abandon  him  did 
not  bind  the  defendants,  unless  they 
acted  under  defendants'  directions, 
and  the  burden  of  proving  that  fact 
was  on  plaintiff,  unless  the  jury 
found  that  either  of  the  defendants 
was  present  aiding  and  abetting  the 
wife  and  daughter,  was  erroneous  as 
to  a  defendant  who  the  undisputed 
evidence  showed  was  not  present  aid- 
ing and  abetting,  as  it  virtuallv  as- 
sumed that  there  was  a  con.spiracy 
between  him  and  such  other  defend- 
ant, who  alone  was  present,  so  as  to 
render  him  liable  for  acts  done  in 
his  absence.  Poland  v.  Stanley,  115 
S.  W.  163,  88  Ark.  562.  129  Am.  St. 
Rep.  114.  Where,  in  an  action  for 
injuries  to  a  servant  from  allegea 
defective  machinery,  there  was  no 
evidence  that  machines  like  the  one 
in  suit  were  liable  to  often  get  out 
of  order;  and  the  evidence  tended  to 
show  that  with  ordinary  care  and  at- 
tention the  machine  in  question  was 
not  liable  to  get  out  of  order,  a  re- 
quest to  instruct  that  "machinery 
often  £rets  out  of  order."  etc..  was 
properly  refused.  Xutt  v.  Isensee. 
119  P.  722.  60  Or.  TOo.  An  instruc- 
tion including  the  statement  that  a 
servant  may  become  a  vice  principal 
by  being  placed  in  exclusive  charge 
of  the  work,  and  that  there  is  no 
evidence  in  the  case  that  the  seiwant 
whose  negligence  caused  the  injury 
was  s<i  placed  in  exclusive  charge  of 
the  work,  and  hence  he  would  not  be 
a  vice  principal,  was  properly  refus- 
ed, where  the  evidence  is  conclusive 
that  he  was  placed  in  exclusive 
charge  of  making  a  repair,  though 
not  in  exclusive  charge  of  the  entire 
establishment.  Mortensou  v.  Hotel 
Nicollet  Co.,  136  N.  W.  300.  118  Minn. 
29.  Where  there  is  no  evidence  that 
a  servant  injured  by  defects  in  the 
machinery  knew  of  the  same,  it  was 
not  error  to  refuse  to  instruct  on 
in-inciples  of  law  applicable  to  in- 
juries receiv(Hl  from  defects  in  ma- 
chinery which  it  was  the  servant's 
duty   to    report   to   Jils    master.      Mc- 


§137 


INSTRUCTIONS  TO  JURIES 


264 


them,3*  with  the  limitation  that  it  is  not  error  for  the  court  to 


Carley  v.  Glenn-Lowry  Mfg.  Co.,  56 
S.  E.  1,  75  S.  C.  390.  Where,  in  a 
car  repairer's  action  for  injuries, 
there  was  no  evidence  that  defeutl- 
ant's  officers  knew  of  any  violation 
of  its  rule  made  for  the  protection 
of  car  repairers,  it  was  error  to  in- 
struct that  plaintiff  could  recover  if 
defendant  had  not  enforced  this  rule. 
Garlinghouse  v.  Michigan  Cent.  R. 
Co.,  140  N.  W.  646,  174  Mich.  73. 
T^Tiere  the  undisputed  evidence  was 
that  an  employe  had  entire  charge  of 
the  master's  business  at  the  place  of 
injury,  with  authority  to  designate 
another  servant  to  take  charge  of  the 
work  in  which  plaintiff  was  injured 
with  as  much  authority  as  plaintiff 
claimed  for  the  servant  so  designat- 
ed, it  was  not  error  to  refuse  a 
charge  that  the  jury  must  find  that 
the  employe  in  charge  had  authority 
to  designate  an  overseer  before  they 
could  find  that  a  servant,  so  desig- 
nated, had  authority  to  act  as  fore- 
man. Doyle  V.  Melendy,  75  A.  881, 
83  Vt.  339.  "Uliere,  in  an  action  for 
injuries  to  an  employ^  caused  by  a 
defective  chisel,  there  was  evidence 
that  the  employe  had  no  knowledge 
or  oi)portunity  of  knowledge  of  the 
condition  of  the  chisel  prior  to  the 
accident,  an  instruction  that  the  em- 
ployer was  not  required  to  inspect 
simple  tools  like  a  chisel,  the  con- 
dition of  which  is  as  obvious  to  one 
person  as  to  another,  was  properly 
refused.  Baltimore  &  O.  S.  W.  R. 
Co.  V.  Walker,  84  N.  E.  730,  41  Ina. 
App.  588.  Whr>re  the  app(>llee,  a  mi- 
nor, was  working  in  the  yards  of  a 
railway  company,  and  while  carrying 
iron  bars  across  the  tracks  under  the 
direction  of  his  foreman  was  struck 
by  a  car  \\hich  was  being  switched, 
and  in  his  complaint  for  the  injuries 
received  alleged  the  negligence  of  the 
company  in  making  a  "kicking" 
swit<h,  and  the  court,  at  appel- 
lee's request,  charged  that  it  was 
the  duty  of  the  company  to  furnish 
a  reasonably  safe  place  to  work 
and  to  warn  him  of  any  dangers  not 
obvious  to  an  ordinarily  prudent  pi'r- 
son,  and  that  the  failure  in  such 
duty    would    entitle    the    plaintiff   to 


a  verdict,  it  was  held  that  the  com- 
pany's liability,  if  any,  arose  from 
the  negligence  of  its  servants  in 
switching  cars  on  a  track  next  to 
standing  cars,  and  not  to  any  failure 
of  the  company  to  furnish  a  safe  place 
to  work,  and  hence  the  instruction 
\Vas  erroneous  as  not  having  applica- 
tion to  the  facts.  New  Orleans  &  X. 
E.  R.  Co.  V.  Williams,  53  So.  619,  96 
Miss.  373.  The  inapplicable  instruc- 
tion announcing  the  rule  of  the  mas- 
ter's duty  to  furnish  a  safe  place  to 
work,  in  an  action  for  a  servant's 
death  while  running  in  front  of  a 
train  far  from  his  working  place,  is 
confusing,  if  not  misleading.  Melz- 
ner  v.  Chicago,  M.  &  St.  P.  Ry.  Co., 
153  P.  1019,  51  Mont.  487.     In  an  ac- 

3  7  Ala.  Ahniston  Electric  &  Gas 
Co.  V.  Anderson,  66  So.  924,  11  Ala. 
App.  554. 

Colo.  Fireman's  Fund  Ins.  Co.  v. 
Barker,  6  Colo.  App.  535,  41  P.  513. 

Ga.  Bateman  v.  Cherokee  Fertiliz- 
er Co.,  93  S.  E.  1021,  21  Ga.  App.  158 ; 
City  of  Rome  v.  Ford,  79  S.  E.  243,  13 
Ga.  App.  386. 

Iowa.  Ott  V.  Murphy,  141  N.  W. 
463,  IGO  Iowa,  730. 

Ky.  City  of  Campbellsville  v.  Mor- 
gan, 150  S.  W.  521,  150  Ky.  417; 
Owensboro  Wagon  Co.  v.  Boling,  107 
S.  W.  264,  32  Ky.  Law  Rep.  816. 

Mo.  Ostopshook  V.  Cohen-Schwartz 
Rail  &  Steel  Co.  (App.)  227  S.  W.  642 ; 
Riley  v.  City  of  Independence,  167  S. 
W.  1022,  258  Mo.  671,  Ann.  Cas.  1915D, 
748. 

Ohio.  Boviard  &  Seyfang  Mfg.  Co. 
V.  Maitland,  110  N.  E.  749,  92  Ohio  St. 
201. 

Okl.  IMissouri,  K.  &  T.  Ry.  Co.  v. 
Taylor  (Sup.)  170  P.  1148 ;  Miller  Bros. 
V.  .AlcCall  Co.,  133  P.  183,  37  Okl.  634. 

Tex.  Norton  v.  Lea  (Civ.  App.)  170 
S.  W.  267;  Thos.  Goggan  &  Bro.  v. 
Goggan  (Civ.  App.)  146  S.  W.  968; 
National  Biscuit  Co.  v.  Scott  (Civ. 
App.')  142  S.  W.  65;  Trinity  &  B.  V. 
Ry.  Co.  v.  Brad.shaw,  107  S.  W.  618; 
Graham  v.  Edwards  (Civ.  App.)  99 
S.  W.  436. 

Va.  Southern  Ry.  Co.  v.  Foster '.s 
Adm'r.  69  S.  E.  972.  Ill  Va,  763. 


265  APPLICABILITY   TO   PLEADINGS   AND   EVIDENCE  §   137 

State  the  contentions  of  the  parties  .as  presented  by  the  pleadings, 


tion  to  recover  for  injuries  to  a  serv- 
ant, an  instruction  that  plaintiff 
could  not  recover  unless  there  was  a 
custom  to  give  notice  of  clanger,  of 
which  there  was  no  evidence,  was  er- 
roneous. Marshall  v.  Chicago,  R.  I. 
&  P.  Ry.  Co.,  149  N.  W.  296,  127  Minn. 
244.  In  an  action  by  one  injured  in 
attempting  to  place  an  electric  motor 
on  a  track,  instimction  that,  if  a  sud- 
den starting  of  the  motor  was  order- 
ed without  warning  to  assist  in  get- 
ting it  upon  the  track,  etc.,  is  er- 
roneous, where  there  was  nothing  to 
show  that  such  starting  of  the  ma- 
chine would  have  been  of  assistance. 
Carrington  v.  Holbrook,  Cabot  &  Rol- 
lins (Sup.)  157  N.  Y.  S.  457.  ^Miere, 
in  an  action  for  injuries  to  an  em- 
ploy6  in  consequence  of  a  defective 
machine,  there  was  no  evidence  that 
a  defect  in  the  lever  attached  to  the 
machine  contributed  to  the  injury,  an 
instruction  authorizing  a  recovery  if 
the  lever  was  so  defective  that  it 
could  not  be  efficiently  used  was  er- 
roneous. Harris  Lumber  Co.  v.  Mor- 
ris, 96  S.  W.  1067,  SO  Ark.  260.  Where, 
on  the  trial  of  an  action  to  recover 
damages  for  cutting  trees,  defendant 
admitted  that  the  cutting  was  done 
by  his  servants  and  no  claim  was 
made  that  he  was  not  liable  for  their 
acts  beyond  the  scope  of  their  employ- 
ment, nor  as  to  the  distinction  be- 
tween the  relation  of  master  and 
servant  and  that  of  employer  and 
contractor,  there  was  no  occasion  to 
instruct  that  the  acts  of  the  s^^rvant 
beyond  the  scope  of  his  employjoent 
are  not  the  acts  of  the  master,  and 
to  explain  the  distinction  between 
the  relation  of  master  and  servant 
and  that  of  employer  and  contractor. 
Avery  v.  White,  66  A.  517,  79  Conn. 
705.  Where,  in  an  action  against  the 
owner  of  a  building  for  damages  sus- 
tained in  falling  upon  an  icy  side- 
walk, it  did  not  appear  that  there 
was  any  understanding  that  the  oc- 
cupants of  the  building  were  to  have 
any  care  over  the  exterior  of  the 
building  or  even  to  report  to  the 
owner  any  defect  which  they  might 
observe,  a  requested  instruction  thai, 
if  there  was  any  understanding  that 


the  landlord  should  make  repairs  for 
the  tenant,  he  would  not  be  liable, 
until  he  had  notice  from  the  tenant, 
\\'as  properly  I'efused.  Smith  v.  Pres- 
ton, 71  A.  653,  104  Me.  156.  An  in- 
struction that  a  city  is  required  to 
use  ordinary  care  to  keep  its  streets 
in  a  reasonably  safe  condition  for 
travel,  and  that  whether  the  streets 
are  in  sucli  a  condition  is  a  question 
of  fact  to  be  determined  in  each- case 
by  the  particular  circumstances,  cor- 
rectly states  an  abstract  proposition 
of  law,  applicable  to  a  street  tni- 
whole  width  of  which  has  been  open- 
ed and  worked  for  public  travel,  but 
is  inapplicable  to  a  street  only  part 
of  which  has  been  prepared  for  public 
travel,  and  is  misleading  in  such  a 
case,  as  leading  the  jurors  to  assume 
that  it  is  the  duty  of  a  city  to  make 
and  keep  all  of  its  streets  in  a  rea- 
sonably safe  condition  throughout 
their  entire  width  at  all  times  and 
under  all  circumstances.  Herndon  v. 
Salt  Italic  City,  95  P.  646,  34  Utah,  65, 
131  Am.  St.  Rep.  827.  In  an  action 
againyt  an  executrix  for  money  lent 
by  plaintiff  to  decedent,  based  on  the 
theory  that  defendant  was  liable  be- 
cause a  part  payment  was  made  by 
decedent  under  circumstances  show- 
ing an  Intention  of  taking  the  debt 
out  of  the  statute  of  limitations,  and 
there  was  no  evidence  from  which  it 
could  be  inferred  that  the  payment 
\^as  not  an  acknowledgment  of  a  bal- 
ance duo  or  promise  to  pay  a  balance, 
a  requested  charge  that,  unless  the 
payment  was  made  under  circum- 
stances such  that  it  could  be  inferred 
that  there  was  an  acknowledgment  of 
a  larger  sum  and  a  promise  to  pay 
the  balance  thereof,  defendant  should 
recover,  was  properly  refused.  Gaff- 
ney  v.  Mentele,  119  N.  W.  1030,  23 
S.  D.  38.  Where,  in  an  action  for 
death  of  a  traveler  at  a  railroad  cross- 
ing, the  condition^  of  the  crossing  was 
not  shown  to  have  had  anything  to  do 
with  the  collision,  and  the  passage  of 
decedent's  wagon  over  the  crossing 
was  not  impeded,  an  instruction  call- 
ing attention  to  the  dangerous  char- 
acter of  the  crossing  and  charging 
that  if  it  was  of  such  a  character  as 


§   137  INSTRUCTIONS  TO  JURIES  266 

although    there   is   no   evidence,   or   insufficient   evidence,   to    sup- 


to  enhance  the  clanger  of  accidents 
at  the  crossing  it  was  the  duty  of  de- 
fendant's servants,  in  running  trains, 
to  exercise  care  commensurate  with 
the  danger  reasonahly  to  be  appre- 
h'nided.  was  erroneous.  Porter  v. 
Missouri  Pac.  Ry.  Co.,  97  S.  W.  SSO, 
199  Mo.  Si*.  Where,  in  an  action  for 
the  death  of  a  i)edestrian,  there  was 
no  evidence  that  decedent  saw  the 
train,  but  he  could  have  heard  it 
approaching,  an  instruction  that  the 
purpose  of  signals  is  to  warn  persons 
of  the  approach  of  a  train,  and  if 
decedent  saw  or  heard  the  train  ap- 
proaching, that  he  did  not  hear  the 
engine  bell  or  whistle  is  immaterial, 
was  erroneous  because  not  sustained 
by  the  evidence.  Feldmau  v.  St. 
Ix)uis.  I.  M.  &  S.  Ry.  Co.,  loS  S. 
W.  88.  175  Mo.  App.  629.  In  an  ac- 
tion for  the.  death  of  a  person  strur'k 
by  a  train  at  an  ordinary  country 
crossing,  it  was  error  to  instruct  that 
if  the  crossing  was  unusually  danger- 
ous it  was  the  railroad  company's  du- 
ty to  use  such  means  to  prevent  inju- 
ry to  travelers  at  the  crossing  as 
might  be  considered  necessary  by 
an  ordinarily  prudent  person  operat- 
ing a  railroad  in  the  exercise  of  rea- 
sonable judgment.  Louisville  &  N.  R. 
Co.  v.  Oman's  Adm'r,  110  S.  W.  380, 
33  Ky,  I^w  Rep.  4G2.  Where,  in  an 
action  on  a  contract  for  the  sale  of 
a  cash  register,  there  was  no  pi'oof  of 
an  agreement  for  the  rescission  of  the 
sale  in  a  conversation  between  de- 
fendant and  plaintiff's  salesman  aft- 
er the  sale,  but  the  agent  merely  re- 
ferred defendant  to  plaintiff,  and 
there  was  no  other  evidence  of  plain- 
tiffs consent  to  a  rescission,  an  in- 
struction that  the  parties  to  a  sale 
may  afterwards  agree  to  rescind  the 
contract,  in  which  case  the  seller  can- 
not afterwards  recover  the  price,  was 
inapplicable  to  the  evidence,  McCas- 
key  Rigister  Co,  v.  Curfman,  90  N.  E. 
323,  4.1  Ind,  App,  297,  In  an  action 
against  a  street  railroad)  for  the 
death  of  a  member  of  the  fire  depart- 
ment in  a  collision  between  a  hose 
wagon  and  a  car,  an  instruction  that 
the  jury  must  consider  whether  the 
motormnn  was  negligent  in  not  stop- 


ping or  checking  the  speed  of  the  car. 
if  he  could  have  stopped  it,  was  er- 
roneous ;  there  being  no  question  un- 
der the  evidence  as  to  the  ability  of 
the  motorman  to  stop  the  car  or 
check  its  speed  in  time  to  have  avoid- 
ed the  accident,  but  the  question  be- 
ing whether  he  was  negligent  in  not 
doing  so,  McBride  v,  Des  Moines 
City  Ry.  Co.,  109  N.  W.  GIS,  134 
Iowa,  398.  In  an  action  for  injuries 
to  plaintiff's  automobile,  caused  by 
running  off  an  uurailed  culvert  on  a 
curve  of  the  road,  it  was  not  error  to 
refuse  an  instruction  that  the  town 
would  not  be  liable  if  plaintiff  diverg- 
ed from  the  traveled  road  without 
necessity,  such  instruction  not  being 
adapted  to  the  evidence,  which  did 
not  sho^^■  a  voluntary  divergence  but 
an  accidental  encounter  of  danger. 
Bana-of  t  v.  Town  of  East  Montpelier, 
109  A.  39,  94  Vt.  163,  TVTiere,  in  an 
action  for  damages  from  an  error  in 
vu  telegram,  resulting  in  the  plaintiff 
real  estate  brokers  selling  property 
at  a  sum  which  left  them  no  commis- 
sion, there  was  no  evidence  that  plain- 
tiffs! acted  as  agents  for  both  the 
vendor  and  purchaser,  it  was  error 
to  instruct  on  a  broker's  lack  of  right 
to  commission,  where  he  acts  for  both 
parties.  Levy  Bros,  v.  Western  Un- 
ion Telegraph  Co,,  135  P.  423,  39  Okl, 
416,  It  is  not  error  to  I'efuse  an  in- 
struction that,  if  a  mortgagor  de- 
manded a  receipt,  his  tender  was  not 
unconditional,  whei'e  the  evidence 
sho\^■s  that  the  mortgagor  asked  for 
his  note  and  mortgage,  but  did  not 
make  their  delivery  a  condition  of 
the  payment,  and  the  mortgagee  re- 
fused the  tender,  because  tlie  mort- 
gagor threatened  to  sue  for  damages. 
Smith-Wogan  &  Co,  v.  Bice,  125  P. 
456,  34  Okl,  294,  Ann,  Cas,  1914C, 
274,  Where,  in  trespass  to  try  title, 
defendant  relied  on  title  by  adverse 
possession,  and  showed  that  the  land 
had  been  in  possession  of  tenants, 
but  did  not  show  the  length  of  the 
intervals  between  the  occupancy  of 
different  tenants,  the  submission  to 
the  jury  of  the  question  as  to  the  rea- 
sonableness of  such  intervals  was  not 
proper.     Doann  v.  Taylor,  113  S.  W. 


267 


APPLICABILITY   TO    PLEADINGS   AND    EVIDENCE 


137 


port  some  of  them.-'^*     So  the  fact  that  instructions  concern  a  mat- 


265,  102  Tex.  SO,  reversing  judgment 
(Civ.  App.)  107  S.  W.  952.  An  in- 
struction in  an  action  against  a  water 
company  for  refusal  to  furnisli  an  ap- 
plicant with  watex",  that  before  it  was 
required  to  deliv(?r  water  to  an  appli- 
cant he  must  make  necessary  provi- 
sion for  receiving  it  is  properly  rofiis- 
ed ;  its  refusal  to  furnish  water  not 
having  been  based  on  any  such 
ground,  and  it  appearing  that  the  ap- 
plicant was  about  to  put  in  his  side 
gate  for  diversion  of  the  water  when 
notified  by  defendant's  general  man- 
ager not  to  put  it  in,  because  it  would 
not  furnish  him  water.  Lowe  v.  Yolo 
County  Consol.  Water  Co.,  lOS  P.  297, 
157  Cal.  503. 

3  5  U.  S.  (C.  C.  A.  111.)  Alwart 
Bros.  Coal  Co.  v.  Royal  Colliery  Co., 
211  F.  313,  127  C.  C.  A.  599.  (C.  C. 
A.  Ohio)  Rothe  v.  Pennsylvania  Co., 
195  F.  21,  114  C.  C.  A.  627;  (C.  C. 
A.  Ya.)  American  Locomotive  Co.  v. 
Thornton,  259  F.  405. 

Ala.  Birmingham  Fuel  Co.  v. 
Taylor,  SI  So.  630,  202  Ala.  674 ;  Bir- 
minsham  Ry.,  Light  &  Power  Co.  v. 
Gonzalez,  61  So.  SO.  183  Ala.  273,  Ann. 
Cas.  1916A,  543;  Selma  Street  & 
Suburban  Ry.  Co.  v.  Campbell,  48  So. 
378,  15S  Ala.  438. 

Ariz.  Grant  Bros.  Const.  Co.  v. 
United  States,  114  P.  955,  18  Ariz. 
388 

Ark.  J.  B.  Bissell  Dry  Goods  Co. 
v.  Katter,  217  S.  W.  779,  141  Ark. 
467 ;  Queen  of  Arkansas  Ins.  Co.  v. 
Laster,  156  S.  W.  848,  108  Ark.  261 ; 
A.  L.  Clark  Lumber  Co.  v.  Johns, 
135  S.  W.  892,  98  Ark.  211 ;  Caldwell 
V.  Nichol,  134  S.  W.  622,  97  Ark.  420. 

Cal.  Royal  Ins.  Co.  of  Liverpool, 
England,  v.  Caledonian  Ins.  Co.  of 
Edinburgh,  Scotland,  187  P.  748,  182 
Cal.  219;  Weik  v.  Southern  Pac. 
Co.,  132  P.  775,  21  Cal.  App.  711. 

Colo.  Colorado  Springs  &  I.  Ry. 
Co.  v.  Allen,  108  P.  990,  48  Colo.  4. 

Conii.  Temple  v.  Gilbert,  85  A. 
380,  86  Conn.  335;  Floral  Creamery 
Co.  V.  Dillon  &  Douglass,  75  A.  82, 
S3  Conn.  65. 

D.  C.  Capital  Traction  Co.  v. 
Crump,  35  App.  D.  C.  169;  Wallach 
V.  MacFarland,  31  App.  D.  C.  130. 


Fla.     Atlanta  &  St.  A.  B.  Rv.  Co. 

V.  Kelly.  82  So.  57.  77  Fla.  479  ;  AYin- 
field  V.  Truitt.  70  So.  775,  71  Fla.  38 ; 
German-American  Lumber  Co.  v.  Bar- 
rett. 63  So.  6G1,  66  Fla.  181. 

Ga.  Bank  of  La  Fayette  v.  Phipps, 
101  S.  E.  696,  24  Ga.  App.  613 ;  Har- 
rison V.  Peacock.  101  S.  E.  117.  149 
Ga.  515;  Borders  v.  Gay.  65  S.  E. 
788,  6  Ga.  App.  734  ;  Virginia  Bridge 
&  Iron  Co.  V.  Crafts,  58  S.  E.  322, 
2  Ga.  App.  126. 

Idaho.  Fleenor  v.  Oregon  Short 
Line  R.  Co.,  102  P.  897.  16  Idaho.  781. 

111.  Buchholz  V.  Feustel.  179  111. 
App.  396  ;  Springfield  Consol.  Ry.  Co. 
V.   .Johnson.  134  111.  App.  536. 

Ind.  Morgan  v.  Win  ship  (App.) 
126  N.  E.  37;  Citizens'  Teleiihone  Co. 
V.  Prickett  (Sup.)  125  N.  E.  193 ;  City 
of  Newcastle  v.  Harvey,  102  N.  E. 
878.  54  Ind.  App.  243;  Snow  v.  In- 
dianapolis &  E.  Rv.  Co.,  93  N.  E. 
1089.  47  Ind.  App.' 189:  Chicago  & 
E  I.  Ry.  Co.  V.  Hendrix,  87  N.  E. 
663,  43  Ind.  App.  411. 

Iowa.  Gray  v.  Chicago,  R,  I.  tv 
P.  Ry.  Co.,  139  N.  W.  934.  160  Iowa.  1. 

Kan.  Dodderidge  v.  Bacon,  1.50  P. 
539,  96  Kan.  150  ;  Western  Union  Tel- 
egraph Co.  V.  Brower,  105  P.  497,  81 
Kan.  109. 

Ky.  Transylvania  Casaialty  Ins. 
Co.  V.  Paritz,  213  S.  W.  195,  184  Ky. 
807 ;  Louisville  &  X.  R.  Co.  v.  Onan's 
Adm'r.  110  S.  W.  380,  33  Ky.  Law- 
Rep.  462. 

Md.  Security  Storage  &  Trust  Co. 
v.  Denys,  86  A.  613,  119  Md.  330; 
German  Union  Fire  Ins.  Co.  of  Bal- 
timore v.  Cohen,  78  A.  911,  114  Md. 
130. 

Mass.  Griffin  v.  Dearborn,  96  X. 
E.  681.  210  Mass.  308. 

Mich.  Siblev  v.  Morse,  109  X.W. 
858.  146  Mich.  463. 

Minn.  Farrell  v.  G.  O.  Miller  Co., 
179  X.  W.  566 :  Doran  v.  Chicago.  St. 
P..  M.  &  O.  Ry.  Co.,  150  X.  W.  800, 
128  Minn.  193. 

Miss.  Kneale  v.  Lopez  &  Dukate, 
46  So.  715,  93  Miss.  201;    Mobile,  J. 

3SS.  P.  Matthews  &  Co.  v.  Sea- 
board Air  Line  Ry.,  87  S.  E.  1097,  17 
Ga.  App.  664. 


§137 


INSTRUCTIONS  TO  JURIES 


268 


ter  in  relation  to  which  a  dispute  has  arisen  between  counsel  does 
not  take  them  out  of  the  scope  of  the  above  rule.^^ 

The  court,  however,   may   submit  a  view  of  the  evidence  not 
presented  by  the  parties,*"  and  it  is  not  improper  to  instruct  the 


&  K.  C.  R.  Co.  V.  Jackson,  46  So.  142, 
02   Miss.   517. 

Mo.     Smith  v.  Sickinger  (App.)  221 

5.  W.  779;  Lawler  v.  Montgomery 
(App.)  217  S.  W.  856;  Booth  v.  Dou- 
gan  (App.)  217  S.  W.  326;  Rearden 
V.  St.  Louis  &  S.  F.  Ry.  Co.,  114  S. 
W.  961,  215  Mo.  105. 

Mont.  McKim  v.  Beiseker,  1S5  P. 
15.3.  56  Mont.  .3,30;  Heitniau  v.  Chi- 
cago, yi.  &  St.  P.  Ry.  Co.,  12.3  P.  401, 
45  IVIont.  406 :  Lindsay  v.  Kroeger, 
95  P.  S39.  .37  Mont.  231. 

Neb.  Bethel  v.  Pawnee  County, 
145  N.  W.  363,  95  Neb.  203 ;  Odell  v. 
Story,  lis  N.  W.  1103,  81  Neb.  442; 
Carlio  v.  Bentley,  116  N.  W.  772,  81 
Neb.  715. 

N.  J.  Bodine  v.  Berg,  82  A.  901, 
82  N.  J.  Law,  662.  40  L.  R.  A.  (N.  S.) 
65,  Ann.  Cas.  1913D,  721 ;  Merklinger 
V.  Lambert,  72  A.  119,  76  N.  J.  Law, 
S06. 

N.  M.     .Tackson  v.  Brower,  167  P. 

6,  22  N.  M.  615;  Cowles  v.  Hager- 
nian.  110  P.  843.  15  N.  M.  600. 

N.  Y.  Pulcino  v.  Long  Island  R. 
Co..  87  N.  i:.  1126.  194  N.  Y.  526,  af- 
firming judgment  109  N.  Y.  S.  1076, 
125  App.  Div.  629;  Sigel  v.  American 
Seating  Co.,  146  N.  Y.  S.  350,  161  App. 
Div.  54;  Mitchell  v.  T.  A.  Gillespie 
Co.,  137  N.  Y.  S.  550,  152  App.  Div. 
536. 

N.  C.  Buchanan  v.  Cranberry  Fur- 
nace Co.,  101  S.  E.  518,  178  N.  C.  643 ; 
Kivett  V.  Western  Union  Telegraph 
Co..  72  S.  E.  388,  1.56  N.  C.  296;  Revis 
V.  City  of  Raleigh,  63  S.  E.  1049,  150 
N.  C.  348. 

Okl.  St.  Louis  &  S.  F.  Ry.  Co.  v. 
nonry,  149  P.  132,  46  Okl.  .526;  Ken- 
nedy V.  Goodman,  135  P.  936,  39  Okl. 
470.' 

Or.  Haines  v.  First  Nat.  Bank,  172 
P.  505,  89  Or.  42;  Dunn  v.  Orchard 
Land  &  Timber  Co.,  1.36  P.  872,  68  Or. 
97. 

Pa.  American  Surety  Co.  of  New 
York  v.  Vandegrift  Const.  Co.,  107  A. 


733,  264  Pa.  193  ;  Littieri  v.  Freda,  88 
A.  82,  241  Pa.  21. 

R.  I.  King  V.  Providence  Gas  Co. 
90  A.  4;  Champlin  v.  Pawcatuck  Val- 
ley St.  Ry.  Co.,  82  A.  481,  33  R.  I.  572.^ 

S.  C.  Kramer  v.  Greenville,  S.  &• 
A.  Ry.  Co.,  77  S.  E.  738,  94  S.  C.  59 ; 
Cheek  v.  Seaboard  Air  Line  Ry.,  62 
S.  E.  402,  81  S.  C.  348. 

S.  D.     Braun  v.  Thuet,  174  N.  W. 

807,  42  S.  D.  491 ;  Grant  v.  Whorton, 
134  N.  w;  803,  28  S.  D.  599. 

Tex.  Missouri  Iron  &  Metal  Co.  v. 
Cartwright  (Civ.  App.)  207  S.  W.  397 ; 
Marks  v.  Jones  (Civ.  App.)  154  S.  W. 
618;  Missouri,  K.  &  T.  Ry.  Co.  of  Tex- 
as v.  Hagler  (Civ.  App.)  112  S.  W. 
783. 

Utah.  Urich  v.  Utah  Apex  Mining 
Co.,  169  P.  26.3,  51  Utah,  206;  Furko- 
vich  V.  Bingham  Coal  &  Lumber  Co., 
143  P.  121,  45  Utah,  89,  L.  R.  A. 
1915B,  426 ;  Casady  v.  Casady,  88  P. 
32,  31  Utah,  394. 

Vt.     Wiley  v.  Rutland  R.  Co.,  86  A. 

808,  86  Vt.  504 ;  Jenness  v.  Simpson, 
78  A.  886,  84  Vt.  127. 

Va.  Sands  &  Co.  v.  Norvell,  101  S. 
E.  569,  126  Va.  384;  Virginian  Ry.  Co. 
v.  Bell,  79  S.  E.  396,  115  Va.  429.  Ann. 
Cas.  1915A,  804;  Norfolk  &  W.  Rv. 
Co.  V.  Carr,  56  S.  E.  276,  106  Va.  508. 

Wash.  Suell  v.  Jones,  96  P.  4,  49 
Wash.  582;  Harris  v.  Washington 
Portland  Cement  Co.,  95  P.  84,  49 
Wash.  345. 

W.  Va.  Williams  v.  Schehl,  100  S. 
E.  280,  84  W.  Va.  499;  Sims  v.  Car- 
penter, Frazier  &  Co.,  69  S.  E.  794,  68 
W.  Va.  223. 

Wis.  Matthews  v.  Town  of  Sigel, 
139  N.  W.  721,  152  Wis.  123;  Smith 
V.  Goldberg,  121  N.  W.  173,  139  Wis. 
423;  Kohl  v.  Bradley,  Clark  &  Co., 
110  N.  W.  265,  130  Wis.  301. 

3  0  Carter  v.  Sioux  City  Service  Co., 
141  N.  W.  26,  160  Iowa,  78. 

4  0  Dusopole  V.  Manos,  80  N.  E.  481, 
194  Mass.  355;  People  v.  Wallin,  55 
Mich.  497,  22  N.  W.  15. 


269 


APPLICABILITY   TO   PLEADINGS  AND   EVIDENCE 


138 


jury  concerning  mortality  tables,  although  not  introduced  in  evi- 
dence;  the  court  being  permitted  to  take  judicial  notice  of  them.*^ 

§  138.     Rule  in  criminal  cases 

In  criminal  cases,  in  some  jurisdictions,  no  instruction  should 
ever  be  given,  unless  based  upon  a  hypothesis  supported  by  some 
evidence,"*"  and  it  is  generally  held  that  instructions  in  such  cases 
which  have  no  support  in  the  evidence  are  erroneous,  and  prop- 
erly refused,  as  calculated  to  mislead  and  confuse  the  jury.^^     In- 


41  Warders  v.  Union  Pac.  R.  Co., 
181  P.  604,  105  Kan.  4. 

42  Cook  V.  Commonwealth,  8  S.  W. 
872,  10  Ky.  Law  Rep.  222. 

4  3  u.  S.  (Sup.)  Bird  v.  United 
States,  23  S.  Ct.  42,  187  U.  S.  118,  47 
L.  Ed.  100;  (C.  C.  A.  Cal.)  Brown  v. 
U.  S.,  260  F.  752,  171  C.  C.  A.  490; 
(C.  C.  A.  Ind.)  Brown  v.'United  States, 
142  F.  1,  73  C.  C.  A.  187;  (C.  C.  A. 
Olvl.)  Chambliss  v.  United  States,  218 
F.  154,  132  C.  C.  A.  112;  (C.  C.  A. 
Wash.)  Taylor  v.  United  States,  193 
F.  968,  113  C.  C.  A.  543. 

Ala.  Smith  v.  State,  69  So.  402,  13 
Ala.  App.  399,  certiorari  denied  Ex 
parte  Smith,  69  So.  1020,  193  Ala.  680 ; 
Williams  v.  State,  69  So.  376,  13  Ala. 
App.  133;  Davis  v.  State,  66  So.  67, 
188  Ala.  59;  Hudson  v.  State,  65  So. 
732.  11  Ala.  App.  116;  Hooten  v. 
State,  64  So.  200,  9  Ala.  App.  9 ;  Wat- 
son V.  State,  62  So,  997,  8  Ala,  App. 
414 ;  McClain  v.  State,  62  So.  241.  182 
Ala.  67;  Granberry  v.  State,  62  So. 
52,  182  Ala.  4 ;  Malchow  v.  State,  59 
So.  342,  5  Ala.  App.  99;  Jackson  v. 
State,  57  So.  594,  5  Ala.  App.  306; 
Parker  v.  State,  51  So.  260,  165  Ala. 
1;  Phillips  V.  State,  50  So.  326,  162 
Ala.  53 ;  Guarreno  v.  State,  48  So.  65, 
157  Ala.  17;  Strickland  v.  State,  44 
So.  90,  151  Ala.  31;  Barber  v.  State, 
43  So.  808,  151  Ala.  56;  Thomas  v. 
State,  43  So.  371,  150  Ala.  31 ;  Plant 
V.  State,  37  So.  159,  140  Ala.  52  ;  Wild- 
man  V.  State,  35  So,  995,  139  Ala.  125; 
Sherrill  v.  State,  35  So.  129,  138  Ala. 
3;  Maddox  v.  State,  26  So,  305,  122 
Ala,  110;  Thompson  v.  State,  26  So, 
141,  122  Ala,  12 ;  Handy  v.  State,  25 
So.  1023,  121  Ala.  13;  Tavlor  v.  State, 
25  So.  701,  121  Ala,  39;  Crane  v. 
State,  111  Ala.  45,  20  So.  590 ;  Taylor 
V.  State,  48  Ala.  157. 

Ark.     Diggs   v.   State,   190   S.   W. 


448,  126  Ark.  455;  Brown  v.  State, 
138  S.  W.  6.33.  99  Ark.  648;  Bell  v. 
State,  104  S,  W,  1108,  84  Ark.  128; 
INIitchell  V.  State,  101  S.  W,  763,  82 
Ark,  324, 

Cal.  People  y,  Northcott  (App.) 
189  P,  704;  People  y.  Williams,  156 
P,  882.  29  Cal.  App.  552;  People  v. 
Lim  Foon,  155  P.  477,  29  Cal.  App. 
270;  People  y.  Whitlow,  139  P.  826, 
24  Cal.  App.  1;  People  v,  Corey,  97 
P.  907,  8  Cal,  App.  720;  People  v. 
Trebilcox,  86  P.  684,  149  Cal.  307; 
People  y,  Stevens,  75  P,  62,  141  Cal, 
488;  People  v.  Morine,  72  P.  166,  138 
Cal.  626:  People  y,  Ross.  66  P.  229. 
134  Cal.  2.56;  People  v.  Matthews,  58 
P.  371,  126  Cal.  xvii ;  People  v.  Hur- 
ley, 57  Cal.  145;  People  y.  Juarez,  28 
Cal,  380;  People  y.  Roberts,  6  Cal. 
214. 

Colo.  Almond  v.  People,  135  P. 
783,  55  Colo,  425;  Reagan  v.  People, 
112  P,  785,  49  Colo.  316;  Van  Wyk 
y.  People,  99  P.  1009,  45  Colo,  1;  Mow 
y.  People,  72  P.  1069.  31  Colo.  351. 

Conn.  State  v.  Rackowski,  86  A, 
606,  86  Conn.  677,  45  L.  R,  A.  (N,  S,) 
580,    Ann.    Cas.    1914B,    410. 

D.  C.  Hamilton  v.  United  States, 
26  App.  D.  C.  382 ;  Norman  y.  United 
States,  20  App.  D.  C.  494, 

Fla.  Long  v.  State,  83  So,  293,  78 
Fla.  464:  Milligan  v.  State.  78  So. 
535,  75  Fla.  815:  Settles  v.  State,  78 
So.  287,  75  Fla,  296;  Wolf  v.  State, 
73  So.  740,  72  Fla.  572;  Davis  v. 
State,  63  So.  847,  66  Fla,  349 :  Carl- 
ton y.  State,  58  So.  486.  63  Fla.  1; 
Stokes  v.  State,  44  So.  759,  54  Fla. 
109;  Williams  y.  State,  43  So.  431, 
53  Fla.  84;  Hisler  y.  State,  42  So. 
692,  52  Fla.  30;  Melbourne  v.  State, 
40  So.  189,  51  Fla.  69;  Eatman  v. 
State,  37  So.  576,  48  Fla.  21;  Davis  y. 
State,  35  So.  76,  46  Fla.  137 ;   Kelly  v. 


138 


INSTRUCTIONS  TO  JURIES 


270 


structions  in, a  criminal  case  are  erroneous,  and  properly  refused, 


State,  33  So.  235.  44  Fla.  441 :  Green 
V.  State.  30  So.  G56,  43  Fla.  556;  Rich- 
ard V.  State.  29  So.  413.  42  Fla.  528: 
Long  V.  State.  28  So.  775,  42  Fla. 
509;  Wallace  v.  State,  26  So.  713,  41 
Fla.  547;  Copelaud  v.  State,  26  So. 
319,  41  Fla.  320;  Doyle  v.  State.  22 
So.  272,  39  Fla.  155,  63  Am.  St.  Eep. 
159. 

Ga.  Manuel  v.  State,  104  S.  E.  447, 
150  Ga.  611;  Shannon  v.  State,  93  S. 
E.  86.  147  Ga.  172;  Braxley  v.  State, 
86  S.  E.  425.  17  Ga.  App.  196 :  Morgan 
V.  State,  85  S.  E.  254,  16  Ga.  App.  267 ; 
Roberts  v.  State,  84  S.  E.  122,  143  Ga. 
71;  Greer  v.  State,  82  S.  E.  484,  142 
Ga.  66 ;  Wilson  v.  State,  70  S.  E.  193. 
8  Ga.  App.  816 ;  Rent  roe  v.  State,  70 
S.  E.  70,  8  Ga.  App.  676 ;  Hill  v.  State, 
66  S.  E.  802,  7  Ga.  App.  336;  Loeb  v. 
State,  64  S.  E.  338,  6  Ga.  App.  23; 
Branch  v.  State,  63  S.  E.  714,  5  Ga. 
App.  651;  Yopp  v.  State,  62  S.  E. 
1036,  131  Ga.  593 ;  Lyles  v.  State,  60 
S.  E.  578.  130  Ga.  294;  Toomer  v. 
State,  60  S.  E.  198,  130  Ga.  63 ;  Baker 
V.  State.  58  S.  E.  1114,  2  Ga.  App.  662 ; 
Harwell  v.  State.  58  S.  E.  1111,  2  Ga. 
App.  613;  Moody  v.  State,  58  S.  E. 
262.  1  Ga.  App.  772;  Rooks  v.  State, 
46  S.  E.  631,  119  Ga.  431 ;  Echols  v. 
State.  46  S.  E.  409,  119  Ga.  307 ;  Jor- 
dan V.  State,  43  S.  E.  747,  117  Ga, 
405 ;  Moore  v.  State,  40  S.  E.  295,  114 
Ga.  256;  Gaines  v.  State,  26  S.  E. 
760,  99  Ga.  703;  Minor  v.  State,  56 
Ga.  630. 

Idaho.  People  V.  Ah  Too,  2  Idaho, 
47,  3  P.  10. 

111.  I»eople  V.  Davis,  110  N.  E.  9, 
269  111.  256 ;  People  v.  Fryer,  107  N. 
E.  134,  2G6  111.  216;  People  v.  Rischo, 
105  X.  E.  S,  262  111.  596;  People  v. 
Gardt,  101  N.  E.  687,  25S  111.  468,  af- 
firming judgment  175  111.  App.  80; 
People  V.  Johnson,  86  X.  E.  676,  237 
111.  237;  Roberts  v.  People,  80  X.  E. 
776.  226  111.  296 ;  Lyman  v.  State,  64 
X.  E.  974,  198  111.  544 ;  Schintz  v.  Peo- 
ple, 52  X.  E.  903,  178  111.  320 ;  Birr  v. 
People,  113  111.  615;  City  of  Centralia 
V.  Knasli,  183  111.  App.  588;  Houtz  v. 
Peoi)k'.  123  111.  App.  445. 

Ind.  Malone  v.  State,  96  X.  E.  1, 
176  Ind.  3:!S;  Rigsby  v.  State,  91  X. 
E.    925,    174    Ind.    2S4 ;     Braxton    v. 


State,  61  N.  E.  195,  157  Ind.  213 :  Mil- 
ler V.  State,  43  X.  E.  440,  144  Ind. 
401 :  Reed  v.  State,  40  X.  E.  525,  141 
Ind.  116;  Pluminer  v.  State,  34  X.  E. 
968.  135  Ind.  308 ;  Beaty  v.  State,  ^2 
Ind.  228;    Clem  v.  State,  31  Ind.  480. 

Ind.  T.  Williams  v.  United  States, 
88  S.  W.  334,  6  Ind.  T.  1. 

Iowa.  State  v.  Harrison,  149  X. 
W.  452,  167  Iowa,  334 ;  State  v.  Mul- 
len. 131  X.  W.  679,  151  Iowa,  392, 
Ann.  Cas.  1913A,  399;  State  v.  Den- 
hardt,  105  X.  W.  385,  129  Iowa,  135; 
State  V.  Swallum,  82  X.  W.  439,  111 
Iowa,  37 ;  State  v.  Fraunberg,  40 
Iowa,  555. 

Kan.  State  v.  Gaunt,  157  P.  447, 
98  Kan.  186 ;  State  v.  Van  Sickle,  154 
P.  1015,  97  Kan.  362;  State  v.  Alte- 
mus,  92  P.  594,  76  Kan.  718 ;  State  v. 
Goff,  61  P.  680,  10  Kan.  App.  286, 
judgment  reversed  61  P.  683,  62  Kan. 
104. 

Ky.  King  v.  Commonwealth,  220 
S.  W.  755,  187  Ky.  782;  Wattles  v. 
Commonwealth,  215  S.  W.  291,  185 
Ky.  486 ;  Day  v.  Commonwealth,  191 
S.  W.  105,  173  Ky.  269;  Anderson  v. 
Commonwealth,  137  S.  W.  1063j  144 
Ky.  215 ;  Middleton  v.  Commonwealth, 
124  S.  W.  355,  136  Ky.  354 ;  Steely  v. 
Commonwealth,  112  S.  W.  655,  129 
Ky.  524,  33  Ky.  Law  Rep.  1032 ;  Com- 
monwealth V.  Thomas,  104  S.  W.  326, 
31  Ky.  Law  Rep.  899;  Williamson  v. 
Commonwealth,  101  S.  W.  370,  31 
Ky.  Law  Rep.  61 ;  Quinn  v.  Common- 
wealth, 63  S.  W.  792,  23  Ky.  Law 
Rep.  1302 ;  Commonwealth  v.  Rudert, 
60  S.  W.  489,  109  Ky.  653,  22  Ky.  Law 
Rep.  1308;  Mahan  v.  Commonwealth, 
56  S.  W.  529,  21  Ky.  Law  Rep.  1807; 
Costigan  v.  Commonwealth,  12  S.  W. 
629,  11  Ky.  Law  Rep.  617;  McCler- 
nand  v.  Commonwealth,  12  S.  W.  148, 
11  Ky.  Law  Rep.  301 ;  Ritte  v.  Com- 
monwealth, 18  B.  Mon.  35. 

La.  State  v.  McGuire,  83  So.  374, 
146  La.  49;  State  v.  Folden.  66  So. 
223,  135  La.  791;  State  v.  Robertson, 
63  So.  363,  133  La.  806 ;  State  v.  Ailes, 
63  So.  172,  133  La.  563;  State  v. 
Langford.  62  So.  597,  133  La.  120; 
State  v.  Howard,  53  So.  077,  127  La. 
435:  State  v.  Kemp,  45  So.  283,  120 
La.  378;    State  v.  Anderson,  45  So. 


271  APPLICABILITY   TO   PLEADINGS   AND   EVIDENCE  §  .1^^ 

which  assume  facts  in  opposition  to  the  evidence  in  the.rfasfe^'h 


267,  120  La.  331 ;  State  v.  Pellerin,  43 
So.  159,  lis  La.  547:  State  v.  Guidor, 
37  So.  622.  113  La.  727;  State  v.  Mat- 
thews, 36  So.  48,  111  La.  962 ;  State  v. 
Labuzan,  37  La.  Ann.  489. 

Mass.'  Commonwealth  v.  Pratt,  95 
N.  E.  105,  208  Mass.  553. 

Mich.  Toople  v.  Van  Alstyne,  122 
N.  W.  193,  157  Mich.  366;  People  v. 
Hilliard,  77  N.  W.  .306.  119  Mich.  24 ; 
Brownell  v.  Peoi:)le.  38  Mich.  732; 
People  V.  Jones,  24  Mich.  215. 

Minn.  State  V.  Meyers,  155  N.  W. 
766,  132  Minn.  4;  State  v.  Whitman. 
114  N.  W.  363,  103  Minn.  92,  14  Ann. 
Cas.  309. 

Miss.  Canterberry  v.  State,  43  So. 
678,  90  Miss.  279 ;  Saffold  v.  State,  26 
So.  945 ;  Wheeler  v.  State,  24  So.  310/.' 
76  Miss.  265:  Cothran  v.  State.  .SSH 
Miss.  541;  Oliver  v.  State,  39  Misss. 
526.  .H  .-I') 

Mo.  Interstate  Coal  Co.  v.  Otdvil^ 
(App.)  216  S.  W.  783;  State  v.ste^ei^ 
wood,  173  S.  W.  1059,  263^'Mb^Q$i7-^ 
State  V.  Westbrook,  171  S.^^  6^%,  ]^ 
Mo.  App.  421;  State  v.  S.^k^,^l^«^? 
W.  1130,  248  Mo.  708  ;  Stfflf^^'^Wa^,^- 
144  S.  W.  427,  239  Mq-Z^T^^'*^ 
Nord,  132  S.  W.  239.  230M#fi! 
V.  Green,  129  S.  %'76^^W)f3fb^  ^^t 
State  V.  Rollins,  .•Se^.  f^J^f^.  i^' 
Mo.  524  ;  Stat^  ^iym%%  m.  »■ '  ^"rt 
458,  225  Mo  fi./Jrr'm^tfc,^:  E'(1waj;ds;.- 
102  S.  W.  520,  20:J  Mu.  --JS;  Starfe^.t!:.' 
King,  102  >S.  W.  5i5,  jiuri^Iu^^^S^^, 
State  V.  P;Hjlsur()ve^Oi^^' W2^^^ 
Mo.  19^.;:  Stnt>'  xy^y^f^fAW  ^,M, 


W.  1082 ;  State  v.  Allen,  Itt  ,5J«  M^^l 
22  S.  W.  792;  State  v.  JVIhUs^ttWiiiDHl 
Mo.  578,  20  S.  W.  302 ',,j State  .t>  THi'- 
lington,  102  Mo.  642.i  15)  S/.  H*r.Il-JUL-j: 
State  V.  Riley,  100  iMD.  .43)3,'-.13v'?i,iW;/ 
1063;  State  v.  HerrSGfll,.i)7.Mto..l05jl(>! 
S.  W.  387,  10  Anj:,'iSl..Rep(j289;;  <StTit6) 
V.  Tice,  90  Mo.  11Q\&''&.  W.amr,  .gttiteC 
V.  Brady,  87  Mo.  142;  State.f*<JiIJUle<: 
67  Mo.  624  j[J Stale  .v.  Hal-Ws,  .5Qi£V*o. 
550;  State  v.  Sav^s,Jc58»iMo.;»5S5";7 
State  V.  mi^'gm}im''M0.(Am^2G3^:o 

MontY  f®taC&'VP5§heJ(15h/169lPU8l'^ 
54  Mctiifi'4S5i;-I  -'JO  .l:'0  l;I  ,870  .'I  'IdL 

N«bi'^  ^^Mhl^i  i\-St.ate9'3!3a^ia.>>2u^y 
97^  ^ii  X.eW.  -314,^3$  BJfilfc:  A.  ^".'^S.^I 


fte^ 


TV\)707,'191  M0.5N7J  State,  v.  Rrowny 
i81j.M<>.  l'.»2,  7!)  S.  W.  1111;.  St^xto  v, 
Roi^je,  70  a.  W,;3i^o:>,  118.  ^Ux  25;  Statj^ 
Vi.' Caudle-,  74  S.  ,\y.,  6-i,  174/Jk[o..  3S8}- 
S»tta;tje;  V/  GsHtifuM,;'im  M-o.  18!»,  71  S-.; 
Wi:1045.-!'JStftteiv.  iSt.John,  6S  S.  W. 
Slid,  94  JTojApp.  229;'  State  v.  Xorthi 
way.  (;•"  S.  W.  .•;31.  IGt  Mi-.  5i;; ;  statu 
v.  Weayer,  1.65  :^Io.  1,  (;r,  ,s.  \v.  :-ui.S; 
m  Am.. mi.  R)*pv'406;V;State(:<-.  .'Obtf-t 
chon,  eOlS^^WrSS.'^lSS^-Ma.  2a6:p;Bt5ta 

kl  Hudsp^'h)  5irsi  .w.  .4S3;i  i50'-avr«jr 

m  |i! state;  Ti-3:.e<vi^ll8  iMo.G(?9,  23  SS 


nI'w.-  is&;  68-t;N*^b;''46iwiSiiHiMifi'g  .|^;> 

g'tfftK^'^S^'  -N.^W.i'MI  Gf^^^is'eW.  •f2Sfe:T 
m>jA'l^<f(^ii''f!  sAite,'#^  M  W.'-62;^  (yt- 
No!).  I'lo.  ST  A;ir.  St.'RMi.  •iSS'f  ^Mu'i 
V  .'^•tat•L^.  81  N, 'W;'4I0,^  6i  ^NehV^Sb;' 
JlitSj^m-V.  •matfe,^^^  ??'?  WV  I'^oBr  ^0' 
ieb.  4i)0 ;  Kellv  y.  State,  U'-^.  W^ 
1  -Sr]K  o72fl>'mixMHf^<\  Slg^e^ 
b.  (1.^2.  05  M^-W;  78'4;  ■W'jrh-iyi  f^ 

•l^sit,  ^A. ^.-LaC^^-^Stat^'ji-: 
Djampnd,  SO  A.  .57,  84  N.  J.  L,aw,li! 

,\[iiia  .V  iiJIi;yv/,i...iJt;i-(i'j — ;e08  .ti^ji 
44  Ala.  WarQGV.LatillEi  JKcSOsiTSfl,) 
la  Aaai:.jipp.-jlT4  {/  lAne^i-rsl,  SUte.a:i7 
£^.  ,4S8Uil24  'Ala:<  l.-OD  .'J  .a  8T  ,M!T 
Cal.  People.Gtfi-  CHai*,  iJ559,rJP.  .33^ 
im  J(?&ULTZ2T?.j:ffeDpl«  y)i,MattJlSisaS7 
Biiie^i  >a!35Y  GschrM^-.i'  eeoaileHv/;i«(jBfi 
Dfca^i64;P,;)2(S5,a:^  GaLiyO.-,7  .X  2r.L 
irI]iI»saj:.i:C(lmmonjWeaUQi.ir.  (Keict)  5i* 
N.  E.  017,  175.iMassi  325i'2  ,TiT  .7/  .K 
.WMiisi'V.£Qok. V;  State„3S'_Bo^ilQ^i85 
Mi,-isl;..738.v  ;':>j'J  ;  To  .lihuT  y.'si  ,ii2-'. 
R.  I.  State  V.  Casas3mta,[l(fair4i 
312.  .29r.Rj  L'587.  .7  -jd'^-yKlU.  .xoT 
.yTejB^riWooa-  y;t  Stote,zl'S2  og.  ,W*: 
iai22',i'^.is-.aiex.':Cr."'.^  .6m..a  aor  ,oiniP. 
.eoitaK/  Statsei  v,oMa«k9^  5i>  Pi  I089t 
je^BiSab*  ^^lo^A    ;  gCO  .il  .lO  .Z'/r  18 


§  138 


INSTRUCTIONS  TO  JURIES 


272 


and  although  the  court,  in  charging,  presents  facts  hypothetically 


Y.  S.  833,  77  Misc.  Rep.  387;  People  v. 
DeGraff,  6  N.  Y.  St.  Rep.  412. 

N.  C.  State  v.  Hiuson,  64  S.  E. 
124,  150  X.  C.  827;  State  v.  Carra- 
wan,  54  S.  E.  1002,  142  N.  C.  575; 
State  V.  Hicks,  41  S.  E.  803,  130  iN. 
C.  705 ;  State  v.  Hicks,  34  S.  E.  247, 
125  N.  C.  636;  State  v.  Sizemore,  52 
N.  C.  206. 

Ohio.  State  V.  Linder,  81  N.  E. 
753.  76  Oliio  St.  4^3. 

Okl.  Lamb  v.  State,  185  P.  1101, 
16  Okl.  Cr.  724;  Yarbrough  v.  State, 
162  P.  678,  13  Okl.  Cr.  140 ;  Perryman 
V.  State,  159  P.  937,  12  Okl.  Cr.  500; 
Duncan  v.  State,  144  P.  629,  11  Okl. 
Cr.  217 ;  Ryan  v.  State,  129  P.  685,  8 
Okl.  Cr.  623;  Mulke^  v.  State,  113  P. 
532,  5  Okl.  Cr.  75;  Driggers  v.  United 
States,  95  P.  612,  21  Okl.  60,  1  Okl.  Cr. 
167,  129  Am.  St  Rep.  823,  17  Ann.  Cas. 
66,  reversing  judgment  104  S.  W.  1166, 
7  Ind.  T.  752 ;  Robinson  v.  Territory, 
85  P.  451,  16  Okl.  241,  reversed  148 
F.  830,  78  C.  C.  A.  520 ;  New  v.  Ter- 
ritory, 70  P.  198,  12  Okl.  172,  dismiss- 
ed 25  S.  Ct.  68,  195  U.  S.  252,  49  L. 
Ed.  182. 

Or.  State  V.  Erickson,  110  P.  785, 
57  Or.  262,  rehearing  denied  111  P. 
17,  57  Or.  262 ;  State  v.  Megorden,  88 
P.  306,  49  Or.  259,  14  Ann.  Cas.  130; 
State  V.  Miller,  74  P.  658,  43  Or.  325 ; 
State  v.  McCann,  72  P.  137,  43  Or. 
155. 

Pa.  Commonwealth  v.  Calhoun,  86 
A.  472,  23S  Pa.  474;  Commonwealth 
v.  Palmer,  71  A.  100,  222  Pa.  299, 
19  L.  R.  A.  (N.  S.)  483,  128  Am.  St. 
Rep.  809;  Commonwealth  v.  Danz, 
60  A.  1070,  211  Pa.  507. 

S.  C.  State  V.  Waldrop,  52  S.  E. 
793,  73  S.  C.  60;  State  v.  Hutto,  45 
S.   E.  13,  66  S.  C.  449. 

S.  D.  State  v.  James,  164  N.  W. 
91,  39  S.  D.  263;  State  v.  Donovan, 
132  N.  W.  698.  28  S.  D.  136.  36  L.  R. 
A.  (N.  S.)  167 ;  State  v.  Landers,  114 
N.  W.  717,  21  S.  D.  606. 

Tenm.  Cooper  v.  State,  138  S.  W. 
820,  123  Tenn.  37;  Croft  v.  State,  6 
Humph.  317. 

Tex.  Albrecht  v.  State,  215  S.  W. 
327,  85  Te.x.  Cr.  R.  510;  Flores  v. 
State.  198  S.  W.  575,  82  Tex.  Cr.  R. 
107:  Bega  v.  State,  197  S.  W.  1109, 
81  Tex.  Cr.  R.  635;    Kelley  v.  State, 


190  S.  W.  173,  80  Tex.  Cr.  R.  249; 
Duhig  v.  State,  180  S.  W.  252,  78  Tex. 
Cr.  R.  125;  Howard  v.  State,  178  S. 
W.  506,  77  Tex.  Cr.  R.  185;  Hart  v. 
State,  175  S.  W.  436,  76  Tex.  Cr.  R. 
339 ;  Raleigh  v.  State,  168  S.  W.  1050, 
74  Tex.  Cr.  R.  484 ;  Coulter  v.  State, 
162  S.  W.  885.  72  Tex.  Cr.  R.  602; 
Brice  v.  State,  162  S.  W.  874,  72  Tex. 
Cr.  R.  219;  Elmore  v.  State,  162  S. 
W.  517,  72  Tex.  Cr.  R.  226;  Cowley  v. 
State,  161  S.  W.  471,  72  Tex.  Cr.  R. 
173 ;  Grimes  v.  State,  160  S.  W.  689, 
71  Tex.  Cr.  R.  614;  Templeton  v. 
State,  158  S.  W.  302,  71  Tex.  Cr.  R. 
307;  Corley  v.  State,  155  S.  W.  227, 
69  Tex.  Cr.  R.  626 ;  Ellis  v.  State,  154 
S.  W.  1010,  69  Tex.  Cr.  R.  468; 
Stewart  v.  State,  153  S.  W.  1151,  69 
Tex.  Cr.  R.  384:  Polk  v.  State.  152 
S.  W.  907.  69  Tex.  Cr.  R.  53;  Bum- 
garner  V.  State,  142  S.  W.  4,  64  Tex. 
Cr.  R.  165;  Diggs  v.  State,  141  S.  W. 
100,  64  Tex.  Cr.  R.  122;  Alexander 
V.  State,  138  S.  W.  721,  63  Tex.  Cr. 
R.  102;  Taylor  v.  State,  138  S.  W. 
615.  62  Tex.  Cr.  R.  611;  Jones  v 
State,  132  S.  W.  476,  60  Tex.  Cr.  R. 
426;  Johnson  v.  State,  128  S.  W. 
614,  59  Tex.  Cr.  R.  263 ;  Woodland  v. 
State,  123  S.  W.  141,  57  Tex.  Cr.  R. 
352;  Henderson  v.  State,  117  S.  W. 
825,  55  Tex.  Cr.  R.  640;  Knight  v. 
State,  116  S.  W.  56,  55  Tex.  Cr.  R. 
243 :  Blocker  v.  State,  114  S.  W.  814, 
55  Tex.  Cr.  R.  30,  131  Am.  St.  Rep. 
772;  Moore  v.  State,  114  S.  W.  807, 
55  Tex.  Cr.  R.  3;  Brittain  v.  State, 
105  S.  W.  817,  52  Tex.  Cr.  R.  169; 
Adams  v.  State  (Cr.  App.)  105  S.  W. 
497:  Trinkle  v.  State,  105  S.  W.  201, 
52  Tex.  Cr.  R.  42 ;  Slaughter  v.  State, 
105  S.  W.  198,  199 ;  Smith  v.  State,  104 
S.  W.  899,  51  Tex.  Cr.  R.  645;  Rice 
v.  State,,  103  S.  W.  1156,  51  Tex.  Cr. 
R.  255 ;  Jones  v.  State  (Cr.  R.)  101  S. 
W.  1012;  Laws  v.  State  (Cr.  App.) 
101  S.  W.  987;  Cross  v.  State  (Cr. 
App.)  101  S.  W.  213;  Burnett  v.  State, 
100  S.  W.  381,  51  Tex.  Cr.  R.  20; 
Luck  V.  State  (Cr.  App.)  97  S.  W. 
1049 ;  Arthur  v.  State,  80  S.  W.  1017, 
40  Tex.  Cr.  R.  477;  Hjeronvmus  v. 
State.  79  S.  W.  313,  46  Tex.  Cr.  R. 
157 ;  Reyna  v.  State  (Cr.  App.)  75  S. 
W.  25;  Burns  v.  State  (Cr.  App.)  71 
S.  W.  965,  62  L.  R.  A.  427 ;    Terry  v. 


273  APPLICABILITY   TO   PLEADINGS  AND   EVIDENCE  §  138 

^u^W  ^-xistence    vet  unless  there  is  evidence 
and  does. not  assume  their  existence,  yet 


state,   66  S.  W.  451,  43  Tex.  Cn  R. 
353;   Taylor  v.  State  (Cr.  Api .)  63  S 
W    330;    Martinez  v.  State  (Li.  App. 
57'  S.  W.  838;    Bell  v.  State    (Cr.  K.) 
56  S.  W.  913;    Ellers  v.  State  (Cr.  K.) 
55  S.  W.  813;    Wilson  v.   State    Ci. 
K  )  55  S.  W.  489;   Nite  v.  State,  54  S 
W    763,  41  Tex.  Cr.  R.  340 ;    Prewett 
V.  State,  53  S.  W.  879,  41  Tex.  Cr    R. 
^62  •    Griffin  v.  State  (Cr.  App.)  53  b. 
W    848;    Johnson  v.  State  (Cr.  App.) 
r^^  S    W    105;     Bruce  v.  State,  51  fe. 
W  954,  41  Tex.  Cr.  R.  27;    Jackson  v. 
State    Cr.  App.)  51  S    W.  389;    Ran- 
som V.  State  (Cr.  App.)  49  S-  W-  582, 
Paderes  v.  State  (Cr.  App.)  45  S-  W. 
914;    Unsell  v.  State  (Cr   App-)  45  b. 
W    902;    Myers    v.    State,   o9    b.    vv. 
938,  37  Tex.  Cr.  R.  331 ;  ^^tlcv  State 
35  Tex.  Cr.  R.  96,  31  S.  W.  6<7  ,   Bnr 
gess  V.  State,  33  Tex.  Cr.  R^  9    24  b 
W     ^^86;     CTiamberlain   v.    btate,    -o 
Tex    \PP   398,  8  S.  W.  474;   Hartwell 
V  Itat^S  T^x.  App.  88,  3  S.  W  715 ; 
Burney  V.  State,  21  Tex    App.  565   1 
S.  W.  458;    Boddy  v.  State    14  Tex. 
App.  528;    Behrens  v.  State.  14  Tex. 
\T)D    121;    Johnson  v.  State,  13  Tex. 
App.  378;    Pugh  V.  State,  2  Tex.  App. 
^S-    Havnes  v.   State,   40  Tex.   52; 
iSgst?o^  V.  State,  36  Tex.  336 

Tltali.  State  V.  Kakarikos  146  P. 
750  45  Utah,  470;  State  v.  Gordon, 
76  P  882,  28  Utah.  15 ;  State  v.  Evans, 
73  P.  1047,  27  Utah,  12. 

Va.  Johnson  v.  Commonwealth  4b 
S  E  789,  102  va.  927;  Reed  v^  C-om- 
monwealth,  98  Va.  817,  36  S  E.  39^.^ 
Hall  V.  Commonwealth,  89  Va.  171,  l& 

^  Wash!'    Miller  v.  Territory,  3  Wash. 

T    554    19  P.  50 ;    State  v.  Harsted, 

119   p'  24,   66   Wash.    158;     State   v. 

Johnson.  91  P.  949,  47  Wash   227^ 
W    Va.     State  v.  Lutz,  101  S.   E. 

434   85W.Va.  330;    State  v.  Donahue, 

to  S    E   834   79  W.  Va.  260 ;    State  v. 

lU pS-d't  I  E.  676,  49  W  va.  582; 
State  v.  Dickey,  46  W.  ]^a.  319  33  b. 
E.  231 ;  State  v.  Cross,  42  W.  Va.  25o, 
24  S.  E.  996;  State  v.  Zeigler,  40  W. 
Vfl  593  -n  S.  E.  763 ;  State  v.  Belk- 
nan  39  W.  Va.  427,  19  S.  E.  507; 
SSel.Poindexter.  23W    va.  80a; 

State  V.  Abbott,  S  W.  \a.  741. 

Wis.     Weisenbach  v.  State,  119  N. 
W.  843,  138  Wis.  152. 

Inst. TO  Jukies— 18 


Instructions   held   objectionable 
under  rule.    In  a  prosecution  against 
defendant   for   feloniously   assaultnife, 
B    who  was  attempting  to  arrest  him 
where  the   prosecution   attempted   to 
Thow  B.'s  authority  to  make  the  ar- 
rest  on    the    ground    that   defendant 
had  cu"  a  tinrd  person,  but  there  was 
no  evidence  tending  to  ^bo  v  that  he 
had  committed  such  crime  on  the  hird 
Person   or  on  any  other  party,  or  any 
giund    for    the'  slightest    sug^icion 
ao-ainst  him,  a  charge  that,  it  B   hac 
Reason  to  believe  that  fff.f ^"^^^f,^^ 
committed  a  felony,  he  had  a  ng^t  ^o 
nrrest    him,    was    erroneous   because 
not  applicable  to  the  case      Spmdley 
?    State,  31  So.  534,  80  Miss.  82.     In 
I  criminal  prosecution,  where  the  onlj 
evileTice  of  defendant's  action    when 
arrested,   was   the   testimony   ot   the 
siei-iff  who  stated  that  when  he  went 
to  ai-rest  defendant  some  days  after 
tSe  crime  defendant  had  a  gun  in  his 
hand   Sid  on  being  told  that  he  was 
wanted  said  that  the  first  man  who 
c^me  near   he   would  kill,   and    tnar 
when  ?he  sheriff  got  hold  of  the  gun, 
and  told  defendant  to  consider  him 
self   under   arrest,   defendant   jerked 
?he  gun  away,  the  court  properly  rc^ 
fused  to  instruct  that  in  considering 
me  weight  to  be  given  to  this  evidence 
thelurv  should  take  into  considera- 
Uon   whether   or  not.  defendant   had 
been  drinking  justpnor  to  the^  ^^^Jft' 
his  intelligence,  his  mental  capacitj, 
and  the  manner  of  making  the  arrest, 
the  feeling  existing  between  the  pei- 
sons  making  the  arrest,  and  al    sur- 
rounding    circumstances.       State     y. 
Steidley  113  N.  W.  333,  135  Iowa,  512. 
i    Se    that    if    there    had    been 
frouble    between    defendant    and    d^^ 
ceased,  and  they  agreed  to  face  eaen 
othe?  and  each  armed  himself  with  a 
pistol,  and  they  did  so  face  each  other 
and,  in  the  meeting,  defendant  killed 
deceased,    defendant    was    guilty    ot 
murder,  was  erroneous,  where   there 
was  no  evidence  that  the  parties  had 
a-ieed   to   such   a  meeting,   and   the 
meeting  had  was  for  the  purpose  ot 
Adjusting  a  misunderstanding  between 
the  parties,  and  of  removing,  if  pos- 
sible  all  stain  from  the  diarjcter  of 
a  certain  girl.    Rogers  v.  State.  34  So. 


138 


INSTRUCTIONS   TO  JURIES 


274 


tending  to  establish   the  circumstances  recited  as   possible   facts 
the  charge  is  erroneous.*^ 


320,  S2  Miss.  479.  Where  the  issues 
of  self-defense,  accideutal  shooting, 
and  death  resulting  from  the  improper 
treatment  of  the  wound  are  submitted 
to  the  jury  on  a  trial  for  homicide,  it 
was  prejudicial  error  to  instruct  that 
where  a  person,  inflicting  an  injury 
which  makes  it  necessary  to  call  aid 
to  preserve  life,  willfully  fails  to  call 
such  aid,  he  is  equally  guilty  as  if  the 
injury  were  one  which  would  inevit- 
ably lead  to  death,  without  evidence 
that  accused  willfully  neglected  de- 
ceased. Ware  v.  State,  55  S.  W.  342, 
41  Tex.  Cr.  R.  415.  In  a  murder  case, 
where  accused  knew  the  officers  pursu- 
ing him,  one  of  whom  he  killed,  and 
fired  the  first  shots,  charges  that,  if  an 
officer  is  acting  under  a  warrant,  he 
must  inform  the  person  sought  to  be 
arrested  before  attempting  such  ar- 
rest, that  he  acts  under  the  authority 
of  the  warrant,  and  must  also  show 
the  warrant,  if  required,  and  that  the 
law  provides  that  if,  after  notice  of 
intention  to  arrest  the  person  sought 
to  be  arrested,  he  either  flees  or  forc- 
ibly resists,  the  officer  may  use  all 
necessary  means  to  effect  the  arrest, 
were  propei'ly  refused  as  inapplicable. 
Hunter  v.  State,  107  P.  444,  3  Okl.  Cr. 
533.  Where,  on  the  trial  of  a  husband 
for  neglecting  to  support  his  wife,  the 
evidence  showed  that  accused  knew 
that  his  wife  took  but  a  small  sum  of 
money  when  she  went  to  her  sister's 
to  live,  and  that  the  sum  was  entirely 
inadequate  to  provide  for  her  wants 
in  her  feeble  condition,  and  that  she 
had  applied  for  aid  to  a  town  as  a 
pauper,  and  that  when  he  was  re- 
quested to  provide  for  her  he  refused 
to  do  so,  the  refusal  to  charge  that, 
if  accused  was  not  informed  that  his 
wife's  means  were  exhausted,  his  re- 
fusal to  support  her  would  not  be  an 
luireasonable  refusal,  and  he  should 
be  acquitted,  was  proper.  Spencer  v. 
State.  112  N.  W.  402.  132  Wis.  509.  122 
.\m.  St.  Rep.  9S9,  13  Ann.  Cas.  909. 
Where,  on  trial  of  defendant  for  in- 
cest with  his  stepdaughter,  there  was 
no  evidence  that  lier  mother  had  a 
former  husl)and,  unless  it  1)e  inferred 
from  the  fact  that  she  had  two  chil- 
dren born  before  her  marriage  to  de- 


fendant, it  was  not  error  to  refuse  to 
instruct  the  jury  that  defendant  could 
not  be  convicted  without  proof  of  the 
death  of  such  former  husband,  or  that 
a  divorce  had  been  secured  from  him, 
since  the  evidence  did  not  present  any 
such  issue.  Stanford  v.  State,  60  S. 
W.  253,  42  Tex.  Cr.  R.  343.  Where, 
in  a  pi-osecution  for  violating  the  local 
option  law,  the  state  did  not  claim 
that  defendant  was  the  agent  of  the 
purchaser  of  the  liquor,  and  not  of 
the  seller,  and  defendant  claimed  that 
he  did  not  sell  the  liquor  to  prosecu- 
tor, but  that  the  latter  stole  it  from 
him,  it  was  not  error  to  refuse  a 
charge  presenting  the  theory  that  de- 
fendant was  the  agent  of  the  pur- 
chaser. Carter  v.  State  (Tex.  Cr. 
App.)  S9  S.  W.  835.  Where,  on  a 
prosecution  for  the  abatement  of  a 
public  nuisance  consisting  of  a  mill- 
dam,  there  was  no  evidence  tending  to 
show  that  the  health  of  any  one  travel- 
ing on  the  pul)lic  highway  was  affect- 
ed by  the  conditions  alleged  to  have 
been  caused  by  the  existence  of  the 
dam,  an  instruction  that,  if  the  dam 
pi'oduced  such  conditions  as  caused 
people  passing  on  the  highway  to  be- 
come affected  with  certain  diseases, 
the  verdict  should  be  for  the  common- 
wealth, was  erroneous.  Jeremy  Imp. 
Co.  V.  Commonwealth,  56  S.  E.  224. 
106  Ya.  482.  Where  a  witness  had 
testified  that  he  had  had  intercourse 
with  the  prosecutrix  several  times 
prior  and  but  a  few  months  before  her 
alleged  seduction  by  defendant,  and 
there  was  no  evidence  that  she  had 
reformed,  an  instruction  that  if  pros- 
ecutrix had  intercourse  with  the  wit- 
ness some  months  prior  to  her  engage- 
ment, if  any,  with  the  defendant,  but 
had  reformed  and  was  leading  an  ab- 
solutely virtuous  life  at  the  time  de- 
fendant became  engaged  to  her,  and 
she  had  sexual  intercourse  with  him 
solely  because  of  his  promise  of  mar- 
riage, defendant  was  guilty,  was  er- 
roneous, as  inapplicable  to  the  case. 
Kerr  v.  United  States,  104  S.  W.  809, 
7  Ind.   T.  480. 

43  Teople  V.  Bird,  60  Cal.  7;  Breese 
V.  State,  12  Ohio  St.  146,  SO  Am.  Dec. 
340. 


ArPLICABILITY   TO   PLEADINGS   AND   EVIDENCE 


138 


The  above  rule  has  been  applied  to  instructions  on  the  issue  of 
former  jeopardy/^  on  the  issue  of  insanity  or  intoxication  as  a 
defense  in  a  criminal  prosecution,*''^  on  the  .  sufhciency  and  effect 
of  the  possession  of  stolen  property,**  on  the  right  of  the  jury  to 
consider  the  commission  of  another  offense  than  that  charged,'"*  on 
the  eft'ect  of  the  making  of  contradictory  statements  as  impeach- 
ing dying  declarations,^"  and  on  the  duty  of  the  jury  not  to  allow 
themselves  to  be  swayed  by  popular  feeling.^i 

In  a  criminal  prosecution,  .an  instruction  should  not  only  em- 
body principles  of  law  applicable  to  the  evidence,  but  it  should 
apply  these  principles  thereto  in  a  concrete  form,  .by  appropriate 
words  requiring  the  jury  to  find  the  necessary  facts  upon  which 
it  purports  to  be  .based,^^  and  an  instruction,  although  correct  as 


4  6  Hartgraves  v.  State,  114  P.  343, 
5  Old.  Cr.  266,  33  L.  R.  A.  (N.  S.)  568, 
Ann.  Cas.  1912D,  180. 

•4  7  Ala.  Goodman  v.  State,  72  So. 
687,  15  Ala.  App.  161. 

Cal.  People  v.  Goodruin,  160  P. 
690,  31  Cal.  App.  430. 

Idaho.  State  v.  Gruber,  115  P.  1, 
19  Idaho,  692. 

Ky.  Hobbs  v.  Commonwealth,  162 
S.  W.  104,  156  Ky.  847;  Wilkerson  v. 
Commonwealth,  88  Ky.  29,  9  S.  W. 
836,  10  Ky.  Law  Rep.  656. 

Mo.  State  v.  Berry,  78  S.  W.  611, 
179  Mo.  377. 

N.  M.  State  v.  Orfanakis,  159  P. 
674.  22  N.  M.  107. 

Okl.  Hopkins  v.  State,  108  P.  420, 
4  Okl.  Cr.  194.  rehearing  denied  111  P. 
947.   4  Okl.   Cr.   194. 

Pa.  Commonwealth  v.  Henderson, 
89  A.  567,  242  Pa.  372. 

Tex.  Johnson  v.  State,  193  S.  W. 
674,  81  Tex.  Cr.  R.  71;  Marion  v. 
State,  190  S.  W.  499,  80  Tex.  Cr.  R. 
478;  Cozby  v.  State,  189  S.  W.  957, 
80  Tex.  Cr.  R.  323;  Kelly  v.  State, 
149  S.  W.  110,  67  Tex.  Cr.  R.  72; 
Cross  V.  State  (Cr.  App.)  101  S.  W. 
213;  Menach  v.  State  (Cr.  App.)  97 
S.  W.  503  ;  Griffith  v.  State,  78  S.  W. 
347,  47  Tex.  Cr.  R.  64  ;  Stokes  v.  State 
(Cr.   App.)  70  S.  W.  95. 

W.  Va.  State  v.  Donahue,  90  S.  E. 
834.  79  W.  Va.  260. 

Wyo.  Mortimore  v.  State,  161  P. 
766,  24  Wyo.  452. 

4s  Carson  v.  State,  86  S.  W.  1011, 
48  Tex.  Cr.  R.   157. 

40  Haves  v.  State,  30  Tex.  Cr.  R. 
146,  35  S.  W.  983. 


5  0  State  V.  Johns,  132  N.  W.  832,  152 
Iowa,  383. 

5 1  People  V.  Yun  Kee,  96  P.  95,  8 
Cal.  App.  82. 

5-  Ala.  Roberts  v.  State,  .54  So. 
993,  171  Ala.  12. 

Ga,  Hall  v.  State,  65  S.  E.  400.  133 
Ga.  177;  Roberts  v.  State,  40  S.  E. 
297,  114  Ga.  450. 

111.  People  V.  Schallman,  113  N. 
E.  113,  273  HI.  564;  People  v.  Israel, 
109  N.  E.  969,  269  111.  284. 

Ky.  Ayers  v.  Commonwealth.  145 
S.  W.  1106,  147  Ky.  801;  Id.,  145  S. 
W.  1107,  147  Ky.  804. 

Miss.  Lamar  v.  State,  64  Miss.  428, 
1  South.  354;  Gerdine  v.  Same.  64 
Miss.  798,  2  South.  313. 

Mont.  State  v.  Smith,  190  P.  107, 
57  Mont.  563 ;  Same  v.  Dunn,  190  P. 
121,  57  Mont.  591. 

N.  J.  State  v.  Rombolo,  103  A.  203, 
91  N.  J.  Law,  560. 

Tex.  Le  Master  v.  State,  196  S.  AV. 
829,  81  Tex.  Cr.  R.  577;  Smith  v. 
State,  148  S.  W.  699,  67  Tex.  Cr.  R. 
27 ;  Godsoe  v.  State,  108  S.  W.  3S8,  52 
Tex.  Cr.  R.  626;  Brittaiu  v.  State, 
105  S.  W.  817.  52  Tex.  Cr.  R.  169; 
Puryear  v.  State,  28  Tex.  App.  73.  11 
S.  W.  929;  Knowles  v.  State.  27  Tex. 
App.  503.  11  S.  W.  522;  Riojas  v. 
State,  9  Tex.  App.  95  ;  Berry  v.  State, 
8  Tex.  App.  515;  Miles  v.  State,  1 
Tex.  App.  510. 

W.  Va.  State  v.  Hertzog,  46  S.  E. 
792.  55  W.  Va.  74 ;  State  v.  Sheppard, 
39  S.  E.  676,  49  W.  Va.  582. 

Instructions  held  properly  refus- 
ed within  rule.  Where  defendant 
went  onto  decedent's  premises  to  set- 


§1S8 


INSTRUCTIONS  TO  JURIES 


276 


an  abstract  proposition  of  law,  is  error  if  it  leaves  the  jury  in 
doubt  as  to  how  it  should  .be  applied  to  the  evidence.^^  Thus, 
where  the  defendant  in  a  criminal  case  asks  for  an  instruction 
which  would  be  correct  only  under. an  exceptional  state  of  facts, 
he  must  preface  the  instruction  by  a  predicate  which  would  bring 
it  vmder  the  operation  of  such. a  state  of  facts.^*  So  a  charge  on 
insanity  as  a  defense  should  be  applied  to  the  particular  facts  of 
the  case  on  trial.^^  So,  .if  an  issue  is  raised  by  the  evidence  as 
to  whether  a  witness  is  an  accomplice  or  not,  and  there  is  evi- 
dence that  he  did  certain  .things,  or  omitted  to  do  certain  things, 
which  in  law  would  make  him  an  accomplice,  the  jury  should  be 
told  to  find  that  he  was. an  accomplice,  if  they  believe  from  all  the 
evidence  that  such  things  were  done  or  omitted  by  him,  and  a 
mere  abstract  proposition  of  law. as  to  what  constitutes  an  accom- 
plice is  insufficient.^  However,  a  charge  stating  the  law  in  gen- 
eral terms,  without  stating  the  exceptions,  is  .not  improper,  where 
there  is  no  evidence  tending  to  bring  the  case  within  such  excep- 
tions,^' and  it  is. not  necessary  that  an  instruction  on  circumstan- 
tial evidence  should  make  an  application  of  the  law  to  the  facts.^* 
Since  the  instructions  should  be  applicable  to. the  issues  in  the 


tie  a  claim  for  damages  resulting  from 
the  escape  of  defendant's  hogs  and  an 
altercation  ensued  in  which  defendant 
killed  deceased,  it  was  not  eiTor  to 
refuse  to  charge  that  defendant  was 
entitled  to  go  on  decedent's  premises 
to  transact  any  legitimate  business ; 
such  statement  being  a  mere  abstract 
assertion  of  one  of  defendant's  legal 
rights.  Robinson  v.  Commonwealth, 
148  S.  W.  45,  149  Ky.  291. 

Instructions  lield  not  objection- 
able within  rule.  Where,  in  a  pros- 
ecution for  manslaughter  the  court  in- 
structed that  the  instrument  used  was 
to  be  considered  in  judging  intent, 
and  if  it  were  one  not  likely  to  pro- 
duce death  the  intent  to  kill  was  not 
to  be  presumed  unless  it  evidently  ap- 
peared from  the  manner  of  use  ;  also, 
that  where  homicide  occurred  under 
the  influence  of  sudden  passion,  by 
means  not  in  their  nature  calculated 
to  produce  death,  the  person  doing 
the  killing  was  not  guilty  of  homicide, 
unless  the  intent  to  kill  appeared,  but 
he  might  be  prosecuted  for  any  grade 
of  assault  and  battery,  and  then  in- 
structed that  if  the  jury  found  de- 
fendant   struck   decedent   and    killed 


him.  but  did  not  find  that  he  intended 
to  do  so,  they  might  find  defendant 
guilty  of  aggravated  assault  and  bat- 
tery, after  which  followed  a  number  of 
definitions  relative  to  assault  and  bat- 
tery, and  an  instruction  that  if  de- 
fendant struck  decedent  with  a  stick 
with  no  intention  of  killing,  and  he 
was  not  justified  on  the  grounds  of 
self-defense,  etc.,  they  might  find  de- 
fendant guilty  of  assault  and  battery, 
it  was  held  that  the  first  two  instruc- 
tions were  not  objectionable  on  ac- 
count of  failure  to  apply  the  princi- 
ples therein  enunciated  to  the  facts  of 
the  case.  Perrin  v.  State,  78  S.  W. 
930,  45  Tex.  Cr.  R.  560. 

53  Davis  V.  State,  51  N.  E.  928,  152 
Ind.  34.  71  Am.   St.  Rep.  322. 

5  4  State  V.  Collette,  31  So.  73,  106 
La.  423. 

5  5  Boswell  V.  State,  63  Ala.  307,  35 
Am.  Rep.  20;  Stewart  v.  State  (Tex. 
Cr.  App.)  77  S.  W.  791. 

5  6  Armstrong  v.  State,  33  Tex.  Cr. 
R.  417,  26  S.  W.  829. 

B7  State  V.  Downer,  21  Wis.  274. 

5  8  Grimsinger  v.  State,  69  S.  W. 
583,  44  Tex.  Cr.  R.  1. 


;277 


APPLICABILITY   TO   PLEADINGS  AND   EVIDENCE 


139 


case,  the  court  need  not  and  should  not  instruct  on  matters  not 
in  dispute  between  the  .parties.^^ 

§  139.     Evidence  excluded  or  withdrawn,  or  improperly  admitted 

Instructions  based  on  evidence  which  the  court  has  properly 
excluded,*^  or  which  has  been  withdrawn  by  the  party  introduc- 
ing it,^^  or  which  has  been  improperly  admitted  by  the  court,*- 
or  which  has  been  withdrawn  from  the  jury. because  illegally  ad- 


5  9  Ala.  Watts  v.  State,  63  So.  18, 
8  Ala.  App.  264;  Mitchell  v.  State,  30 
So.  348.  129  Ala.  23;  McLeroy  v. 
State,  25  So.  247,  120  Ala.  274;  Scrog- 
gins  V.  State,  25  So.  ISO,  120  Ala.  369 ; 
Gafford  v.  State,  25  So.  10,  122  Ala. 
.54;  Rose  v.  State,  23  So.  638,  117 
Ala.  77. 

Ark.  Lowery  v.  State,  203  S.  W. 
838,  135  Ark.  159. 

ni.  People  V.  Lehr,  63  N.  E.  725, 
196  111.  361,  affirming  judgment  93  111. 
App.  505. 

Iowa.  State  v.  Sparegrove,  112  N. 
W.  83,  134  Iowa,  599. 

Kan.  State  v.  Loomer,  184  P.  723, 
105  Kan.  410. 

Ky.  Southern  Express  Co.  v.  Com- 
monwealth, 198  S.  W.  207,  177  Ky.  767. 

Mo.  State  v.  Atchley,  84  S.  W.  984, 
186  Mo.  174. 

S.  C.  State  V.  Thrailkill,  50  S.  E. 
551.  71  S.  C.  136. 

S.  D.  State  v.  Johnson,  149  N.  W. 
730,  34  S.  D.  601. 

Tex.  Mosley  v.  State,  198  S.  W, 
146,  82  Tex.  Cr.  R.  16;  Logging  v. 
State,  149  S.  W.  170,  67  Tex.  Cr.  R. 
4.38;  Bailev  v.  State,  144  S.  W.  996, 
65  Tex.  Cr.  R.  1 ;  Trinkle  v.  State.  131 
S.  W.  583,  60  Tex.  Cr.  R.  187 ;  Moore 
V.  State,  114  S.  W.  807,  55  Tex.  Cr. 
R.  3;  McKinzie  v.  State  (Cr.  App.)  102 
S.  W.  414;  Williams  v.  State  (Cr. 
App.)  51  S.  W.  904;  Sanders  v.  State, 
42  S.  W.  083,  38  Tex.  Cr.  R.  343. 

60  Ala.  Birmingham  Ry.,  Light  & 
Power  Co.  v.  Moseley,  51  So.  424,  164 
Ala.  Ill ;  Rarden  v.  Cunningham,  34 
So.  26,  136  Ala.  263. 

Ark.  Pleasants  v.  Scott,  21  Ark. 
370,  76  Am.   Dec.  403. 

Ga.  Whitehead  v.  Pitts,  56  S.  E. 
1004.  127  Ga.  774. 

ni.  People  V.  Johns,  190  111.  App. 
367. 

Md.  Citizens'  Mut.  Fire  In.s.  Co. 
of  Cecil  County  v.  Conowingo  Bridge 


Co.,  82  A.  372,  116  Md.  422 ;  Morrison 
V.  Welty,  18  Md.  169. 

Mass.  Commonwealth  v.  Cosse- 
boom,  155  Mass.  298,  29  N.  E.  463. 

Micli.  Township  School  Dist.  of 
Wakefield  v.  MacRae,  165  N.  W.  618, 
198  Mich.   693. 

Mo.  Nafziger  v.  Mahan  (App.)  191 
S.  W.  1080 ;  Lattimore  v.  Union  Elec- 
tric Light  &  Power  Co.,  lOS  S.  W.  543, 
128  Mo.  App.  37. 

Neb.  Mefford  v.  Sell.  92  N.  W. 
148,  3  Neb.  (Unof.)  566 ;  Pease  Piano 
Co.  V.  Cameron,  76  N.  W.  1053,  56  Neb. 
561. 

N.  Y.  Atlantic  Communication  Co. 
V.  Zimmermann,  170  N.  Y.  S.  275,  182 
App.  Div.  862 ;  Foley  v.  Xavier,  93  N. 
Y.  S.  289,  104  App.  Div.  1. 

S.  D.  Sheffield  v.  Eveleth,  97  N.  W. 
367,  17  S.  D.  461. 

Tex.  Cosgrove  v.  Smith  (Civ.  App.) 
183  S.  W.  109;  International  &  G.  .N. 
R.  Co.  V.  Moynahan,  76  S.  W.  803.  3.". 
Tex.  Civ.  App.  302. 

Wask.  Rich  v.  Ryan,  175  P.  32. 
103  W^nsh.  474;  Nye  v.  Kelly,  52  P. 
528,  19  Wash.  73. 

61  Hayes  v.  Kelley,  116  Mass.  300. 

6  2  Conn.  St.  Martin  v.  New  York, 
N.  H.  &  H.  R.  Co.,  94  A.  279,  89  Conn. 
405,  L.  R.  A.  1916D,  1035. 

Ga.  American  Harrow  Co.  v.  Dol- 
vin.  45  S.  E.  983,  119  Ga.  186. 

111.  Republic  Iron  &  Steel  Co.  v. 
Radis,  106  111.  App.  530. 

Ind.  Williams  v.  Atkinson,  52  N. 
E.  603,  152  Ind.  98. 

Iowa.  Conger  v.  Bean,  58  Iowa, 
321,  12  N.  W.  284. 

Mick.  Molyneaux  v.  Bradley  Mil- 
ler &  Co.,  132  N.  W.  1013,  167  Mich. 
278. 

Mo.  Weaver  v.  Hendriclv,  30  Mo. 
502. 

Mont.  Ford  v.  Drake,  127  P.  1019. 
46  Mont.  314. 

N.  J.    O.  J.  Gude  Co.,  New  York  v. 


§  140 


INSTRUCTIONS   TO   JURIES 


278 


mitted,^^  are  erroneous,  and  properly  refused,  and  a  party  on 
whose  motion  evidence  has  been  .stricken  out  is  not  entitled  to 
an  instruction  based  thereon.®* 

§  140.     Sufficiency  of  evidence  to  support  instructions 

Sufficiency  of  evidence  as  predicate  for  instruction  on  confessions,  see  post, 

§221. 
Sufficiency  of  evidence  to  authorize  or  require  instructions  on  alibi,  see  post, 

•§  331. 
Sufficiency  of  evidence  to  sustain  instructions  on  credibility  of  witnesses,  see 

post,  §  14n. 
Sufficiency  of  evidence  to  sustain  instructions  on  grade  of  degree  of  offense, 

see  post,  §  316. 

Courts  have  expressed  themselves  in  .varying-  phraseology  with 
respect  to  the  amount  of  evidence  required  to  support  an  instruc- 
tion. In  some  jurisdictions  it  has  been  said  that  if  the  evidence 
tends  to  prove  the  facts  upon  which  an  instruction  is  based,®*^  or 
tends  to  prove  such  facts  in  an  appreciable  degree,^®  the  instruc- 
tion will  be  justified.  In  other  jurisdictions  it  is  held  that  slight 
evidence  of  the  facts  upon  which  an  instruction  is  predicated  will 
preclude  the  objection  that  it  is  abstract,  and  warrant  the  giving 
of  it.®'     In  still  other  jurisdictions  the  rule  is  that  it  is  proper  to 


Newark  Sign  Co.,  101  A.  .".92,  90  X.  .J. 
Law,  686. 

N.  Y.  Finek  v.  Scbaubacber,  69  N. 
y.  S.  977.  34  Misc.  Rep.  547. 

Tex.  Lipscomb  v.  Adamson  Lum- 
ber Co.  (Civ.  App.)  217  S.  W.  228; 
Rotan  Grocery  Co.  v.  Martin  (Civ. 
App.)  57  S.  W.  706. 

Va.  Carlin  &  Co.  v.  Fraser,  53  S. 
E.  145.  105  Va.  216 ;  Norfolk  &  W.  Ry. 
Co.  v.  Stevens,  34  S.  E.  525,  97  Va. 
631,  46  L.  R.  A.  .367. 

W.  Va.  Anderson  v.  Lewis,  61  S. 
i:.  160.  64  W.  Va.  297. 

Wis.  Coman  v.  Wunderlich,  99  N. 
W.  012,  122  Wis.  138. 

Compare  Leary  v.  State,  117  S.  W. 
S22.  55  Tex.  Cr.  R.  .547. 

C3  Salter  v.  Williams,  10  Ga.  186. 

c4  Bluofield  Produce  &  Commission 
Co.  V.  Citv  of  Bluefield,  77  S.  E.  277, 
71  W.  Va.  696. 

en  Ind.  Harris  v.  State,  58  N.  E. 
75.  155  Ind.  265. 

Tenn.  Goodall  v.  Thurman,  1 
Head.  1'09. 

Va.  Dingee  v.  Unrue's  Adm'x.  35 
S.  K.  794,  98  Va.  247;  Carpenter  v. 
Virginia-Carolina  Chemical  Co.,  35  S. 
E.  358,  98  Va.  177 ;  Tyson  v.  William- 


son, 32  S.  E.  42.  96  Va.  636;  Reuseus 
V.  Lawson,  31  S.  E.  528,  96  Va.  285; 
Washington  Southern  Rv.  Co.  v.  La- 
cey,  94  Va.  460,  26  S.  E.  834 ;  Early  v. 
Garland's  Lessee,  13  Grat.  1. 

W.  Va.  Carrico  v.  West  Virginia 
C.  &  P.  Ry.  Co.,  39  W.  Va.  86,  19  S. 
E.  571.  24  L.  R.  A.  50;  State  v.  Bet- 
sail,  11  W.  Va.  703. 

Evidence  not  such  as  should  con" 
vince  a  jury.  Where  there  is  testi- 
mony tending  to  establish  a  particular 
result,  a  prayer  for  instructions  af- 
firming an  admitted  legal  proiwsitiou, 
and  which  involves  the  consideration 
of  this  testimony,  cannot  be  denied  on 
the  ground  that  it  is  abstract,  because 
the  evidence  is  not  such  as  should  con- 
vince the  jury.  Clealand  v.  Walker, 
11  Ala.  1058,  46  Am.  Dec.  238. 

6  8  Lyons  v.  Fairmont  Real  Estate 
Co.,  77  S.  E.  .525.  71  W.  Va.  754. 

6  7  Ala.  Knowles  v.  Ogletree.  96 
Ala.  555,  12  So.  .397;  Miller  v.  State, 
.54  Ala.  155 ;  Hair  v.  Little,  28  Ala. 
2.36;  Bradford  v.  Marhury,  12  Ala. 
520,  46  Am,  Dec.  264. 

Ark.  Goodell  V.  Bluff  Citv  Lum- 
ber Co.,  57  Ark.  203,  21  S.  W.  104;  Mc- 
Neill V.  Arnold,  22  Ark.  477. 


279 


ArPLICABILITY   TO   PLEADINGS   AND   EVIDENCE 


§  140 


refuse    an    instruction    not    supported    by    some    substantial    evi- 
dence.^ 

Whether  any  real  conflict  of  authority  is  indicated  b}^  the  above 
difference  in  phrasing  is  doubtful.  The  courts  are  agreed  that  it 
is  proper  to  refuse  an  instruction  supported  by  a  mere  scintilla 
of  evidence,*^^  and  the  modern  doctrine  is  that  evidence  which  is 
insufficient  to  sustain  a  finding  upon  a  particular  issue  will  be 
insufficient  to  support  an  instruction  upon  such  issue."^®  The  court 
should  not  give  an  instruction  embodying  a  proposition  which  the 


Cal.  rerllierg  v.  Gorliam,  10  Cal. 
120. 

Conn.  Rumberg  V.  Cutler,  81  A. 
107.  86  Conn.  8. 

Fla.  Florida  Ry.  &  Navigation  Co. 
V.  Webster,  25  Fla.  391,  5  So.  714. 

Ga.     Camp  v.  Phillips.  42  Ga.  289. 

111.  Thompson  v.  Duff.  119  111. 
226,  10  N.  E.  399 ;  Chicago  &  W.  I.  R. 
Co.  v.  Biugenheimer,  116  111.  226,  4 
K.  E.  840;  Eames  v.  Rend.  105  111. 
506 ;    Kane  v.  Torbit,  23  111.  App.  311. 

Ind.  Brunaugh  v.  State,  90  N.  E. 
1019,  173  Ind.  483;  State  v.  Carey,  55 
N.  E.  261,  23  Ind.  App.  378 ;  Reed  v. 
State,  40  N.  E.  525,  141  Ind.  116. 

Kan.  McKnight  v.  Strasburger 
Bldg.  Co.,  150  P.  542,  96  Kan.  118. 

Ky.  Minor  v.  Gordon,  188  S.  W. 
768,  171  Ky.  790,  modifying  judgment 
on  rehearing  186  S.  W.  480,  170  Ky. 
609 ;  Lischy  v.  Sehrader,  47  S.  W. 
611,  104  Ky.  657,  20  Ky.  Law  Rep.  843. 

Micli.  Carrel!  v.  Kalamazoo  Cold- 
Storage  Co.,  70  N.  W.  323,  112  Mich. 
34. 

Mo.  Hofelman  v.  A^alentine,  26 
Mo.  393. 

S.  C.  Brucke  v.  Hubbard,  54  S.  B. 
249.  74   S.  C.  144. 

W.  Va.  Snedeker  v.  Rulong,  71  S. 
E.  180,  69  W.  Va.  223.     ' 

6  8  Bagdad  Land  &  Luml>er  Co.  v. 
Poston,'68  So.  ISO,  69  Fla.  340;  Miller 
V.  Neale,  119  N.  W.  94,  137  Wis.  426, 
129  Am.  St.  Rep.  1077. 

In  "Wisconsin  an  early  decision 
held  that,  where  a  requested  instruc- 
tion covers  a  point  material  to  the 
issue,  and  there  is  some  evidence  tend- 
ing to  support  it,  its  refusal  is  error ; 
whether  the  facts  stated  therein  are 
true  or  not  being  a  question  for  the 
jury,    not   for   the   court.     Sailer   v. 


Barnousky,  60  Wis.  169,  18  N.  W.  763. 

6  9  Leverich  v.  Danville  Collieries 
Coal  Co.,  193  111.  App.  627;  Gould  v. 
Gilligan,  64  N.  E.  409,  181  Mass.  600 ; 
Chesapeake  &  O.  Ry.  Co.  v.  F.  W. 
Stock  &  Sons,  51  S.  E.  161,  104  Va.  97. 

7  0  u.  S.  (C.  C.  A.  Ark.)  American 
Surety  Co.  v.  Choctaw  Const.  Co.,  135 
F.  487,  68  C.  C.  A.  199. 

Minn.  Knapp  v.  Northern  Pac.  R. 
Co.,  166  N.  W.  409,  139  Minn.  338. 

Tex.  International  &  G.  N.  R.  Co. 
V.  Hall,  12  Tex.  Civ.  App.  11,  33  S.  W. 
127;    Odle  v.  State,  13  Tex.  App.  612. 

Va.  Upton  &  W^alker  v.  R.  D.  Hol- 
loway  &  Co.,  102  S.  E.  54,  126  Va. 
657 :  American  Locomotive  Co.  v. 
Whitlock,  63  S.  E.  991,  109  Va.  238. 

W.  Va.  McDonald  v.  Cole,  32  S. 
E.  1033,  46  W.  Va.  186. 

Evidence  on  issue  considered  in 
connection  with,  evidence  on  cor- 
relative issues.  To  justify  an  in- 
struction upon  an  issue  of  fact,  there 
should  not  only  be  evidence  tending 
to  establish  that  fact,  but  it  should  be 
sufficient,  either  alone  or  in  connec- 
tion with  other  evidence  upon  correla- 
tive issues,  to  sustain  the  finding. 
Antone  v.  Miles,  105  S.  W.  39,  47  Tex. 
Civ.  App.  289. 

In  Virginia,  where  the  courts  now 
supiK)rt  the  rule  stated  in  the  text, 
some  of  the  earlier  cases  held  that 
evidence  tending  to  prove  a  fact  was 
sufficient  to  justify  an  instruction  ap- 
plicable thereto,  if  requested,  though 
the  evidence  was  Insufficient  to  sup- 
port a  verdict  founded  thereon. 
Jones  V.  Morris,  33  S.  E.  377,  97  Va. 
43  ;  Richmond  Passenger  »&  Power  Co. 
V.  Allen,  43  S.  E.  356,  101  Va.  200; 
Southern  Ry.  Co.  v.  Wilcox,  39  S.  E. 
144,  99  Va.  394. 


§  140 


INSTRUCTIONS  TO  JURIES 


280 


evidence  does  not  tend  in  an  appreciable  degree  to  support,"*^  and 
it  is  proper  to  refuse  an  instruction  whose  only  basis  is  evidence 
which  amounts  to  mere  conjecture,  or  merel}^  affords  the  possi- 
bility of  an  inferencCj'^  or  an  instruction  based  upon  immaterial 
and  nonprobative  facts  incidentally  revealed  on  the  trial  of  an 
issue/^  or  an  instruction  predicated  upon  isolated  portions  of  the 
testimony  in  support  of  the  theory  of  a  party  and  assuming  the 
truth  of  controverted  facts."*  An  instruction  based  upon  a  hy- 
pothesis which  is  contrary  to  the  physical  facts  is  erroneous,  and 
is  properly  refused.'^ 

On  the  other  hand,  an  instruction  will  not  constitute  reversible 
error,  if  there  is  any  appreciable  evidence  tending  to  support  it, 
although,  on  the  final  test,  such  evidence  is  not  sufficient, to  sup- 
port the  verdict/®  Evidence  which  will  justify  an  instruction 
may  be  either  direct,  or  founded  on  reasonable  inference  trom 
other  evidence,'"  and  it  is  not  error  to  give  an  instruction  based 
on  a  theory  of  the  facts  which   may  reasonably  be  argued  from 


71  Diddle  v.  Continental  Casualty 
Co..  6.3  S.  E.  962.  65  W.  Va.  170,  22 
L.  R.  A.  (N.  S.)  779. 

7  2  Commonwealth  v.  Boutwell,  162 
Mass.  2.30,  38  N.  E.  441;  Kopacin  v. 
Crown-Columbia  Pulp  &  Paper  Co,, 
125  P.  281,  62  Or.  291;  Reynolds  v. 
State,  8  Tex.  App.  493. 

7  3  Palmer  v.  Magers,  102  S.  E.  100, 
85  W.  Va.  415. 

74  Foley  V.  Riverside  Storage  & 
Cartage  Co.,  48  N.  W.  1.54,  85  Mich.  7. 

7  5  Colorado  &  S.  Ry.  Co.  v.  Davis, 
127  P.  249,  23  Colo.  App.  41;  State 
V.  Vaughan,  98  S.  W.  2,  200  Mo.  1; 
Curtis  V.  Hudson  Valley  Rv.  Co.,  143 
N.  Y.  S.  383,  158  App.  Biv.  373. 

7  6  Barna  v.  Gleason  Coal  &  Coke 
Co.,  98  S.  E.  158,  83  W.  Va.  216; 
Myers  v.  Cook  (W.  Va.)  104  S.  E.  593. 

7  7  Sovereign  Camp,  Woodmen  of 
the  World,  v.  McDaniel,  93  S.  E.  105, 
20  Ga.  App.  430;  Peoria  Marine  & 
Fire  Ins.  Co.  v.  Anapow,  45  111.  86; 
Stephan  v.  Metzger,  69  S.  W.  625,  95 
Mo.  App.  609 ;  Maes  v.  Texas  &  N.  O. 
Ry.  Co.  (Tex.  Civ.  App.)  23  S.  W.  725. 

Implied  warranty*.  Whore  de- 
fendant, in  an  action  by  a  purchaser 
of  corn  to  rescind  the  sale,  counter- 
claims, and  testifies  that  the  purchas- 
er informed  him  that  he  intended  to 
use  tlie  corn  for  seed,  an  instruction 


on  the  subject  of  implied  warranty 
was  proper Iv  given.  Totten  v.  Stev- 
enson, 135  N.  W.  715,  29  S.  D.  71. 

Inference  of  knoTvledge  of  ordi- 
nance. Where  the  evidence  showed 
that  a  street  car  was  operated  at  a 
speed  in  excess  of  that  fixed  by  a  mu- 
nicipal ordinance,  the  court  properly 
charged  that  a  pedestrian  could  pre- 
sume that  the  ordinance  was  not  be- 
ing violated,  and  that  the  pedestrian 
knew  of  the  ordinance,  though  there 
was  no  evidence  of  such  knowledge. 
Richmond  v.  Tacoma  Rv.  &  Powei* 
Co..  122  P.  351.  67  Wash.  444. 

Justification  for  use  of  particu- 
lar -words.  An  objection  to  the  use 
of  the  word  "compelling,"  in  an  in- 
struction that,  if  defendant  and  his 
brother  armed  themselves  with  the 
intention  of  compelling  decedent  to 
apologize,  and  upon  his  failing  to  do 
so  shot  and  killed  him,  they  would 
both  be  guilty  of  murder,  was  not  ten- 
able, though  no  witness  had  used  the 
word  "compel,"  and  though  defendant 
testified  that  his  brother  said  he  was 
going  to  "ask"  decedent  to  apologize; 
it  appearing  that  the  mother  of  de- 
fendant stated  that  defendant's  broth- 
er said  he  would  "make"  decedent 
apologize.  Pipkin  v.  State,  97  S.  W. 
61,  SO  Ark.  617. 


281  ArPLICABILITY   TO   PLEADINGS   AND    EVIDENCE  §   140 

the  evidence.'^  It  is  not  necessary  that  the  trial  court  should  be 
entirely  satisfied  of  the  existence  of  the  facts  upon  which  an  in- 
struction is  founded  in  order  to  be  justified  in  giving  it/^  or  that 
the  jury  might  not  conceivably  have  found  the  nonexistence  of 
such  facts,^"  and  an  instruction  should  not  be  refused  merely  be- 
cause the  court  may  believe  that  the  weight  of  the  evidence  does 
not  support  it,*^  or  because  the  evidence  on  which  it  is  based  ap- 
pears improbable^^  or  inconclusive,  or  unsatisfactory,*'  or  because 
the  preponderance  of  the  evidence  is  against  the  theory  of  the 
existence  of  the  facts  upon  which  it  is  based.*^  A  theory  of  the 
case  supported  by  the  testimony  of  but  one  witness  may  be  sub- 
mitted to  the.  jury.*^ 

In  a  criminal  case  the  testimony  of  defendant  must  be  taken 
as  true  for  the  purpose  of  determining  whether  there  is  evidence 
on  which  to  base  an  instruction  asked  by  him,*®  and  an  instruc- 
tion based  on  an  hypothesis  which  is  supported  by  the  congruous 
parts  of  the  testimony  of  several  witnesses  is  not  objectionable,  as 
not  justified  by  the  evidence.*' 

A  conflict. in  the  evidence  on  a  particular  issue  will  warrant  the 
court  in  instructing  thereon,**  or  will  make  it  error  for  the  court 
to  refuse  an  instruction  on  such  issue,*^  or  will  make  it  proper 
to  refuse  an  instruction  ignoring  such  issue ;  ^"  and,  conversely, 
the  fact  that  the  evidence  is  conflicting  with  respect  to  the  exist- 

7  8  Wahlgren  v.  Market  St.  Ry,  Co.,  112;   Davis  v.  Same,  10  Tex.  App.  31; 

62    P.    308,    132    Cal.    656,    judgment  Wlialey  v.    Same,   9  Tex.   App.   305: 

affirmed  on  rehearing  64  P.  993.  132  Sisk  v.  State,  9  Tex.  App.  246 ;  Brown 

Cal.  656.  V.   State,  9  Tex.  App.  81;    Heath  v. 

7  9  Flourney  v.  Andrews,  5  Mo.  518.  State,  7  Tex.  App.  464. 

8  0  McDonald  v.  New  World  Life  8  4  Newbury  v.  Getchell  &  Martin 
Ins.  Co.,  136  P.  702.  76  Wash.  488.  Lumber  &  Manufacturing  Co.,  69  N. 

81  Peoria,  D.  &  E.  Ry.  Co.  v.  Puck-  w.    743,    100   Iowa,  441,  62  Am.    St. 

ett,  42  111.  App.  642;   De  Camp  v.  Mis-  Rep.  582. 

sissippi  &  M.  R.  Co.,  12  Iowa,  348;  85  Christy  v.  Des  Moines  City  Ry. 

State  V.  Wright,  40  La.  Ann.  589,  4  Co.,  102  N.  W.  194,  126  Iowa,  428. 

f'^'n «««?^QQTf  T'""^ ST""^/  1'^''^'  ''  I^i^-il  ^-  State,  49  So.  230.  159  Ala. 

?L^i    ILf.    iin  ^    w   ?ki    4^0'';;"^  66,  133  Am.   St.  Rep.  19;    People  v. 

Pr    ^     4?o  'l9R    L     J  T^i    Jnn'-  Williamson,   92  P.   313.   6   Cal.   App. 

Cr.    R    480,   126   Am     St.   Rep    800,  333     McCampbell  v.  State,  174  S.  W. 

24r  123'  V^'231? """    ""^^        '  ^4^'  ^^  ^^^-  ^^-  ^-  -^^• 

"  82  Gniiam'  v.    State,   50   Ala.    145;  "  ^^ot  v.  Quincy,  O.  &  K.  C.  R.  Co., 

State  V.  Thompson;  45  La.  Ann.  969,  ^'^^  ^-  ^-  ^^^'  ^37  Mo.  640. 

13  South.  392;  Jones  v.  State,  33  Tex.  ««  Byrne  v.  Doughty.  13  Ga.  46;  Lee 

Cr.  R.  492,  26  S.  W.  1082,  47  Am.  St.  v.  Conrad,  117  N.  W.  1096,  140  Iowa, 

Rep.  46:    Parker  v.   State  (Tex.  Cr.  16. 

App.)  ,34  S.  W.  265.  so  Hart  v.  Buckley,  128  P.  29,  164 

8  3  Rutherford  v.  State,  15  Tex.  App.  Cal.  160. 
236;    Laurence  v.  State,  10  Tex.  App.  00  Trinity  &  B.  V.  Ry.  Co.  v.  Doke 

495 ;     Scott    v.    Same,    10   Tex.    App.  (Tex.  Civ.  App.)  152  S.  W.  1174. 


§  140 


INSTRUCTIONS   TO  JURIES 


282 


ence  of  the  facts  upon  which  an  instruction  is  based  does  not 
make  the  giving  of  it  erroneous,  as  not  supported  by  the  evi- 
denced^ 

The  request  of  a  party  for  instructions  should  not  be  refused 
because  they  are  based  upon  the  evidence  of  his  adversary,^-  and 
the  substance  of  an  issue  need  only  be  proved  to  authorize  the 
presentation  of  it  to  the  jury.^^ 

§  141.     Who  to   determine  question  of  sufficiency  of  evidence 

The  trial  court  must  determine  whether  there  is  any  proper 
evidence  on  which  the  jury  may  find  a  fact  in  relation  to  which 
an  instruction  is  sought  or  proposed  to  be  given,^*  and  it  is  im- 
proper for  the  court  to  give  an  instruction  and  make  its  consid- 
eration by  the  jury  dependent  upon  whether  they  find  that  there 
is  or  is  not  evidence  on  which  to  base  it.^* 

§  142.     Effect  of  violation  of  rule 

An  instruction  which  violates  the  above  rule®^  will  constitute 
reversible  error,  if  it  is  prejudicial  to  the  party  complaining  there- 
of or  is  calculated  to  mislead  the  jury,^''  or,  as  some  courts  hold. 


91  Fla.  Walker  v.  Lee,  40  So.  881, 
r,l  Fla.  .360. 

111.  Cibson  V.  Lafferty,  180  111. 
App.  629. 

Iowa.  Waltham  Piano  Co.  v.  Lind- 
holm  Furniture  Co.,  150  N.  W,  1040, 
168  Iowa.  728. 

Mo.  Darr  v.  Gratiot  Bldg.  Co. 
(App.)  198  S.  W.  481. 

Neb.  Atkins  v.  Gladwish,  27  Neb. 
841.  44  N.   W.  .37. 

Tex.  Hayes  v.  State  (Tex.  Cr. 
App.)  .30  S.  W.  106:  Wasson  v.  State, 
?.  Tex.  App.  474. 

Instruction  based  on  contradic- 
tory testimony  of  single  ivitness. 
A  rerjuost  to  charge  the  legal  effect 
of  a  portion  of  the  testimony  of  the 
sole  witness;  for  the  plaintiff  is  prop- 
erly refused,  where  the  same  witness 
on  CTO.ss-exaniination  contradicts  the 
matters  to  which  the  request  relates. 
Hardeman  v.  Bell,  47  S.  E.  919,  120 
Ga.  .342. 

92  Hedges  v.  Metropolitan  St.  Rv. 
Co..  102  S.  W.  1080.  125  Mo.  App.  58.3. 

»3  Texas  &  N.  O.  R.  Co.  v.  Scar- 
borough (Tex.  Civ.  App.)  104  S.  W. 
408,  Judgment  affirmed  108  S.  ^Y.  804, 
101  Tex.  436. 

04  Parkinson  v.  Kortum,  127  N.  W. 
208,  14S  Iowa,  217. 


9  5  John  L.  Rowan  &  Co.  v.  Hull,  47 
S.  E.  92,  55  W.  Va.  335,  104  Am.  St. 
Rep.  998. 

•'«  Ante.  §  137. 

9  7  U.  S.  (C.  C.  N.  Y.)  Rrixey  v. 
Citv  of  New  York,  145  F.  1016. 

Ark.  El  Dorado  &  B.  R.  Co.  v. 
Whatley,  114  S.  W.  234,  88  Ark.  20, 
129  Am.  St.  Rep.  93. 

Ga.  Fruit  Dispatch  Co.  v.  Rough- 
ton-Halliburton  Co.,  70  S.  E.  356.  9 
Ga.  App.  108;  Mendel  v.  Miller  & 
Sons.  56  S.  E.  88,  126  Ga.  834,  7  L.  R. 
A.  (N.  S.)  1184. 

111.  Cox  V.  Cleveland,  C,  C.  &  St. 
L.  Ry.  Co.,  151  111.  App.  473 ;  McFall 
V.  Smith,  32  111.  App.  463. 

Iowa.  ]Morton  v.  Woods,  135  N. 
W.  400.  154  Iowa,  728  ;  Yeager  v,  Chi- 
cago, R.  I.  &  P.  Ry.  Co.,  123  N.  W. 
974,  148  Iowa,  231:  Burke  v.  Mally, 
120  N.  W.  ,305,  141  Iowa,  555. 

Ky.  Louisville  Ry.  Co.  v.  Buck- 
ner's  Adm'r,  113  S.  W.  90. 

Micb.  James  v;  Shores,  151  N.  W. 
558.  184  Mich.  460. 

Minn.  Lacey  v.  Minneapolis  St. 
Ry.  Co.,  1.36  N.  W.  878,  118  Minn.  .301. 

Mo.  Crumlev  v.  Western  Tie  & 
Timber  Co.,  129  S.  W.  46,  144  Mo. 
App.  .528. 

Neb.   Hutchinson  v.  Western  Bridge 


283 


ArPLICABILITY   TO   PLEADINGS   AND   EVIDENCE 


§  142 


unless  it  is  clearly  shown  not  to  be  harmful.''*'  On  the  other  hand, 
a  judgment  will  not  be  reversed  because  of  the  giving  of  instruc- 
tion? not  based  upon  the  evidence,  if  the  party  complaining  is  not 
prejudiced  thereby  or  the  jury  is  not  misled.'*'* 


&  Construction  Co.,  150  N.  W.  193,  97 
Neb.  4.39. 

N.  J.  Baker  v.  North  Jersey  St. 
Rv.  Co.,  72  A.  434,  77  N.  J.  Law,  336. 

N.  Y.  Wells  V.  Baker,  126  N.  Y. 
S.  923,  141  App.  Div.  717 ;  McDonnell 
V.  Andrew  J.  Robinson  Co..  100  N.  E. 
4.5,  206  N.  Y.  489,  reversing  judgment 
127  N.  Y.  S.  1130,  143  App.  Div.  905. 

Okl.  Continental  Supply  Co,  v. 
Patrick,  168  P.  996. 

R.  I.  Di  Saudro  v.  Providence  Gas 
Co.,  102  A.  617,  40  R.  I.  551. 

Tex.  Crawford  v.  Thos.  Goggan  & 
Bros.  (Civ.  App.)  217  S.  W.  1106; 
Texas  &  P.  Ry.  Co.  v.  White  (Civ. 
App.)  174  S.  W.  953 ;  San  Autonio  & 
A.  P.  Ry.  Co.  V.  Weigers,  54  S.  W.  910, 
22  Tex.  Civ.  App.  344. 

Va.  Newport  News  &  O.  P.  Ry.  & 
Electric  Co.  v.  McCormick,  56  S.  E. 
281,  106  Va.  517. 

Wis.  Ward  v.  Henry,  19  Wis.  76, 
88  Am.  Dec.  672. 

0  8  Baltimore  &  O.  R.  Co.  v.  Peck, 
101  N.  E.  674,  53  Ind.  App.  281. 

9  0  Ala.  Carrington  v.  Odom,  27  So. 
510,  124  Ala.  529;  Towns  v.  Riddle,  2 
Ala.  694. 

Ark.  McNeill  v.  Arnold,  22  Ark. 
477. 

Cal.  Renfro  v.  Fresno  City  Ry. 
Co.,  84  P.  357,  2  Cal.  App.  317. 

Colo.  Houck  V.  Williams,  81  P. 
800.  34  Colo.  138. 

Ga.  Conley  v.  Buck,  28  S.  E.  97, 
100  Ga.  187. 

111.  Chicago  &  A.  Ry.  Co.  v.  Wal- 
ters, 75  N.  E.  441,  217  111.  87 ;  Blatch- 
•ford  V.  Boyden,  122  111.  657,  13  N.  E, 
801 ;   Corbin  v.  Sheerer,  3  Gilman,  482, 

Ind.  Indianapolis  St.  Ry.  Co.  v. 
Hackney,  77  N.  E.  1048,  39  Ind,  App. 
372;  Boltz  v.  Smith,  3  Ind.  App.  43, 
29  N.  E.  1.55. 

Iowa.  Camp  v.  Chicago  Great 
Western  Ry.  Co.,  99  N.  W.  735,  124 
Iowa,  238. 


Kan.  Hackler  v,  Evans,  79  P.  669, 
70  Kan.  896. 

Ky.  Louisville  &  N.  R.  Co.  v.  Gutt-, 
man,  146  S.  W.  731,  148  Ky.  2.35;  Sav- 
age v.  Bulger,  77  S.  W.  717,  25  Ky. 
Law  Rep.  1269. 

Md.  Coffin  V,  Brown,  50  A.  567,  94 
Md.  190,  55  L,  R,  A,  732,  89  Am.  St. 
Rep.  422, 

Mich.  Tobin  v.  Modern  Woodmen 
of  America,  85  N.  W,  472,  126  Mich. 
161. 

Mo.  Murphy  v.  Metropolitan  St. 
Ry.  Co.,  102  S.  W.  64,  125  Mo.  App. 
269 ;  Sack  v.  St.  Louis  Car  Co.,  87 
S.  W.  79,  112  Mo,  App.  476;  Claflin 
v.  Sommers,  .39  Mo.  App.  419. 

Mont.  Thornton-Thomas  Mercan- 
tile Co.  V.  Bretherton,  80  P.  10,  32 
Mont.  SO. 

Neb.  Clark  v.  Folkers,  95  N.  W. 
328,  1  Neb.  (Unof.)  96. 

N.  Y.  Goodstein  v.  Brooklyn 
Heights  R.  Co.,  74  N.  Y,  S.  1017,  69 
App.  Div.  617. 

N.  C.  Eubanks  v.  Alspaugh,  52  S. 
E.  207,  139  N,  C.  520. 

Ohio.  French  v, .  Millard,  2  Ohio 
St.  44. 

Pa.  Kramer  v.  Winslow,  154  Pa. 
637,  25  A.  766. 

S.  C.  Burns  v.  Goddard,  51  S.  E, 
915.  72  S.  C.  355. 

Tenn.  Southern  Oil  Works  v. 
Bickford,  14  Lea,  651;  Hatfield  v, 
Griffith,  1  Lea,  300. 

Tex.  Sheldon  Canal  Co.  v.  Miller. 
90  S.  W.  206,  40  Tex.  Civ.  App.  460. 

Va.  Poore  v,  Magru^er,  24  Grat. 
197. 

Wash.  Irwin  v.  Buffalo  Pitts  Co., 
81  P.  849,  39  Wash.  346;  Martin  v. 
Union  Mut.  Life  Ins.  Co.,  13  Wash. 
275.  43  Pac.  53. 

W.  Va.  Maxwell  v.  Kent,  39  S.  E, 
174,  49  W.  Va.  542. 

Wis.  Barker  v.  Knickerbocker 
Life  Ins.  Co.,  24  Wis.  630. 


143 


INSTRUCTIONS  TO  JURIES 


284 


D.  Instructions  Excluding  or  Ignoring  Issues,  Defenses,  or 

Evidence 
§  143.     General  rule 

As  a  general  rule,  instructions  wliich  exclude  or  ignore  issues 
or  defenses  upon  which  there  is  some  evidence,  or  having  sup- 
port in  the  evidence,  are  erroneous,^  and  are  properly  refused;^ 


lU.  S.  (C.  C.  A.  Alaska)  Dome 
Citv  Bank  v.  Baruett.  184  F.  607,  106 
C.  C.  A.  611. 

Ala.  Mann  v.  Dardeu,  60  So.  454, 
6  Ala.  App.  555 ;  Woodward  Iron  Co. 
V.  Brown,  52  So.  829,  167  Ala.  316; 
Hyde  v.  Cain,  47  So.  1014,  159  Ala. 
.364;  Davis  v.  Miller  Brent  Lumber 
Co.,  44  So.  639.  151  Ala.  580;  Duncan 
v.  St.  Louis  &  S.  F.  R.  Co.,  44  So.  418, 
152  Ala.  118;  Sherrell  v.  Louisville  & 
N.  R.  Co.,  44  So.  153,  148  Ala.  1; 
C.  N.  Robinson  Co.  v.  Green,  43  So. 
797,  148  Ala.  4.34;  Loveman  v.  Bir- 
mingham Ry.,  L.  &  P.  Co.,  43  So.  411, 
149  Ala.  515. 

Ark.  W.  A.  Smith  &  Bro.  v.  Spin- 
nenweber  &  Peters,  170  S.  W.  84,  114 
Ark.  384;  Richardson  v.  Cohen,  1.50 
S.  W.  574,  105  Ark.  697 ;  St.  Louis  & 
S.  F.  R.  Co.  V.  Van  Zant,  142  S.  W. 
1144,  101  Ark.  586 ;  Rector  v.  Robins, 
102  S.  W.  209;  82  Ark.  424;  Southern 
Express  Co.  v.  Hill,  98  S.  W.  371,  81 
Ark.  1 ;  Bayles  v.  Daugherty,  91  S,  W. 
.304,  77  Ark.  201. 

Cal.  Quackenbush  v.  Los  Angeles 
Ry.  Corporation,  151  P.  755,  28  Cal. 
App.  173;  Waterman  v.  Visalia  Elec- 
tric R.  Co.,  137  P.  1096,  23  Cal.  App. 
350. 

Colo.  King  Solomon  Tunnel  &  De- 
velopment Co.  V.  Mary  Verna  Mining 
Co.,  127  P.  129,  22  Colo.  App.  528; 
Kent  Mfg.  Co.  v.  Zimmerman,  110  P. 
187,  48  Colo.  388. 

Conn.  Newell  v.  Roberts,  13  Conn. 
63. 

Fla.  ]Mulliken  v.  Harrison,  44  So. 
426.  .53  Fla.  255. 

Ga.  Purvis  v.  Atlanta  Northern 
Ky.  Co.,  72  S.  E.  343,  1.36  Ga.  852; 
Wadsworth  v.  Wadsworth,  68  S.  E. 
049,  134  Ga.  816 ;  Su.song  v.  McKenna, 
.55  S.  E.  236,  126  Ga.  433. 

Idaho.  Soule  v.  First  Nat.  Bank 
of  Abb  ton,  140  P.  1098,  26  Idaho,  66. 


111.  Costly  V.  McGowan,  50  N.  E. 
1047.  174  111.  76 ;  Lockett  v.  Zimmer- 
mann,  185  111.  App.  58;  Connor  v. 
American  Spirits  Mfg.  Co.,  175  111. 
App.  1.59  ;  Tate  v.  Cleveland,  C,  C.  & 
St.  L.  Ry.  Co.,  147  111.  App.  155; 
Springfield  Consol.  Ry.  Co.  v.  Gregory, 
122  111.  App.  607;  Merry  v.  Calvin, 
122  111.  App.  4.59 ;  George  E.  Lloyd  & 
Co.  V.  Matthews,  119  111.  App.  546, 
affirmed  Same  v.  Matthews  &  Rice 
(1906)  79  N.  E.  172,  223  111.  477,  7  L. 
R.  A.  (N.  S.)  376;  (1906)  Morris  v. 
Chicago  Union  Traction  Co.,  119  111. 
App.  527 :  St.  Louis  &  B.  Electric  Ry. 
Co.  V.  Erlinger,  112  111.  App.  506; 
Schnellbacher  v.  Frank  McLaughlin 
Plumbing  Co.,  108  111.  App.  486;  Union 
Stockyard  &  Transit  Co.  v.  Goodman, 
91  111.  App.  426. 

Ind.  Julius  Keller  Const.  Co.  v. 
Herkless,  109  N.  E.  797,  59  Ind.  App. 
472  ;  Neeley  v.  Louisville  &  S.  I.  Trac- 
tion Co.,  102  N.  E.  455,  53  Ind.  App. 
659. 

Iowa.  Boone  v.  Lohr,  154  N.  W. 
591;  172  Iowa,  440;  First  Nat.  Bank 
of  Shenandoah  v.  Cook,  153  N.  W. 
169,  171  Iowa,  41 ;  Schlichting  v.  Row- 
ell,  119  N.  W.  151,  140  Iowa,  731; 
Lauer  v.  Banning,  118  N.  W.  446,  140 
Iowa,  319. 

Kan.  Bartholomew  v.  Fell,  139  P. 
1016,  92  Kan.  64;  Taggart  v.  Chicago, 
R.  I.  &  P.  Ry.  Co.,  115  P.  534,  84  Kan. 
671;  Nash  v.  Barton  Salt  Co.,  Ill 
P.  462,  83  Kan.  447. 

Ky.  South  Covington  &  C.  St.  Ry. 
Co.  V.  Barr,  144  S.  W.  755,  147  Ky, 
549 ;  Baker  v.  Crescent  Coal  Co.,  133 
S.  W.  1146,  142  Ky.  191. 

Md.  Anne  Arundel  County  Com'rs 
V.  Carr,  73  A.  668,  111  Md.  141;  Adams 
V.  Commissioners  of  Somerset  Coun- 
ty, 66  A.  695,  106  Md.  197;    Singer 

2  See  note  2  on  page  288. 


285  APrLICABILITY   TO   PLEADINGS   AND   EVIDENCE  §  143 

this  rule  applying  to  instructions  ignoring  issues  and  defenses  in 


Sewing  Mach.  Co.  v.  Lee,  66  A.  628, 
105  Md.  663. 

Mich.  Parmalee  v.  Wisent's  Es- 
tate, 155  N.  W.  577,  189  Mich.  507; 
Karwick  v.  Piekands,  137  N.  W.  219, 
171  Mich.  463 ;  Commercial  Bank  v. 
Chatfield,  SO  X.  W.  712,  121  Mich.  641. 

Miss.  Yazoo  &  M.  V.  R.  Co.  v. 
Brnoe,  54  So.  241,  98  Miss.  727. 

Mo.  Botts  V.  Chicago.  B.  &  Q.  R. 
Co..  167  S.  W.  1154,  180  Mo.  App.  368; 
Roberts  v.  Wahash  R.  Co.,  134  S.  W. 
89,  153  Mo.  App.  638:  Phelan  v.  Gran- 
ite Bituminous  Paving  Co.,  127  S.  W. 
318,  227  Mo.  666,  137  Am.  St.  Rep. 
582 ;  Cytron  v.  St.  Louis  Transit  Co., 
104  S.  W.  109.  205  Mo.  692 ;  Zeis  v. 
St.  Louis  Brewing  Ass'n,  104  S.  W. 
99.  205  Mo.  638:  State  ex  rel.  Ship- 
man  V.  Allen,  103  S.  W.  1090,  124  Mo. 
App.  465;  Trimble  v.  Moore,  102  S. 
W.  1057.  125  Mo.  App.  601;  Ern  v. 
Rubinstein.  72  Mo.  App.  337. 

Mont.  Lynes  v.  Northern  Pae. 
Rv.  Co..  117  P.  81,  43  Mont.  317,  Ann. 
Cas.  1912C,  183. 

Neb.  Tillson  v.  Holloway,  134  N. 
W.  232.  90  Neb.  481,  Ann.  Cas.  1913B, 
78 ;  Bryant  v.  jNIodern  Woodmen  of 
America,  125  N.  W.  621,  86  Neb.  372, 
27  L.  R.  A.  (N.  S.)  326,  21  Ann.  Cas. 
365. 

Nev.  Zelavin  v.  Tonopah  Belmont 
Development  Co.,  149  P.  188,  39  Nev. 
1. 

N.  Y.  Salowich  v.  National  Lead 
Co.,  143  N.  Y.  S.  606,  158  App.  Div. 
445:  Barry  v.  Interborough  Rapid 
Transit  Co.   (Sup.)  140  N.  Y.  S.  10.54. 

N.  C.  Robinson  v.  Pluffstetler.  81 
S.  E.  753.  165  X.  C.  4.59':  Core  v.  Mc- 
Pherson.  77  S.  E.  8.35.  161  N.  C.  638. 

OM.  Brooks  v.  Reynolds,  132  P. 
1091.  37  Okl.  767:  Leach  v.  Hepler, 
124  P.  68.  32  Okl.  729. 

Or.  :McGee  v.  Beekley,  102  P.  303, 
54  Or.  250,  motion  to  retax  costs  de- 
nied 103  P.  61.  54  Or.  250. 

Pa.  Scott  V.  Pennsylvania  Casual- 
ty Co..  87  A.  963.  240  Pa.  341 ;  Geiger 
V.  Pittsburgh  Rys.  Co.,  83  A.  367,  234 
Pa.  545;  Kennedy  v.  Forest  Oil  Co., 
49  A.  133,  199  Pa.  644 ;  Stukey  v.  Ris- 
singer.  31  Pa.  Super.  Ct.  3. 

S.  C.  Hiller  v.  Bank  of  Columbia, 
79  S.  E.  899,  96  S.  C.  74 ;   Scarborough 


V.  Woodley,  62  S.  E.  405,  81  S.  C.  329. 

S.  D.  Karsten  v.  Root,  153  N.  W. 
932.  36  S.  D.  Ill ;  Roper  v.  Xoel,  14:; 
N.  W.  130,  32  S.  D.  405. 

Tex.  Galveston,  H.  &  S.  A.  Ry. 
Co.  V.  Templeton  (Civ.  Api>.)  175  S. 
W.  504;  Wilkinson  v.  Fralin  (Civ. 
App.)  149  S.  W.  548;  Precker  v. 
Slayton  (Civ.  App.)  1.38  S.  W.  1160: 
Cage  &  Crow  v.  Owens  (Civ.  App.)  103 
S.  W.  1191,  .iudgnient  reversed  Owens 
V.  Cage  &  Crow,  106  S.  W.  880,  101 
Tex.  286;  Missouri,  K.  &  T.  Ry. 
Co.  of  Texas  v.  Barnes,  95  S.  W. 
714,  42  Tex.  Civ.  App.  626;  Kosmin- 
sky  V.  Hamburger,  51  S.  W.  53,  21 
Tex.  Civ.  App.  341;  Eppstein  v. 
Thomas.  44  S.  W.  893,  16  Tex.  Civ. 
App.  619:  Pope  V.  Riggs  (Civ.  App.) 
43  S.  W.  306. 

Va.  Hawkins  &  Buford  v.  Ed- 
wards. 84  S.  E.  654,  117  Va.  311; 
Hawse  v.  First  Nat.  Bank  of  Pied- 
mont, W.  Va.,  75  S.  E.  127,  113  Va. 
588. 

Wash.  McDonald  v.  McDougall. 
1.50  P.  625,  86  Wash.  3.39;  King  v. 
King,  145  P.  971,  83  Wash.  615. 
Campbell  v.  Order  of  Washington,  102 
P.   410.  53  Wash.  .398. 

W.  Va.  Prank  v.  Monongahela 
Valloy  Traction  Co..  S3  S.  E.  1009, 
75  W.  Va.  364:  Sbires  v.  Bosrsess.  77 
S.  E.  542.  72  W.  Va.  109:  IVIylins  v. 
Raine-Andrew  Lumber  Co.,  71  S.  E. 
404.  69  W.  Va.  346. 

Illustrations  of  instructions  er- 
roneous •within  rule.  An  instruc- 
tion, in  an  action  on  notes  given  to 
the  president  of  a  bank,  ignoring  the 
issue  of  plaintiff's  good  faith  in  mak- 
ing the  loan  to  enable  the  borrower 
to  pay  a  usurions  debt  to  the  bank. 
Snead  v.  Groover,  74  So.  81.  15  Ala. 
App.  515.  In  action  for  false  impris- 
onment and  malicious  prosecution 
against  defendant,  owner  of  public 
bathing  establishment  on  seashore, 
who  had  caused  plaintiff's  arrest  for 
trespassing  ujion  and  erecting  tent 
on  land  in  front  of  defendant's  bath- 
hou.se,  instruction  that  plaintiff  had  a 
right  to  erect  and  maintain  tent 
against  defendant's  protest,  which  in- 
struction lost  sight  of  defendant's  par- 
amount right,  as  riparian  owner,  of 


§143 


INSTRUCTIONS  TO  JURIES 


28G 


a  criminal  prosecution.^     No  instruction  can  be  said  to  be  merely 


access  to  and  from  sea  was  errone- 
ous. Johnson  v.  May,  178  N.  Y.  S. 
742,  ISO  App.  Div.  196.  An  instruc- 
tion in  an  action  for  damages  for  re- 
moval of  a  alleged  partition  fence, 
which  ignored  the  statutory  requisites 
of  pnrtitinn  fences.  Jones  v.  Deros- 
set  (Mo.  App.)  185  S.  W.  239.  An  in- 
struction on  fraud  and  deceit,  inter- 
posed as  a  defense  to  an  action  on  a 
note,  not  submitting  in  connection 
with  theory  of  alleged  fraudulent  rep- 
res<?ntations.  the  question  whether  de- 
fendants relied  thereon  and  were  mis- 
led to  their  injury  was  erroneous. 
Ohio  Valley  Bank  v.  Berry,  100  S.  E. 
875.  85  W.  Va.  95.  An  instruction,  in 
an  action  on  guaranty,  pretermitting 
question  whether  guaranty  was  ex- 
ecuted before  or  after  principal  con- 
tract was  delivered.  Dillworth  v. 
Holmes  Furniture  &  Vehicle  Co.,  73 
So.  288,  35  Ala.  App.  340.  An  in- 
struction covering  the  whole  case,  in 
action  for  slander,  authorizing  re- 
covery without  finding  of  publication. 

3  U.  S.  (C.  C.  A.  Mo.)  Gardner  v. 
T'nited  States,  230  F.  575,  144  C.  C.  A. 
G20. 

Ala.  Fealv  v.  City  of  Birming- 
ham, 73  So.  "296,  15  Ala.  App.  367 ; 
Walling  V.  State,  73  So.  216,  15  Ala. 
App.  275,  certiorari  denied  Ex  parte 
Walling.  73  So.  1003.  198  Ala.  696: 
Wright  V,  State,  72  So.  564,  15  Ala. 
App.  91 ;  Blanlcenship  v.  State.  65 
So.  860,  11  Ala.  App.  125;  Sanderson 
V.  State,  53  So.  109,  168  Ala.  109; 
Moore  v.  State,  40  So.  345,  146  Ala. 
687. 

Ala.  White  v.  State,  32  So.  139, 
133  Ala.  122. 

Cal.  People  v.  Scott,  133  P.  496, 
22  Cal.  App.  54;  People  v.  Wright, 
122  P.  835,  18  Cal.  App.  171 ;  People 
V.  Crosby,  120  P.  441,  17  Cal.  App. 
518;  People  v.  Overacker,  115  P. 
756,  15  Cal.  App.  620. 

Colo.  Martin  v.  People,  155  P. 
318.   m   Colo.    575. 

Ga.  Baker  v.  State,  91  S.  E.  785, 
19  <;a.  App.  451;  Mason  v.  State,  58 
S.  E.  139.  1  Ga.  App.  534;  Hall  v. 
State.  47  S.  E.  519,  120  Ga.  142. 

111.     Lane  v.   People,  142  111.  App, 


571 ;  People  v.  Simmons,  113  N.  E. 
887,  274  111.  528;  People  v.  Duncan, 
103  N.  E.  1043,  261  111.  339;  Koser 
V.  People,  79  N.  E.  615,  224  111.  201. 

Iowa.  State  v.  Chambers,  161  N. 
W.  470,  179  Iowa,  436. 

Kan.  State  v.  Abbott,  69  P.  160. 
65  Kan.  139. 

Mich.  Maillet  V.  People,  3  N.  W. 
854.  42  Mich.  262. 

Mo.  State  v.  Stike,  129  S.  W. 
1024,  149  Mo.  App.  104 ;  State  v.  Bob- 
bitt.  146  S.  W.  799,  242  Mo.  273. 

Okl.  Courtney  v.  State,  140  P.  163, 
10  Okl.  Cr.  589. 

Tenn.  Chappie  v.  State,  135  S.  W. 
321,  124  Tenn.  105 ;  Frazier  v.  State, 
100  S.  W.  94,  117  Tenn.  430. 

Tex.  Rose  v.  State,  186  S.  W.  202, 
79  Tex.  Cr.  R.  413 ;  Dawson  v.  State, 
185  S.  W.  875,  79  Tex.  Cr.  R.  371; 
Robinson  v.  State,  160  S.  W.  456,  71 
Tex.  Cr.  R.  561 ;  Morgan  v.  State,  136 
S.  W.  445,  62  Tex.  Cr.  R.  39 ;  Pickrell 
V.  State,  132  S.  W.  938,  60  Tex.  Cr. 
572:  Jacobs  v.  State,  115  S.  W.  581, 
55  Tex.  Cr.  R.  149 ;  Beckham  v.  State, 
8  Tex.  App.  52. 

Wis.  State  V.  Heiden,  121  N.  W. 
138,  1.39  Wis.  519:  Duthey  v.  State, 
111  N.  W.  222.  131  Wis.  178,  10  L.  R. 
A.  (N.  S.)  10.32. 

Ignoring  defense  of  insanity. 
In  a  prosecution  for  murder,  an  in- 
struction that,  the  killing  being  prov- 
ed, the  burden  of  producing  sufficient 
evidence  to  raise  a  reasonable  douDi 
in  the  defendant's  favor  of  the  ex- 
istence of  facts  or  circumstances  of 
mitigation,  or  that  justify  or  excuse 
the  homicide,  will  devolve  on  the  ac- 
cused, unless  the  proof  on  the  part 
of  the  prosecution  sufficiently  mani- 
fests that  the  crime  committed  only 
amounts  to  manslaughter,  or  that  ac- 
cused was  justified  or  excused  in  com- 
mitting the  homicide,  did  not  ignore 
the  defense  of  insanity,  since  it  was 
included  in  the  language  used.  Peo- 
ple v.  Casey,  83  N.  E.  278,  231  111.  261. 

Instructions  ignoring  issue  of 
conspiracy.  Lane  v.  State,  70  So. 
982,  14  Ala.  App.  40 ;  Moi-ris  v.  State, 
41  So.  274,  146  Ala.  66;  Crittenden 
V.  State,  32  So.  273,  134  Ala.  145; 
McLeroy  v.  State,  25  So.  247,  120  Ala. 
274. 


287 


APPLICABILITY   TO   PLEADINGS   AND   EVIDENCE 


143 


calculated  to  mislead  the  jury,  if  its  necessary  effect  is  to  excluj.le 


Boomshaft  v.  Klauber,  190  S.  W.  616, 
196  Mo.  App.  222.  In  action  for  uial- 
icions  prosecution,  where  it  was  al- 
leged that  defendant  testified  falsely 
before  the  grand  jury,  and  thereby 
obtained  a  return  of  indictment,  de- 
fendant's requested  instruction  as  to 
plaintiff's  right  to  recover,  which  did 
not  include  the  element  of  wrongfully 
continuing  proceeding  already  begun, 
was  properly  refused.  Johnson  v. 
Brady  (Ind.  App.)  126  N.  E.  250.  In 
a  physician's  action  for  services  fur- 
nished a  wife,  defendant  husband's 
request  that,  if  the  husband  furnish- 
es the  wife  with  sufficient  means  to 
provide  her  with  what  is  reasonably 
necessary  for  her  support  and  com- 
fort, he  is  not  liable  for  necessaries, 
unless  he  gives  consent,  was  objec- 
tionable, as  not  including  any  state- 
ment as  to  the  effect  of  knowledge  on 
the  part  of  the  husband,  or  as  to  the 
right  of  the  wife  to  contract  for  the 
services.  Vaughan  v.  Mansfield.  126 
N.  E.  376,  23.5  Mass.  147.  An  instruc- 
tion, in  an  action  on  running  account 
for  photographs  furnished,  declaring 
absolutely  liability  for  reasonable 
value  of  pictures,  without  regard  to 
whether  account  was  barred  by  limi- 
tation, statute  having  been  pleaded  by 
defendant.  Kansas  City  Photo  Co. 
V.  Kansas  City  Bridge  Co.  (Mo.  App.) 
195  S.  W.  1051.  An  instruction  per- 
mitting recovery  in  an  action  for  in- 
juries to  land,  by  alleged  insufficient 
opening  for  water  course  in  railway 
embanl<:ment,  which  disregards  the  is- 
sues whether  a  flood  was  so  great  that 
no  negligence  arose  in  failing  to  antic- 
ipate that  opening  would  be  insuffi- 
cient, and  whether  injury  would  have 
occurred  regardless  of  size  of  open- 
ing. Sherwood  v.  St.  Louis,  S.  W. 
By.  Co.,  (Mo.  App.)  1S7  S.  W.  260.  In- 
struction in  crossing  accident  case, 
stating  that,  if  the  railroad  company 
bj'  compliance  with  its  duty  of  con- 
stant lookout  could  have  discovered 
plaintiff's  auto  in  time  to  avoid  the 
accident,  verdict  should  be  for  plain- 
tiff, is  bad  in  ignoring  the  defense  of 
contributory  negligence,  pleaded  and 
supported  by  evidence.  Morenci 
Southern  By.  Co.  v.  Monsour,  185  P. 
938,  21  Ariz.  148.     An  instruction,  in 


replevin  of  automobile,  directing  a 
verdict  for  defendant,  which  omitted 
reference  to  the  alleged  removal  of 
a  prestolite  tank  of  small  value. 
Stoecker  &  Price  Storage  &  Axxction 
Co.  V.  Erving  (JIo.  App.)  204  S.  W. 
29.  An  instruction  in  an  action  for 
damages  to  an  automobile  by  colli- 
sion with  a  street  car.  which  ignored 
the  defense  of  contributory  negli- 
gence. Adams  &  Washam  v.  South- 
em  Traction  Co.  (Tex.  Civ.  App.)  ISS 
S.  W.  275.  A  requested  instruction 
in  a  will  contest  case,  which  ignored 
the  issues  of  undue  influence.  Thom- 
as V.  Thomas  (Mo.)  186  S.  W.  993.  In 
action  on  award  of  arI)itrators  re- 
quiring plaintiff  to  clear  land  remain- 
ing to  be  cleared  under  contract,  but 
not  requiring  cultivation  thereof, 
though  award  included  amount  prom- 
ised plaintiff  as  bonus  for  cultivating 
land  in  addition  to  clearing  it,  in- 
struction to  find  amount  due  plaintiff 
if  plaintiff  had  cleared  land  and  de- 
fendant had  agreed  to  pay  him  there- 
for was  error,  in  ignoring  fact  that 
part  of  amount  sued  for  was  bonus 
for  cultivation.  Nave  v.  Diecknaan 
(Mo.  App.)  208  S.   W.  273. 

Omission  of  element  of  ordinary 
care.  An  instruction  that,  if  plaintiff 
saw  or  heard  a  train,  or  by  exercising 
his  sense  of  sight  and  hearing  could 
have  seen  or  heard  it  moving  towards 
a  crossing  in  time  to  have  avoided 
injury,  and  was  injured  in  attempting 
to  cross  ahead  of  it  he  could  not  re- 
cover, was  properly  refused,  as  it 
omitted  the  element  of  ordinarv  care. 
Lake  Erie  &  W.  B.  Co.  v.  Sanders 
(Ind.  App.)  125  N.  E.  793.  In  action 
for  damages  to  plaintift"'s  car  from 
a  collision  with  def(mdant's  car,  a 
charge  that  if  plaintiff  contributed  to 
the  injury  he  could  not  recover,  and 
that  contributory  negligence  was  any 
act  of  plaintiff  helping  to  produce 
the  damages,  and  that  he  miglit  re- 
cover if  he  did  notliing  wrong,  was 
erroneous,  as  omitting  element  of 
want  of  ordinary  care.  Harnden  v. 
Miller.  175  N.  W.  891,  145  Minn.  483. 
Where  plaintiff  was  injured  by  the 
use  of  pads  purchased  as  a  cure  for 
rupture,  because  of  injurious  sub- 
stances contained  therein,  an  instruc- 


143 


INSTRUCTIONS  TO  JURIES 


288 


from  their  consideration  a  material  issue  raised  by  the  pleading 


tion  attempting:  to  cover  the  whole 
case,  but  omittin.s:  the  elements  that 
the  pads  contahied  injurious  ingredi- 
ents, which  caused  plaintiff's  inju- 
ries, and  that  defendant  knew  or 
should  have  known  the  character  of 
the  pads  by  the  exercise  of  ordinary 
care,  was  erroneous,  and  could  not  be 
cured  by  any  subsequent  instruction. 
Harmon  v.  Plapao  Laboratories  (Mo. 
Apn.)  21S  S.  W.  701. 

Omission  of  issue  of  proximate 
cause.  In  an  action  against  a  city 
for  injuries  occasioned  by  fall  on 
defective  walk,  a  requested  instruc- 
tion stating  that  plaintiff  should  re- 
cover if  the  work  was  defective,  etc., 
was  properly  refused,  where  it  did 
not  embody  the  rule  relating  to  prox- 
imate causes.  Kansier  v.  City  of  BiU- 
ings.  184  P.  630.  56  Mont.  250. 

2  Ala.  Southern  Ry.  Co.  v.  Stol- 
lenwerck,  52  So.  204,  166  Ala.  556; 
Birmingham  Ry.,  Light  &  Power  Co. 
v.  Williams,  48  So.  9.3,  158  Ala.  381; 
Annistou  Electric  &  Gas  Co.  v.  Elwell, 
42  So.  45,  144  Ala.  317. 

Ark.  St.  Ix)uis,  I.  M.  &  S.  Ry.  Co. 
V.  Aiken.  140  S.  W.  698.  100  Ark.  437 ; 
A.  L.  Clark  Lumber  Co.  v.  St.  Coner, 
133  S.  W.  1132,  97  Ark.  358. 

Cal.  Weik  v.  Southern  Pac.  Co., 
1.32  P.  775.  21  Cal.  App.  711 ;  Roberts 
V.  Sierra  R.  Co.  of  California,  111  P. 
519.  14  Cal.  App.  ISO.  rehearing  de- 
nied (Sup.)  Ill  P.  527,  14  Cal.  App. 
180. 

Colo.  Coors  V.  Brock,  125  P.  599, 
22  Colo.  App.  470. 

Conn.  Church  v.  Spicer,  83  A. 
1115.  85  Conn.   579. 

Fla,  Seaboard  Air  Line  Ry.  v. 
Smith.  43  So.  235,  53  Fla.  375. 

Idaho.  Card  v.  Thompson,  123  P. 
497.  21  Idaho,  485. 

111.  Cummins  v.  Sanitary  Dist.  of 
Chicago,  185  111.  App.  6,39;  Swanson 
V.  Chicago  City  Ry.  Co.,  148  111.  App. 
135,  judgment  affirmed  90  N.  E.  210, 
242  111.  388. 

Ind.  Vandalia  R.  Co.  v.  Holland, 
108  N.  E.  580,  1S3  Ind.  438 ;  Chicago, 
I.  &  L.  Ry.  Co  v.  Pritchard,  81  N.  E. 
78,  168  Ind.  398.  9  L.  R.  A.  (N.  S.) 
S57,  denying  rehearing  79  N.  E.  508, 
16S  Ind.  398,  9  L.  R.  A.    (N.   S.)  857. 


Iowa.  Carpenter  v.  Campbell  Au- 
tomobile Co.,  140  N.  W.  225,  159 
Iowa,   .52. 

Kan.  .Tones  v.  Joplin  &  P.  R.  Co., 
137  P.  796.  91  Kan.  282. 

Ky.  South  Covington  &  C.  St..Rv. 
Co.  V.  Hardy,  153  S.  W.  474,  152  Ky. 
374.  44  L.  R.  A.  (N.   S.)  32. 

Md.  Shoop  V.  Fidelity  &  Deposit 
Co.  of  Marylnnd,  91  A.  753.  124  Md. 
1.30,  Ann.  Cas.  1916D.  954;  Balti- 
more &  O.  R.  Co.  V.  Wilson,  83  A. 
248. 117  Md.  198  :  McCarthy  v.  Clarke, 
81   A.  12,  115  Md.  454. 

Mass.  Monjeau  v.  Metropolitan 
Life  Ins.  Co..  94  N.  E.  302.  208  Mass.  1. 

Mich.  Piowatv  v.  Sheldon.  1.32 
N.  W.  517.  167  Mich.  218,  Ann.  Cas. 
1913A.  610:  Larned  v  Yanderlinde. 
131  X.  W.  165.  165  Mich.  464  ;  Muir  v. 
Kalamazoo  Corset  Co.,  119  N.  W.  589. 
155  Mich.  441 ;  Logan  v.  Lake  Shore 
&  M.  S.  R.  Co.,  112  N.  W.  506,  148 
Mich.  603. 

Minn.     Campbell   v.   Duluth   &   N. 
E.  R.  Co.,  127  N.  W.  413,  111  Minn. ' 
410. 

Mo.  Aronson  v.  Ricker,  172  S.  W. 
641.  185  Mo.  App.  528;  St.  Louis 
Maple  &  Oak  Flooring  Co.  v.  Knost, 

128  S.  W.  532.  148  Mo.  App.  563. 

N.  M.     Brobst  v.  El  Paso  &  S.  W. 
Co..  145  P.  258,  19  N.  M.  609. 
N.  Y.     Kimball  v.  Uppercu   (Sup.) 

129  N.  Y.  S.  33. 

N.  C.  Alford  V.  IMoore.  77  S.  E. 
343,  161  N.  O.  382;  Harmon  v.  Fergu- 
son Contracting  Co.,  74  S.  E.  632,  159 
N.  C.  22. 

Or.  Cerrano  v.  Portland  Ry., 
Light  &  Power  Co.,  126  P.  37,  62  Or. 
421. 

R.  I.  Clark  v.  New  York,  N.  H.  & 
H.  R.  Co.,  87  A.  206,  35  R.  I.  479. 

S.  C.  Kennedy  v.  Kennedy,  68  S. 
E.  664.  86  S.  C.  483 ;  Napier  v.  Math- 
eson,  68  S.  E.  673,  86  S.  C.  428 ;  Lang- 
ston  V.  Cothran,  58  S.  B.  956,  78  S.  C. 
23. 

Tex.  Missouri.  K.  &  T.  R.  Co.  ot 
Texas  v.  Middloton  (Civ.  App.)  172  S. 
W.  1114;  Dallas  Consol.  Electric  St. 
Ry.  Co.  V.  Kelley  (Civ.  App.)  142  S.  W. 
1()05 ;  St.  Louis  Southwestern  Ry.  (Jo. 
of  Texas  v.  McCauley  (Civ.  App.)  134 
S.  W.   798;    Keahey  v.  Bryant  (Civ. 


289 


APPLICABILITY  TO   PLEADINGS  AND   EVIDENCE 


§144 


and  evidence.*  The  above  rule  frequently  has  been  applied  to  in- 
structions purporting  to  cover  the  whole  case,  and  directing  a 
verdict  for  one  party  or  the  other,  if  certain  facts  are  found,^  un- 
less such  theory  or  defense  omitted  is  included  in  other  qualifying 
instructions,®  and  in  some  jurisdictions,  as  is  shown  in  another 
place,'  such  an  omission  cannot  be  cured  by  other  instructions. 

§  144.     Ignoring  evidence 

Instructions  should   cover  the  whole  case  and  take  in  all  the 
material    evidence.*     Instructions   which   ignore   evidence   in   the 


App.)  134  S.  W.  409;  G-iilf  &  I.  Ry. 
Co.  of  Texas  v.  Campbell  (Civ.  App.) 
108  S.  W.  972;  Western  Union  Tel- 
egraph Co.  V.  Landry  (Civ.  App.)  lOS 
S.  W.  461,  judgment  reversed  Landry 
V.  Western  Union  Telegraph  Co.,  113 
S.  W.  10,  102  Tex.  67. 

Vt.  Douglass  &  Yarnum  v.  Village 
of  Morrisville,  93  A.  810,  89  Vt.  393 ; 
Losasso  V.  Jones  Bros.  Co.,  93  A.  266, 
88  Vt.   526. 

Va.  Norfolk  Southern  R.  Co.  v, 
Crocker,  84  S.  E.  681,  117  Va.  327; 
J.  B.  King  &  Co.  v.  C.  W.  Hancock  & 
Sons,  77  S.  E.  510,  114  Va.  596. 

Wasb.  Tooker  v.  Perkins,  150  P. 
1138,  86  Wash.  567. 

W.  Va.  Griffith  v.  American  Coal 
Co.,  84  S.  E.  621,  75  W.  Va.  686,  L. 
R.  A.  1915F.  803;  American  Canning 
Co.  V.  Flat  Top  Grocery  Co.,  70  S.  E. 
756,  68  W.  Va.  698. 

4  O'Brien  v.  Birmingham  Ry., 
Light  &  Power  Co.,  72  So.  343,  197 
Ala.  97 ;  Oil-Well  Supply  Co.  v.  West 
Hnntsville  Cotton  .Mills  Co.,  73  So. 
899,  198  Ala.  501. 

5  Ark.  Des  Arc  Oil  Mill  v.  Mc- 
Leod,  206  S.  W.  655,  137  Ark.  615. 

111.  Gibson  v.  Lafferty,  ISO  111. 
App.  629 ;  Christensen  v.  Oscar  Dan- 
iels Co.,  170  111.  App.  .59;  Granne- 
mann  v.  Meyer,  169  111.  App.  291; 
Martini  v.  Donk  Bros.  Coal  &  Coke 
Co.,  169  111.  App.  139;  St.  Jolin 
V.  Illinois  Cent.  R.  Co.,  168  111.  App. 
599 ;  Baker  v.  Taylorville  Ry.,  Light, 
Heat  &  Povi-er  Co.,  164  111.  App.  232 ; 
Hill  V.  Dougherty,  161  111.  App.  553; 
Geary  v.  City  of  Chicago,  161  111.  App, 
461;  Cole  v.  City  of  East  St.  Louis 
158  111.  App.  494 ;  Plopper  v.  St.  Louis 
&  N.  E.  Ry.  Co.,  1.58  111.  App.  196; 
Spenler  v.  Turley.  l.jS  HI.  App.  146; 
Inst.to  Juries— 19 


Downs  v.  Michigan  Commercial  Ins. 
Co..  157  111.  App.  32;  Voudrie  v. 
Southern  Ry.  Co..  155  111.  App.  279. 

Ind.  Goldsmith  v.  First  Nat. 
Bank,  96  N.  E.  503,  50  Ind.  App.  11. 

Mo.  Stofer  v.  Harvey  (App.)  204 
S.  W.  587 ;  Kelley  v.  City  of  St.  .Jos- 
eph, 156  S.  W.  804,  170  Mo.  App.  358 ; 
Beggs  V.  Shelton,  155  S.  W.  885,  173 
INIo.  At)p.  127. 

Mo.  Johnson  v.  Stewart  &  Hay 
Bldg.  Co.,  153  S.  W.  511,  171  Mo.  App. 
543. 

Or.  Buhl  Malleable  Co.  v.  Cron- 
an.  ."9  Or.  242,  117  P.  317. 

Utah.  Morgan  v.  Child,  Cole  & 
Co..   155   P.   451.   47  Utah.   417. 

Va.  E.  I.  Du  Pont  de  Nemours  & 
Co.  V.  Hipp,  96  S.  E.  280,  123  Va.  49. 

W.  Va.  Wiggin  v.  Marsh  Lumber 
Co.,  87  S.  E.  194,  77  W.  Va.  7. 

Including  theory  of  opposite 
party.  Instruction  purporting  to 
cover  whole  case  must  be  framed  so 
as  not  to  exclude  theory  raised  by 
evidence  of  adversary  party,  but  it 
is  not  required  to  include  such  theory. 
Lawbaugh  v.  McDonald  Mining  Co. 
(Mo.  App.)  202  S.  W.  617. 

'6  Carroll  v.  People's  Ry.  Co.,  60 
Mo.  App.  465;  Carder  v.  Primm,  60 
Mo.  App.  423;  Evers  v.  Shumaker, 
57  Mo.  App.  454;  Havner  v.  Chur- 
chill, 29  Mo.  App.  676;  IMinick  v. 
Gring,  1  Pa.  Super.  Ct.  484;  .Tones 
V.  Rex  (Tex.  Civ.  App.)  31  S.  W.  1077. 

7  Lif.schitz  V.  City  of  Chicago,  150 
111.  App.  201. 

8  IT.  S.  Greenleaf  v.  Birth,  6  Pet. 
292.  '.)  L.  Ed.  132. 

Ala.  Elliott  V.  Howison,  40  So. 
1018,  146  Ala.  568 :  Central  of  Georg- 
ia Ry.  Co.  V.  Larkins,  37  So.  660.  142 
Ala.  375 ;    Austill  v,  Heironymus,  23 


144 


INSTRUCTIONS   TO  JURIES 


290 


case  are  properly  refused,^  and  instructions  which  single  out  par- 


So.  660,  117  Ala.  620 ;  HigMaud  Ave. 
&  B.  R.  Co.  V.  Sampson,  112  Ala.  42.5, 
20  So.  566;  Scarborough  v.  Black- 
man,  108  Ala.  656,  18  So.  735;  Griel 
V.  Lomax.  94  Ala.  641,  10  So.  232. 

Ga.     Wvlly  v.  Gazan,  69  Ga.  506. 

111.  People  V.  Gardt,  101  N.  E.  687, 
258  111.  468,  affirming  judgment  175 
111.  App.  80;  George  E.  Lloyd  &  Co. 
V.  Matthews,  119  111.  App.  546,  affirm- 
ed George  E.  Lloyd  &  Co.  v.  Matthews 
&  Rice,  79  N.  E.  172,  223  111.  477,  7 
L.  R.  A.  (N.  S.)  376,  114  Am.  St.  Rep. 
346 ;  Geringer  v.  Novak,  117  111.  App. 
160;  Chicago  Hydraulic  Press  Brick 
Co.  V.  Campbell.  116  111.  App.  322; 
Felver  v.  Judd,  81  111.  App.  529. 

Ind.     Roots   v.   Tyner,   10  Ind.   87. 

Md.  Miller  v.  Mantik,  81  A.  707, 
116  Md.  279 ;  Cover  v.  Myers,  75  Md. 
406,  23  A.  8.50,  32  Am.  St.  Rep.  394; 
Thomas  v.  Sternheimer.  29  Md.  268; 
Cook  V.  Carr.  20  Md.  403. 

Mass.  Tashjian  v.  Worcester  Con- 
sol.  St.  R.  Co.,  58  N.  E.  281.  177  Mass. 
75 ;  Dolphin  v.  Plumley.  56  N.  E.  281, 
175  Mass.  304;  Graves  v.  Dill,  159 
Mass.  74.  .34  N.  E.  .336;  Towne  v. 
Fiske,  127  Mass.  125,  34  Am.  Rep.  353. 

Mich.  Ludlow  v.  P&arl's  Estate, 
55  Mich.  312,  21  N.  W.  315. 

Mo.  Norton  v.  Kowazek  (Sup.)  193 
S.  W.  556 ;  Edger  v.  Kupper,  85  S.  W. 
949,  110  Mo.  App.  280:  Deitring  v. 
St.  Louis  Transit  Co.,  85  S.  W.  140, 
109  INIo.  App.  524;  Maxwell  v.  Han- 
nibal &  St.  J.  R.  Co.,  85  Mo.  95 ;  Rays- 
don  V.  Trumbo.  52  Mo.  35;  Ellis  v. 
McPike,  50  Mo.  574;  Fitzgerald  v. 
Hayward.  50  Mo.  516;  First  Nat. 
Bank  v.  Currie.  44  Mo.  91 ;  Cbappell 
V.  Allen.  38  Mo.  213;  Brownlow.  v. 
Woolard.  66  Mo.  App.  636;  Brown  v. 
McCormick,  23  Mo.  App.  181 ;  Barnes 
V.  Fisher,  9  Mo.  App.  574,  memoran- 
dum. 

N.  J.  Blackmore  v.  Ellis,  57  A, 
1047,  70  N.  J.  Law,  264. 

N.  Y.  Ward  v.  Forrest,  20  How. 
Prac.  405;  Fitzgerald  v.  Long  Island 
R.  Co.,  50  Hun.  605,  3  N.  Y.  Supp. 
230,  judgment  affirmed  22  N.  E.  1133, 
117  N.  Y.  6.53. 

N.  C.  Morse  &  Rodgers  v,  Schultz, 
72  S.  E.  218.  156  N.  C.  165;  Nowby 
V.  Edwards,  68  S.  E.  1062,  153  N.  C. 
110. 


Tenn.  James  v.  Drake,  35  Tenn. 
(3  Sneed)  340. 

Tex.  Panhandle  &  S.  F.  Ry.  Co,  v. 
Bell  (Civ.  App.)  189  S.  W.  1097;  De 
Rossett  V.  State,  168  S.  W.  531,  74 
Tex.  Cr.  R.  235;  Gulf,  C.  &  S.  F. 
Ry.  Co.  V.  Warner,  54  S.  W.  1064,  22 
Tex.  Civ.  App.  167 ;  Jacobs  v.  Crum, 
62  Tex.  401. 

Va.  Vaughan  Mach.  Co.  v.  Stanton 
Tanning  Co.,  56  S.  E.  140,  106  Va. 
445 ;  Haney  v.  Breeden,  42  S.  E.  916, 
100  Va.  781 ;  Brown  v.  Rice's  Adm'r, 
76  Va.  629. 

W.  Va.  Johnson  v.  Bank,  55  S. 
E.  394,  60  W.  Va.  320,  9  Ann.  Cas. 
893 ;  Robinson  v.  Lowe,  40  S.  E.  454, 
50  W.  Va.  75. 

Instructions  not  erroneous 
•within  rule.  It  is  not  error  for  the 
court,  in  commenting  on  the  evidence, 
to  state  that  the  evidence  on  a  sub- 
ject rested  "mainly"  on  the  testimo- 
ny of  certain  persons,  without  refer- 
ring to  a  certain  person,  whose  testi- 
mony related  to  a  subordinate  mat- 
ter, which  was  conceded.  McQuillan 
V.  Willimantic  Electric  Light  Co.,  40 
A.  928,  70  Conn.  715. 

0  U.S.  Grand  Trunk  Ry.  Co.  of 
Canada  v.  Ives,  144  U.  S.  408,  12  Sup. 
Ct.  679,  36  L.  Ed.  485 ;  (C.  C.  A.  Kan.) 
Manchester  Mill  &  Elevator  Co.  v. 
Strong,  231  F.  876,  146  C.  C.  A.  72: 
(C.  C.  A.  W.  Va.)  Wheeling  Tenninal 
Ry.  Co.  V.  Russell,  209  F.  795,  126  C. 
C.  A.  519. 

Ala.  Shelby  Iron  Co.  v.  Bean,  82 
So.  92,  203  Ala.  78;  Meyrovitz  v. 
Levy,  63  So.  963,  184  Ala.  293 ;  Pratt- 
ville  Cotton  Mills  Co.  v.  McKinney,  59 
So.  498.  178  Ala.  554;  Hudson  Ice 
&  Machine  Works  v.  Bland  &  Cham- 
bers, 52  So.  445,  167  Ala.  391;  Gulsby 
v.  Louisville  &  N.  R.  Co.,  52  So.  392, 
167  Ala.  122;  Alabama  Steel  &  Wire 
Co.  v.  Thompson,  52  So.  75,  166  Ala. 
460:  R.  D.  Burnett  Cigar  Co.  v.  Art 
Wall  Paper  Co.,  51  So.  263,  164  Ala. 
547;  Anniston  Lime  &  Coal  Co.  v. 
Lewis,  107  Ala.  535,  18  So.  326;  Up- 
son V.  Raiford.  29  Ala.  188 ;  Reese  v. 
Beck,  24  Ala.  651. 

Cal.  Matteson  v.  Southern  Pac. 
Co.,  92  P.  101,  6  Cal.  App.  318. 

Colo.     Stratton  Cripple  Creek  Min- 


291 


APPLICABILITY   TO   PLEADINGS   AND   EVIDENCE 


§  144 


ticular   facts   bearing  on    a  point,   and   ignore   other  facts   having 


iug  &  Development  Co.  v.  Ellison,  94 
P.  303,  42  Colo.  498. 

Conn.     Harris  v.  City  of  Ausouia, 

47  A.  672,  73  Conn.  359. 

Ga.    Johnson  v.  Kinsey,  7  Ga.  428. 

111.  Concord  Apartment  House  Co. 
V.  O'Brien,  81  N.  E.  1038,  228  111.  360 ; 
Chicago  Union  Traction  Co.  v.  Er- 
trachter,  130  111.  App.  602,  judgment 
affii-med  (1907)  81  N.  E.  816,  228  111. 
114 ;  Swift  &  Co.  V.  O'Brien,  127  111. 
App.  26;    Phenix  Ins.  Co.  v.  Woland, 

48  111.  App.  535. 

Ind.  Kelly  Atkinson  Const.  Co.  v. 
Munson,  101  N.  E.  510,  53  Ind.  App. 
619 :  Baltimore  &  O.  S.  W.  R.  Co.  v. 
Walker,  84  N.  E.  730,  41  Ind.  App. 
588 ;  Todd  v.  Banner,  46  N.  E,  829,  17 
Ind.  App.  368. 

Me.    Hunter  v.  Randall,  69  Me.  183. 

Mass.  American  Tubeworks  v. 
Tucker,  70  N.  B.  59,  185  Mass.  236; 
Lufkin  V.  Lufkin,  182  Mass.  476,  65 
N.  E.  840,  dismissed  192  U.  S.  601,  24 
S.  Ct.  849,  48  L.  Ed.  583 ;  Murphv  v. 
Boston  &  A.  R.  Co.,  133  Mass.  121; 
Bugbee  v.  Kendricken,  132  Mass.  349 ; 
Delanev  v.  Hall,  130  Mass.  524;  Green 
V.  Boston  &  L.  R.  Co..  128  Mass.  221, 
35  Am.  Rep.  370;  Tatterson  v.  Suffolk 
Mfg.  Co.,  106  Mass.  56. 

Mo.  Barr  &  Martin  v.  Johnson, 
155  S.  W.  459,  170  Mo.  App.  394; 
Lemmons  v.  Robertson.  148  S.  W.  189, 
164  Mo.  App.  85 ;  Lucks  v.  Northwest- 
ern Sav.  Bank,  128  S.  W.  19,  148  Mo. 
App.  376 ;  Sailer  v.  Friedman  Bros. 
Shoe  Co.,  109  S.  W.  794,  130  Mo.  App. 
712 ;  Cobb  v.  Holloway.  108  S.  W.  109, 
129  Mo.  App.  212 ;  Gibler  v.  Quincy, 
O.  &  K.  C.  R.  Co.,  107  S.  W.  1021,  129 
Mo.  App.  93;  Carder  v.  Primm,  60  Mo. 
App.  423  ;  Jones  v.  Jones,  57  Mo.  138 ; 
Anderson  v.  Kincheloe,  30  Mo.  520 ; 
Fine  v.  St.  Louis  Public  Schools,  30 
Mo.  166. 

Neb.  Atchison  «fe  N.  R.  R.  v.  Jones, 
9  Neb.  67,  2  N.  W.  363. 

N.  Y.  Stevens  v.  Gilbert  (Sup.)  120 
N.  Y.  S.  114. 

Or.  Pfeiffer  v.  Oregon-Washington 
R.  &  Nav.  Co.,  144  P.  762,  74  Or.  307. 

Pa.  Hall  V.  Vanderpool.  156  Pa. 
152,  26  A.  1069;  Gratz  v.  Beates,  45 
Pa.  (9  Wright)  495  ;  Nicman  v.  Ward, 
1  Watts  &  S.  68. 


R.  I.  Tucker  v.  Rhode  Island  Co., 
69  A.  850. 

Tex.  Southern  Traction  Co.  v.  Re- 
gan (Civ.  App.)  199  S.  W.  1135 ;  Haw- 
kins V.  Western  Nat.  Bank  of  Here- 
ford (Civ.  App.)  146  S.  W.  1191 ;  Ft. 
Worth  &  R.  G.  Ry.  Co.  v.  Bailey  (Civ. 
App.)  136  S.  W.  822;  Cleburne  Elec- 
tric &  Gas  Co.  V.  McCoy  (Civ.  App.) 
128  S.  W.  457;  Western  Union  Tele- 
graph Co.  V.  Rabou,  127  S.  W.  580,  60 
Tex.  Civ.  App.  88;  Gulf,  C.  &  S.  F. 
Ry.  Co.  V.  Bagby  (Civ.  App.)  127  S. 
W.  254 ;  Wade  v.  Galveston,  H.  &  S. 
A.  Ry.  Co.  (Civ.  App.)  110  S.  W.  84; 
Galveston,  H.  &  S.  A.  R.  Co.  v.  Riggs, 
109  S.  W.  864,  101  Tex.  522,  affirming 
judgment  (Civ.  App.)  107  S.  W.  589; 
Cowans  v.  Ft.  Worth  &  D.  C.  Ry.  Co., 
109  S.  W.  403.  49  Tex.  Civ.  App.  463 ; 
St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Bos- 
hear  (Civ.  App.)  108  S.  W.  1032,  judg- 
ment affirmed  113  S.  W.  6,  102  Tex. 
76;  Orient  Ins.  Co.  v.  Wingfield,  108 
S".  W.  788,  49  Tex.  Civ.  App.  202;  St. 
Louis  Southwestern  Ry.  Co.  of  Texa.s 
v.  Thompson  (Civ.  App.)  108  S.  W.  453, 
judgment  rever.sed  St.  Louis  S.  W.  Ry. 
Co.  of  Texas  v.  Thompson,  113  S.  W. 
144.  102  Tex.  89,  19  Ann.  Cas.  1250; 
International  &  G.  N.  R.  Co.  v.  Kuehn, 
2  Tex.  Civ.  App.  210,  21  S.  W.  58. 

Va.  Shivelev's  Adm'r  v.  Norfolk  & 
W.  Ry.  Co.,  99  S.  E.  650,  125  Va.  384 ; 
City  of  Richmond  v.  Gentry,  68  S.  E. 
274,  111  Va.  160;  Life  Ins.  Co.  of 
Virginia  v.  Hairston,  62  S.  E.  1057, 
108  Va.  832 ;  Douglas  Land  Co.  v.  T. 
W.  Thayer  Co.,  58  S.  E.  1101,  107  Va. 
292. 

W.  Va.  Diddle  v.  Continental  Cas- 
ualty Co.,  63  S.  E.  962.  65  W.  Va.  170, 
22  L.  R.  A.  (N.  S.)  779;  Parker.sburg 
Nat.  Bank  v.  Hannaman,  60  S.  E.  242, 
63  W.  Va.  358;  Delmar  Oil  Co.  v. 
Bartlett,  59  S.  E.  634,  62  W.  Va.  700. 

Wyo.  Mutual  Life  Ins.  Co.  v. 
Summers,  120  P.  185,  19  Wyo.  441. 

Instructions  held  improper  writh- 
in  rule.  In  an  action  by  the  second ' 
purchasers  of  a  soda  fountain  from 
the  company  which  had  leased  or 
sold  it  conditionally  to  one  who  de- 
faulted in  the  payment  of  installment 
notes  and  assigned  for  creditors, 
brought  against  the  assignee,  defend- 


144 


INSTRUCTIONS   TO  JURIES 


292 


some  tendency  to  resolve  the  disputed  issue  are  erroneous,  as  cal- 
culated to  mislead  the  jury.^®  Thus,  where  there  is  documentary 
evidence  in  the  case,  it  is  error  to  instruct  that  the  evidence  is 
what  the  witnesses  swear  before  the  jury  on  the  stand,^^  and  an 
instruction  which  directs  a  finding  for  either  the  plaintiff  or  the 
defendant  must  cover  all  the  material  facts  which  the  evidence 
proves  or  tends  to  prove.^^ 

An  instruction  in  a  criminal  case,  w'hich  ignores  a  part  of  the 
evidence  bearing  on  the  issue  sought  to  be  presented  to  the  jury- 
by  the  instruction,  is  properly  refused,  and  should  not  be  given. ^* 


ant's  requested  ruling  that  the  rights 
of  the  parties  were  to  be  determined 
solely  by  the  contract  contained  in 
the  lease  (or  conditional  sale)  and 
lien  notes  was  properly  refused,  as 
the  rights  of  the  parties  were  vitally 
affected  by  facts  occurring  subsequent 
to  the  execution  of  the  lease  and 
notes.  Treeful  v.  Mills,  125  N.  E. 
183,  234  Mass.  141. 

10  U.  S.  (C.  C.  A,  Pa.)  Weiss  v. 
Bethlehem  Iron  Co.,  88  F.  23,  31  C.  C. 
A.  363. 

Ala.  Mobile  Light  &  R.  Co.  v. 
Walsh,  40  So.  560.  146  Ala.  295; 
Louisville  &  N.  R.  Co.  v.  Webb,  97 
Ala.  308,  12  So.  374;  Jordan  v.  Pic- 
kett, 78  Ala.  331. 

Cal.  Berliner  v.  Travelers'  Ins. 
Co.,  53  P.  922,  121  Cal.  451. 

Fla.  Florida  Ry.  &  Navigation  Co. 
V.  Webster,  25  Fla.  394,  5  So.  714. 

Ga.  Wright  v.  Central  R.  &  Bank- 
ing  Co.,  16  Ga.  38. 

111.  Town  of  Evans  v.  Dickey,  117 
111.  291,  7  N.  E.  263;  Crain  v.  First 
Nat.  Bank,  114  111.  516,  2  N.  E.  486; 
Pennsvlvania  Co.  v.  Stoelke,  104  111. 
201;  Evans  v.  George,  80  111.  51; 
Pittsburgh,  C,  C.  &  St.  L.  R.  Co.  v. 
Dahlin.  67  111.  App.  99 ;  Kankakee  & 
S.  R.  Co.  V.  Horan,  22  111.  App.  145; 
Blunt  V.  Ashurst,  14  111.  App.  (14 
Bradw.)  385. 

Ind.  Smith  v.  Hunt,  98  N.  E.  841, 
50  Tiid.  App.  592. 

Md.  Robinson  v.  Silver,  87  A.  699, 
120  Md.  41;  Seaboard  Air  Line  Ry. 
Co.  V.  PhUlips,  70  A.  232,  108  Md. 
285. 

Mass.  Gardner  v.  Boston  Elevated 
R.  Co.,  00  X.  E.  534,  204  Mass.  213. 

Miss.  Reed  V.  Yazoo  &  M.  V.  R. 
Co.,  47  So.  670,  94  Miss.  639 ;   Coloaed 


Knights  of  Pythias  v.  Tucker,  46  So. 
51,  92  Miss.  501. 

Mo.  Ellis  V.  Wagner,  24  Mo.  App. 
407;  Maack  v.  Schneider,  57  Mo.  App. 
431. 

N.  C.  Currie  v.  Gilchrist,  61  S.  E. 
581.  147  N.  C.  648. 

Pa.  Young  v.  Merkel,  163  Pa.  513, 
30  A.  196,  35  Wkly.  Notes  Cas.  308; 
Parker  v.  Donaldson,  6  Watts  &  S. 
132. 

Tex.  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Shearer,  1  Tex.  Civ.  App.  343,  21  S. 
W.  133. 

11  Bowden  v.  Achor,  95  Ga.  243, 
22  S.  E.  254 ;  Bvrd  v.  Byrd,  96  S.  E. 
10,  22  Ga.  App.  354. 

12  Darren  v.  Mutual  Ben.  Life  Ins. 
Co.  (Cal.  App.)  186  P.  620;  Shaw  v. 
Citv  of  Greensboro,  101  S.  E.  27,  178 
N.  C.  426;  Chesapeake  &  O.  Ry.  Co. 
V.  Arrington,  101  S.  E.  415,  126  Va. 
194. 

13  Ala.  Minor  v.  State,  74  So.  98, 
15  Ala.  App.  556;  Herring  v.  State, 
71  So.  974.  14  Ala.  App.  93 ;  Norman 
v.  State,  69  So.  .362,  13  Ala.  App.  337; 
Campbell  v.  State,  69  So.  322,  13  Ala. 
App.  70;  Bullington  v.  State,  69  So. 
319,  13  Ala.  App.  61;  Harwell  v. 
State,  68  So.  50O,  12  Ala.  App.  265, 
certiorari  denied  68  So.  1019,  192  Ala. 
689 ;  Howerton  V.  State,  67  So.  979, 
191  Ala.  13;  James  v.  State,  67  So. 
773,  12  Ala.  App.  16;  Clayton  v. 
State,  64  So.  76,  185  Ala.  13;  Brooks 
V.  State,  62  So.  569,  8  Ala.  App.  277, 
judgment  reversed  64  So.  295.  185 
Ala.  1;  McKinstry  v.  City  of  Tu.sca- 
loosa,  54  So.  629,  172  Ala.  344 ;  Steele 
v.  State,  52  So.  907,  168  Ala.  25; 
Payne  v.  State,  42  So.  988,  148  Ala. 
609;  Hanners  v.  State,  41  So.  973, 
147  Ala.  27;    Morris  v.  State,  41  So. 


293 


APPLICABILITY  TO   PLEADINGS  AND   EVIDENCE 


144 


Thus  instructions,  directing  an  acquittal  of  the  defendant,  which 
are  based  upon  certain  evidence,  and  which  ignore  other  evidence 
tending   to   show  his   guilt,   are   erroneous.^*     So   an    instruction 


274,  146  Ala.  66;  Ferguson  v.  State, 
37  So.  44S,  141  Ala.  20;  Stewart  v. 
State,  34  So.  818,  137  Ala.  33. 

Cal.  People  v.  Liera,  149  P.  1004, 
27  Cal.  App.  346;  People  v.  Smith, 
110  P.  333,  13  Cal.  App.  627 ;  People 
V.  Hartman,  62  P.  823,  130  Cal.  487. 

D.  C.     Partridge  v.  United  States, 

39  App.  D.  C.  571,  Ann.  Cas.  1917D,  622. 
Fla.     Mims  v.  State,  27  So.  865,  42 

Fla.  199:    Barker  v.  State,  24  So.  69, 

40  Fla.  178. 

Ga.  Rouse  V.  State,  71  S.  E.  667, 
136  Ga.  356. 

111.  People  V.  Tielke,  102  N.  E. 
229,  259  111.  88 ;  People  v.  Gardt,  175 
111.  App.  SO,  judgment  affirmed  101  N. 
E.  687,  258  111.  468. 

Iowa.  State  V.  Cameron,  158  N. 
W.  563,  177  Iowa,  379 ;  State  v.  Rtit- 
ledge,  113  N.  W.  461,  135  Iowa,  581. 

Mass.  Commonwealth  v.  Turner, 
112  N.  E.  864,  224  Mass.  229;  Com- 
monwealth V.  Gavin,  148  Mass.  449, 
18  N.  E.  675,  19  N.  E.  554 ;  Common- 
wealth V.  Este,  140  Mass.  279,  2  N.  E. 
769 ;  Commonwealth  v.  Broadbeck, 
124  Mass.  319;  Bailey  v.  BaUey,  97 
Mass.  373. 

Mich.  People  v.  Leonzo,  147  N.  W. 
543,  181  Mich.  41. 

Miss.  Cumberland  v.  State,  70  So. 
695.  110  Miss.  521 ;  Fore  v.  State,  23 
So.  710,  75  Miss.  727. 

Okl.  Gransden  v.  State,  158  P. 
157,  12  Okl.  Cr.  R.  417. 

Or.  State  v.  Deal,  70  P.  534,  43 
Or.  17. 

Pa.  Commonwealth  v.  Ronello,  96 
A.  826,  251  Pa.  329;  Commonwealth 
V.  Meyers,  62  Pa.  Super.  Ct.  223. 

Tex.  Reed  v.  State,  183  S.  W.  1168, 
79  Tex.  Cr.  R.  222;  Caples  v.  State, 
167  S.  W.  730,  74  Tex.  Cr.  R.  127; 
Quails  V.  State,  165  S.  W.  202,  73  Tex. 
Cr.  R.  212;  McKnight  v.  State,  156  S. 
W.  1188,  70  Tex.  Cr.  R.  470;  Blocker 
V.  State,  135  S.  W.  130,  61  Tex.  Cr.  R. 
413 ;  Lemons  v.  State,  128  S.  W.  416, 
59  Tex.  Cr.  R.  299 ;  Bennett  v.  State, 
50  S.  W.  946,  40  Tex.  Cr.  R.  445. 

Vt.  State  v.  Bolton,  102  A.  489,  92 
Vt.  157. 

W.  Va.     State  v.  Clark,  63  S.  E. 


402,  64  W.  Va.  625;  State  v.  Grove, 
57  S.  E.  296,  61  W.  Va.  697. 

Ignoring:     proof     of     venue.       A 

charge  which  ignores  proof  of  venue 
in  a  criminal  prosecution  is  erroneous 
only  when  there  has  been  no  proof 
of  venue.  Ragsdale  v.  State,  32  So. 
674,  134  Ala.  24. 

Ignoring  evidence  of  good  char- 
acter. Instructions  which  state  that 
evidence  of  good  character  of  accused 
may  raise  a  doubt  in  a  doubtful  case, 
and  which  call  the  jury's  attention  to 
the  evidence  of  accused,  and  which 
direct  the  jury  to  give  all  the  testi- 
mony of  the  defense  careful  con- 
sideration, and  to  detei-mine  there- 
from, in  connection  with  the  state's 
evidence,  the  ti-uth,  do  not  withdraw 
any  evidence  of  accused  from  the 
jury,  and  are  not  objectionable  as 
withdrawing  from  consideration  evi- 
dence of  good  character,  which  in  a 
sense  must  be  considered  by  itself  to 
determine  whether  accused  bore  the 
good  character  claimed,  and  when 
proved,  considered  with  the  other 
facts  established.  State  v.  McGuire, 
80  A.  761,  84  Conn.  470,  38  L.  R.  A. 
(N.  S.)  1045. 

14  Ala.  Wiggins  v.  State.  78  So. 
413,  16  Ala.  App.  419;  Brown  v. 
State,  72  So.  757,  15  Ala.  App.  180, 
writ  of  certiorari  denied  73  So.  999, 
198  Ala.  6S9 :  Hauser  v.  State,  60  So. 
549,  6  Ala.  App.  31;  Davis  v.  State, 
51  So.  2.39,  165  Ala.  93;  Morris  v. 
State,  41  So.  274,  146  Ala.  66;  Holmes 
V.  State,  34  So.  180,  1.36  xVla.  SO; 
Frost  V.  State,  27  So.  251,  124  Ala. 
85;  Suther  v.  State.  24  So.  43,  118 
Ala.  88 ;  Hughes  v.  State,  23  So.  677, 
117  Ala.  25. 

Cal.  People  v.  Clark,  79  P.  434, 
145  Cal.  727;  People  v.  Luchetti,  51 
P.  707.  119  Cal.  501. 

Conn.  State  V.  Tobin,  96  A.  312, 
90  Conn.  58. 

Fla.  Kennard  v.  State,  28  So.  858, 
42  Fla.  581. 

N.  J.  State  V.  Harrington,  94  A. 
623,  87  N.  J.  Law,  713. 

N.  Y.  People  v.  Benham,  55  N.  E. 
11,  160  N.  y.  402. 


145 


INSTRUCTIONS   TO  JURIES 


294 


which  asserts  the  right  of  the  defendant  to  an  acquittal  if  the 
state  fails  to  prove  his  guilt  beyond  a  reasonable  doubt  is  im- 
proper, when  incriminating  circumstances  are  developed  by  the 
evidence  for  the  defendant/^  as  is  an  instruction  which  ignores 
the  testimony  of  the  defendant  in  submitting  the  question  of  his 
guilt  to  the  jury.i®  An  instruction,  intended  to  present  the  theory 
of  the  prosecution  as  to  the  motive  which  induced  the  commis- 
sion of  the  crime  charged,  which  is  so  framed  as  to  exclude  from 
the  consideration  of  the  jury  the  evidence  of  the  accused  tending 
to  show  a  different  state  of  facts,  is  erroneous.^' 

§  145.     Limitations  of  rule  ,     . 

As  is  implied  in  the  above  statement  of  the  general  rule,  it  is 
not  error  to  fail  to  submit  to  the  jury -an  issue  concerning  which 
there  is  no  evidence,^*  or  a  matter  about  which  there  is  no  dis- 


N.  C.  State  v.  Johnson,  90  S.  E. 
426,  172  N.  C.  920. 

Temn.  Cooper  v.  State,  13S  S.  W. 
826,  12.3  Tenn.  .37. 

15  Davis  V.  State,  62  So.  1027,  8 
Ala  App.  147.  certiorari  denied  Ex 
parte  Davis,  63  So.  1010,  184  Ala.  26 ; 
Williams  v.  State,  50  So.  59,  161  Ala. 
52;  Stallworth  V.  State,  46  So.  518, 
155  Ala.  14;  Wilson  v.  State,  37  So. 
93,  140  Ala.  43 ;  Sanders  v.  State,  32 
So.  654,  134  Ala.  74;  Johnson  v.  State, 
31  So.  9.51,  133  Ala.  38. 

16  TJ  S.  Bird  v.  United  States,  21 
S.  Ct. '403,  ISO  U.  S.  3.56,  45  L.  Ed. 
570. 

Ala.  Barker  v.  State,  28  So.  589, 
126  Ala.  S3. 

Ariz.  Barrow  v.  Territory,  114  P. 
975,  13  Ariz.  302. 

111.  People  V.  Pezutto,  99  N.  E. 
677,  255  111.  583. 

Pa.  Commonwealth  v.  Stovas,  45 
Pa.  Super.  Ct.  43. 

Tex.  Palmer  v.  State,  160  S.  W. 
340  71  Tex.  Cr.  R.  335;  Buckley  v. 
State,  157  S.  W.  765,  70  Tex.  Cr.  R. 
550. 

Ignoring  unsworn  statement  of 
the  accused.  Where  tlie  statement 
of  accused  suggested  no  theory  favor- 
able to  him  which  was  in  contlict 
with,  or  in  explanation  of,  the  evi- 
dence, it  was  not  reversible  error  to 
charge,  without  mentioning  the  state- 
ment, that  in  determining  the  guilt  or 


innocence,  of  accused  the  jury  should 
look  to  the  "evidence."  Burney  v. 
State,  25  S.  E.  911,  100  Ga.  65.  A 
charge  that  the  issues  are  to  be  de- 
termined "by  looking  to  the  testimony 
of  the  witnesses  that  have  been  sworn 
in  the  case"  is  not  error,  even  though 
defendant  has  made  a  statement  giv- 
ing his  version  of  the  transaction  and 
denying  his  guilt ;  but  it  is  the  better 
practice,  in  such  a  case,  to  authorize 
the  jury  to  consider  such  statement,  in 
connection  with  the  evidence,  and  to 
give  to  it  such  force  as  they  think  it 
is  entitled  to  receive.  Sledge  v.  State. 
26  S.  E.  756,  99  Ga.  684. 

17  BoAvles  V.  Commonwealth,  48. S. 
E.  527,  103  Va.  816. 

18  U.  S.  Crosby  v.  Cuba  R.  Co.  (C. 
C.)  158  F.  144. 

Cal.  Valente  v.  Sierra  Ry.  Co.,  Ill 
P.  95,  158  Cal.  412. 

Ga.  American  Ins.  Co.  v.  Bailey 
&  Musgrove,  65  S.  E.  160,  6  Ga.  App. 
424;  Grimslev  v.  Singletary,  65  S.  E. 
92,  133  Ga.  56,  134  Am.  St.  Rep.  196. 

111.  Graham  v.  Mattoon  City  Ry. 
Co.,  84  N.  E.  1070,  234  111.  483,  14 
Ann.  Cas.  853,  affirming  judgment 
Mattoon  City  Ry.  Co.  v.  Graham,  138 
111.  App.  70  ;  Grain  v.  First  Nat.  Bank, 
114  111.  516,  2  N.  E.  486. 

Ind.  City  of  Bloomington  v.  Wood- 
worth,  81  N.  E.  611,  40  Ind.  App.  373 ; 
Browning  v.  Hight,  78  Ind.  257. 

Iowa.  Sieberts  x'.  Spangler,  118  N. 
W.   292,   140  Iowa,   236;    Willson   v. 


295  APPLICABILITY  TO   PLEADINGS   AND   EVIDENCE  §  145 

pute.^*  As  has  been  indicated  elsewhere,  the  court  cannot  be  re- 
quired to  cover  every  phase  of  a  case  in  a  single  instruction,^® 
and  an  instruction  cannot  be  regarded  as  erroneous,  as  ignoring 
issues,  if  such  issues  are  adequately  dealt  with  in  other  instruc- 
tions.^i 

The  rule  that  an  instruction,  stating  the  issues  and  directing 
a  verdict  for  one  party  or  the  other  in  the  event  of  a  favorable 
finding  for  him  on  the  issues,  must  state  all  the  issues,  does  not 
apply  to  an  instruction  merely  covering  the  measure  of  dam- 
ages.^^  An  instruction  based  on  a  theory  supported  by  evidence 
which  would  entitle  the  plaintiff  to  recover,  regardless  of  some 
distinct  and  independent  theory  of  the  defendant,  also  supported 
by  some  evidence,  is  not  erroneous  as  ignoring  the  defendant's 
theory,'^  and  an  instruction  which  does  not  conclude  with  a  di- 
rection to  the  jury  need  not  anticipate  and  negative  every  de- 
fense.^* 

Only  where  an  instruction  assumes  to  set  out  all  the  elements 
essential  to  a  recovery  will  the  omission  of  any  element  necessary 
to  a  recovery  condemn  it.^^  The  court  need  submit  to  the  jury 
only  enough  issues  to  dispose  of  all  the  controverted  questions  and 
to  give  each  party  fair  and  full  opportunity  to  present  his  case  in 
every  aspect.'^  An  instruction  that  contributory  negligence  is  a 
defense,  and  that  the  burden  is  on  the  defendant  to  establish  it. 


Phelps,  86  Iowa,  735,  53  N.  W.  115 ;  v.  Chicago  Great  Western  R.  Co..  174 

McDermott  v.  Iowa  Falls  &  S.  C.  Ry.  N.  W.  774,  187  Iowa.  904. 

Co.,  47  N.  W.  1037.  21  Walrod    v.    Webster    Countv.    81 

Ky.      Louisville    &    N.    R.    Co.    v.  N.  W.  598,  110  Iowa,  349,  47  L.  R.  A. 

Greenwell's  Adm'r,  160  S.  W.  479,  155  480 ; '    Fanners'     Cotton    Oil    Co.     v. 

Ky.  799.  Barnes  (Tex.  Civ.  App.)  134  S.  W.  369. 

Mo.      Brinkman   v.   Gottenstroeter,  22  Stauffer  v.  Metropolitan  Rt    Ry 

134  S.  W.  584,  153  Mo.  App.  351 ;   Till  Co.,  147  S.  W.  10.32,  243  Mo.  305. 

V.  St.  Louis  &  S.  F.  R.  Co.,  101  S.  W.  23  Given  v.  Diamond   Shoe  &  Gar- 

624,  124  Mo.  App.  281.  meut  Co.,  101  S.  E.  153,  84  W.  Va.  631. 

Neb.     Wherry  v.   Pawnee  County,  Compare  Palmer  v.  Magers    10'>  S 

129  N.  W.  1013,  88  Neb.  503.  E.  100,  85  W.  Va.  415. 

Tex.     Blackwell   v.    Hunnicutt,   69  24  Kulvie  v.   Bunsen  Coal  Co .   161 

Tex.  273,  9  S.  W.  317.  111.  App.  617.  judgment  affirmed  97  N. 

Vt.    Mack  V.  Snider,  1  Aikens,  104.  E.  688,  253  111.  386. 

Wash.     Gabrielson  v.  Hague  Box  25  Pviblic  Utilities  Co.  v.   Ilaudorf, 

&  Lumber  Co.,  104  P.  63.5,  55  Wash.  112  N.   E.  775,   185   Ind.  254:    Terre 

842,  33  Am.  St.  Rep.  1032.  Haute  Traction  &  Light  Co.  v.  Payne, 

19  Montgomery  v.  Hammond  Pack-  89  N.  E.  413,  45  Ind.  App.  132;   Chick- 
ing Co.  (Mo.  App.)  217  S.  W.  867.  asaw    Compress   Co.   v.   Bow,   149  P. 

20  American  Hardwood  Lumber  Co.  1166,  47  Okl.  576. 

V.  Milliken-James  Hardwood  Lumber  26  Barefoot  v.  Lee,  S3  S.  E.  247,  108 

Co.,  216  S.  W.  23,  140  Ark.  544;   Black  N.  C.  89. 


145 


INSTRUCTIONS  TO  JURIES 


296 


is  not  improper,  as  taking  from  the  defendant  other  defenses  than 
that  of  contributory  negligence."' 

The  court  may,-*  and  should,^^  refuse  to  submit  immaterial  is- 
sues to  the  jury,  or  issues  raised  by  counts  of  the  pleadings  which 
have  been  dismissed,  stricken  out,  or  otherwise  disposed  of  by 
rulings  of  the  court  during  the  progress  of  the  trial. ^**  The  court 
should  eliminate  issues  which  have  been  abandoned,^^  and  may 
properly  refuse  instructions  on  such  issues.^^ 


2  7  Bradford  v.  City  of  St.  Joseph 
(Mo.  App.)  214  S.  W.  281. 

2  8  111.  Wettrick  v.  Martin,  164  111. 
App.  273;  Stern  v,  Bradner  Smith  & 
Co.,  127  111.  App.  640,  judgment  af- 
firmed SO  N.  E.  307,  225  111.  430,  116 
Am.  St.  Rep.  151. 

Kan.  McKnight  v.  Strasburger 
Bldg.  Co.,  150  P.  542,  96  Kan.  118. 

Ky.  Ross  V.  Commonwealth,  59  S. 
W.  28,  24  Ky.  Law  Rep.  1621. 

Minn.  Matz  v.  Martinson,  149  N. 
W.  370,  127  Minn.  262,  L.  R.  A.  1915B, 
1121. 

N.  Y.  Hesse  v.  Gude  Bros.-Kieffer 
Co.  (Sup.)  170  N.  Y.  S.  211. 

"Wis.  Gist  V.  Johnson-Carey  Co., 
147  N.  W.  1079,  158  Wis.  188,  Ann. 
Cas.  1916E,  460. 

^9  Cowie  V.  Kinser,  138  111.  App. 
143,  judgment  affirmed  Kinser  v. 
Cowie,  85  N.  E.  623,  235  111.  383,  126 
Am.  St.  Rep.  221 ;  Penney  v.  Johnston, 
142  111.  App.  6.34;  Scherrer  v.  City 
of   Seattle,   100  P.   144,  52   Wash.  4. 

so  Hahn  v.  Lumpa,  138  N.  W.  492, 
158  Iowa,  560;  Wells  v.  Kavanagh, 
74  Iowa.  372,  37  N.  W.  780;  Fry  v. 
Leslie,  87  Va.  269,  12  S.  E.  671. 

See,  also,  supra,  §  126. 

31  Heller  v.  Chicago  &  G.  T.  Ry.  Co., 


109  Mich.  53,  66  N.  W.  667,  63  Am. 
St.   Rep.  541. 

See,  also,  supra,  §  126. 

32  Ga.  Seaboard  Air  Line  Ry.  v. 
Gnann  &  De  Loach,  82  S.  E.  1066,  142 
Ga.  381;  Crawford  v.  Georgia  Pac. 
Ry.  Co.,  86  Ga.  5,  12  S.  E.  176. 

111.  Kellogg  V.  Boyden,  126  111.  378, 
18  N.  E.  770. 

Ind.  Crum  v.  Yundt,  12  Ind.  App. 
308,  40  N.  E.  79. 

Iowa.  Struebing  v.  Stevenson,  105 
N.  W.  341,  129  Iowa,  25. 

Mo.    Leabo  v.  Goode,  67  Mo.  126. 

Tex.  Wright  v.  Hardie  (Civ.  App.) 
30  S.  W.  675. 

Issues  not  deemed  abandoned 
within  rule.  Where,  in  an  action 
for  agent's  compensation,  the  answ^er, 
independent  of  a  counterclaim,  alleg- 
ed that  plaintiff  wrongfully  procured 
the  issuance  to  himself  of  a  large 
amount  of  the  stock  of  his  employer; 
that  he  made  false  entries  in  the  books 
of  the  company  and  appropriated  its 
moneys  to  his  own  use,  the  fact  that 
during  the  trial  defendant  dismissed 
a  counterclaim  for  damages  based  on 
the  same  facts  did  not  justify  the 
court  in  refusing  to  submit  to  the 
jury  evidence  sustaining  the  defense 
of  unfaithfulness.  Steele  v.  Crabtree, 
106  N.  W.  753,  130  Iowa,  313. 


297  CREDIBILITY   OF   WITNESSES 


CHAPTER  XI 

NECESSITY.  PROPRIETY,  AND  SUFFICIENCY  OF  INSTRUCTIONS  ON 
CREDIBILITY  OF  WITNESSES 

A.     In  Genebal 

§  146.  Credibility  in  general. 

147.  Impeachment  of  witnesses  in  general. 

148.  Refusal  of  instructions  because  of  other  instructions  given. 

149.  Sufficiency  of  evidence  fo  sustain  instructions  on  credibility  of  wit- 

nesses. 

150.  Right  or  duty  of  jury  to  believe  witnesses. 

151.  Right  or  duty  of  jury  to  disbelieve  witnesses. 

152.  Duty  of  jury  not  to  act  arbitrarily. 

B.     Particttlae  Matters  to  be  Considered  in  Passing  on  Credibility  op 

Witnesses 

158.  Necessity,  propriety,  and  sufficiency  in  general. 

154.  Character  and  conduct  of  witness. 

155.  Youth  of  witness. 

156.  Corroboration  of  witness   against  whom  impeaching  testimony  has 

been  given. 

0.     Testimony  Not  Given  in  Open  Court  or  Not  Given  under  Sanction 

OF  Oath 
1-57.     Absent  witnesses. 

158.  Dying  declarations. 

D.    Interest  or  Bias  of  Witness 

159.  Right  of  jury  to  consider  interest  or  bias  of  witness  and  effect  of  such 

matters.  "~ 

160.  Complaining  witness  in  criminal  prosecution. 

161.  Police  officers,  detectives,  and  informers. 

162.  Wife  or  relatives  of  accused. 

163.  C  indict.,  e  of  defendant  in  criminal  case. 

B.     Credibility  of  Party  Testifying  as  Witness 

164.  Singling  out  party  for  comment. 

165.  Ignoring  interest  of  party. 

F.     Credibility  of  Testimony  of  Accused 

160.  Necessity  of  instructions. 

167.  Propriety  and  sufficiency  of  instructions. 

168.  Reference  to  interest  of  the  defendant  in  the  event  of  the  trial. 

169.  Effect  of  impeaching  testimony. 

170.  Effect  of  false  testimony. 

171.  Unsworn  statement  of  defendant. 

G.    Testimony  of  Accomplices 

172.  Instructions  as  to  who  are  accomplices. 

173.  Necessity  and  propriety  of  instructions  on  reliability  of  accomplice 

testimony. 

174.  Necessity  and  sufficiency  of  evidence  of  complicity  in  crime  to  author- 

ize or  require  instructions  on  accomplice  testimony. 


§  146  INSTRUCTIONS   TO  JURIES  298 

175.  Sufficiency  of  instructions  on  right  to  convict  upon  accomplice  testi- 

mony. 

176.  Sufficiency  of  instnictions  on  corroboration  of  accomplice. 

177.  Corroboration  of  one  accomplice  by  another. 

H.     Instructions  on  Effect  of  False  Testimony 

17S.     Necessity  and  propriety  of  instructions. 

179.     Sufficiency  of  instructions. 

ISO.     Corroboration  of  part  of  testimony  not  shown  to  be  false. 

I.     Effect  of  making  Contradictory  Statements 

181.  Necessity  of  instructions. 

182.  Propriety  and  sufficiency  of  instructions. 

J.     Singling  out  Particular  WitnessBs  or  Classes  of  Witnesses  for  Com- 
ment AS  to  Credibility 

183.  Rule  that  such  instructions  are  improper.  '■ 

184.  Rule  that  such  instructions  may  be  given. 

Instructions  as  invading  province  of  jury,  see  ante,  §§  6-27. 


A.  In  General 

§  146.     Credibility  in  general 

As  we  have  seen  in  a  preceding  chapter,  the  credibility  of  wit- 
nesses is  almost  invariably  for  the  jury,  but  the  court  may  lay 
down  general  rules  for  testing  such  credibility,  or  as  to  the  right  to 
believe  or  disbelieve  a  witness ;  the  giving  of  such  instructions 
resting  largely  in  the  discretion  of  the  trial  court. ^  Where  there  'is 
a  conflict  in  the  evidence  upon  a  material  point,^  which  is  not  rea- 
sonably attributable  to  mistake,  inadvertence,  or  lapse  of  mem- 
ory,^ it  will  be  proper  to  give  such  an  instruction.  In  some  juris- 
dictions, on  request,  such  an  instruction  should  be  given.*  The 
general  rule  is  that  a  party  desiring  instructions  as  to  the  credi- 
bility or  impeachment  of  witnesses  should  request  them.^ 

1  Cullum  V.  Colwell,  83  A.  69.5,  85  ^  Grant  v.  State,  50  S.  E.  946,  122 
Conn.  4.59:    People  v.  Dumas,  125  N.       Ga.  740. 

W.    766,    161    Mich.    45;     Dawson   v.  s  Ga.     Williams  v.  State  (App.)  102 

Flintom,  190  S.  W.  972,  195  Mo.  App.  S.  E.  875 ;    Carson  v.  State,  97  S.  E. 

75  ;   White  v.  Lowenberg,  55  Mo.  App.  202,  22  Ga.  App.  743  ;   Brown  v.  State, 

69.  97  S.  E.  69,  148  Ga.  509;    Gib.son  v. 

2  State  v.  Parmenter,  213  S.  W.  439,  State.  93  S.  E.  48,  20  Ga.  App.  73 ; 
278  Mo.  .532;  Deubler  v.  United  R.vs.  Watkins  v.  State,  91  S.  E.  284,  19  Ga. 
Co.  of  St.  Louis,  187  S.  W.  813,  195  App.  234;  Seaboard  Air  Line  Ry.  v. 
Mo.  App.  658.  Barrow,  89  S.  E.  383,  18  Ga.  App.  261; 

3  Robert  v.  Rialto  Bldg.  Co.,  199  S.  Winder  v.  State,  88  S.  E.  1003,  IS  Ga. 
W.  428,  198  Mo.  App.  121 ;  McDonald  App.  67 ;  Wyatt  v.  State,  88  S.  E. 
V.  Retlomeyer,  198  S.  W.  483,  197  Mo.  718,  18  Ga.  App.  29 ;  Giles  v.  Voiles, 
App.  6.30;  Weller  v.  Plapao  Labora-  88  S.  E.  207,  144  Ga.  853;  White  v. 
tories  Incorporation,  191  S.  W.  1056,  State,  SI  S.  E.  440,  141  Ga.  526 ;  Cen- 
197  Mo.  App.  47.  tral  of  Georgia  Ry.  Co.  v.  McGuire,  73 


299 


CREDIBILITY   OP   WITNESSES 


§147 


§  147.     Impeachment  of  witnesses  in  general 

It  is  proper  for  the  court  to  charge  as  to  the  effect  of  evidence 
introduced  to  impeach  a  witness,'^  and  that  it  is  for  the  jury  to  say 
how  far  the  impeachment  of  any  witness  is  successful,'^  and  al- 
though, as  a  general  rule,  it  is  not  incumbent  on  a  trial  judge,  in 
the  absence  of  a  request  therefor,  to  give  an  instruction  as  to  the 
impeachment  of  witnesses,*  a  general  charge  laying  down  the  rules 
for  determining  the  credibility  of  witnesses  being  sufficient,^  the 
circumstances  may  be  such  as  to  make  it  error  to  fail  to  instruct 
upon  the  impeachment  of  witnesses,  as  well  as  upon  the  general 
subject  of  their  credibility.^® 

Where  there  is  no  evidence  tending  to  impeach  any  witness  in 
any  of  the  modes  prescribed  by  law,  a  failure  to  charge  on  the 


S.  E.  702,  10  Ga.  App.  483;  CJailds  v. 
Ponder,  43  S.  E.  986,  117  Ga.  553; 
Freeman  v.  Coleman,  88  Ga.  421,  14 
S.  E.  551 ;  Cole  v.  Byrd,  83  Ga.  207, 
9  S.  E.  613. 

Idaho.  State  v.  Knudtson,  83  P. 
226,  11  Idaho,  524. 

111.  Johnson  v.  People,  140  III.  350, 
29  N.  E.  895. 

Ind.  T.  Parker  v.  United  States, 
43  S.  W.  858, 1  Ind.  T.  592. 

Iowa.  Halley  v.  Tichenor,  94  N. 
W.  472,  120  Iowa,  164. 

Mich.  Bartholomew  v.  Walsh,  157 
N.  W.  575,  191  Mleh.  252. 

Mo.  State  v.  Thurman,  98  S.  W. 
819,  121  Mo.  App.  374. 

Neb.  Edwards  v.  State,  95  N.  W. 
1038,  69  Neb.  386,  5  Ann.  Cas.  312; 
Kerr  v.  State,  88  N.  W.  240,  63  Neb. 
115. 

N.  J.  State  V.  Girone,  103  A.  803, 
91  N.  J.  LaAV,  498. 

Va.  Shenandoah  Valley  Loan  & 
Trust  Co.  V.  Murray,  91  S.  E.  740,  120 
Va.  563. 

Omission  of  ivord  "Avillfully." 
A  charge  that,  if  the  jury  believe  that 
plaintiff  swore  falsely  in  any  one 
material  fact,  they  might  disregard 
his  entire  testimony,  is  not  erroneous 
because  it  omits  the  word  "willfully," 
where  no  request  to  supply  the  omis- 
sion is  made.  Lindheim  v.  Duys  (Su- 
per. N.  Y.)  11  Misc.  Rep.  16,  31  N. 
•Y.  S.  870. 

6  Florence  v.  State,  134  S.  W.  6S9, 
61  Tex.  Cr.  R.  238. 


7  Pike  V.  State,  49  S.  E.  680,  121 
Ga.  604. 

8  Ga.  Western  &  A.  R.  Co.  v.  Holt, 
95  S.  E.  758,  22  Ga.  App.  187;  Mc- 
Donald V.  State,  94  S.  E.  262.  21  Ga. 
App.  125;  Garrett  v.  State,  93  S.  E. 
232,  20  Ga.  App.  749;  Seaboard  Air 
Line  Ry.  v.  Barrow,  89  S.  E.  383,  18 
Ga.  App.  261 ;  Kelly  v.  State,  88  S.  E. 
822,  145  Ga.  210;  Giles  v.  Voiles,  88  S. 
E.  207,  144  Ga.  853 ;  Fite  v.  State,  84 
S.  E.  485,  16  Ga.  App.  22 ;  Smith  v. 
State,  78  S.  E.  685,  13  Ga.  App.  32; 
McCrary  v.  State,  74  S.  E.  536,  137 
Ga.  784 ;  Craig  v.  State,  70  S.  E.  974, 
9  Ga.  App.  2.33 ;  Jackson  v.  State,  70 
S.  E.  245,  135  Ga.  6&4;  Perdue  v. 
State,  69  S.  E.  184,  135  Ga.  277 :  Hun- 
ter V.  State,  65  S.  E.  154,  133  Ga.  78; 
Rouse  V.  State,  58  S.  E.  416,  2  Ga. 
App.  184;  Csesar  v.  State,  57  S.  E. 
66,  127  Ga.  710;  Hatcher  v.  State, 
42  S.  E.  1018,  116  Ga.  617;  Louisville 
&  N.  R.  Co.  V.  Thompson,  39  S.  E. 
4&3,  113  Ga.  983. 

Iowa.  Connors  v.  Chingren,  82  N. 
W.  934,  111  Iowa,  437. 

Mont.  State  v.  W^iUette,  127  P. 
1013,  46  Mont.  326. 

Tex.  American  Telegraph  &  Tele- 
phone Co.  V.  Kersh,  66  S.  W.  74,  27 
Tex.  Civ.  App.  127 ;  Harrell  v.  State, 
45  S.  W.  581,  39  Tex.  Cr.  R.  204; 
Thurmond  v.  State,  27  Tex.  App.  347, 
11  S.  W.  451. 

0  Givens  v.  State,  35  Tex.  Cr.  R. 
563,  34  S.  W.  626. 

10  Smith  V.  State,  171  P.  341.  14 
Okl.  Cr.  348 ;  Wolfe  v.  State,  25  Tex. 
App.  698,  9  S.  W.  44. 


147 


INSTRUCTIONS  TO  JURIES 


300 


law  relating  to  the  impeachment  of  witnesses  is  not  error/^  and 
a  mere  direct  contradiction  of  one  witness  by  another  will  not 
ordinarily  call  for  such  an  instruction.^^  Where  the  court  under- 
takes to  state  the  methods  by  which  a  witness  may  be  impeached, 
it  should  state  all  of  such  methods,  so  far  as  authorized  by  the 
evidence,^^  but  failure  to  do  so  will  not  require  a  new  trial,  in 
the  absence  of  a  request  to  charge  as  to  the  method  of  impeach- 
ment  omitted.-^* 

Whenever  it  is  necessary  to  charge  in  regard  to  the  efifect  of 
impeaching  testimony,  the  jury  should  be  told  that  such  testi- 
mony is  to  be  used  for  the  purpose  of  affecting  the  credibility  of 
the  witnesses  whose  evidence  is  sought  to  be  impeached.^^  An 
instruction  that  such  testimony  is  to  be  considered  for  the  sole 
purpose  of  enabling  the  jury  to  judge  of  the  weight  to  be  given 
to  the  testimony  of  the  witness  impeached  is  too  restrictive.^** 

§  148.     Refusal  of  instructions  because  of  other  instructions  given 

Instructions  with  respect  to  the  credibility  of  witnesses  may 
properly  be  refused,  where  other  instructions  given  sufficiently 
cover  the  ground.^'     Thus,  where   the  court  has  instructed  that 


11  Freeman  v.  State,  37  S.  E.  172, 
112  Ga.  48. 

12  Kipper  v.  State,  77  S.  W.  611,  45 
Tex   Cr   R  377. 

13  AYebbV.  State,  79  S.  E.  1126,  140 
Ga.  779 ;  Brand  v.  Bagwell,  66  S.  E. 
935,  133  Ga.  750. 

Evidence  impeacliing  witness  in 
more  than  one  way.  An  instruction 
on  the  subject  of  impeaching  witness- 
es, which  refers  only  to  one  method 
of  impeachment,  is  erroneous,  when 
the  evidence  tends  to  show  impeach- 
ment both  by  contradictory  statement 
and  by  general  character.  Southern 
Cotton  Oil  Co.  V.  Skipper,  54  S.  E. 
110,  125  Ga.  30S. 

Confining  charge  to  methods  of 
impeachnient  sho^vn  by  the  evi- 
dence. Where  the  only  method  by 
which  a  witness  was  sought  to  be  im- 
peached was  by  disproving  the  facts 
testified  to  by  him  and  by  proof  of 
previous  contradictory  statements,  it 
was  proper  to  confine  the  instructions 
on  the  subject  of  impeachment  of 
witnesses  to  those  two  methods.  Mc- 
Girt  V.  State,  54  S.  E.  171,  125  Ga. 
269. 

14  Millen  &  S.  W.  R.  Co.  v.  Allen,  61 
S.  E.  541,  130  Ga.  656. 


15  Pratt  V.  State,  96  S.  W.  8,  50 
Tex.  Cr.  R.  227. 

16  Elkins  V.  State,  87  S.  W.  149.  48 
Tex.  Cr.  R.  205;  Dean  v.  State  (Tex. 
Civ.  App.)  77  S.  W.  803. 

17  Upton  V.  Paxtou,  72  Iowa,  295, 
33  N.  W.  773 ;  Carroll  v.  Boston  Ele- 
vated Ry.  Co.,  86  N.  E.  793,  200  Mass. 
527. 

Illustrations  of  instructions 
properly  refused  because  of  other 
instructions  given.  Where  the 
jury  have  been  instructed  that  their 
verdict  should  be  determined  by  the 
evidence  which  would  best  satisfy 
them  of  the  truth  of  the  claims  made 
by  the  respective  parties,  and  in  re- 
gard to  the  effect  of  the  testimony  of 
a  witness  who  had  made  statements 
out  of  court  contradictory  to  those 
made  on  the  trial,  it  is  not  error  to 
refuse  to  charge  further  in  regard  to 
the  credibility  of  witnesses.  Guther- 
less  V.  Ripley,  98  Iowa,  290,  67  N.  W. 
109. 

Instructions  on  mental  capacity. 
Where  the  court  charged  the  jury  to 
consider  the  mental  capacity  of  plain- 
tiff, and,  if  they  should  find  him  to 
be  of  a  weak  or  unsound  mind  at 
time  of  testifying  or  shortly  before. 


oOl  CREDIBILITY   OF   WITNESSES  8  148 

the  jury,  in  passing  on  the  credibility  of  witnesses, '  may  con- 
sider all  the  facts  shown  by  the  evidence,  it  is  not  error  to  refuse 
an  instruction  that  they  may  consider  particular  facts  bearing  on 
the  credibility  of  a  party.^^  This  rule  applies  with  regard  to  in- 
structions as  to  the  effect  of  the  interest  of  a  witness/*-*  and  ordi- 
narily, where  the  court  has  instructed  in  general  terms  that  they 
may  consider  the  interest  which  any  witness  has  in  the  result  of 
the  suit,  it  need  not  instruct  further  as  to  the  effect  of  the  in- 
terest of  a  party .^^  But,  where  the  testimony  of  a  party  is  largely 
contradicted  by  other  witnesses,  the  court  cannot  properly  refuse 
to  instruct  that  he  is  an  interested  witness,  and  the  jury  are  not 
bound  to  accept  his  testimony  as  true,  though  he  is  uncontra- 
dicted or  unimpeached,  because  it  has  instructed  that  in  weighing 
his  testimony  the  jury  can  consider  his  interest,^!  and  a  request- 
ed charge  that  in  determining  the  credibility  of  a  party  his  in- 
terest may  be  considered  is  not  sufficiently  contained  in  an  in- 
struction that,  if  any  witness  has  knowingly  testified  falsely,  his 
entire  testimony  may  be  disregarded ;  ^^  nor  is  such  request  cov- 
ered by  a  general  instruction  that  the  jury  are  the  proper  judges 
of  the  credibility  of  witnesses  and  the  weight  to  be  given  to  the 
testimony  of  each.'^^ 

The  refusal  of  instructions  as  to  the  effect  of  the  giving  of  false 
testimony  by  a  witness  is  proper,  where  other  instructions  have 

they  could  consider  that  fact,  refusal  v.  Elhott,  74  N.  E.  1035,  216  111.  31, 

to  charge  that  the  jury  could  reject  1  L.  R.  A.   (N.  S.)  215.  108  Am.  St. 

his  testimony  if  they  believed  he  was  Kep.  196,  3  Ann.  Cas.  487. 

then,  or  a  short  time  before,  of  weak  i^  Beasley  v.  Jefferson  Bank,  89  S. 

or  unsound  mind  or  of  deficient  under-  W.  1040,  114  Mo.  App.  406. 

standing,  and  that  if  they  believed  he  is  Iowa.     Allen  v.  Kirk,  81  Iowa, 

was  laboring  under  a  delusion  that  658,  47  N.  W.  906. 

the  money  was  deposited  by  him  in  Kan.     Allison  v.  Ahlers,  26  Kan. 

defendant's  vault,  verdict  should  be  582;    Fanson  v.  Harris,  21  Kan.  734; 

for  defendant,  was  not  error.    Mayer  Central  Branch  Union  Pac.  R.  Co.  y. 

V.  Brensinger,  54  N.  E.  159,  ISO  111.  Holcomb,   Id.  533;     Same   v.    Young, 

110,  72  Am.   St.  Rep.  196,  affirming  Id.,  532 ;  Kansas  Pac.  Ry.  Co.  v.  Kun- 

judgment  74  111.  App.  475.  kel,  17  Kan.  145. 

Means    of    information.     Where  -"  Chicago  City  Ry.  Co.  v.  Mager, 

the  court  charged,  on  defendant's  be-  56  N.  E.  1058,  185  111.  336,  affirming 

half,  that  the  jury,  in  determining  the  judgment  85  111.  App.  524 ;   Strasser  v. 

credibility  of  the  witnesses,  may  con-  Goldberg,  98  N.  W.  554,  120  Wis.  621. 
sider  their  means  of  information,  it  21  Becker  v.  Woarms,  76  N.  Y.  S. 

was  not  error  for  the  court  to  refuse  438,  72  App.  Div.  196. 
to  charge  that  where  witnesses  were  22  Chicago  &  E.  I.  R.  Co.  v.  Bur.- 

otherwise  equally  credible,  and  their  ridge,  71  N.  E.  838,  211  111.  9.  revers- 

testimony  otherwise  entitled  to  equal  ing  judgment  107  111.  App.  23. 
weight,    greater    weight    and    credit  23  Denver    City    Tramway    Co.    v. 

should  be  given  to  those  whose  means  Norton  (C.  C.  A.  Colo.)  141  F.  599,  73 

of  information  are  superior.    Christy  C.  O.  A.  1. 


149 


INSTRUCTIONS  TO  JURIES 


302 


sufficiently  presented  the  subject  to  the  jury,^*  and  a  general  m- 
struction,  applicable  to  all  the  witnesses,  as  to  the  effect  of  false 
testimony,  justifies  the  refusal  of  an  instruction  confined  to  the  tes- 
timony of  a  party ,~^  and  it  is  held  that,  where  the  court  has  charged 
as  to  the  effect  of  false  testimony,  it  need  not  also  charge  as  to  the 
effect  of  making  contradictory   statements.-^ 

§  149.  Sufficiency  of  evidence  to  sustain  instructions  on  credi- 
bility of  witnesses 
An  instruction  on  matters  to  be  considered  in  passing  upon  the 
credibility  of  witnesses  must  be  based  upon  the  evidence  in 
the  case.^'  This  rule  applies  with  respect  to  instructions  as  to 
the  effect  of  the  general  bad  character  of  a  witness,*^^  or  the  ef- 
fect of  his  good  character,2»  or  as  to  the  effect  of  bias  or  preju- 
dice   resulting   from    the   fact   that   a   witness    is    employed    by    a 


24  West  Chicago  St.  R.  Co.  v.  Lies- 
erowitz,  64  N.  E.  718,  197  111.  607, 
affirming  judgment  99  111.  App.  591; 
Burger  v.  Omaha  &  C.  B.  St.  Ry.  Co., 
117  N.  W.  35,  139  Iowa,  645,  130  Am. 
St.  Rep.  343;  Bernstein  v.  Smith,  10 
Kan.  60. 

2  5  City  of  Spring  Valley  v.  Gavin, 
54  N.  E.  1035,  182  111.  232,  affirming 
judgment  81  111.  App.  456 ;  Whitaker 
V.  Engle,  69  N.  W.  493,  111  jNIich.  205. 

2  6  Chicago  Citv  Ry.  Co.  v.  Fenni- 
more,  64  N.  E.  985,  199  111.  9,  affirm- 
ing judgment  99  111.  App.  174. 

2  7  u.  S.  (C.  C.  A.  Cal.)  Diggs  v. 
United  States,  220  F.  545,  136  C.  C.  A. 
147,  certiorari  granted  Caminetti  v. 
United  States,  35  S.  Ct.  939,  238  U. 
S.  636,  59  L.  Ed.  1500  and  judgment 
affirmed  37  S.  Ct.  192,  242  U.  S.  470, 

61  L.   Ed.  442,   L.  R.  A.   1917F,  502, 
Ann.  Cas.  1917B,  1168. 

Ala.  Davis  v.  Slate,  66  So.  67,  188 
Ala.  59;  Conner  v.  State,  65  So.  309, 
10  Ala.  App.  206 ;    Tennison  v.  State, 

62  So.  780,  183  Ala.  1 :   Hicks  v.  State, 
26  So.  337,  123  Ala.  15. 

Cal.  People  v.  Elunkall.  161  P. 
997,  31  Cal.  App.  778;  People  v.  Mc- 
Pherson,  91  P.  1098,  6  Cal.  App.  266 ; 
People  v.  Ward,  66  P.  372,  134  Cal. 
301. 

Ga.  Gilstrap  v.  Leith,  102  S.  E. 
169,  24  Ga.  App.  720;  Devereaux  v. 
State,  78  S.  K.  849,  140  Ga.  225. 

111.  Johnson  v.  People,  64  N.  B. 
286,  197  111.  48. 


Ind.  Colondro  v.  State,  125  N.  E. 
27,  188  Ind.  533. 

Kan.  State  v.  Covington,  160  P. 
1009.  99  Kan.  151. 

Micli.  Bulen  v.  Granger,  63  Mich. 
311,  29  N.  W.  718. 

Miss.  Layton  v.  State,  56  Miss. 
791. 

Mo.  State  v.  O'Kelley,  137  S.  W. 
333,  156  Mo.   App.  406. 

N.  Y.  Lustig  V.  New  York.  L.  E.  & 
W.  R.  Co.,  65  Hun,  547,  20  N.  Y.  S. 
477. 

Or.  State  V.  Birchard,  59  P.  468, 
35  Or.  484. 

Wyo.  Jenkins  v.  State,  134  P.  260, 
22  Wyo.  34,  rehearing  denied  135  P. 
749,  22  Wyo.  34. 

2  8  Southern  Ry.  Co.  v.  O'Bryan,  45 
S.  E.  1000,  119  Ga.  147;  City  Bank  of 
Macon  v.  Kent,  57  Ga.  283. 

Integrity  or  bonesty  of  -witness. 
A  charge  that  the  jury  may  consider 
the  "integrity  or  honesty"  of  a  wit- 
ness in  determining  the  weight  to  be 
given  to  his  testimony  is  proper,  even 
where  there  is  no  other  proof  thereof 
than  that  furnished  by  the  appear- 
ance, deportment,  and  testimony  of 
the  witness  himself.  Fisher  v.  State, 
77  Ind.  42. 

2  9  Helms  V.  State,  72  S.  E.  246,  136 
Ga.  799;  Jenkins  v.  State,  58  S.  E. 
1063,  2  Ga.  App.  626;  Johnson  v. 
State,  58  S.  E.  684,  2  Ga.  App.  405. 


303  CREDIBILITY   OF   WITNESSES  §  150 

party j^**  or  as  to  the  effect  of  making  contradictory  Statements,^^ 
or  as  to  the  effect  of  the  corroboration  of  an  impeached  witness.^"-^ 
To  sustain  a  charge  that  the  jury  may  consider  any  feeling  which 
a  witness  has  towards  a  party,  it  is  necessary  that  there. should  be 
direct  evidence  as  to  such  feeling.^^  Where  the  credibility  of  a 
particular  witness  is  not  assailed,  it  is  proper  to  refuse  an  in- 
struction permitting  the  jury  to  consider  certain  matters  in  deter- 
mining his  credibility,^*  or  telling  them  what  weight  should  be 
accorded  to  the  testimony  of  a  discredited  witness. ^^  But  an 
instruction  that  the  jury  will  consider  the  character  of  the  wit- 
nesses and  their  conduct  on  the  stand,  etc.,  is  not  objectionable 
as  not  based  on  evidence,  where  there  is  evidence  contradicting 
the  testimony  of  a  witness,^®  and  a  charge  that  the  jury  are  to 
consider  the  testimony  in  the  light  of  the  characters  of  the  wit- 
nesses, and  their  opportunity  of  knowing  the  .facts  as  to  which 
they  testified,  is  not  reversible  error,  though  there  is  no  evidence 
in  the  case  as  to  the  character  of  witnesses ;  for  such  charge  is 
no  more  likely  to  prejudice  one  party  than  another.^' 

§  150.     Right  or  duty  of  jury  to  believe  witnesses 

Where  it  is  not  sought  to  impeach  any  witness  by  evidence  in- 
troduced for  that  purpose,  it  is  not  error  to  instruct  that  the  law 
presumes  all  witnesses  honest  until  the  contrary  is  shown,^*  and 
in  some  jurisdictions,  where  the  evidence  given  on  behalf  of  .one 
party  tends  to  show  that  a  witness  for  his  adversary  is  guilty  .of 
perjury,  it  is  error  to  refuse  to  instruct  as  to. the  presumption  that 
such  witness  is  innocent  of  such  offense.^''  It  is  proper  to  charge 
that  .the  jury  may  believe  a  witness,   although   he  has  been  im- 

30  Chicago   City   Ry.   Co.  v.   Eolie,  si  Nabors  v.  State,  25  So.  529,  120 

ns  111.  App.  322;    West  Chicago  St.  Ala.  323;   Cauley  v.  State,  92  Ala.  71, 

R.   Co.  V.    Raftery,  85   111.   App.  319:  9  So.  456. 

Illinois   Cent.   R.    Co.   v.   Leggett,   69  32  Kellv  v.  State,  45  S.  E.  413.  118 

111.  App.  347;    St.  Louis,  A.  &  T.  H.  Ga.  329;    Plummer  v.  State,  36  S.  E. 

R.  Co.  V.  Walker,  39  111.  App.  388 ;    St.  233.  Ill  Ga.  839. 

Louis,  A.  &  T.  H.  R.  Co.  v.  Huggins,  33  Mitchell  v.  State,  34  S.  E.  576, 

20  111.  App.  639.  no  Ga.  272. 

The  mere  fact  that,  in  an  action  34  Schmidt  v.  First  Nat.  Bank,  50  P. 

against    a    railroad,    the   witnesses  733    jq  Colo    App    ''61 

for    defendant    are    mostly    its    em-  3-,  jjolly  v.  Flournoy,  54  Ala.  99. 

ployes,  does  not  warrant  an  instruc-  ,„  „-     'n-            t>      ^        -i/?-.   c    ttt 

tion  authorizing  the  jury,  if  they  be-  '/  Jlo^Jr     ^..7  ^^'''*^^'''  ^^^  ^-  ^• 

lieve  that  any  witness  testified  under  * '  '  -^~        '  ^  '' 

fear   of   losing   the    employment,    or  ^'  Chattahoochee  Brick  Co.  v.  Sulli- 

with  a  desire  of  pleasing  his  employer,  '^^^'  ^^  ^^-  ^^'  ^^  ^-  ^-  216. 

to  consider  such  fact  in  determining  ^^  Georgia  Talc  Co.  v.  Cohutta  Talc 

the  weight  to  be  given  his  evidence.  Co.,  78  S.  E.  905,  140  Ga.  245. 

Wastl  V.  Montana  Union  Ry.  Co.,  17  so  Stevenson   v.    Gunning's  Estate, 

Mont.  213,  42  P.  772.  64  Vt.  601,  25  A.  697. 


§   150  INSTRUCTIONS  TO  JURIES  304 

peache.d,  if  lie  is  corroborated  by  other  witnesses,*"  and  an  iA- 
struction  is  erroneous  wiiich  might  lead  the  jury  to  think  that 
they  .cannot  consider  evidence  in  corroboration  of  such  a  wit- 
ness.^i  An  instruction  tellings  the  jury  in  effect  that,  while  the 
law  permits  the  impeachment  of  a  witness  by  proving  his  general 
reputation  for  truth  and  veracity  to  be  bad,  yet  if  they  believe 
the  witness,  while  on  the  stand,  gave  a  truthful,  candid,  and  honest 
statement  of  the  facts,  they  should  give  it  such  faith  and  credit 
as  in  their  opinion  it  is  entitled  to,  is  proper,  and  should  be  giv- 
en,*^ and  it  is  proper  to  refuse  an  instruction  that  the  jury  may 
discard  altogether  the  testimony  of  a  witness  so  impeached.*^  It 
may  not  be  improper  in  a  criminal  case,  under  some  circumstanc- 
es, to  instruct  that  the  jury  cannot  discard  as  false  the  testimony 
of  a  certain  witness  for  the  state,  if  the  jury  find  beyond  a  reason- 
able doubt  that  such  testimony  is  strengthened,  confirmed,  and 
corroborated  as  to  all  the  facts  and  circumstances  by  other  wit- 
nesses whose  testimony  is  believed  by  the  jury  beyond  a  reason- 
able doubt;  this  instruction  .also  being  made  applicable  to  every 
witness  on  either  side.** 

A  charge  with  respect  to  the  effect  of  the  direct  contradiction 
of  a  witness  by  the  testimony  of  other  witnesses  upon  the  credi- 
bility of  the  witness  so  contradicted  should  not  ignore  the  possi- 
bility of  an  honest  mistake,*^  and  it  is  not  improper  to  ^  charge 
that  the  jury  should,  if  possible,  reconcile  the  testimony  of  the 

40  Ector  V.  State,  48  S.  E.  315,  120  Ala.  58;  Hall  v.  State,  30  So.  422,  130 
Ga.  543;    Grant  v.  State,  45  S.  E.  603,       Ala.  45. 

118  Ga  804.  Instructions       lield       improper 

Right     to      believe      impeached  within  rule.     Where,  in  a  criminal 

witness,  although  not  corroborat-  Prosecution    the  principal   testimony 

ed.     An    instruction    that    the    jury  ^^F^  ^^^  ^^ate  consisted  of  that  of  a 

"might  give  full  faith  and  credit  to  ^'^.''%^  ^-^^'it^^g  ^,  conversation  with 

4.u^   *.^^^i^ „»    ^-e   „    „,;4-„^co   „.i,^c^  a  third  person,  and  the  court  instruct- 

the   testimony     of  a  witness   A^hose  ^.^  weighing  the  testimony  of 

veracity  was  impeached,  and     might  -      »                         ^ 

convict    thereon    witliout    corrobora.  ^^ether  it  was  true  or  not,  or  wheth- 

tion,"  was  erroneous,  as  practically  ^^  ^^  fabricated   the   sto^y   for  the 

instructing  the  jury  to  give  such  faith  ^^    convicting    an    innocent 

and  credit  and  convict  thereon.     Siiy-  ^^^  ^^1^  ^      .         ^^^^  .^ 

der  v.  State,  29  So.  78,  78  Miss.  366.  ^^^^^  ^^^.^  ^^^^y,  if  they  beUeved  the 

41  Hamilton  v.  State,  41  So.  940, 147  story  fabricated,  to  determine  the  mo 
Ala.  110.  tive ;    it  being  improbable  that  such 

42  Roy  V.  Goings.  112  111.  656;  Hed-  a  thing  could  be  done  without  any 
rick  V.  Bell,  84  111.  App.  523.  motive,  it  was  held  that  the  instruc- 

4  3  0sbnrtiv    qtatP   17  ^n   7^8    12^  tion  was  erroneous,  as  excluding  from 

AH  106  *^®   J'"^y   *^^   question    whether    the 

'  ■        ■  conflict  of  evidence  might  be  accouut- 

4  4  People  V.  Riker,  168  N.  W.  434,  ed  for  on  the  ground  of  innocent  mi.^ 

202  Mich.  377.  take.     Schutz  v.  State,  104  N.  W.  90, 

4  5  Knight  v.  State,  49  So.  764,  160  125  Wis.  452. 


305  CREDIBILITY   OF   WITNESSES  §  151 

witnesses,  so  as  to  impute  perjury  to  no  witness.*^  It  has  been 
held,  however,  that  an  instruction,  in  a  case  where  the  parties 
have  given  conflicting  testimony,  that  it  is  plain  that  one  or  the 
other  of  them  has  committed  perjury,  and  that  the  jury  must 
meet  the  case  fairly  and  decide  which  of  the  parties  has  sworn  the 
truth,  is  not  improper,  since  this  is  merely  equivalent  to  saying 
that  there  is  a  direct  conflict  in  the  testimony,  which  is  for  ^ the 
jury  to  determine.*'  An  instruction  tending  to  permit  the  jury^to 
reject  the  testimony  of  a  witness,  if  they  conclude  that  there  is 
a  bare  possibility  of  his  being  mistaken,  is  erroneous.** 

§  151.     Right  or  duty  of  jury  to  disbelieve  witnesses 

It  is  proper  to  tell  the  jury  to  reject  the  evidence  of  witnesses 
if  their  testimony  is  not  believed,*®  and  an  instruction  telling  the 
jury  that  they  are  not  bound  to  take  the  testimony  of  any  witness 
as  absolutely  true  and  that  they  should  not  do  so,  if  they  believed 
from  the  evidence  that  such  witness  was  mistaken  in  the  matters 
testified  to  by  him  or  her,  or  for  any  reason  appearing  in  the  evi- 
dence his  or  her  testimony  is  untrue  or  unreliable,  is  not  erro- 
neous.^** 

It  is.,  proper  to  charge,  in  effect,  that  if  there  is  a  conflict  in  the 
testimony  of  the  witnesses,  which  the  jury  cannot  reconcile,  they 
may  believe  one  witness  and  disbelieve  the  other,^^  taking  into 
consideration  the  ^intelligence,  interest,  and  apparent  bias  or  prej- 

4  6  Skrine  v.  State,  51  S.  E.  315,  123  Ala.  106;    Marshall  v.   State,  44  So. 

Ga.  171 ;   Price  v.  State,  40  S.  E.  1015,  742,  54  Fla.  66. 

114  Ga.  855.  Instructions  held  proper  Tpitliin 

Presumption.      An        instruction  rule.     A  charge  that  it  was  the  jury's 

that,  if  there  is  a  conflict  of  testimo-  duty,  in  case  of  conflict  in  the  testi- 

ny,  the  presumption  is  that  either  one  mony,  to  reconcile  the  conflict  if  they 

or  the  other  of  the  witnesses  was  hon-  could  do  so  without  arbitrarily  imput- 

estly    mistaken    rather    than    either  ing  perjury  to  any  one,  but  if  they 

willfully    testified    falsely,    was    not  could  not  reconcile  such  conflict  they 

misleading,  though  technically  that  is  should  accept  what  they  considered  to 
not  a  presumption  of  law.    Hedger  v.  -    be  the  truth,  and  if  in  reachiug  such 

State.  12S  N.  W.  SO,  144  Wis.  279.  truth  it  should  become  necessary  to 

4  7  Critcher  v.  Hodges,  68  N.  C.  22.  impute  perjury  to  a  witness,  it 'was 

48  Robinson  v.  State,  58  So.  121,  4  their  duty  to  take  that  responsibility, 
Ala.  App.  1.  was  not  erroneous,  as  misleading,  and 

49  State  V.  Minor,  77  N.  W.  330,  106  wholly  excluding  from  the  jury  the 
Iowa,  642.  doctrine  of  reasonable  doubt  as  to  the 

5  0  Brant  v.  Chicago  &  A.  R.  Co.,  imputation  of  jierjury.  or  on  the 
128  N.  E.  732,  294  111.  606;  Rowden  ground  that  it  left  to  the  jury  the 
V.  Travelers'  Protective  Ass'n  of  right  to  arbitrarily  impute  perjury  in 
America,  201  111.  App.  295;  Black  v.  the  testimony,  where  in  conflict  with 
Rocky  Mountain  Bell  Telephone  Co.,  what  they  considered  to  be  the  truth. 
73  P.  514,  26  Utah,  451.  Hunter  v.  State,  70  S.  E.  643,  136  Ga. 

51  Shelton  v.  State,  42  So,  30,  144       103. 

Inst.to  JUiRIES— 20 


§  151  INSTRUCTIONS  TO  JURIES  306 

udice  of  the  witnesses,  as  well  as  their  manner  of  testifying ;  ^~ 
and,  subject  to  certain  qualifications,  already  stated,  as  to  the 
rule  in  some  jurisdictions  with  respect  to  invading  the  province 
of  the  jury,  the  court  may  tell  the  jury  that  they  may^^  or 
should^*  disregard  the  testimony  of  a  witness  who  has  been  suc- 
cessfully impeached,  except  so  far  as  he  is  corroborated  by  other 
credible  evidence  or  facts  proven  in  the  case,  and  in  some  juris- 
dictions, where  the  evidence  so  authorizes,  the  court  should  give 
such  an  instruction  on  request. ^^  Such  an  instruction,  however, 
is  properly  refused  in  some  jurisdictions,  on  the  ground  that  it 
in  effect  charges  the  jury  that  they  do  not  have  the  right  to  re- 
ject the  testimony  of  any  witness  which  has  been  corroborated  by 
other  evidence.^^  , 

It  is  error  for  the  court  to  instruct  a  jury  that  a  party  introduc- 
ing a  witness  thereby  indorses  the  credibility  of  such  witness ;  it 
being  sufficient  to  say  that  a  party  cannot  impeach  his  own  wit- 
ness.^" 

§  152.     Duty  of  jury  not  to  act  arbitrarily 

While  it  is  for  the  jury  to  determine  the  credibility  of  wit- 
nesses, the  rule  is  that  they  cannot  act  arbitrarily  in  that  re- 
gard, but  must  exercise  their  judgment  and  instructions  giving 
them  authority,  or  tending  to  lead  them  to  suppose  that  they 
have  the  authority,  to  arbitrarily  judge  of  the  effect  of  evidence 
or  to  disregard  it  are  erroneous.^     Under  this  principle,  an  in- 

5  2  Lancaster  v.  State,  36  Tex.  Cr.  ee  Snyder  v.  State,  111  S.  W.  465, 

R.  16,  35  S.  W.  165 ;    Adam  v.  State       86  Ark.  456. 
(Tex.  Cr.  App.)  20  S.  W.  548.  st  Jarnigan    v,    Fleming,    43    Miss. 

5  3  Loehr  V.  People,  132  111.  504,  24  ^^^'  '3/^™-  ^,^P-  ^^^-      ,„  ,    ^,     ,, 

N.  E.  68;  Robertson  v.  Monroe.  7  Ind.  ^  ''  ^-   ^.     (C.   C.  A.   111.)    Northern 

App.  470,  33  N.  E.  1002;    Johnson  v.  Pa<^-  ^-  Co.  v.  Hayes,  8(   F.  129,  30 

Johnson,  115  N.  W.  323,  81  Neb.  60.  C.  C    A.  576 

..-r      J  cii.  i     ir>A  c    n    ron  Ala.     Untreiner   v.    State,   41    So. 

,,^*  Landers  v    State,  100  S    E    569,  285.  146  Ala.  26;    Shepherd  v.  State, 

y^no^'^--,  f^  '  A  ^'^7oI  ""V  ^^^^'  «7  .?•       33  So.  266,  135  Ala.  9 :    Hall  v.  State, 

?^  fV  f.^-  t^?p-r  ^^^-n  "''S  ''i-  f  f  V        32  So.  750  134  Ala.  90. 

56  S   E.  4M,  12  <  Ga   3d0;    Holston  v.  ^^^      ^^'^^^^^  ^  3g 

Southern  Ry.  Co.,  43  S.  E.  29,  116  Ga.  3.9.    ^.^^^^  ^^  Troutman,  9  111.  App. 

606.  94 

sr.  Ala.     Adams   v.    State,    57    So.  Miss.     Gables  v.  State,  54  So.  833, 

591,  175  Ala.  8;    Davis  v.  State,  56  99  Miss.  217. 

So.  844,  2  Ala.  App.  200;   Seawright  v.  Mont.     Cameron  v.  Wentworth,  57 

State,  49  So.  325,  160  Ala.  33 ;  Wynne  p    648,  23  Mont.  70. 

V.    State,   46    So.    459,    155    Ala.   09;  'w.  'va.     State  v.  Lutz,  101  S.  E. 

Churchwell  v.  State,  23   So.  72,  117  434^  85  W.  Va.  330 ;    State  v.  Legg,  53 

Ala.  124.  S    E.  545,  59  W.  Va.  315,  3  L.  R.  A. 

Ga.     Harper  v.  State,  87  S.  E.  SOS.  (N.  S.)  1152. 

17  Ga.  App.  .561  ;    Fite  v.  State,  84  S.  Instructions     improper     within 

E.  485.  16  Ga.  App.  22.  rule.     An  instruction  tliat  "the  jury 


307 


CREDIBILITY   OF    WITNESSES 


§  152 


struction  as  to  the  right  to  disregard  the  testimony  of  a  witness 
who  has  been  successfully  impeached  will  be  insufficient,  if  it 
does  not  say  what  constitutes  successful  impeachment,^^  and  in- 
structions that  the  jury  may  disregard  the  uncontradicted  testi- 
mony of  a  disinterested  witness,^<>  which  is  not  inherently  im- 
probable,^^ or  which  permit  them  to  reject  the  entire  testimony 
of  a  witness  because  he  may  be  found  to  have  been  impeached 
upon  immaterial  matters,^'  or  to  disregard  the  testimony  of  a  wit- 
ness merely  because  he  has  been  guilty  of  an  exaggeration  are 
erroneous.^^  An  instruction  which  broadly  authorizes  the  jury  to 
wholly  disregard  all  the  testimony  given  by  a  witness,  if  satisfied 
that  his  general  reputation  for  truth  and  veracity  is  bad  in  the 
neighborhood  in  which  he  resides,  no  matter  how  truthful  all  or  part 


are  not  bound  to  take  the  testimony 
of  any  witness  as  absolutely  true," 
should  be  qualified  by  adding,  "if 
there  is  reason  to  believe  it  false  or 
mistaken,"  or  words  of  similar  im- 
port. Chicago,  R.  I.  &  P.  Ry.  Co.  v. 
Groves,  56  Kan.  601,  44  Pac.  62S. 
After  instructing  a  jury  that,  in  de- 
ciding on  the  credibility  of  a  witness, 
they  may  consider  certain  specific 
thmgs,  it  is  error  to  further  instruct 
that  they  may  consider  whatever  else 
they  may  have  seen  or  heard  during 
the  trial  that  should  go  to  the  credi- 
bility of  the  witness.  Paris  v.  Strong, 
51  Ind.  339. 

Instructions  not  improper  with- 
in rule.  An  instruction  which,  after 
statiug  some  of  the  recognized  tests 
for  determining  the  credibility  of  wit- 
nesses and  the  relative  weight  to  be 
given  to  conflicting  testimony,  tells 
the  jury  that  if  they  are  unable  to 
reconcile  apparently  conflicting  testi- 
mony they  must  determine  what  por- 
tion of  it  was  true  and  what  false  by 
the  application  of  the  tests  given,  and 
all  other  tests  within  their  skill  and 
power,  is  not  erroneous,  as  giving  the 
jury  too  much  latitude  in  determining 
the  credibility  of  testimony.  Norris 
v.  Cargill,  57  Wis.  251,  15  N.  W.  148. 
An  instruction  that  "the  jury  is  not 
bound  to  believe  the  testimony  of  any 
witness"  is  not  error,  as  allowing 
them  to  disregard  uncontradicted  tes- 
timony, if  followed  by  an  instruction 
which  tells  the  jury  that  they  are 
the  sole  judges  of  tlie  weight  of  evi- 


dence, and  correctly  lays  down  to 
them  the  rules  for  determining  its 
weight.  United  States  v.  Bassett,  5 
Utah,  131,  13  P.  237.  An  instruction 
that  the  jury  are  the  sole  judges  of 
the  credibiUty  of  the  witnesses,  and 
may  disbelieve  any  witness,  provided 
they  believe  from  the  testimony  that 
he  has  not  sworn  truthfully,  and  that 
in  determining  whether  they  will  be- 
lieve or  disbelieve  any  witness,  they 
may  consider  the  interest,  if  any,  he 
may  have,  together  with  all  the  tacts 
and  circumstances.  Waldrop  v.  State, 
54  So.  66,  98  Miss.  567. 

5  9  Chicago  City  Ry.  Co.  v.  Ryan,  SO 
N.  E.  116,  225  111.  287;  People  v. 
Spencer,  171  111.  App.  237 ;  Simmons 
V.  Clement,  164  111.  App.  477. 

60  Kapiloff  v.  Feist  (Sup.)  91  X.  Y. 
S.  27. 

61  Tyler  v.  Third  Ave.  R.  Co.  (Sup.) 
41  N.  Y.  S.  523.  IS  Misc.  Rep.  165,  75 
N.  Y.  St.  Rep.  913. 

6  2  Remington  v.  Geiszler,  152  N.  W. 
661,  30  N.  D.  346. 

63  Walker  v.  Chicago  &  J.  E.  Ry. 
Co..  142  111.  App.  372:  Hughes  v. 
Hughes,  133  111.  App.  654. 

Failure  to  charge.  A  charge  that 
the  jury  might  disregard  the  testimo- 
ny of  witnesses  who  willfully  swore 
falsely  is  not  erroneous  in  omitting 
a  similar  instruction  as  to  witnesses 
who  should  willfully  exaggerate. 
Grand  Rapids  &  I.  R.  Co.  v.  Martin, 
41  Mich.  667,  3  N.  W.  173. 

In  New  York,  however,  it  has  been 
held    that    an    instruction    that,    it 


153 


INSTRUCTIONS  TO  JURIES 


308 


of  the  testimony  might  in  itself  appear  to  be,  is  erroneous.^*  It  has 
been  held,  however,  that  it  is  not  error  to  refuse  to  charg-e  that 
the  jury  has  no  right  to  disregard  the  testimony  of^any  witness 
through  caprice  or  without  cause,  merely  because  the  witness  is 
employed  by  one  of  the  parties,  there  not  being  anything  to  indi- 
cate that  the  jury  would  disregard  the  testimony  of  any  witness, 
and  the  court  having  instructed  that  the  testimony  of  ,each  wit- 
ness should  receive  such  credit  as  it  seemed  to  be  entitled  to  un- 
der all  the  circumstances.^^ 


B.  Particular  Matters  to  be  Considered  in  Passing  on  Cred- 
ibility OP  Witnesses 

Instructions  criticized  as  invading  province  of  jury,  see  ante,  §  11. 

§  153.     Necessity,  propriety,  and  sufficiency  in  general 

While  there  is  no  rule  of  law  which  requires  a  trial  court  to 
comment  on  all  the  circumstances  tending  to  discredit  or  cor- 
roborate witnesses,®®  it  is  not  improper  for  the  court  to  direct 
the  attention  of  the  jury  to  any  matter  in  the  case  affecting  the 
credibility  of  a  witness  or  which  may  influence  his  testimony,®' 

"plaintife  has  under  oath  intentionally 
misrepresented  or  exaggerated  the  in- 
juries received  by  him,"  the  jury  may 
disregard  his  entire  testimony,  is  un- 
objectionable. Bonelle  v.  Pennsyl- 
vania E.  Co.,  51  Hun,  640,  4  N.  Y.  S. 
127. 

6  4  Higgins  V.  Wren,  82  N.  W.  859, 
79  Minn.  462. 

6  5  Hintz  V.  Michigan  Cent.  R.  Co., 
104  N.  W.  23,  140  Mich.  565. 

6  6  Faulkner  v.  Paterson  Ry.  Co.,  46 
A.  765,  65  N.  J.  Law,  181. 

6  7  TJ.  S.  (C.  C.  A.  Tenn.)  Louisville 
&  N.  R.  Co.  V.  McClish,  115  F.  268, 
53  C.  C.  A.  60. 

Ga.  Wheeler  v.  State,  37  S.  E.  126, 
112  Ga.  43 ;  McDaniel  v.  Walker,  29 
Ga.  266. 

Micli.  Hitchcock  v.  Moore,  70 
IMich.  112,  37  N.  W.  914,  14  Am.  St. 
Rep.  474. 

Mo.  State  V.  Hicks,  92  Mo.  431,  4 
S.  W.  742. 

N.  J.  Bruch  V.  Carter,  32  N.  J. 
Law,  5.54. 

Pa.  r.rinton  v.  Walker,  15  Pa. 
Super.  Ct.  449. 

Vt.  State  V.  Guyer,  100  A.  113,  91 
Vt.  290. 


Va.  Horton  v.  Commonwealth,  38 
S.  E.  184,  99  Va.  848. 

Sufficiency  of  instructions  pre- 
scribing tests  of  credibility.     The 

court  properly  instructed  the  jury  that 
"in  determining  as  to  the  credit  you 
will  give  a  witness  and  the  weight 
and  value  you  will  attach  to  a  wit- 
ness' testimony  you  should  take  into 
consideration  the  conduct  and  appear- 
ance and  manner  of  the  witness  while 
on  the  stand,  the  interest  of  the  wit- 
ness if  any  in  the  result  of  the  trial, 
the  motives  which  actuate  the  witness 
in  testifying,  or  in  giving  contradic- 
tory or  false  testimony,  the  witness' 
relation  or  feeling  toward  the  defend- 
ant, and  the  probability  or  improb- 
ability of  the  witness'  statement  be- 
ing true  when  considered  with  all 
other  evidence,  etc.  People  v.  Bernal. 
180  P.  825,  40  Cal.  App.  358.  Where 
the  testimony  of  witnesses  is  conflict- 
ing, it  is  not  error  for  the  court  to 
instruct  the  jury  that  they  should  be- 
lieve the  witness  whom  they  consider 
most  worthy  of  belief,  and  that,  in 
order  to  arrive  at  a  conclusion  as  to 
who  is  most  worthy  of  belief,  they 
may  look  to  the  manner  of  the  wit- 
nesses  while  testifying,   their  means 


309 


CREDIBILITY   OF  WITNESSES 


153 


the  jury  being  told  that  they  are  the  sole  judges  of  the  credit  to 


of  knowledge  as  disclosed  by  the  evi- 
dence, and  their  bias  or  prejudice,  if 
any  has  been  shown  by  the  testimony, 
and  should  see  to  what  extent  they 
have  been  impeached  or  corroborated, 
if  at  all.  Central  R.  «&  Banking  Co. 
V.  Attaway,  90  Ga.  656,  16  S.  E.  956. 
An  instruction  that  the  jury  are  the 
judges  of  the  credibility  of  the  wit- 
nesses, that  they  are  not  bound  to 
regard  the  evidence  as  evenly  balanc- 
ed merely  by  a  count  of  the  witnesses, 
but  that  in  determining  such  ques- 
tions they  have  a  right  to  consider 
the  appearances  of  the  witnesses  while 
on  the  stand,  their  manner  of  testify- 
ing, their  apparent  candor  and  fair- 
ness, their  intelligence  or  the  lack  of 
it,  and  all  other  surrounding  circum- 
stances appearing  on  the  trial,  is  not 
erroneous.  Hopp  v.  Chicago  City  Ry. 
Co.,  170  111.  App.  72.  An  instruction 
that  "the  jury,  *  *  *  jn  determin- 
ing whether  witnesses  will  be  believ- 
ed or  not  are  not  bound  by  the  opin- 
ions of  other  witnesses  but  have  a 
right  to  consider  all  the  testimony  of 
the  case  the  motives  and  interests  of 
the  witness  the  nature  of  his  testi- 
mony and  all  the  facts  in  evidence 
throwing  light  upon  the  point,"  can- 
*not  be  complained  of  by  defendant  in 
a  criminal  pro.secution.  Brown  v. 
State,  23  So.  422,  75  Miss.  842.  It  is 
proper  to  instruct  that  in  determining 
the  facts  the  jury  are  to  determine, 
from  the  appearance  and  demeanor 
of  the  witnesses,  their  manner  of  tes- 
tifying, and  their  apparent  candor 
and  fairness,  thei^  bias  or  prejudice, 
their  apparent  intelligence,  their  in- 
terest in  the  result,  and  all  their 
surrounding  circumstances,  the  wit- 
nesses most  worthy  of  credit,  and  to 
give  credit  accordingly.  State  v. 
Hoshor,  67  P.  3S6,  26  Wash.  643.  An 
Instruction  that  in  determining  credi- 
bility the  jury  should  consider  the 
witness'  apparent  intelligence,  can- 
dor, knowledge  of  the  matters  testi- 
fied about,  interest  in  result  of  the 
trial,  relations  with  the  interested 
parties,  corroboration  by  other  credi- 
ble evidence  or  proved' facts  or  cix'- 
cumstances,  the  motives  for  falsifying 
or  the  absence  of  these  things  or  any 
of  them  so  far  as  their  presence  or 


absence  appeared  from  the  trial,  the 
manner  and  appearance  of  the  wit- 
ness upon  the  stand,  the  inherent 
reasonableness  or  the  absence  of  it 
of  the  statements  made,  and  any  other 
facts  or  circumstances  appearing 
from  the  evidence  or  upon  tlie  trial 
tending  to  affect  the  question,  correct- 
ly states  the  law  so  far  as  it  goes,  and 
is  not  objectionable,  in  the  absence 
of  any  request  for  more  explicit  in- 
structions, for  failing  to  call  the  at- 
tention of  the  jury  to  the  witness' 
opportunity  to  observe  what  took 
place,  the  attention  paid  to  the  occur- 
rence, or  the  ability  to  recall  and 
state  it  in  its  details  correctly.  An- 
derson V.  Sparks,  125  N.  W.  925,  142 
Wis.  398.  In  a  murder  case,  an  in- 
struction on  the  credibility  of  wit- 
nesses and  weight  to  be  attached  to 
their  testimony  that  the  jury  are  the 
sole  judges  thereof,  that  in  deter- 
mining such  credit,  weight,  and  value 
to  be  attached  to  the  testimony  of 
any  witness,  they  should  consider  the 
character  of  the  witness,  his  or  her 
manner  on  the  stand  and  of  testify- 
ing, his  or  her  interest,  if  any  in  the 
result,  his  or  her  relation  to  or  feeling 
for  defendant  or  deceased,  the  prob- 
ability of  his  or  her  statement,  as  well 
as  all  other  facts  and  circumstances 
detailed  in  evidence,  and  finally  that,  if 
they  believed  anj-  witness  willfully  or 
knowingly  swore  falsely  to  any  mate- 
rial fact,  they  were  at  liberty  to  dis- 
I'egard  any  part  of  his  testimony,  is 
sufficient.  State  v.  Shelton.  122  S.  W. 
732,  223  Mo.  118.  Where  an  instruc- 
tion directed  that,  in  determining 
the  weight  of  the  testimony,  the  jury 
should  consider  any  interest  of  the 
witnesses  in  the  result  of  the  case, 
their  conduct  and  demeanor  while 
testifying,  their  apparent  fairness  or 
bias,  their  opportunities  for  .seeing  or 
knowing  the  things  about  which  they 
testify,  the  reasonableness  of  the 
"story  told"  by  them,  and  all  the  evi- 
dence and  circumstances  proved  tend- 
ing to  corroborate  or  contradict  them, 
"if  any  such  appears,"  it  was  held 
that  such  instruction  was  not  er- 
roneous in  the  use  of  the  words 
"story  told"  and  "appears" ;  the 
words  "story  told"  being  used  in  the 


§  153 


INSTRUCTIONS   TO  JURIES 


310- 


be  given  to  the  witnesses,^^  and  in  some  jurisdictions  it  is  revers- 
ible error  to  refuse  to  give  such  an  instruction.^^  In  a  criminal 
case,  where  the  testimony  is  sharply  conflicting  and  the  case  is 
one  peculiarly  calculated  to  excite  passion  or  prejudice,  the  ac- 
cused has  the  right  to  have  the  jury  accurately  instructed  as  to 
all  matters  which  might  influence  them.'*  An  instruction  which 
specifies  certain  matters  as  proper  to  be  considered  by  the  jury 
in  passing  upon  the  credibility  of  witnesses  is  not  objectionable, 
as  preventing  the  jury  from  considering  other  matters.'^ 


seDse  of  the  testimony  given  on  the 
trial,  and  the  word  "appears"  to 
mean  the  fairness  or  bias  of  the  wit- 
ness as  disclosed  by  his  conduct  on 
the  stand,  his  manner  of  testifying, 
etc.  Nicholson  v.  State,  106  P.  929, 
IS  Wyo.  298.  An  instruction  that,  in 
determining  whether  a  witness  had 
been  impeached  by  the  testimony  of 
other  witnesses,  both  his  and  their 
conduct  on  the  stand,  as  well  as  his  or 
their  interest  in  the  outcome  of  the 
case,  may  properly  be  considered, 
should  have  been  qualified  by  adding 
that  the  contradictory  statements 
must  have  been  made  as  to  matters 
relevant  to  the  testimony  and  the 
case.  Holston  v.  Southern  Ry.  Co., 
43  S.  E.  29,  116  Ga.  656. 

Illiterate  witness.  It  is  not  er- 
ror to  charge  that  "as  to  this  witness, 
who  cannot  read  or  write,  you  should 
give  his  testimony  the  same  weight, 
neither  more  or  less,  than  you  would 
give  to  the  testimony  of  any  other 
witness,  after  you  have  fully  consid- 
ered it  and  all  the  evidence.  You 
should  treat  him  as  you  would  any 
other  witness."  Wilkinson  v.  Wil- 
liamson,   76   Ala.    163. 

Effect  of  statute  specifying  mat- 
ters affecting  credibility.  A  stat- 
ute providing  that  the  jury,  in  judg- 
ing of  the  credibility  of  a  witness, 
may  consider  the  manner  in  which  he 
testified,  the  character  of  his  testi- 
mony, the  evidence  affecting  his 
character  for  truth,  his  motives,  or 
contradictory  evidence,  does  not  ren- 
der it  improper  for  the  court  to  charge 
the  jury  to  consider  also  the  degree 
of  intelligence  of  the  witness.  Peo- 
ple v.  Miles,  77  P.  666,  143  Cal.  636. 

Matters  not  iv^arranting  instruc- 
tions. Where  plaintiff's  attention 
was  not  directed  to  a  discrepancy  in 


his  testimony,  the  court  properly  re- 
fused to  instruct  that  his  testimony 
was  discredited  by  such  discrepancy. 
Moyer  v.  Pennsylvania  R.  Co.,  93  A. 
2S2,  247  Pa.  210. 

Argumentative  instructions.     An 

instruction  that  in  determining  the 
credibility  of  witnesses  the  jury  should 
look,  not  only  to  the  integrity  of  the 
witnesses  and  their  purposes  and  in- 
tention to  testify  truthfully,  but  also 
to  all  the  circumstances  surrounding 
the  witnesses  at  the  time  the  events 
transpired,  and  that  it  is  insisted  that 
the  suddenness  with  which  the  en- 
counter between  decedent  and  accus- 
ed occurred,  and  the  excitable  and 
nervous  disposition  of  an  eyewitness 
were  circumstances  which  should  be 
looked  to  in  determining  whether  the 
eyewitness  could  correctly  under- 
stand what  was  said  by  accused,  and 
that  the  testimony  of  any  witness  in 
undertaking  to  repeat  the  words  of 
another,  especially  when  heard  under 
exciting  conditions,  is  the  most  un- 
satisfactory evidence,  etc.,  is  properly 
refused  as  argumentative.  Cooper  v. 
State,  138  S.  W.  826,  123  Tenn.  37. 

6  s  Jordan  v.  State,  39  So.  15,5,  50 
Fla.   94. 

6  9  Stinson  v.  State,  64  So.  ,507,  10 
Ala.  App.  110;  Storey  v.  State,  71 
Ala.  329:  Howard  v.  State,  73  Ga.  S3  ; 
State  V.  Beeskove,  85  P.  376,  34  Mont. 
41 :  Bernier  v.  Nute,  94  A.  509,  77  N. 
H.  568. 

7  0  People  v.  Turner,  107  N.  E.  162, 
265  111.  594.  Ann.  Cas.  1916A.  1002; 
Heldt  V.  State.  20  Neb.  492,  30  N.  W. 
626,  57  Am.  Rep.  835. 

7  1  Smith  V.  State,  52  S.  E.  329,  124 
Ga.  213;  State  v.  Dugan,  89  A.  691, 
84  N.  J.  Law,  603,  judgment  affirmed 
89  A.  1135,  85  N.  J.  Law,  730. 


311  CREDIBILITY   OF   WITNESSES  §  153 

While  as  a  general  rule  it  is  not  incumbent  on  the  court  to 
call  the  jury's  attention  to  the  fact  that  the  testimony  of  a  wit- 
ness has  been  contradicted/^  it  is  proper  to  caution  the  jury 
concerning  the  care  to  be  used  where  the  witnesses  are  at 
variance,''^  and  it  is  proper  to  charge  that  the  jury  may  or  will 
consider  the  appearance  and  conduct  of  witnesses  on  the 
stand,'*  or  their  bias,  impartiality,  or  prejudice,  as  disclosed  by 
the  evidence,'^  or  the  reasonableness  or  improbability  of  the  state- 
ments of  a  witness,''^  and  in  some  cases  it  may  be  error  to  refuse 
to  instruct  that  the  jury  may  take  into  consideration  the  business 
com.petency,  care,  and  habits  of  witnesses  as  revealed  by  the 
evidence. '^  Ordinarily  a  party  is  entitled  to  an  instruction  that 
the  jury  may  consider  the  friendship  of  a  witness  for  a  party,'* 
or  that  a  witness  is  a  detective  and  therefore  may  be  denominated 
as  a  "hired  witness."  '^^  A  delay  in  bringing  an  action  may  be 
of  such  a  character  as  to  make  it  proper  to  tell  the  jury  that  they 
may  consider  it  in  passing  upon  the  credibility  of  a  party  testify- 
ing as  a  witness,*"  and  it  is  proper  to  charge  that  the  jury  may  call 
to  their  aid  such  knowledge  of  men  and  their  actions  as  they  have 
acquired  by  mingling"  with  men.*^ 

Where  the  question  of  the  mental  competency  of  a  witness  is 
raised  by  the  evidence  the  court  may,*^  and  should  on  request, 
instruct  the  jury  that,  if  they  find  that  he  is  without  sufficient 
capacity  to  understand  what  is  going  on,  or  his  mind  is  so  un- 

7  2  Joyce   V.    Joyce,    67   A.   374,    SO  7  5  Macon  Ry.  &  Light  Co.  v.  Barnes, 

Conn.  88.  49  S.  E.  282,  121  Ga.  443 ;    Foley  v. 

73  Moore  v.  State.  76  S.  E.  159,  11  Detroit  &  M    Ry.  Co.,  159  N.  W.  506, 

Ga.  App.  801;    Johnson  v.  McKee,  27  ^^^  ^^^^'^-  ^^'^• 

Mich    471  '■'^  Tucker  v.    State,  59   So.  941,  64 

,,'r>       i'          T  -n        Tar.    ftP<=:    -t  ir  Fla.  518 ;   Rouse  V.  State,  71  S.  E.  667, 

^  \    o^?P V-  ^"^     tt'  ^^   T-  ^^f^  ^  136  Ga.  356;    State  v.  Adair,  61  S.  W. 

Cal.  301;    Georgia  Home  Ins.  Co.  v.  ^07    i«o  Mo    ^Qi 

Campbell,  29  S.  E.  148,  102  Ga.  106;  "^^^^  First  Nat  Bank  v  Hai-ht  ^,-,  111 
People  V.  Fox,  110  N.  E.  26,  269  111.  ^^l  ^^^^^  ^^^-  ^^"^  ^-  "^ight,  00  111. 
300;    Wendliug  v.  Bowden,  161  S.  W.  ts  RiVt^j no-bo rv,  tjtt    T\cr^.4■  s   r>^„.^.. 

V'-W^'^a-?-  f^hS^'^T  "  '^^^^'  ''  CO  .^™n!'6Tsf  llil?^  %!^S. 
N.  W.  IO06,  56  Iseb.  496.  ,,  p^^p^^  ^   ^.^^^  ^^3  ^^.^^   3-^^  ^^ 

Duty    of    jury    to    consider    de-  N.  W.  540.     See   State  v.   Bouchard, 

meanor  of  witness.     An  instruction  149  P.  464,  27  Idaho,  500. 

that  it  is  the  jury's  duty  to  consider  so  Walker  v.  Harvey  (C.  C.  A.  Pa.) 

the    demeanor   of    a    witness    on    the  108  F.  741,  47  C.  C.  A.  655. 

stand  while  testifying  is  not  a  correct  si  Cincinnati,    H.    &    I.    R.    Co.    v. 

statement  of  the  law,  as  it  may  lead  Cregor,  50  N.   E.  760,   150  Ind.  625; 

them  to  suppose  that  in  the  opinion  Renard  v.   Grande,  64  N.  E.  644,  29 

of  the  court  the  conduct  of  the  wit-  Ind.  App.  579. 

ness  had  been  such  as  to  shed  light  82  Bowdle   v.   Detroit   St.    Ry.    Co., 

on  the  value  of  his  evidence.    Heenan  103  Mich.  272,  61  N.  W.  529    50  Am 

V.  Howard,  81  111.  App.  629.  St.  Rep.  366. 


§  153  INSTRUCTIONS  TO  JURIES  312^ 

ft 

sound  that  his  testimony  is  unworthy  of  belief,  it  should  be  dis- 
regarded.*^ 

It  is  error  in  some  jurisdictions  to  refuse  an  instruction  re- 
quiring the  jury,  in  case  of  conflict  in  the  evidence,  to  consider 
the  opportunities  of  the  respective  witnesses  for  knowing  the 
facts  to  which  they  testify,  in  determining  their  credibility.** 
But  an  instruction  that  the  jury  may  believe  the  witnesses  having 
the  best  opportunity  of  knowing  the  facts  and  the  least  induce- 
ment to  swear  falsely,  without  qualifying  the  instruction  by  the 
addition  of  the  words  "if  the  witnesses  are  of  equal  credibility," 
is  erroneous,*®  as  tending  to  mislead  the  jury  into  supposing  that 
the  court  intends  that  such  a  witness  is  to  be  believed  in  prefer- 
ence to  other  witnesses.*® 

While  it  is  proper  to  charge  that  a  party  has  a  right  to  furnish 
transportation  to  witnesses,  it  is  not  error  to  refuse  to  so  charge,*' 
or  to  refuse  to  charge  that  no  unfavorable  inference  as  to  the  cred- 
ibility of  witnesses  should  be  drawn  because  they  have  been  brought 
from  long  distances  at  the  expense  of  a  party.**  It  is  error  to  com- 
ment on  the  fact  that  a  witness  has  testified  against  the  character 
of  a  near  relative,*^  and  it  is  error  to  comment  on  the  coincidence 
in  all  points  of  the  stories  of  different  witnesses.^"  Ordinarily  it 
is  proper  to  refuse  an  instruction  that  the  fact  that  a  witness 
has  testified  by  deposition  does  not  affect  his  credibility.^^ 

AVhere  the  court  has  instructed  on  motives  as  affecting  credi- 
bility, it  is  not  required  to  also  instruct  on  "hopes"  and  "fears" 
of  a  witness  as  bearing  on  his  credibility,^^  and  where,  in  a  gen- 
eral instruction  as  to  the  credibility  of  any  witness,  the  jury  are 
told  that  they  may  consider  the  character  of  a  witness,  it  is  prop- 

83  Worthington  v.  Mencer,  96  Ala.  Paris,  76  S.  E.  357,  138  Ga.  864; 
310,  11  So.  72,  17  L.  R.  A.  407.  Wilkes  v.  State,  75  S.  E.  443,  11  Ga. 

84  Jones  V.  Alabama  Mineral  R.  App.  384 ;  Lawrence  v.  State,  74  S. 
Co.,  107  Ala.  400,  18  So.  .30.  E.  300,  10  Ga.   App.   786. 

85  Richter  v.  Cathy,  79  S.  E.  179,  so  Louisville  &  N.  R.  Co.  v.  Rogers, 
13  Ga.  App.  369 ;    Logan  v.  Hope,  77  71  S.  E.  1102,  136  Ga.  674. 

S.  E.  809   139  Ga.  589;    City  of  Dal-  8  7  Southern  Ry.  Co.  v.  State,  75  N. 

ton  V.  Humphries,  77  S.  E.  790,  139  E.  272.  165  Ind.  613. 

Ga.   556 ;    Western   &   A.    R.    Co.   v.  ss  Klepsch  v.  Donald,  8  Wash.  162, 

Davis,    77    S.    E.    576,    139    Ga.    493:  35  P.  621. 

Howell  V.  Qements,  77  S.  E.  564,  139  so  Spicer  v.  State,  105  Ala.  123,  16 

Ga.  441 ;    Nashville,  C.  &  St.  L.  Ry.  So.  706. 

V.   Pope,  77   S.   E.  380,  139  Ga.  590;  sostate  v.  Anderson,  89  P.  831,  35 

Wright  V.  Western  &  A.  R.  Co.,  77  S.  Mont.  374 ;    State  v.  Sloan,  89  P.  829, 

E.  161,  139  Ga.  343 ;    Alabama  Great  35  Mont.  367. 

Southern  R.  Co.  v.  Brock,  77  S.  E.  20,  »i  Williamson  v.  North  Pacific  Lum- 

139  Ga.  248;    Nashville,   C.   &  St.  L.  ber  Co.,  73  P.  7,  43  Or.  337. 

Ry.  V.  Hubble.  76  S.  E.  1009,  139  Ga.  02  People  v.  Glass,  112  P.  281,  158 

300;    Nashville,   C.   &   St.   L.   Ry.   v.  Cal,  650. 


-313  CREDIBILITY   OF   WITNESSES  §  154 

er  to  refuse  an   instruction  calling  the  attention  of  the  jury  to 
the  fact  that  a  witness  is  a  habitual  drunkard.^^ 

The  court  should  be  careful  not  to  permit  the  jury  to  gain  the 
impression  that  they  may  go  outside  of  the  evidence  in  deter- 
mining the  credibility  of  witnesses,^^  and  an  instruction  so  framed 
as  to  tend  to  lead  the  jury  to  think  that  they  can  consider  the 
conduct  of  a  witness  in  the  presence  of  the  jury  while  off  the 
stand  in  determining  his  credibility  is  erroneous.^^  An  instruc- 
tion that  it  is  a  wise  rule  for  the  jury,  when  considering  con- 
flicting testimony,  to  give  credence  to  the  testimony  of  that  wit- 
ness or  those  witnesses  who  have  the  least  inducement,  through 
interest  or  other  motives,  to  testify  falsely,  is  erroneous,  as  ignor- 
ing nearly  all  the  factors  entering  into  the  credibility  of  a  wit- 
ness."® 

§  154.     Character  and  conduct  of  witness 

An  instruction  regarding  the  reputation  of  a  witness  should 
never  be  given,  except  when  it  has  been  directly  attacked  by  the 
evidence  introduced.®'  In  a  proper  case,  however,  and  within  the 
limitations  of  the  rule  stated  above,  that  the  jury  should  be  in- 
structed that  it  is  for  them  to  say  whether  a  witness  is  telling  the 
truth,®*  the  jury  may  be  told  that  they  may  consider  the  charac- 
ter of  a  witness  in  determining  his  credibility,®®  or  that  a  witness 
has  been  convicted  of  crime,^  or  that  a  witness  may  be  impeached 
by  proof  of  bad  "moral"  character,^  the  use  of  the  word  "moral" 
not  being  regarded  as  either  restrictive  or  misleading,  and  under 
some  circumstances  it  may  be  error  to  refuse  to  give  such  an  in- 

93  state  V.  Wriglit,  133  S.  "W.  664,  other  facts  than  those  established  by 

152  Mo.  App.  510.  the  evidence.     State  v.  Burton,  67  F. 

04  Autrey   v.    State,  74   So.  397,  15  1097,  27  Wash.  528. 
Ala.  App.  574.  as  People  v.  Terrell,  104  N.  E.  264, 

Instructions  not  improper  with-  262  111.  138;    Ryan  v.  People,  122  111. 

in  rule.    An  instruction  that  the  jury  App.  461. 

may  consider  the  interest  that  a  wit-  oe  Schutz  v.   State,   104  N.  W.  90, 

ness   has   shown    in    the   result,    his  125  Wis    452 

capacity     and     understanding      and  97  Wendling    v.    Bowden,    252    Mo. 

the   improbability    of   his   statement.  f^?    iri   «i    w    7SQ 
Wheeler  v.  State,  113  N.  W.  253,  79  osittt^'^    n^L^V^<r^y'   p-  q    t;^    -ir. 

Neb.  491.    An  instruction,  on  the  cred-  .40  n'p^  JV  Cloninger,  60  S.  E.  154, 
ibility  of  witnesses,  that  the  jury  may  ^.  ooi. 

consider  their  interest,  conduct,  and  "^  Wheeler  v.   State,  37  S.   E.  126, 

demeanor   in   testifying,   their  oppor-  112  Ga.  43 ;    State  v.  Martin,  1.32  S. 

tunity    for    seeing    or    knowing    the  ^-    595f  230    Mo.    680;     Harrison    v. 

things  of  which  they  testify,  and  all  Lakenan,  88  S.  W.  53,  189  Mo.  581. 
the  evidence  and  facts  proven  tending  ^  Keating  v.  State,  93  N,  W.  980,  67 

to  corroborate  or  contradict  the  wit-  Neb.  560. 

nesses,  is  not  objectionable  as  indefi-  2  Sparks  v.  Bedford,  60  S.  E.  809,  4 

nite,  and  allowing  the  jury  to  consider  Ga.  App.  13. 


§   155  INSTRUCTIONS   TO   JURIES  314 

struction  on  request.^  On  the  other  hand,  it  is  proper  to  charge 
that  the  jury  are  not  to  disregard  the  testimony  of  witnesses 
merely  because  of  evidence  as  to  their  character,*  or  because  they 
have  been  convicted  of  crime.^  An  instruction  as  to  the  general 
bad  reputation  for  veracity  of  a  witness  should  not  be  confined 
to  what  is  said  of  him  by  the  better  elements  in  the  community, 
but  should  include  the  opinion  held  of  him  by  the  whole  neigh- 
borhood, whether  good  or  bad.® 

§  155.     Youth  of  witness 

It  may  be  proper,'  or  necessary  on  request,  for  the  court  to 
charge  upon  the  quality  and  credibility  of  the  testimony  of  chil- 
dren of  tender  years.* 

§  156.  Corroboration  of  witness  against  whom  impeaching  tes- 
timony has  been  given 
It  is  proper  to  instruct  that,  where  a  witness  has  been  impeach- 
ed by  evidence  of  previous  contradictory  statements,  he  may  be 
sustained  by  proof  of  good  character,  or  by  other  facts  and  cir- 
cumstances,^ and  it  is  error  to  refuse  to  charge  that  impeaching- 
testimony  adduced  against  witnesses  should  be  weighed  in  the 
light  of  the  proof  of  their  good  character,  along  with  the  other 
evidence  in  the  case.^" 

C.  Testimony  Not  Given  in  Open  Court  or  not  Given  under 

Sanction  of  Oath 

§  157.     Absent  witnesses 

Where  evidence  is  presented  in  the  form  of  the  deposition  or 
affidavit  of   an   absent   witness   cautionary   instructions   as   to  the 

3  Prater  v.  State,  107  Ala.  26,  18  that  "in  times  past"  a  convict  under 
So.  238 ;  Ohio  &  M.  Ry.  Co.  v.  Crauch-  life  sentence  was  incompetent  to  tes- 
er,  132  Ind.  275,  31  N.  E.  911;  State  tify,  but  it  was  sufficient  to  charge 
V.  Sandt  (N.  J.  Sup.)  Ill  A.  651;  that  his  infamy  as  a  convict  went  to 
State  V.  Rachman,  53  A.  1046,  68  N.  his  credibility.  Jones  v.  State,  64 
J.  Law,  120.  iDd-  473. 

4  State  V  Olds  76  N.  W.  644.  106  °  Brown  v.  United  States,  17  S. 
Tmvn    110               '  Ct.  33,  164  U.  S.  221,  41  L.  Ed.  410. 

i     T       r>   ,,  fi-,  „    OC1    10Q  'State  v.   I^briola,   67  A.  386,   75 

s.  People  V.  Puttman,  61  P.  961,  129       ts^^    j     j^aw     483 

Cal.  258.  8  People   v.   Gralleranzo,   66  X.   Y. 

Instructing  that  conviction  goes  S.   514,    54   App.    Div.   360 ;     State   v. 

only    to    credibility.     In   Tiomicide  Morasco,  128  P.  571,  42  Utah,  5. 

it  was  not  necessary  for   the  court  o  Gordon  v.  State,  72  S.  E.  544,  10 

to   charge  with   reference   to   an   ac-  Ga.  App.  .35;    Powell  v.  State,  29  S. 

complice  who  had  pleaded  guilty  and  E.  309,  101  Ga.  9,  65  Am.  St.  Rep.  277. 

been  sentenced  to  state's  prison  for  lo  Hammond  v.    State,  41   So.   761, 

life  for  his  participation  in  the  crime  147  Ala.  79. 


■315  CREDIBILITY   OF    WITNESSES  §   158 

weight  or  degree  of  credibility  to  be  given  to  depositions  to  over- 
come any  disposition  of  the  jury  to  accord  them  less  weight  than 
testimony  in  open  court  are  generally  warranted/^  and  the  court 
should,  on  request/"  charge  that  such  evidence  is  to  be  weighed 
and  considered  the  same  as  the  testimony  of  other  witnesses  in 
the  case,  and  although  it  is  not  ordinarily  improper  to  refuse  a 
charge  that  such  evidence  is  to  be  given  the  same  weight  as  if 
the  witnesses  had  been  present  and  examined  in  open  court, ^^  the 
circumstances  may  be  such  as  to  make  it  error  to  refuse  to  so 
charge." 

§  158.     Dying  declarations 

Instnictions  on  weight  of  dying  declarations  as  invading  province  of  jury,  see* 
ante,  §  50. 

The  court  should  instruct  on  request  that  the  jury  should  give 
no  more  weight,  or  attach  no  greater  degree  of  credit  to  dying 
declarations  than  to  testimony  of  witnesses  not  subject  to  cross 
examination,^^  and  instructions  which  are  calculated  to  make  the 
jury  believe  that  such  declarations  are  entitled  to  the  same  weight 
or  the  same  degree  of  credit  as  the  testimony  of  living  witnesses 
given  under  oath  on  cross-examination  are  erroneous.^® 

Where  the  credibility  of  a  witness  whose  dying  declarations 
have  been  introduced  in  evidence  is  attacked  by  proof  of  general 
bad  character  or  in  any  other  way  in  which  the  law  authorizes  the 
impeachment  of  witnesses  the  court  should,  on  request,  instruct 
that  such  dying  declarations,  as  evidence,  should  be  considered 
under  the  same  rules  that  govern  in  determining  the  credibility 
of  witnesses  who  testify  from  the  stand.^'  If  the  jury  are  in- 
structed with  respect  to  the  conditions  which  render  such  declara- 
tions admissible  they  should  be  told  that  they  should  disregard 
a  declaration  not  made  under  a  sense  of  impending  death  and  it  is 
error  to  tell  them  merely  that  they  are  at  liberty  to  disregard 
declarations  made  in  the  absence  of  such  a  belief.-^*    Failure  how- 

iiHershiser   v.    Chicago,    B.   &   Q.  i*  Lee    v.    State,    23    So.    628,    75 

R.  Co.,  170  N.  W.  177,  102  Neb.  820 ;  Miss.   625. 

McCormick   v.    State,   92  N.   W.   606,  is  Zipperian  v.  People,  79  P.  1020, 

66  Neb.  3.37.  33  Colo.  134. 

12  Coburn  v.  Moline,  E.  M.  «&  W.  is  State  v.  Mathes,  90  Mo.  571,  2 
Ry.  Co.,  149  111.  App.  132,  judgment  S.  W.  SOO;  State  v.  Valencia,  140 
affirmed  90  N.  E.  •  741,  243  111.  448,  P.  1119,  19  N.  M.  113,  52  L.  R.  A. 
1.34  Am.  St.  Rep.  377.  (N.  S.)  152. 

13  Hogan  v.  State,  30  So.  358,  1.30  i^  Robinson  v.  State,  73  S.  E.  622, 
Ala.  104 ;    State  v.  Heath,  141  S.  W.  10  Ga.  App.  462. 

26,  237  Mo.  255;    Hershiser  v.  Chi-  is  People  v.  Profumo,   138  P.   109, 

cago,  B.  &  Q.  R.  Co.,  170  N.  W.  177,       23   Cal.   App.   376;     Brown   v.    State, 
102   Neb.    820.  112    S.    W.    80,   54   Tex.    Cr.    R.    121. 


§    159  INSTRUCTIONS  TO  JURIES  316 

ever  explicitly  to  instruct  the  jury  to  decide  whether  a  dying 
declaration  was  made  when  the  declarant  was  in  extremis  and 
had  abandoned  all  hope  of  recovery  is  not  error  in  the  absence 
of  a  request  to  so  instruct.^^  In  the  absence  of  a  request  therefor 
it-  will  not  ordinarily  be  error  to  fail  to  give  an  instruction  as  to 
the  weight  to  be  attached  to  dying  declarations  or  as  to  the  mat- 
ters to  be  considered  in  determining  their  credibility.^** 


D.  Interest  or  Bias  op  Witness 

§  159.     Right  of  jury  to\  consider  interest  or  bias  of  witness  and 

effect  of  such  matters 

Instructions  on  interest  of  witness  as  invading  province  of  jury,  see  ante,  §§ 
13,  14. 

As  a  general  rule  it  is  proper  to  instruct  that  in  determining 
the  credibility  of  witnesses  their  interest  in  the  result  of  the  suit 
may  be  taken  into  consideration^^  and  it  is  error  to  instruct  that 
certain  facts  showing  that  a  witness  is  interested  are  immaterial,'* 
or  to  so  frame  instructions  as  to  prevent  the  jury  from  passing 
on  the  bias  of  a  witness  as  indicated  by  certain  events.^^  It  is 
proper  to  charge  that  it  is  for  the  jury  to  say  whether  they  will 

Compare  People  v.  Rulia  Singh,  188  hall    v.    Stewart,   47   N.    E.   943,    IS 

P.  9S7,  182  Cal.  457.  Ind.  App.  262. 

19  State    V.    Mueller,    141    N.     W.  -When  counsel  liave  referred,  in 

1113,  122  Minn.  91.  their  arguments,  to  the  interest  of 

2  0  Propes   V.    State,   95    S.   E.   939,  witnesses,   it  is  not  error  to  charge 

22  Ga.  App.  254 ;    Howard  v.   State,  that  if  the  interest  or  employment  of 

86  S.  E.  540,  144  Ga.  169 ;   Devereaux  a  witness  has  impaired  or  biased  his 

V.  State,  78  S.  E.  849,  140  Ga.  225;  judgment,   such  fact  may  be  consid- 

State  V.  Johns,  132  N.  W.  832,  152  ered  in  weighing  his  testimony.     Mc- 

lowa,  383:    State  v.  Walker,  177  P.  Donell   v.   Rifle  Boom  Co.,  71   Mich. 

315,  104  Wash.  472.  61,  38  N.  W.  681. 

21  People  V.  Amaya,  66  P.  794,  134  j^    .        ^   .          ^     consider  inter- 

Cal.  531;    State  V.  Elby,  83  So.  227,  ^^f^^J    wiS      A    requested    in- 

H^  L^l-  ^S}^1  u^^^H  ''o?/^*^^^^-      struction  that  the  jury  was  "at  lib- 
W.  897,  61  ^eb.  688;    City  of  Har-  „  ^^  consider  the  opportunity  of 

y.^"l^.-  ^o^l"?'  ^^J^^^\  ^"^',^5  2-  the  witnesses  for  seeing,  their  inter- 

?  o?A   Ur  K   o  ^rrr^''^^^^'^^'   ^^^   ^-  est,  their  demeanor,  etc.,  is  not  strict- 

L.  .j80,  1(8  rs.  O.  ibz.  jy  correct,  since,  if  the  instruction  is 

Instructions  held  not  improper.  required,  it    should    make   such    con- 

A  charge  that  the  jury,  in  determin-  gideration   the    "duty"    of   the   jury, 

ing  the  credibility  of  a  witness,  may  Stanley  v.  Cedar  Rapids  &  M.  C.  Ry. 

consider    his    interest   in    the   result,  qq    93  j^    -yv   4S9   119  Iowa   526 

and    the    probability    of    the    truth-  ''    '      *      *        '              ^„ ',,"    4 

fuhiess  of  his  testimony,  was  not  er-  ^  "  >«eedles  v.  Gregory,  (3  Mo.  App. 

ror  as  saying  that   the   truthfulness  '  ^^'^' 

of  testimony   depends  upon  whether  23  Wright  v.  City  of  Anniston,  44 

the    witness   is    interested.     Menden-  So.  151,  151  Ala.  465. 


317  CREDIBILITY  OF   WITNESSES  §  159 

believe  the  testimony  of  an  interested  witness,^*  and  the  court 
should  charge  on  request,  in  a  criminal  prosecution  in  a  proper 
case,  that  if  any  of  the  witnesses  for  the  state  have  exhibited  bias 
or  anger  against  the  defendant,  so,  that  the  jury  are  satisfied  that 
such  v^itnesses  have  not  testified  truly,^^  or  if  any  of  such  wit- 
nesses have  been  induced  to  testify  by  a  promise  of  immunity 
from  further  punishment,^®  such  matters  may  be  taken  into  con- 
sideration in  passing  on  the  credibility  of  the  witnesses,  and  un- 
der some  circumstances  it  may  be  error  to  refuse  to  charge  that 
the  jury  may  infer  that  the  fact  that  a  witness  is  in  the  employ 
of  a  party  has  some  bearing  on  his  testimony."''' 

On  the  other  hand,  it  is  improper  to  instruct  that  the  jury  may 
disregard  the  testimony  of  interested  witnesses,  although  they 
are  neither  contradicted  nor  impeached,^^  or  to  give  an  instruc- 
tion which  suggests  that  the  jury  may  disregard  the  testimony 
of  a  witness  merely  because  he  is  in  the  employ  of  the  party  call- 
ing him  to  the  witness  stand,^^  and  an  instruction  that  if  the  jury 
believe  that  any  witness  for  defendant  testified  under  a  fear  of 
losing  his  employment,  or  a  desire  to  avoid  censure,  or  fear  of  of- 
fending, or  a  desire  to  please  his  employer,  such  fact  may  be 
considered  in  determining  the  weight  to  be  given  to  his  testi- 
mony, is  erroneous,  when  not  coupled  with  any  caution  that  the 
jury  will  not  be  justified  in  drawing  unfair  inferences  simply  be- 
cause the  witnesses  are  employes,  and  there  is  nothing  in  the  tes- 
timony itself  or  in  the  manner  of  the  witnesses  to  justify  the 
conclusion  that  the  testimony  is  tainted  in  the  manner  suggested 
by    the    instruction.^"      Conversely,    where    the    evidence    is    con- 

24  Le  Boutillier  v.  Fiske,  47  Hun,  2  8  Berzevizy  v.  Delaware,  L.  &  W. 
323.                                                                     R.  Co.,  46  N.  Y.   S.  27,  19  App.  Div. 

Where    there    is    a    direct    con-  309. 

flict   in  the  testimony   of   the   wit-  Treating  testimony  of  interest- 

nesses  for  plaintiff  and   that  of  the  ^^  witness  as  without  weight.     A 

witnesses     for     defendant,     its     em-  charge  that  the  jury  may  reject  the 

ployes.    It    IS    not    error    to    instruct  testimony  of  interested  witnesses,  if 

that  the  jury  may  disregard  the  tes-  they    feel,    on   all    the   evidence   and 

timony    of    any    witness.     Evilly    v.  circumstances  of  the  case,  that  such 

Jhird    Ave.   R     Co.    (Sup.)    16    Misc.  evidence  is  untrue,  is  error,  as  cre- 

o^;^  'i    ^f^'  ^i^\     "^W  c     ^oo   -..r.       ^*i^»   ^^^  impres.sion   that  such   evi- 

25  Burkett  V.  State,  45  So   682   154      ^ence  is  to  receive  no  consideration. 

^if •  }?J  »?'^™?°''^  ^-  ^^^*^'  ^^   ^''-  Solt^^u   V.   Loewenthal,  48   Hun,  620, 

(61,  14  <  Ala.  79.  1  N   Y   S   168 

2  6  Howard  v.  State,  35  So.  653,  83  •     •     •        • 

Miss.  378;    People   v.   Butler,   71  N.  ^o  inmois   Cent.   R.   Co.  v.   Burke, 

Y.  S.  129,  62  App.  Div.  508 ;    State  v.  ^^^  111.  App.  415. 

Chandler.  112  P.  1087,  57  Or.  561.  so  Gregory    v.    Detroit    United    Ry. 

2T  Bartholdi  v.  Hickson  (Sup.)   136  Co.,   101  N.   W.  546,   138  Mich.   368. 
N.  Y.  S.  92. 


§  159  INSTRUCTIONS  TO  JURIES  318 

flicting,  a  party  may  be  entitled  to  an  instruction  that  the  jury 
have  no  right  to  disregard  the  testimony  of  a  witness  simply  be- 
cause he  is  an  employee  of  either  party.^^ 

An  instruction  that,  as  a  general  rule,  a  witness  who  is  inter- 
ested in  the  result  of  a  suit  will  not  be  as  honest,  candid,  and  fair 
in  his  testimony  as  one  who  is  not  interested,  is  erroneous,^-  and 
it  is  proper  to  refuse  to  charge  that  the  testimony  of  a  disinter- 
ested witness  is  entitled  to  more  weight  than  that  of  a  party.^^ 
In  a  criminal  prosecution,  however,  it  has  been  held  that  it  is 
error  to  refuse  an  instruction  that  the  jury  have  the  right  to  dis- 
believe the  testimony  of  any  interested  witness  upon  no  other 
ground  than  the  fact  of  interest.^*  A  general  instruction  that 
it  is  proper  to  consider  the  interest  and  bias  or  prejudice  of  wit- 
nesses in  judging  of  their  credibility  is  sufficient,  unless  some 
good  reason  appears  for  specially  cautioning  the  jury.^^ 

§  160.     Complaining  witness  in  criminal  prosecution 

Instructions  criticized  as  invading  province  of  jury,  see  ante,  §  18. 

Cautionary  instructions  with  respect  to  the  testimony  of  a 
complaining  witness  in  a  criminal  prosecution  should  be  given  on 
request.^^    In  a  rape  case  it  is  proper  to  caution  the  jury  to  weigh 

31  Olsen    V.    CMcago   City   Ry.   Co.,  Instructions   on  bias   held  suffi- 

153  111.  App.  75.  cient.     An    instruction    that,    in    de- 

s:;  Muncie,' H.'&  Ft.  W.  Ry.  Co.  v.  termining  the  credibility  and  weight 

Ladd,  76  N.'  E.  790,  37  Ind.  App.  90;  of  a  witness'  testimony,  "his  relation 

Boyce  v.  Palmer,  75  N.   W.  849,  55  to  or  feeling  towards  the  defendant" 

Neb.  389.  ^a^^  ^^  taken  into  consideration,  is 

Instructions  not  improper  with-  sufficient  on  the  question  of  the  wit- 
in  rule.  A  charge  that,  "in  deter-  ness'  bias,  since  it  necessarily  con- 
mining  the  weight  to  be  given  the  templates  whether  he  was  friendly 
testimonv  of  the  different  witnesses,  or  unfriendly  to  the  defendant, 
you  should  take  into  account  the  in-  State  v.  Miller,  89  S.  W.  377,  190 
"terest  or  want  of  interest  they  have  Mo.   449. 

in    the    case,    their    manner    on    the  3  6  Abaly  v.   State,  158  N.  W.  308, 

stand,    the    probability    or    improba-  163     Wis.    609.     Compare     State     v. 

bility    of    their    testimony,    with    all  Stemmons,  205  S.  W.  8,  275  Mo.  544. 

other  circumstances  before  you  which  Instructions       held       sufficient. 

can   aid   you   in  weighing   their   tes-  The    jury,    in    prosecution    for    rape 

timony,"  is  not  erroneous,  as  charg-  was  sufficiently  cautioned  by  instruc- 

ing  that  an  interested  witness  is,  as  tions  that  a  charge  of  rape  is  easy  to 

a  matter  of  law,  entitled  to  less  ere-  make  and  difficult  to  disprove;    that 

dence   than  another.     Deal   v.   State,  testimony  of  a  child  of  tender  years 

140  Ind.  354,  39  N.  E.  930.  such  as  prosecutrix  ought  to  be  view- 

"3  piatz  v.  McKean  Tp.,  36  A.  136,  ed  with  care  and  caution;    and  that 

178  Pa.  GOl,  39  Wkly.  Notes  Cas.  480.  evidence  in  such  case  must  be  weigh- 

3  4  Hunter  v.  State,  29  Fla.  486,  10  ed  with  utmost  care  and  without  bias 

So.  730.  or     prejudice.     People     v.     Fraysier, 

35  I'orter  v.   People,   74  P.  879,  31  172  P.  1126,  36  Cal.  App.  579. 

Colo.  508;    State  v.  Gray,  135  P.  566,  Propriety      of      instruction      in 

90  Kan.  486.  bastardy  proceedings.     An  instruc- 


319 


CREDIBILITY   OF   WITNESSES 


§  161 


the  testimony  of  the  prosecutrix  with  the  utmost  care,  that  no 
wrong  be  'done  to  the  defendant  f'^  and  it  is  error  to  instruct  in 
effect  that  no  difference  is  to  be  made  between  the  testimony  of 
such  a  witness  and  that  of  any  disinterested  witness.^^ 

§  161.     Police  officers,  detectives,  and  informers 

Invading  province  of  jury,  see  ante,  §  20. 

In  some  jurisdictions,  where,  in  a  criminal -case,  the  state  relics 
upon  the  testimony  of  informers  or  paid  detectives  in  whole  or  in 
part,  cautionary  instructions  with  respect  to  such  testimony  are 
proper,^'*  and  the  jury  should  be  told  that  such  testimony  should 
be  scrutinized  and  weighed  with  greater  care  than  in  the  case 
of  witnesses  wholly  disinterested.*"  Such  rule  does  not  ordi- 
narily apply  to  the  testimony  of  a  county  attorney,  a  sheriff  or 
his  deputy,*^  or  a  post  office  inspector.*^  It  is  held  that  the  giving 
of  such  an  instruction  rests  largely  in  the  discretion  of  the  trial 
coiirt,*^  and  in  some  jurisdictions  such  an  instruction  is  erroneous 
and  properly  refused.** 


tion,  in  bastardy  proceedings,  that 
the  jury,  in  determining  the  credibil- 
ity of  tlie  prosecuting  witness,  might 
take  into  consideration  the  fact  that 
she  was  interested,  but  that  such 
fact  would  not  permit  them  to  give 
any  greater  or  less  weight  to  her 
evidence  than  if  they  were  consider- 
ing any  other  case  in  which  she  might 
be  interested,  is  not  error  as  being 
an  attempt  to  measure  the  interest 
of  the  witness.  State  v.  Carey,  55 
N.  E.  261,  23  Ind.  App.  278. 

37  People  V.  Scott,  141  P.  945,  24 
Cal.  App.  440. 

38  State  V.  Scott  (Utah)  188  P.  860. 
3  9  Gassenheimer   v.   United   States, 

26  App.  D.  C.  432. 

40  Commonwealth  v.  Downing,  4 
Gray  (Mass.)  29;  State  v.  Fullerton, 
90  Mo.  App.  411 ;  Sandage  v.  State, 
85  N.  W.  35,  61  Neb.  240,  87  Am.  St. 
Rep.  457;  State  v.  Boynton,  71  S. 
^.  341,  155  N.  C.  456. 

Necessity  of  instruction  as  to 
effect  of  interest.  Where,  in  a 
prosecution  for  the  unlawful  sale  of 
whisky,  the  only  witnesses  called  by 
the  state  were  detectives  employed 
by  the  state  at  a  fixed  salary  to  as- 
certain where  whisky  was  illegally 
sold,  and  institute  prosecutions 
against  parties  selling  it,  it  was"  held 


that,  though  it  was  not  shown  that 
they  had  any  direct  interest  in  con- 
victing accused,  or  that  their  pay  de- 
pended upon  conviction,  the  accused 
was  entitled  to  have  the  jury  in- 
structed that  the  consideration  of  the 
evidence  and  determination  of  its 
weight  and  the  credibility  of  the  wit- 
nesses are  for  the  jury,  and  in  weigh- 
ing the  evidence  and  determining 
whether  a  witness  should  be  be- 
lieved the  jury  could  ooifSider  any 
terest  such  witness  may  have  in  the 
case,  and  if  they  believe  that  any 
witness  has  willfully  sworn  falsely 
as  to  any  material  matter  the  jury- 
have  a  right  to  disbelieve  the  wliofe 
evidence  of  such  witness.  Turner  v. 
State,  50  So.  629,  95  Miss.  879. 

41  Hudson  v.  State,  149  N.  W.  104, 
97  Neb.  47;  McMartin  v.  State,  145 
N.  W.  695,  95  Neb.  292;  Keezer  v. 
State,  133  N.  W.  204,  90  Neb.  238. 

4  2  Lorenz  v.  United  States,  24  App. 
D.  C.  337. 

■43  Jaynes  v.  People,  99  P.  325,  44 
Colo.  535,  16  Ann.  Cas.  787 ;  Holliday 
V.  State,  67   So.  181,  108  Miss.  726; 

44  People  V.  Gardt,  101  N.  E.  687, 
258  111.  468,  affirming  judgment  175 
111.  App.  80;  Copeland  v.  State,  38 
S.  W.  210,  36  Tex.  Cr.  R.  575. 


§161 


INSTRUCTIONS  TO  JURIES 


320 


In  Illinois  the  rule  is  that,  while  the  fact  that  witnesses  in  a 
criminal  case  are  informers  and  detectives  should  be  taken  into 
consideration  and  given  such  effect,  in  determming  their  credi- 
bility, as  the  jury,  after  fair  and  candid  deliberation,  think  it 
should  have,  it  is  not  a  rule  of  law  that  their  testimony  must  be 
weighed  with  greater  care  than  that  of  other  witnesses."*^  In 
Kansas  it  is  held  by  the  later  cases,*®  overruling  the  earlier  ones,*' 
that  no  sound  reason  can  be  suggested  why  the  testimony  of  such 
witnesses  should  be  singled  out  as  deserving  of  less  credence 
than  the  evidence  of  witnesses  in  general. 

Where  such  an  instruction  is  proper,  it  should  only  be  given 
when  the  witness  testifies  for  the  state,**  and  ordinarily  a  charge 
on  this  head  is  sufficient  which  tells  the  jury  that  they  may  con- 
sider the  fact  that  witnesses  are  paid  detectives,  without  direct- 
ing them  to  view  such  testimony  with  disfavor.*®  While  the 
court  should  not  give  judicial  indorsement  to  such  testimony,^® 
nor  place  it  on  an  equal  basis  of  credence  with  the  testimony  of 
wholly  disinterested  witnesses,^i  it  is  not  error  to  charge  that  the 
mere  fact  that  a  witness  is  a  police  officer  does  not  require  that 
his  testimony  be  discarded.^^ 


Salt  Lake  City  v.  Robinson,  125  P. 
657,  40  Utah,  448. 

Cases  in  whicli  such  instriictioii 
properly  refused.  Where,  at  the 
trial  of  a  complaint  for  lieeping  and 
maintaining  a  tenement  used  for  the 
illegal  sale  and  illegal  keeping  of 
intoxicating  liquors,  the  complainant 
testified  that  he  was  employed  by  a. 
law  and  order  league  to  obtain  evi- 
dence against  liquor  sellers,  and  to 
prosecute  such  for  illegal  sales  of 
intoxicating  liquors;  that  the  league 
furnished  him  with  money  to  pay 
expenses ;  that  he  asked  some  sailors 
to  visit  the  tenement  in  question  with 
liim,  and  ordered  liquors  for  them, 
which  he  paid  for  out  of  money  fur- 
nished by  the  league,  it  was  held 
that  the  defendant  was  not  entitled 
to  have  the  jury  instructed  that  the 
witness  was  not  entitled  to  be  be- 
lieved, or  that  the  jury  should  not 
convict  upon  such  evidence.  Com- 
monwealth V.  Moore,  145  Mass.  244, 
13  N.  E.  893. 

45  People  V.  Newbold,  103  N.  E.  69, 
260  111.  196,  reversing  judgment  178 
111.  App.  63;  People  v.  Carter,  188 
111.  App.   22. 


4G  State  V.  Roberts,  147  P.  828,  95 
Kan.  280. 

4  7  state  V.  Shew,  57  P.  137,  8  Kan. 
App.  679 ;  State  v.  Snyder,  57  P.  135, 
8  Kan.  App.  686. 

4s  Shellenberger  v.  State,  150  N. 
W.  643,  97  Neb.  498,  L.  R.  A.  1915C, 
1163. 

49  Baumgartner  v.  State,  178  P.  30, 
20  Ariz.  157 ;  People  v.  Plummer,  155 
N.  W.  533,  189  Mich.  415. 

soMcWhorter  v.  State,  95  S.  E. 
1013,  22  Ga.  App.  251. 

5iFi-udie  V.  State,  92  N.  W.  320, 
66  Neb.  244. 

Instructions  not  improper  ivith- 
in  rule.  A  charge,  on  trial  for  vio- 
lation of  the  prohibition  law,  where 
the  principal  witness  for  the  prosecu- 
tion was  a  detective,  that,  while  the 
jury  may  consider  the  witness'  man- 
ner of  testifying  and  his  interest  in 
the  case,  it  was  legitimate  for  the 
state  to  employ  detectives  to  ascer- 
tain those  who  violated  the  law. 
Watts  V.  State,  71  S.  E.  766,  9  Ga. 
App.   500. 

5  2  People  V.  Shoemaker,  90  N.  W. 
1035,  131  Mich.  107. 

Instructions     held     proper.     An 


321  CREDIBILITY   OF   WITNESSES  S  163 

§  162.     Wife  or  relatives  of  accused 
Invading  province  of  jury,  see  ante,  §  19. 

In  a  criminal  case  it  is  proper  for  the  court  to  instruct  that  in 
determining  the  credibility  of  the  different  witnesses  the  jury 
may,^^  or  should,^*  consider  the  fact  that  a  witness  is  a  relative 
or  is  the  wife  of  the  defendant,  although  it  is  not  error  to  refuse 
such  a  charge.^^  It  is  proper  to  charge  that,  if  the  jury  believe 
that  the  relatives  of  the  accused,  giving  testimony  on  his  behalf, 
are  credible  witnesses,  they  should  give  such  testimony  the  same 
weight  as  that  of  other  witnesses,^*^  and  instructions  having  a 
tendency  to  lead  the  jury  to  think  that  the  testimony  of  a  wife 
or  relative  of  the  accused  is  to  be  discredited  to  some  extent, 
although  they  may  believe  that  the  witness  is  speaking  the  truth 
are   erroneous.^' 

§  163.     Coindictee  of  defendant  in  criminal  case 

Cautionary  instructions,  on  the  ground  of  interest,  as  to  the 
testimony  of  a  coindictee  of  a  defendant  in  a  criminal  case,  such 
coindictee  not  being  on  trial,  but  testifying  for  the  defendant,  are 
held  improper,^  and  where  a  codefendant  turns  state's  evidence, 
the  accused  is  not  entitled  to  an  instruction  that  such  codefendant 
testifies  under  the  strong  bias  of  self-protection  and  hope  of  im- 

instruction,  on  a  prosecution  for  sell-  to  consideration.     State  v.  Newcomb, 

ing  liquor  on  Sunday,  that,  if  the  jury  119  S.  W.  405,  220  Mo.  54. 

believed    witness    was    a    spy,    they  -'^  Van   Buren  v.   State,   88   N.   W. 

should  scrutinize  his  testimony,  and,  671,  63  Neb.  453 ;    State  v.  Fogleman, 

after  doing  so,  if  they  were  satisfied  79  S.  E.  879,  164  N.  C.  458. 

his  testimony  was  true,  it  made  no  ^s  Mitchell  v.  State,  32  So.  132,  133 

difference   what   his    motive   was   in  Ala.  G5. 

going  to  defendant's  house,  or  what  ^e  State  v.  Lance,  81  S.  E.  1092,  166 

his   character   was.     State  v.   Black,  N.  C.  411;    State  v.  Apple,  28  S.  E. 

28  S.  E.  518,  121  N.  C.  578.  469,  121  N.  C.  584. 

5  3liid.     Keesier  v.  State,  56  N.  E.  Dwty   to   give   such   instruction. 

232    154  Ind    242.  ^^^  instruction,  in  passing  on  the  evi- 

Mo.     State  v.  Kyle,  168  S.  W.  681,  ?.^"^^   ^f  ^^J"  5?T*l''''^L^.  ''''''J   '■*'^''" 

259    Mo.    401;     State    v.    Hyder,    167  J^^?^'  Y^^'^  testified  for  him,  to  scru- 

S.    W.    524,    258    Mo.    225;     State   v.  ti^ii^e   the  same  with   great  caution, 

McDonough,  134  S.  W.  545,  232  Mo.  <^0"sidermg  their  interest  in  the  re- 

219;    State  v.  Napper,  42  S.  W.  957,  f^^^  ^^  the_  verdict,  and  then  to  give 
141  Mo   401            '^^     '                           'it  such  weight  as  is  deemed  proper, 

^j.    ,'      C.1  J.         TIT  rr^  ^    ^^^  is    erroneous,    in    the    absence    of    a 

97  Tif^  -.nJ''*^  ^-  ^^«^S^°'  ^4  P-  526,  further  charge  that,  if  such  witnesses 

zi  utan,  lud.  ^,gj.g  fQUj-i^j^  |.Q  ijg  credible,  their  tes- 

Use  of  permissive  or  imperative  timony    should    be   given    full    credit. 

form    of    verb.     The    court    should  State  v.  McDowell,  39  S.  E.  840,  129 

charge  that  the  jury  "may  take"  into  N.  C.  523. 

consideration  the  fact  that  accused  or  57  state  v.  Lee,  28  S.  E.  552,  121 

his  wife,  testifying  in  his  own  or  in  N.  C.  544. 

her  husband's  behalf,  instead  of  using  ss  state  v.'  Mintz,  150  S.  W.  1042 

the  formula  "will  take"  such  fact  in-  245  Mo.  540,  43  L.  R.  A.  (N.  S.)  146! 
Inst.to  Jubies— 21 


164 


INSTRUCTIONS   TO  JURIES 


322 


munity,  and  that  such  bias  should  be  considered  by  the  jury, 
whether  or  not  the  evidence  discloses  a  promise  of  immunity,*^^ 
although  the  defendant  is  entitled  to  have  the  jury  told  that  they 
may  consider  whether  witnesses  are  under  a  strong  bias  of  self- 
protection  and  hope  of  immunity.^® 

E.  Credibility  of  Party  Te;stifying  as  Witness 

§  164.     Singling  out  party  for  comment 

There  is  some  conflict  of  authority  as  to  the  right  of  the  court 
to  single  out  a  party  testifying  as  a  witness  and  comment  on  the 
effect  of  his  interest  on  the  quality  of  his  testimony.  In  some  ju- 
risdictions it  is  held  that  the  court  may,®^  and  should^'  on  request, 


5  9  Commonwealth  v.  Harris,  122  N. 
E.  749,  232  Mass.  588. 

6  0  Commonwealth  v.  Harris,  122  N. 
E.  749.  232  Mass.  588. 

01 U.  S.  (C.  C.  A.  Colo.)  Denver 
City  Tramway  Co.  v.  Nortop,  141  F. 
599,  73  C.  C.  A.  1. 

111.  Lauth  V,  Chicago  Union  Trac- 
tion Co.,  91  N.  E.  431,  244  111.  244, 
reversing  judgment  146  111.  App.  584 : 
Hancheft  v.  Haas.  76  N.  E.  845.  219 
111.  546:  Ed.  C.  Smith  Furniture  Co. 
v.  Peter  &  Yolz,  205  111.  App.  379; 
Dickerson  v.  Henrietta  Coal  Co.,  158 
111.  App.  454;  Scanlan  v.  Chicago 
Union  Traction  Co.,  127  111.  App.  406 : 
Eckhardt  v.  People,  116  111.  App.  408 ; 
Chicago  City  Ry.  Co.  v.  Olis,  94  111. 
App.  323,  judgment  affirmed  61  N.  E. 
459,  192  111.  514;  North  Chicago  St. 
R.  Co.  V.  Dudgeon,  83  111.  App.  528, 
judgment  affirmed  56  N.  E.  796,  184 
ill.  477. 

Neb.  Barmby  v.  Wolfe,  44  Neb. 
77,  62  N.  W.  318. 

N.  Y.  Cullinan  v.  Furthman,  79 
X.  E.  989.  187  N.  Y.  160.  reversing 
judgment  94  N.  Y.  S.  1142,  105  App. 
biv.   642. 

Instruction  not  abstract.  An 
instruction  that  the  jury  may  con- 
sider the  interest  of  a  plaintiff  in 
weighing  his  testimony  as  a  witness 
is  projier,  and  not  ol)jectional)le  as 
being  abstract.  West  Chicago  St.  R. 
Co.  v.  Estep,  162  111.  130,  44  N.  E. 
404.  affirming  62  111.  App.  617. 

62  111.  Chicago  &  E.  I.  R.  Co.  v. 
Burridge,  71  N.  E.  838,  211  111.  9, 
reversing  judgment  107  111.  App.  23; 


West  Chicago  St.  Ry.  Co.  v.  Dougher- 
ty, 48  N.  E.  1000,  170  111.  379,  re- 
versing judgment  64  111.  App.  599; 
Laugan  v.  Chicago  City  Ry.  Co.,  145 
111.  App.  249 ;  Chicago  Union  Trac- 
tion Co.  V.  Hansen,  125  111.  App.  1.53 ; 
Wabash  R.  Co.  v.  Jensen,  99  111.  App. 
312;  Schlesinger  v.  Rogers,  80  111. 
App.  420;  Chicago  &  G.  T.  Ry.  Co. 
Y.  Spurney,  69  111.  App.  549. 

N.  C.  Ferebee  v.  Norfolk-South- 
ern R.  Co.,  S3  S.  E.  360.  167  N.  C.  290. 

Wis.  Vogel  V.  Herzfeld-Phillipson 
Co..  134  N.  W.  141,  148  Wis.  573; 
Blankavag  v.  Badger  Box  »&  Lumber 
Co.,  117  N.  W.  852,  136  Wis.  380. 

Rigbt  of  jury  to  discredit  tes- 
timony of  party.  When  the  trial 
judge  states  that,  in  considering 
plaintiff's  testimony,  the  jury  are  to 
take  into  account  the  fact  that  he 
is  interested,  and  that  they  may  dis- 
credit his  testimony,  it  is  not  nec- 
essary to  explain  further.  Nev  v. 
City  of  Troy,  50  Hun,  604,  3  N.  Y.  S. 
679. 

Instruction  on  effect  of  false 
testimony.  In  an  action  on  a  life 
policy  an  instruction  that  if  the  jury 
believed  from  the  evidence  that  plain- 
tiff had  willfully  sworn  falsely  as  to 
any  material  matter  on  the  trial  then 
thoy  might  disregard  his  entire  tes- 
timony, was  held  improperly  refused, 
since,  one  of  the  parties  being  a  nat- 
ural person,  it  was  proper  to  direct 
tlie  attention  of  the  jury  to  his  testi- 
mony and  not  draft  the  instruction  so 
as  to  apply  to  both  parties,  as  should 
be  done  where  both  parties  were  nat- 


323  CREDIBILITY  OF   WITNESSES  §  164 

charge  that,  while  a  plaintiff  or  defendant,  as  the  case  may  be, 
is  permitted  to  testify  the  jury  have  a  right  to,  or  should,,  con- 
sider the  interest  of  such  party  in  the  result  of  the  suit,  in  pass- 
ing upon  his  credibility,  or  give  some  instruction  of  equivalent  im- 
port,**^ and  it  is  not  sufficient  in  such  case  to  tell  the  jury  to  use 
their  common  experience  and  common  sense  in  regard  to  the 
credibility  of  witnesses.**"*  In  Wisconsin  an  instruction  with  ref- 
erence to  matters  to  be  considered  in  determining  the  credibility 
of  a  party  testifying  as  a  witness  is  not  objectionable,  as  violating 
the  rule  that  the  evidence  of  one  witness  should  not  be  singled 
out  for  special  comment,  where  the  court  directs  that  the  tes- 
timony of  the  other  witnesses  be  subjected  to  like  tests,*'^  and  it 
is  miproper  to  refuse  such  an  instruction.^^  While,  as  a  general 
rule,  mere  neglect  or  omission  to  charge  in  a  particular  way  is 
not  error,  in  the  absence  of  a  particular  requ)est  for  such  instruc- 
tions, in  one  jurisdiction  an  exception  to  this  rule  exists  where  the 
testimony  of  a  plaintiff  is  contradicted  b}^  disinterested  witnesses. 
In  such  case  it  is  error  in  this  jurisdiction  for  the  court  not  to 
call  attention  to  the  conflict  and  the  nature  of  the  testimony,  and 
to  explain  and  set  forth  the  weight  to  be  given  to  that  kind  of 
testimony,  or  to  fail  to  explain  adequately  the  relative  value  of 
the  testimony  of  the  different  parties.®' 

In  some  cases  it  may  be  error  to  refuse  an  instruction  that  the 
testimony  of  a  plaintiff  can  be  disregarded  because  of  his  inter- 
est."^    In  Missouri,  however,  in  opposition  to' the  doctrine  above 

ural  persons.     Neeley  v.  ^Metropolitan  Action  against  carrier  for  inju- 
Life  Ins.  Co.,  199  111.  App.  90.  ries  to  passenger.     The  existence  of 
In  Montana,  a  requested  instruc-  violence  or  neglect  in  coupling  cars, 
tion  on  the  credihility  of  the  testimo-  and  the  relation  thereof  to  a  passen- 
ny  of  a  party  to  the  case,  if  correct  in  ger's  condition,  depending  almost  en- 
law,  should  be  given,  where  no  other  tirely  on    the   testimony   of   the   pas- 
instruction  on  the  credibility  of  wit-  senger  and  his  wife,   and  his  credi- 
nesses  generally  is  given.     Murray  v.  liility  having  been  attacked  by  many 
City  of  Butte,  151  P.  1051,  51  Mont.  witnesses,    and   by   his    own    conduct 
258.  in  failing  for  many  months  to  com- 
es Hill  V.  Sprinkle,  76  N.  C.  35.3.  plain  of  the  coupling,  or  any  injury 
64  Lancashire  Ins.    Co.   v.    Stanley,  from    it,    the    attention    of    the    jury 
62  S.  W.  66,  70  Ark.  1.  should  have  been  particularly  called 
6  5  Kavanaugh   v.   City  of  Wausau,  to  the  question  involved  of  the  wit- 
98  N.  W.  550,  120  Wis.  611.  ness'     credibility.     Herstine     v.     Le- 
6  6  Kavanaugh  v.  City  of  Wausau,  high  Valley  R.   Co.,  151  Pa.  244,  25 
98  N.  W.  550,  120  Wis.  611.  A.  104.  31  Wkly.  Notes  Cas.  49. 

6  7  Weiss  V.  Pittsburgh  Rys.  Co.,  89  6  8  Silvey  v.    Lehigh   Valley   R.   Co. 

A.  586,  242  Pa.  506 ;    Davies  v.  Phila-  (Sup.)  151  N.  Y.  S.  122. 

delphia  Rapid  Transit  Co.,  77  A.  450,  It   is   proper   to   refuse   such   an 

228  Pa.   176 ;    Clark   v.    Union   Trac-  instruction,     where     no     charge     i** 

tion    Co.,    60    A.    302.    210    Pa.    636;  given  or  asked  as  to  the  function  of 

Floyd  V.  Lehigh  Valley  R.  Co.,  60  Pa.  the   jury   in    weighing    evidence    and 

Super.  Ct.  1.  passing  on  the  credibility  of  witness- 


164 


INSTRUCTIONS   TO  JURIES 


324 


stated,  it  is  held  in  the  later  cases,^^  practically  overruling  the 
earlier  ones,'"  that  in  civil  cases  it  is  error  to  instruct  that,  while 
plaintiff  is  a  competent  witness,  yet  in  determining  the  weight  of 
his  testimony  the  jury  should  consider  his  interest,  and,  while 
the  law  presumes  that  what  he  says  against  his  interest  is  true, 
the  jury  need  not  believe  his  testimony  in  his  own  favor,  but  can 
treat  it  as  true  or  false,  as  they  believe  it  when  considered  with 
all  the  other  testimony.  In  California  it  is  held  that  it  is  proper 
to  refuse  an  instruction  that  the  jury  can  consider,  in  determin- 
ing the  credibility  of  a  party,  his  interest  in  the  result  of  the 
suit.'^ 

Where  both  of  the  parties  to  a  cause  are  natural  persons  and 
are  witnesses,  it  is  error  to  single  out  one  of  such  parties  and  to 
direct  the  attention  of  the  jury  to  the  situation  and  interest  of 
such  party  in  the  result  of  the  suit,  without  making  reference  to 
the  situation  and  interest  of  the  other  party  to  the  cause,'^  and 


es.  Irwin  v.  Metropolitan  St.  Ry.  Co. 
(Slip.)  54  N.  Y.  S.  195,  25  Misc.  Rep. 
187,  affirmed  57  N.  Y.  S.  21.  38  App. 
Div.  253,  6  N.  Y.  Ann.  Cas.  374. 

When  refusal  to  charge  harm- 
less error.  A  refusal  to  charge 
"that  the  jury  are  at  lilierty  wholly 
to  reject  the  plaintiff's  testimony,  so 
far  as  it  is  not  corroborated  by  other 
evidence,"  is  not  prejudicial  error, 
where  plaintiff  produces  corrobora- 
tion of  some  kind  upon  the  material 
points  of  the  case,  and  the  jury  are 
instructed  that  if  they  believe  plain- 
tiff's testimony  they  can  find  for  him, 
but  that  if  they  believe  defendant's 
witnesses  the  result  must  be  different. 
Shea  V.  Manhattan  Ry.  Co.  (Com.  PL) 
8  N.  Y.  S.  332,  affirming  judgment 
(City  Ct.  K  Y.)  7  N.  Y.  S.  497. 

6  9  Benjamin  v.  Metropolitan  St.  Ry. 
Co..  151  S.  W.  91,  245  Mo.  598 ;  Quinn 
V.  Metropolitan  St.  Rv.  Co.,  118  S.  W. 
46,  218  Mo.  545;  Huff  v.  St.  Joseph 
Ry.,  Light,  Heat  &  Power  Co.,  Ill  S. 
W.  1145,  213  Mo.  495;  Stetzler  v. 
Metropolitan  St.  Ry.  Co.,  109  S.  W. 
666.  210  Mo.  704 ;  Zander  v.  St.  Louis 
Transit  Co.,  103  S.  W.  1006,  206  Mo. 
445;  Conner  v.  Missouri  Pac.  Ry.  Co., 
81  S.  W.  145,  181  Mo.  397. 

7  0  McCaffery  v.  St.  Louis  &  M.  R. 
R.  Co.,  90  S.  W.  816,  192  Mo.  144 ;  Sep- 
towsky  V.  St.  Louis  Transit  Co.,  76 
S.  W.  693,  102  Mo.  App.  110. 


71  Douglas  V.  Berlin  Dve  Works  & 
Laundry  Co.,  145  P.  535.  169  Cal.  28. 

-2  111.  Thiele  v.  Hetzel.  1S4  111. 
App.  633:  Hartshorn  v.  Hartshorn, 
179  111.  App.  421 ;  Wicks  v.  Wheeler, 
157  111.  App.  578 ;  Kiick  v.  Boost.  145 
111.  App.  411 ;  Sangster  v.  Hatch,  1.34 
111.  App.  .340;  Taylor  v.  Crowe,  122 
111.  App.  518. 

Minn.  Harriott  v.  Holmes,  79  N. 
W.  1003,  77  Minn.  245. 

Refusal  to  charge  as  mislead- 
ing. After  a  charge  that  defendant 
is  an  interested  witness,  a  refusal  to 
charge  on  defendant's  request  that  a 
conflicting  witness  is  interested  is  er- 
roneous, as  liable  to  mislead.  Stev- 
ens V.  Rosenwasser  (Sup.)  162  N.  T. 
S.  989. 

Instructions  not  improper  with- 
in rule.  A  charge  in  an  action  to 
recover  for  professional  services  of 
an  attorney,  that  the  jury  were  not 
bound  to  credit  the  testimony  of  the 
plaintiff  as  a  matter  of  law.  as  he 
was  an  interested  witness  in  his  own 
behalf,  even  if  his  testimony  were  un- 
contradicted, especially  as  such  testi- 
mony rested  on  opinion  only  as  to 
the  value  of  the  services.  Such 
charge,  being  given  in  connection 
with  others  as  to  the  conclusiveness 
of  opinion  evidence  on  the  question 
of  the  value  of  plaintiff's  services,  is 
not  objectionable  on  the  ground  that         i 


325  CREDIBILITY  OF   WITNESSES 


§165 


such  an  instruction  is  properly  refused."  Under  this  principle 
it  is  error  to  call  the  attention  of  the' jury  to  the  efifect  upon  the 
testimony  of  a  party  of  his  interest  in  the  result  when  a  witness 
against  him  is  deeply  interested  in  a  moral  sense  and  no  instruc- 
tion as  to  his  interest  is  given.'''* 

§  165.     Ignoring  interest  of  party 

Where  witnesses  are  parties  to  the  suit  whatever  may  be  their 
numbers  their  opportunities  or  means  of  information  the  jury  are 
to  judge  of  the  degree  in  which  their  interest  affects  their  credi- 
bility and,  where  two  parties  on  one  side  of  a  suit  testify  against 
a  disinterested  witness  on  the  other  an  instruction  that,  if  the 
witnesses  are  alike  in  everything  but  numbers,  the  evidence  of 
the  two  will  overcome  the  evidence  of  the  one  is  erroneous,  as 
ignoring  the  element  of  interest.''^  So  an  instruction  that  the  jury 
are  to  treat  a  plaintiff  in  the  same  way  as  any  other  witness  and 
subject  him  to  the  same  tests  is  erroneous.''® 

F.  Crkdibiuty  of  Testimony  of  Accused 

Invading  province  of  jury,  see  ante,  §§  15-17. 

§  166.     Necessity  of  instructions 

As  a  general  rule  the  court  should  give,  on  request,  appropriate 
instructions  as  to  the  proper  tests  for  weighing  the  testimony  of 
the  defendant  in  a  criminal  case.'''  Such  a  defendant  is  entitled 
to  an  instruction  based  on  the  theory  that  the  jury  may  believe 
his  version  of  the  facts  bearing  on  the  question  of  whether  he 
is  guilty  of  the  crime  alleged  against  him,'^  however  incredible 
his  testimony  may  appear  to  be;''^   and  in  one  jurisdiction,  where 

it  unfairly  singles  out  plaintiff  and  Arron,   79   N.   W.   944,   121   Mich.    1; 

charges   as   to   his   credibility   alone.  M<?Vay  v.  State,  26  So.  947 

Sc-hmitt  V.  Murray,  91  N.  W.  1116,  87  ts  Colo.     Almond  v.  People,  135  P. 

Minn   250.  7S3,  55  Colo.  425. 

'  a  I'ennsylvania  Co.  v.  Versten,  140  -m        <^^-  *.         t^     -,     ■  ,      ^     ^   „ 

111.  637,  30  N.  E.  540,  15  L.  R.  A.  798.  cJ^%(,^\f^  ^^:  Fredericks,  37  S.  W. 

7  4  Tompkins    v.    Pacific   Mut.    Dife  ?X;' m^^  iVo"*' .^rr  L    w  Ln    ^i'^^'^^Se, 

Ins.  Co.,  44  S.  E.  439,  53  W    Va    479  ^  ^^''-  ^^^'  ^^  ^-  ^-  ^^^O:    State  v. 

63  L.  R.  A.  489,  97  Am.  St.  Rep.  10061  ?,'"?'"'    n^^  .Y""-  l^^-J^f.a  ^'-  ^^^'' 

7  5  Amis  V.  Cameron,  55  Ga  449  ^*^*^  ''•  ^^^rtlow,  90  Mo.  608,  4  S.  W. 

76Pienta  v.  Chicago  City  Ry    Co  "''*'  ^^  -'^™-  ^^'^-  ^^''    ^^^^^  ^-  Ander- 

120  N.   E.   1,  284  in.   246,  reversing  ^«°'  ««  Mo.  309. 

.iudgment  208  111.  App.  309;    Hedger  ^*  ^-     State  v.  Tough,   96  N.   W. 

V.  Chicago  City  Ry.  Co.,  207  111.  App.  1025,  12  N.  D.  425. 

^^-  Ohl.     Douglas  V.   Territory,  98  P. 

y  People   V.   Archibald,   101   N.   li;,  1023,  1  Okl.  Cr.  583. 

.582,  258  111.  383;    State  v.  Poree,  68  7  9  People  v.  Keefer,  65  Cal.  232,  3 

bo.  86,  136  La.  939;    People  v.  Mc-  P.  SIS. 


164 


INSTRUCTIONS   TO  JURIES 


324 


stated,  it  is  held  in  the  later  cases,®^  practically  overruling  the 
earlier  ones,'^®  that  in  civil  cases  it  is  error  to  instruct  that,  while 
plaintiff  is  a  competent  witness,  yet  in  determining  the  weight  of 
his  testimony  the  jury  should  consider  his  interest,  and,  while 
the  law  presumes  that  what  he  says  against  his  interest  is  true, 
the  jury  need  not  believe  his  testimony  in  his  own  favor,  but  can 
treat  it  as  true  or  false,  as  they  believe  it  when  considered  with 
all  the  other  testimony.  In  California  it  is  held  that  it  is  proper 
to  refuse  an  instruction  that  the  jury  can  consider,  in  determin- 
ing the  credibility  of  a  party,  his  interest  in  the  result  of  the 
suit'i 

Where  both  of  the  parties  to  a  cause  are  natural  persons  and 
are  witnesses,  it  is  error  to  single  out  one  of  such  parties  and  to 
direct  the  attention  of  the  jury  to  the  situation  and  interest  of 
such  party  in  the  result  of  the  suit,  without  making  reference  to 
the  situation  and  interest  of  the  other  party  to  the  cause,'^  and 


es.  Irwin  v.  Metropolitan  St.  Ry.  Co. 
(Sup.)  54  N.  Y.  S.  195,  25  Misc.  Rep. 
1S7,  affirmed  57  N.  Y.  S.  21,  38  App. 
Div.  253,  6  N.  Y.  Ann.  Cas.  374. 

When  refusal  to  cliarge  harm- 
less error.  A  refusal  to  charge 
"tbat  the  jury  are  at  liberty  wholly 
to  reject  the  plaintiff's  testimony,  so 
far  as  it  is  not  corroborated  by  other 
evidence,"  is  not  prejudicial  error, 
where  plaintiff  produces  corrobora- 
tion of  some  kind  upon  the  material 
points  of  the  case,  and  the  jury  are 
instructed  that  if  they  believe  plain- 
tiff's testimony  they  can  find  for  him, 
but  that  if  tliey  believe  defendant's 
witnesses  the  result  must  be  different. 
Shea  V.  Manhattan  Ry.  Co.  (Com.  PI.) 
8  N.  Y.  S.  332,  affirming  judgment 
(City  Ct.  N.  Y.)  7  N.  Y.  S.  497. 

6  9  Benjamin  v.  Metropolitan  St.  Ry. 
Co.,  151  S.  W.  91,  245  Mo.  598 ;  Quina 
V.  Metropolitan  St.  Rv.  Co.,  118  S.  W. 
46,  218  Mo.  545;  Huff  v.  St.  Joseph 
Ry.,  Light,  Heat  &  Power  Co..  Ill  S. 
W.  1145,  213  Mo.  495;  Stetzler  v. 
Metropolitan  St.  Ry.  Co.,  109  S.  W. 
6GG,  210  Mo.  704 ;  Zander  v.  St.  Louis 
Transit  Co.,  103  S.  W.  1006,  206  .Mo. 
445;  Conner  v.  Missouri  Pac.  Ry.  Co., 
81  S.  W.  145,  181  Mo.  397. 

7oMcCaffery  v.  St.  Louis  &  M.  R. 
R.  Co.,  90  S.  W.  816.  192  Mo.  144 ;  Sep- 
towsky  v.  St.  Louis  Transit  Co.,  76 
S.  W.  693,  102  Mo.  App.  110. 


71  Douglas  V.  Berlin  Dve  Works  & 
Laundry  Co.,  145  P.  535.  169  Cal.  28. 

T2I11.  Thiele  v.  Hetzel.  IS-t  111. 
App.  633:  Hartshorn  v.  Hartshorn, 
179  111.  App.  421 ;  Wicks  v.  Wheeler, 
157  111.  App.  578 ;  Kiick  v.  Boost,  145 
111.  App.  411 ;  Sangster  v.  Hatch,  1.34 
111.  App.  .340;  Taylor  v.  Crowe,  122 
111.  App.  518. 

Minn.  Harriott  v.  Holmes,  79  N. 
W.  1003,  77  Minn.  245. 

Refusal  to  charge  as  mislead- 
ing. After  a  charge  that  defendant 
is  an  interested  witness,  a  refusal  to 
charge  on  defendant's  request  that  a 
conflicting  witness  is  interested  is  er- 
roneous, as  liable  to  mislead.  Stev- 
ens V.  Rosenwasser  (Sup.)  162  N.  T. 
S.  989. 

Instructions  not  improper  ndth- 
in  rule.  A  charge  in  an  action  to 
recover  for  professional  services  of 
an  attorney,  that  the  jury  were  not 
bound  to  credit  the  testimony  of  the 
plaintiff  as  a  matter  of  law.  as  he 
was  an  intei'ested  witness  in  his  own 
behalf,  even  if  his  testimony  were  un- 
contradicted, especially  as  such  testi- 
mony rested  on  opinion  only  as  to 
the  value  of  the  services.  Such 
charge,  being  given  in  connection 
with  others  as  to  the  conclusiveness 
of  opinion  evidence  on  the  question 
of  the  value  of  plaintiff's  services,  is 
not  objectionable  on  the  ground  that 


325  CREDIBILITY   OF   WITNESSES  §  165 

such  an  instruction  is  properly  refused.*^  Under  this  principle 
it  is  error  to  call  the  attention  of  the  jury  to  the  effect  upon  the 
testimony  of  a  party  of  his  interest  in  the  result  when  a  witness 
against  him  is  deeply  interested  in  a  moral  sense  and  no  instruc- 
tion as  to  his  interest  is  given.'^* 

§  165.     Ignoring  interest  of  party 

Where  witnesses  are  parties  to  the  suit  whatever  may  be  their 
numbers  their  opportunities  or  means  of  information  the  jury  are 
to  judge  of  the  degree  in  which  their  interest  affects  their  credi- 
bility and,  where  two  parties  on  one  side  of  a  suit  testify  against 
a  disinterested  witness  on  the  other  an  instruction  that,  if  the 
witnesses  are  alike  in  everything  but  numbers,  the  evidence  of 
the  two  will  overcome  the  evidence  of  the  one  is  erroneous,  as 
ignoring  the  element  of  interest.'^  So  an  instruction  that  the  jury 
are  to  treat  a  plaintiff  in  the  same  way  as  any  other  witness  and 
subject  him  to  the  same  tests  is  erroneous.'^ 

F.  Credibility  op  Te:stimony  of  Accused 

Invading  province  of  jury,  see  ante,  §§  15-17. 

§  166.     Necessity  of  instructions 

As  a  general  rule  the  court  should  give,  on  request,  appropriate 
instructions  as  to  the  proper  tests  for  weighing  the  testimony  of 
the  defendant  in  a  criminal  case."''  Such  a  defendant  is  entitled 
to  an  instruction  based  on  the  theory  that  the  jury  may  believe 
his  version  of  the  facts  bearing  on  the  question  of  whether  he 
is  guilty  of  the  crime  alleged  against  him,''*  however  incredible 
his  testimony  may  appear  to  be  f'^    and  in  one  jurisdiction,  v/here 

it  unfairly  singles  out  plaintiff  and  Arron,   79   N.   W.   944,   121   Mich.    1 ; 

charges   as  to   his   credibility  alone.  McVaj^  v.  State,  26  So.  947. 

Sfhmitt  V.  Murray,  91  N.  W.  1116,  87  7  8  Colo.     Almond  v.  People,  135  P. 

Minn.  250.  783,  5.5  Colo.  425. 

73  Pennsylvania  Co.  v.  Versten,  140  ivr^  c^-of^  ,-  Tr'^«ri.^,.?^i.c  o-  c?  ttt- 
111.  6.37,  30  N.  E.  540,  15  L.  R.  A.  798.  cJ^'^.'oJlt    ^i  .^^|?T^'^^'  ^'  S.  W. 

74  Tompkins  v.  Pacific  Mut.  Dife  fX?' m?  ^o "  .^,^  =  w  ^oon  •  I.T^'' 
Ins.  Co.,  44  S.  E.  439,  53  W.  Va.  479,  Jf^  '^^^-  ,^if\f  %^--,fV  w'''?J"- 
63  L.  R   A.  489,  97  A^.  St.  Rep.  1006  ^fZ""'    p     u"'   ll\r^^  cn«  Y'^'*  w= 

T5  Amis  V.  Cameron,  55  Ga.  449.  ?]^*4 \  P^^Jl^^^,  90  Mo.  608,  4  S.  W. 

76Pienta  v.  Chicago  City  Ry.  Co.,  Ji  ^t^^"  ^.Z       '  ""■      '''^'^'" 

120  N.   E.   1,  284   111.   240,  reversing  ^°"'  ^*^  ^^^-  '^^'^■ 

judgment  208  111.  App.  309;    Hedger  ^-  ^'     ^^^^<^  '^'-   Tough,  96  N.   W. 

V.  Chicago  City  Ry.  Co.,  207  111.  App.  1^25.  12  N.  D.  425. 
26.  Okl.     Douglas  v.    Territory,  98  P. 

T7  People   V.   Archibald,    101   N.   K  3023,  1  Okl.  Cr.  583. 
582,  258  111.  383;    State  v.  Poree,  68  79  people  v.  Keefer,  65  Cal.  232,  3 

So.  S3,   136  La.   939;     People  v.   Mc-  P.   818. 


§   166  INSTRUCTIONS   TO  JURIES  32G 

the  statement  of  the  defendant  is  not  given  under  oath,  while  it 
is  not  error  for  the  judge  to  shape  his  general  charge  on  the  evi- 
dence alone  and  the  law  applicable  thereto,^''  the  court  should  in- 
struct, even  without  request,  that  such  statement  may  be  believed 
in  preference  to  the  sworn  testimony.*^  Where,  however,  the 
court  has  charged  that  the  defendant  has  the  right  to  testify,  and 
that  the  jury  are  the  sole  judges  of  his  credibility  and  the  weight 
to  be  given  his  testimony,*^  or  the  court  has  given  a  general  in- 
struction as  to  the  credibility  of  all  the  witnesses,  it  is  not  error 
to  refuse  to  charge  that  the  jury  has  no  right  to  disregard  the 
testimony  of  the  accused  merely  because  he  is  the  defendant,^^ 
and  in  some  jurisdictions,  where  the  testimony  of  the  defendant 
is  contrary  to  the  physical  facts  and  the  general  experience  of 
mankind,  he  is  not  entitled  to  an  instruction  based  on  the  truth 
of  his  testimony.** 

Where  the  testimony  of  the  defendant  is  immatetial,  it  is  not 
necessary  to  instruct  as  to  his  credibility,*^  and,  in  the  absence  of 
a  request  therefor,  the  court  need  not  give  an  instruction  as  to 
the  credibilit}'  of  the  defendant  as  a  witness,  unless  there  is  some- 
thing peculiar  in  the  testimony  itself,  or  in  the  manner  of  giving 
it,  or  in  the  circumstances  surrounding  the  case.*® 

§  167.     Propriety  and  sufficiency  of  instructions 

While  it  is  error,  in  some  jurisdictions,  to  single  out  the  ac- 
cused personally  and  charge  upon  the  credibility  of  his  testi- 
mony,*' a  general  instruction  on  the  credibility  of  witnesses  be- 
so  Fry  V.  State,  82  S.  E.  135,  141  of  the  court  to  instruct,  in  criminal 
Ga.  789;  Tolbirt  v.  State,  53  S.  E.  cases,  on  all  questions  of  law  on  its 
327,  124  Ga.  767 ;  Roberts  v.  Same,  51  own  motion,  does  not  apply  to  ques- 
S.  E.  374.  123  Ga.  146;  Tucker  v.  tions  relating  to  the  credibility  of 
State,  39  S.  E.  926.  114  Ga.  61 ;  Hoxie  witnesses.  State  v.  Westlake,  61  S. 
v.  State,  39  S.  E.  944,  114  Ga.  19.  W.   243,   159   Mo.  669. 

81  Rivers  v.  State,  70  S.  E.  47,  8  "  Idaho.  State  v.  Rogers,  163  P. 
Ga.  App.  694;    Fields  v.  State,  58  S.  912,  .30  Idaho,  259. 

E.    327,    2    Ga.    App.    41;     Burns    v.  Okl.     Doud  v.  State,   154  P.  1008, 

State,  89  Ga.  52?,  15  S.  E.  748 ;    Hay-  12  Okl.  Cr.  273 ;    Brown  v.  State,  132 

den  V.  State,  69  Ga.  731.  P.   359,   9   Okl.   Cr.  382;     Madis-on  v. 

82  State  V.  MeClellan,  59  P.  924,  23  State.  118  P.  617,  6  Okl.  Cr.  356,  Ann. 
Mont.  532,  75  Am.   St.  Rep.  558.  Cas.   1913C,   484;    Manning  v.   State. 

8  3  State  V.  Davidson,  157  S.  W.  890,  115   P.  612,   5  Okl.   Cr.   532;    Eidson 

172  Mo.  App.  356.  v.  State,  115  P.  606,  4  Okl.  Cr.  xiii ; 

84  State  V.  Pollard,  40  S.  W.  949,  Black  v.  State,  115  P.  604.  5  Okl. 
139  Mo.  220 ;  State  v.  Nelson,  118  Mo.  Cr.  512,  662 ;  Guiaccimo  v.  State,  115 
124,  23  S.  W.  1088.  P.  129,  5  Okl.  Cr.  371 ;    Peck  v.  State, 

85  State  V.  Brandenburg,  118  Mo.  113  P.  200,  5  Okl.  Cr.  104;  Culpenper 
181,  23  S.  W.  1080,  40  Am.  St.  Rep.  v.  State,  111  P.  679,  4  Okl.  Cr.  103,  31 
362.  L.  R.  A.  (N.  S.)  1166,  140  Am.  St.  Rep. 

86  People  v.  Rodundo,  44  Cal.  538.  068;    Clark   v.    State,   111    P.    659,    4 
In  Misssouri,  it  is  held  that  a  stat-  Okl.  Cr.  308 ;    Crow  v.  State,  106  P. 

utory  provision   making   it    the   duty  556,  3  Okl.  Cr.  428 ;   Bridges  v.  United 


327 


CREDIBILITY   OF   WITNESSES 


167 


ing  deemed  a  sufficient  rule  for  the  guidance  of  the  jury,^^  in  a 
considerable  number  of  jurisdictions  the  trial  court  may,  with 
respect  to  the  testimony  of  a  defendant  in  a  criminal  case,  lay 
down  general  rules,  applicable  to  all  other  witnesses,  for  weigh- 
ing his  evidence  and  determining  his  credibility.^^     Even  in  these 


States,  104  P.  370.  3  Okl.  Cr.  64; 
Reed  v.  United  States,  103  P.  371,  2 
Old.  Cr.  6.52;  Mitchell  v.  State.  101 
P.  1100,  2  Okl.  Cr.  442;  Price  v. 
United  States,  101  P.  1036,  2  Okl.  Cr. 
449.  139  Am.  St.  Rep.  9.30;  Banks  v. 
State,  101  P.  610.  2  Okl.  Cr.  3.39; 
Fletcher  v.  State.  101  P.  599,  2  Okl. 
Cr.  300,  23  L.  R.  A.  (N.  S.)  581. 

ss  Munson  v.  State,  165  P.  1162,  13 
Okl.   Cr.  569. 

s9  Ala.  Carpenter  v.  State,  69  So. 
.531,  193  Ala.  51 ;'  Bell  v.  State,  54  So. 
116.  170  Ala.  16. 

Ark.  Ridgel  y.  State,  162  S.  W. 
773.  110  Ark.  606. 

Colo.  Bruno  v.  People,  186  P.  718, 
67   Colo.   146. 

111.  People  V.  Snvder,  117  X.  E. 
119,  279  111.  435;  People  v.  Dough- 
erty, 107  N.  E.  695.  266  111.  420  ;  Dunn 
V.  People.  109  HI.  635;  Uzzell  v.  Peo- 
ple. 173  111.  App.  257. 

Ind.  Anderson  v.  State,  104  Ind. 
467,  4  N.  E.  63,  5  N.  E.  711. 

Ind.  T.  Helms  v.  United  States, 
52  S.  W.  60.  2  Ind.  T.  595. 

Iowa.  State  V.  Case,  96  Iowa,  264, 
65  N.  W.  149. 

Mo.  State  v.  Martin,  1,32  S.  W. 
595,  2.30  Mo.  680. 

Neb.  Keating  v.  State,  93  N.  W. 
980,   67  Neb.   560. 

N.  M.  Territory  v.  Gonzales,  68 
P.  925,  11  N.  M.  301. 

Pa.  Commonwealth  v.  Breyessee, 
160  Pa.  451,  28  A.  824.  34  Wldv.  Notes 
Cas'.  228,  40  Am.  St.  Rep.  729. 

Utah.  People  v.  Callaghan,  6  P. 
49.  4  Utah,  49. 

Wash.  State  v,  Melvern,  72  P. 
489,  .32  \Yash.  7. 

Instructions  held  proper  •with- 
in rule.  An  instruction  to  consider 
the  situation  of  defendant,  his  i-ela- 
tions  to  the  trial,  its  consequent  es  to 
him,  and  the  inducements  that  he 
labored  under,  and  adding,  "You 
should  carefully  determine  the 
amount  of  credibility  to  wliich  his 
evidence    is    entitled ;     if    convincing. 


and  carrying  with  it  a  belief  in  its 
truth,  to  act  upon  it ;  if  not,  to  reject 
it."  People  V.  aioirow,  60  Cal.  142. 
An  instruction  that  the  jury  should 
gather  ,the  intent  with  which  the 
homicide  was  committed  from  all 
the  circumstances  surrounding  it  is 
not  erroneous  as  precluding  the  con- 
sideration of  defendant's  testimo- 
ny on  the  question  of  intent,  where 
the  jury  are  also  instructed  to  weigh 
the  testimony  of  all  the  witnesses  and 
to  judge  the  testimony  of  defendant 
fairly,  and  apply  the  same  te.sts  to 
his  testimony,  so  far  as  applicable, 
that  they  would  apply  to  that  of  oth- 
er witnesses.  People  v.  O'Brien.  78 
Cal.  41,  20  P.  3.59.  An  instruction  that 
accused  may  testify  in  his  own  be- 
half or  not  as  he  pleases,  and  if  he 
does  testify  tlie  jury  cannot  disregard 
his  testimony  merely  because  he  is 
accused,  but  that  his  credibility  must 
be  tested  by  the  same  rules  applied 
to  any  other  witness,  considering  the 
fact  that  he  is'  interested  in  the  re- 
sult, as  well  as  his  demeanor  and 
conduct  on  the  stand,  and  whether 
he  is  corroborated  or  contradicted. 
People  V.  Scarbak,  92  N.  E.  286,  245 
111.  4.35.  A  charge  that  accused  was 
a  competent  witness,  and  that  his 
testimony  should  not  be  discredited 
from  caprice  or  because  he  was  the 
defendant,  that  he  should  be  treated 
the  same  as  any  other  witness  and 
subjected  to  the  same  tests,  and  that, 
while  the  jury  might  consider  his  in- 
terests, yet  they  should  also  consider 
the  fact  that  he  was  corrohorated  by 
other  circumstantial  evidence,  or  by 
facts  and  circumstances  proved.  Peo- 
ple V.  Strauch,  93  N.  E.  126,  247  111. 
220.  On  a  trial  for  manslaughter 
where  accused  testified,  an  instruc- 
tion that  the  jury,  in  determining  the 
degree  of  credibility  to  be  accorded 
to  his  testimony,  might  take  into  con- 
sideration the  fact,  if  it  was  a  fact, 
that  he  was  contradicted  by  other  wit- 
nesses,  is  not  objectionable,   becaus'e 


§  167 


INSTRUCTIONS   TO   JURIES 


330 


nesses  for  the  state,  gives  undue  prominence  to  the  manner  of 
the  defendant,^^  and  an  instruction  which  permits  the  jury  to 
consider  the  demeanor  and  conduct  of  the  accused  while  off  the 
witness  stand  is  erroneous.^® 

It  is  not  improper,  however,  to  charge  that  the  jur}^  are  not 
required  to  beHeve  the  testimony  of  the  defendant,^"  or  that  they 
shall  give  it  such  weight  only  as  they  think  it  is  entitled  to  re- 
ceive under  all  the  circumstances  of  the  case,^*  wdiere  such  rule  is 
made  applicable  to  all  the  witnesses  alike. ^^  Instructions  which 
tend  to  lead  the  jury  to  think  that  they  should  give  the  same  cre- 
dence to  the  testimony  of  the  defendant  as  to  that  of  any  disin- 
terested wdtness,^  or  which  set  up  an  arbitrary  standard  for 
weighing  his  testimony,^  are  properly  refused. 


9  5  Pope  V.  State,  53  So.  292,  168  Ala. 

9G  People  V.  McGinnis.  84  X.  E. 
687,  234  111.  68.  123  Am.  St.  Rep.  73 ; 
Yale  V.  People,  161  111.  309,  43  N.  E. 
1091. 

Instructions  not  erroneous  ^vith- 
in  rule.  An  in.stnactiou  that  the  ju- 
ry could  determiue,  from  the  witness- 
es' appearance,  their  interest  in  the 
■event,  their  bias,  etc.,  and,  from  all 
the  surrounding  circumstances  which 
witnesses  were  worthy  of  credit  was 
not  erroneous  as  authorizing  the  con- 
sideration of  accused's  demeanor  dur- 
ing the  trial.  People  v.  Curtright,  101 
N.  E.  551,  258  111.  430. 

07  People  v.  Lalor,  124  N.  E.  866, 
290  111.  234;  People  v.  Foster.  123 
N.  E.  534.  278  111.  371;  People  v. 
Duzan,  112  X.  E.  315.  272  111.  478. 

Instructions  proper  ^vitliin 
rule.  A  charge  that  while  the  law 
says  defendant  is  a  competent  witness 
and  may  testify  in  his  own  behalf, 
and  the  .iury  should  not  capriciously 
diffregard  it,  this  does  not  mean  thai 
they  should  believe  it.  but  only  that 
llipy  should  consider  it.  and  ascertain 
to  the  best  of  their  judgment  whether 
it  is  true,  and,  if  true,  thej-  sliould  act 
on  it  as  on  truth  from  any  other 
source,  and,  if  they  should  not  be- 
lieve it.  they  should  reject  it.  they 
being  the  sole  judges  of  the  truth  of 
the  evidence.  Harrison  v.  State.  40 
So.  568,  144  Ala.  20.     A  charge  that, 


while  the  law  requires  the  jury  to 
consider  the  testimony  of  the  defend- 
ant in  connection  with  all  other  evi- 
dence in  the  case,  they  are  the  judges 
of  what  is  true,  and  if  they  are  not 
satisfied  that  defendant's  testimony 
is  true,  then  they  may  disregard  it. 
Lewis  V.  State,  8^  Ala.  11,  6  So.  755. 
An  instruction  that  the  jury  were 
not  bound  to  believe  all  or  any 
part  of  the  testimony  given  by  the 
defendant  in  his  own  behalf,  but 
might  disbelieve  the  same  if  the  facts 
warranted  it,  is  not  erroneous,  where 
the  court  lias  already  charged  the  ju- 
ry that  the  defendant  was  a  compe- 
tent witness,  and  that  his  testimony 
was  to  be  weighed  by  the  same  rules 
that  govern  the  testimony  of  other 
witnesses,  and  the  evidence  tends  to 
discredit  a  part  of  his  testimony. 
State  V.  Elliot,  90  Mo.  350,  2  S.  W. 
411. 

9  8  Olive  V.  State.  34  Fla.  203,  15 
So.  925 ;  Brown  v.  State,  60  Ga.  210 ; 
^Mcintosh  V.  State,  51  N.  E.  354.  151 
Ind.  251;  State  v.  Buffingtou,  81  P. 
465.  71  Kan.  804,  4  L.  R.  A.  (N.  S.) 
154;  Palmer  v.  State,  97  N.  W.  235. 
70  Neb.  1.36. 

ooTeiTitorv  v.  Livingston,  84  P. 
1021.  13  N.  M.  318. 

1  People  V.  Hiltel,  63  P.  919,  131 
Cal.  577;  Blanton  v.  State,  41  So. 
789,  52  Fla.  12 ;  State  v.  Ringer,  100 
S.  E.  413.  84  W.  Va.  546. 

2  I/ang  V.  State,  28  So.  856,  42  Fla. 
595. 


331 


CREDIBILITY   OF   WITNESSES 


168 


§  168.     Reference  to  interest  of  the  defendant  in  the  event  of  the 
trial 

In  some  jurisdictions  the  statute  makes  the  defendant  in  a 
criminal  case  an  exception  to  the  general  rule  against  singling 
out  a  particular  witness  and  directing  the  attention  of  the  jury 
to  his  testimony,^  and  in  a  number  of  jurisdictions  an  instruction 
that  the  jury  may,  in  estimating  the  credibility  of  the  testimony 
of  the  accused,  consider  the  interest  which  he  has  in  the  result 
of  the  prosecution,  is  proper,*  so  long  as  the  jury  are  not  au- 
thorized  to   disregard   the   testimony   of   the   defendant,^   and   are 


3  State  V.  De  Lea,  93  P.  814,  36 
]\ront.  531. 

1  U.  S.  (C.  C.  A.  Cal.)  Schulze  v. 
United  States,  259  F.  189,  170  C.  C. 
A.  257,  afllrming  .iudgment  (D.  C.) 
United  States  v.  Schnlze,  253  F.  377 ; 
(C.  C.  A.  La.)  Foster  v.  United  States, 
256  F.  207,  167  C  C.  A.  423;  (C.  C. 
A.  Va.)  Belvin  v.  U.  S.,  260  F.  455,  171 
CCA    281 

Ala.  '  Weaver  v.  State,  55  So.  956, 
1  Ala.  App.  48,  reliearing  denied  56 
So.  749,  2  Ala.  App.  98;  Wright  v. 
State,  42  So.  745.  148  Ala.  .596:  Ham- 
-mond  V.  State,  41  So.  761,  147  Ala. 
79;  Smith  v.  State.  24  So.  55,  118 
Ala.  117.  Compare  Roherson  v.  State, 
57  So.  829.  175  Ala.  15. 

Ark.  Whitener  V.  State,  178  S.  W. 
.394,  120  Ark.  .30;  Weatherford  v. 
State,  93  S.  W.  61,  78  Ark.  36 ;  Ham- 
ilton V.  State,  36  S.  W.  1054,  62  Ark. 
543. 

Colo.  Gankyo  Mitsunaga  v.  Peo- 
ple. 129  P.  241.  54  Colo.  102. 

Fla.  Robertson  v.  State,  60  So. 
118,  64  Fla.  437;  Fuentes  v.  State,  59 
So.  395.  64  Fla.  64. 

Idaho.  State  v.  Webb,  55  P.  892, 
6  Idaho.  428. 

m.  People  V.  ]Maciejewski,  128  N. 
E.  489,  294  111.  390. 

Kan.  State  v.  Killion,  148  P.  643, 
95  Kan.  371. 

Mich.  People  v.  Hahn,  183  N.  W. 
43,  214  Mich.  419;  People  v.  Wil- 
liams,  175  N.  W.  187,  208  Mich.  .586. 

Mont.  State  v.  Metcalf,  17  Moni 
417.  43  P.  182. 

N.  J.     State  V.  Randall.  113  A.  231. 

Neb.  Philamalee  v.  State,  78  N. 
W.  625.  58  Neb.  .320. 

N.  M.  State  v.  Moss,  172  P.  199, 
24  N.  M.  59. 


N.  C.  State  v.  Burton.  90  S.  E. 
561.  172    N.  G.  939. 

Pa.  Commonwealth  v.  McKwayne, 
70'  A.  809,  221  Pa.  449. 

Tenn.  Cooper  v.  State,  138  S.  W. 
826,  123  Tenn.  37, 

Wis.  Emery  v.  State,  78  N.  W. 
145,  101  Wis.  627. 

5U.  S.  (C.  C.  A.  La.)  Alexis  v. 
United  States,  129  F.  60,  63  C.  C.  A. 
S02. 

Ala.  Brown  v.  State,  38  So.  268, 
142  Ala.  287. 

Ark.  Blair  v.  State,  64  S.  W.  948, 
69  Ark.  558. 

111.  People  V.  Cotton,  95  N.  E.  283, 
2.50  111.  338. 

Iowa.  State  v.  Brooks,  165  X.  W. 
194,  181  Iowa,  874;  State  v.  Ryan, 
85  N.  W.  812,  113  Iowa,  536. 

N.  C.  State  v.  Lovelace,  101  S.  E. 
380.  178  N.  C.  762. 

Instructions  held  not  improper 
within  rule.  In  a  murder  case,  a 
charge  that  the  jury  had  no  right  to 
disregard  the  testimony  of  accused 
simply  because  he  was  charged  with 
the  commission  of  a  crime,  and  that 
they  were  not  required  to  receive  his 
testimony  as  true,  but  that  they 
shotild  fairly  consider  whether  it  was 
true,  taking  into  consideration  his 
interest  in  the  prosecution,  that  the 
law  presumed  accused  to  be  innocent 
until  proved  guilty  by  the  evidence 
beyond  a  reasonable  doubt,  that  It 
allowed  him  to  testify  in  his  own  be- 
half, wliich  testimony  should  be  fair- 
ly and  impartially  considered  togeth- 
er with  the  other  evidence.  Johnson 
V.  State,  130  N.  W.  282,  88  Neb.  565, 
Ann.  Cas.  1912B,  965.  In  a  prosecu- 
tion for  rape,  an  instruction  that  the 
rules    governing    evidence    generally 


§  168 


INSTRUCTIONS  TO  JURIES 


332 


told  to  apply  the  same  tests  to  the  defendant  as  to  other  wit- 
nesses,® and  the  court  need  not  refer,  in  connection  with  such  an 
instruction,  to  the  interest  of  other  witnesses  where  the  defend- 
ant is  the  only  witness  interested,'  and,  of  course,  in  jurisdic- 
tions where  a  cautionary  instruction  referring  directly  to  the 
interest  of  the  defendant  in  the  result  of  the  trial  as  affecting  his 
credibility  is  proper,  an  instruction  of  general  application  re- 
garding the  credibility  of  witnesses,  otherwise  proper  and  cor- 
rect, is  not  open  to  objection  because  the  defendant  is  the  only 
witness  having  a  direct  legal  interest  in  such  result.* 

In  some  jurisdictions,  however,  it  is  error  specially  to  call  the 
attention  of  the  jury  to  the  interest  of  the  accused.^  and  there  is 


applied  to  tlie  defendant  as  a  witness 
in  his  own  behalf,  and  that  the  .iury 
were  at  liberty  to  give  his  evidence 
such  weight  as  it  was  entitled  to  in 
view  of  all  the  facts  in  the  case,  and 
referring  to  defendant's  interest  as 
bearing  on  his  credibility.  People  v. 
Rich,  94  N.  W.  375.  133  Mich.  14. 
An  instruction  that  the  jury  should 
give  the  testimony  of  accused  the 
same  impartial  consideration  as  ac- 
corded that  of  other  witnesses  and 
not  arbitrarily  disregard  his  testimo- 
ny, but  that  on  the  other  hand  they 
were  not  required  blindly  to  receive 
a  fact  as  true  because  he  stated  it, 
but  that  they  should  consider  his 
testimony  with  all  the  facts  in  evi- 
dence in  order  to  determine  whether 
they  were  made  in  good  faith  or  only 
in  order  to  avoid  conviction,  and  that 
in  considering  the  degree  of  credit  to 
be  given  accused  they  might  take  into 
consideration  his  appearance  and 
manner,  the  reasonableness  of  his 
statements,  and  his  interest.  Hudson 
V.  State,  91  S.  W.  299,  77  Ark.  3.34. 
An  instruction  that  it  was  the  jury's 
duty  to  scrutinize  the  testimony  of 
the  accused  carefully,  because  of  his 
interest,  but  that,  notwithstanding 
such  interest,  the  jury  might  believe 
all  or  a  part  of  his  evidence,  if  it 
saw  fit.  State  v.  Vann,  77  S.  E.  295, 
162  N.  C.  534. 

0  Foster  v.  People,  139  P.  10,  5G 
Colo.  452 ;  People  v.  Harrison,  104 
N.  E.  2.i9,  261  111.  517. 

Instructions  held  proper  \7itI1in 
rule.  An  instniction  that  it  was  de- 
fendant's right  to  be  sworn  as  a  wit- 


ness, and  that  the  jury  should  con- 
sider his  testimony  with  the  other 
testimony  in  the  case,  and  give  it  such 
weight  as  in  their  judgment  it  should 
receive,  bearing  in  mind  the  fact  of 
his  interest  and  applying  to  his  testi- 
mony the  same  rules  of  credibility 
that  the  jury  apply  to  other  witness- 
es. State  V.  Ames,  96  N.  W.  3.30,  90 
INIinn.  183.  Where  the  court  had  pre- 
viously charged  that  accused  was  a 
competent  witness  in  his  own  behalf, 
and  that  the  credibility  of  his  testi- 
mony was  a  matter  exclusively  for 
the  jury,  and  that  they  might  consid- 
er his  interest  in.  the  result  of  the 
case,  another  instruction  that  the  ju- 
ry should  not  believe  testimony  giv- 
en blindly,  but  should  determine  for 
themselves  whether  it  was  true  and 
made  in  good  faith,  or  only  for  the 
purpose  of  avoiding  a  conviction,  was 
not  erroneous  on  the  ground  that  de- 
fendant's testimony  was  thereby  sin- 
gled out  and  made  the  subject  of  a 
distinct  method  of  measuring  the 
credibility  thereof.  Porter  v.  People, 
74  P.  S79,  31  Colo.   508. 

7  State  V.  Young,  74  N.  W.  693,  104 
Iowa,   730. 

8  Savary  v.  State,  87  N.  W.  34,  62 
Neb.  166. 

9  Erickson  v.  State,  127  Pac.  754,  14 
Ariz.  253 ;  State  v.  King,  64  So.  1007, 
135  La.  117;  Tardy  v.  State,  78  S. 
W.  1076,  46  Tex.  Cr.  R.  214. 

In  Arizona,  the  rule  of  the  text 
case  is  based  on  the  constitutional 
provision  forbidding  judges  to  charge 
juries  with  respect  to  matters  of  fact 
or  to  comment   thereon,   and  former 


333 


CREDIBILITY  OP   WITNESSES 


§  168 


a  growing  tendency  on  the  part  of  the  courts  to  disapprove  of 
instructions  with  respect  to  the  testimony  of  the  accused,  which 
depart  from  the  general  rule  against  singling  out  a  particular  wit- 
ness for  the  purpose  of  charging  as  to  his  credibility.  In  Cali- 
fornia, the  earlier  position  of  the  courts  on  this  subject  has  been 
abandoned,  and  it  is  now  held,  in  this  jurisdiction,  that  an  instruc- 
tion that  it  is  proper  for  the  jury  to  consider  whether  the  interest 
of  the  defendant  in  a  criminal  case  may  not  affect  his  credibility 
is  vicious  in  calling  particular  attention  to  his  testimony,^"  and 
that  it  is  reversible  error  to  instruct  that  in  determining  the  credi- 
bility of  the  accused  it  is  proper  for  the  jury  to  consider  the  con- 
sequences and  temptations  which  would  ordinarily  influence  a 
person  in  his  situation. ^^  In  Missouri  the  later  cases  hold,^'  over- 
ruling a  long  line  of  earlier  decisions,^^  that  it  is  reversible  error 
to  tell  the  jury  that  they  may 'consider  the  interest  of  the  de- 
fendant in  the  result  of  the  trial.     In  Mississippi,  where  the  de- 


decisions  (Prior  V.  Territory,  89  P. 
412,  11  Ariz.  169,  Halderman  v.  Ter- 
ritory, 60  P.  876.  7  Ariz.  120)  to  the 
effect  that  the  jury  might  properly 
be  told  that  they  could  consider  the 
very  great  interest  of  the  accused  in 
their  verdict  have  been  overruled. 

Instructions  not  objectionable 
witliin  rule.  Where  the  court  in 
a  homicide  case  instructed  the  jury 
to  consider  the  interest  or  lack  of  in- 
terest that  any  witness  might  have  in 
the  outcome  of  the  trial,  a  subsequent 
instruction  to  judge  the  testimony  of 
defendant  by  the  same  general  rules 
that  govern  the  testimony  of  other 
witnesses  did  not  direct  the  jurors' 
attention  too  pointedly  to  defendant's 
interest  in  the  trial,  a  matter  which 
was  apparent  to  the  jury.  State  v. 
Elby.   S3    So.  227,    145   La.    1019. 

10  People  V.  Blunkall,  161  P.  997, 
31  Cal.  App.  778;  People  v.  Bartol, 
142  P.  510,  24  Cal.  App.  659. 

Instruction  of  general  applica- 
tion. An  instruction  that,  in  con- 
sidering the  weight  and  effect  to  be 
given  to  the  testimony  of  witnesses, 
the  jurors  have  the  right  to  consider 
the  consequences  resulting  to  a  wit- 
ness from  the  result  of  the  trial  is 
not  open  to  the  criticism  that  it  sin- 
gles out  defendant.  People  v.  Bot- 
kin,  98  P.  861,  9  Cal.  App.  244.  The 
court    properly    instructed    the    jury 


that,  "in  judging  the  credibility  of 
a  witness,  whether  such  witness  be 
the  defendant,  the  prosecutor,  or  any 
other  witness  px'oduced  on  either  side, 
you  may  consider  the  interest  and 
relation  of  such  witness  in  and  to 
the  case."  People  v.  Bernal,  ISO  P. 
825.  40  Cal.  App.  358. 

11  People  V.  Maughs,  86  P.  187,  149 
Cal.  253. 

Former  decisions  in  this  jurisdic- 
tion while  holding  such  an  insti-uc- 
tion  as  subject  to  criticism,  did  not 
deem  it  a  cause  for  reversal.  People 
V.  Ryan,  92  P.  853,  1.52  Cal.  364 ;  Peo- 
ple v.  Tibbs,  76  P.  904,  143  Cal.  100. 

Instate  V.  Clark.  202  S.  W.  259; 
State  V.  Winner,  199  S.  W.  126 ;  State 
V.  Sparks.  195  S.  W.  1031 ;  State  v. 
Reeves,  195  S.  W.  1027;  State  v. 
Goode.  195  S.  W.  1006,  271  Mo.  43; 
State  V.  Fi.sh.  195  S.  W.  997 ;  State  v. 
Rose,  193  S.  W.  811 ;  State  v.  Asbell, 
192  S.  W.  469 ;  State  v.  Pace,  192  S. 
W.  428,  269  Mo.  681;  State  v.  Finkel- 
stein.  191  S.  W.  1002,  269  Mo.  612. 
See  State  v.  Kocian,  208  S.  W.  44. 

13  State  V.  Hyder,  167  S.  W.  524, 
258  Mo.  225 ;  State  v.  Brown,  115  S. 
W.  967,  216  Mo.  351 ;  State  v.  Dower, 
114  S.  W.  1104,  134  Mo.  App.  352; 
State  v.  Stanley,  100  S.  W.  678,  123 
Mo.  App.  294 ;  State  v.  Dilts,  90  S.  W. 
782, 191  Mo.  665 ;  State  v.  Summar,  45 
S.   W.  254,   143  Mo.  220. 


168 


INSTRUCTIONS  TO  JURIES 


334 


fendant  is  the  only  witness  in  his  behalf,  it  is  error  to  give  such 
an  instruction/'*  and  in  this  jurisdiction  an  instruction  of  general 
application  to  all  the  witnesses,  permitting  the  jury  to  consider 
their  interest,  is  erroneous,  where  the  defendant  is  the  only  wit- 
ness in  his  own  behalf,  and  testifies  to  facts  which,  if  believed, 
entitle  him  to  an  acquittal.^*  In  Nevada  the  statute  expressly  pro- 
vides that  no  special  instruction  relating  exclusively  to  the  testi- 
mony of  the  defendant  or  particularly  directing  the  attention  of 
the  jury  to  such  testimony  shall  be  given. ^® 

In  jurisdictions  where  it  is  proper  to  give  an  instruction  on  the 
interest  of  the  accused,  the  court  should  avoid  unduly  emphasizing 
the  idea  that  such  interest  may  induce  him  to  testify  falsely,^' 
and  it  is  error,  as  has  been  indicated  by  the  foregoing  discussion, 
to  give  instructions  which  'discredit  the  testimony  of  the  ac- 
cused,^* or  which  put  him  in  a  separate  and  inferior  class  of  wit- 


14  Smith  V.  State.  43  So.  465.  90 
MiPS.  Ill,  122  Am.  St.  Rep.  313. 

ispisott  V.  State.  65  So.  583.  107 
Miss.  552:  Cliatman  v.  State,  59  So. 
S.  102  Miss.  179;  Gaines  v.  State 
(Miss.)  48  So.  182. 

Rule  \irliere  relative  testifies  for 
accused.  An  instruction  tliat,  in  de- 
termining weiglit  of  testimony  of  eacli 
witness,  the  jury  could  consider  his 
interest  or  lack  thereof  and  reason- 
ableness or  the  unreasonableness  of 
testimony,  etc..  was  not  ob.iectionable 
as  pointing  out  accused,  where  his 
brother-in-law  testified  for  him.  Vails 
V,  State.  48  So.  725,  94  Miss.  .365.  De- 
fendant'.s  father,  as  well  as  defendant, 
having  testified  for  the  defense,  de- 
fendant is  not  singled  out  by  an  in- 
struction that  in  determining  cred- 
ibility of  witnesses  the  motive  and 
interest  any  may  have  may  be  con- 
sidered. Murphy  v.  State,  SO  So.  636, 
119  Miss.  220. 

]  <>  State  v.  Blaha.  154  P.  78,  39  Nev. 
115. 

17  Peterson  v.  State.  120  N.  W.  1110, 
84  Neb.  76 ;  Burk  v.  State,  112  N.  W. 
573,  79  Neb.  241. 

18  People  V.  Munday,  117  N.  E.  286. 
280  111.  32,  reversing  iudgment  204 
111.  App.  24;  State  v.  Bartlett,  93  P. 
243,  50  Or.  440,  19  L.  R.  A.  (N.  S.) 
802,  126  Am.  St.  Rep.  751. 

Instructions  not  improper  \iritli- 
in  rule.  A  charge,  in  a  prosecution 
for  robbery,  that  the  credibility  of 
witnesses  was  for  the  jury,  that  they 


should  consider  the  interest  of  each 
one  in  the  case,  his  manner  of  giving 
testimony,  the  opportunity  he  had  for 
observing,  etc.  People  v.  Blanchard, 
98  N.  W.  983, 136  Mich.  146.  A  charge, 
on  a  prosecution  for  murder,  that  the 
jury  are  not  bound  to  believe  the  de- 
fendant, but  are  bound  to  give  his  tes- 
timony such  weight  as  they  believe  it 
entitled  to;  that  defendant's  cred- 
ibility, and  the  weight  to  be  attached 
to  his  testimony,  are  matters  exclu- 
sively for  the  jury ;  and  that  the  de- 
fendant's interest  in  the  result  of  the 
trial  is  proper  to  be  considered — 
when  taken  in  connection  with  in- 
structions that  such  testimony  should 
be  fully  and  impartially  considered, 
and  subjected  to  the  same  tests  as 
that  of  other  witnesses.  Henry  v. 
People.  65  N.  E.  120.  198  111.  162.  Ad 
instruction  that  the  credibility  and 
weight  of  defendant's  testimony  wore 
for  the  jury,  and  that  they  migiat  con- 
sider his  manner  of  testifying,  the 
reasonfibleness  of  his  account  of  the 
transaction,  and  his  interest  in  the 
case,  and  should  consider  his  testi- 
mony and  detennine  whether  it  was 
true  or  not,  was  not  open  to  the  ob- 
jection of  telling  the  jury  that  they 
were  not  bound  to  treat  defendant's 
testimony  the  same  as  that  of  other 
witnesses.  Waller  v.  People,  70  N.  E. 
681.  209  111.  284.  Where  instructions 
given  at  the  request  of  defendant, 
who  did  not  testify  on  a  trial  for  mur- 
der, gave  him  the  full  benefit  before 


^35  CREDIBILITY  OP   WITNESSES  8  169 

nesses/^  and  it  is  improper  to  charge  that  the  defendant,  being  an 
interested  witness,  is  not  entitled  to  as  much  credence  as  an  unin- 
terested witness.'"  So  the  court  should  avoid  giving  the  jury  the 
impression  that  the  defendant  should  be  corroborated  in  order  to 
be  bclieved.^i  Thus  it  is  error  to  instruct  that  the  jury  may  be- 
lieve or  disbelieve  the  testimony  of  the  defendant,  accordingly  as 
they  shall  find  it  to  be  corroborated  or  contradicted  by  the  other 
facts  and  circumstances  in  evidence.'^ 

§  169.     Effect  of  impeaching  testimony 

Where  the  defendant  in  a  criminal  case,  testifying  as  a  wit- 
ness, has  been  contradicted,  or  there  is  evidence  impeaching  him 
in  other  ways,  it  is  proper,  in  some  jurisdictions,  to  charge  that 
such  impeaching  matters  may  be  considered  by  the  jury  for  the 
purpose  of  determining  his  credibility ;  ~^  the  jury  being  told  that 
the  same  tests  apply  to  the  defendant  as  to  other  witnesses.'*  An 
instruction,  however,  that  in  determining  the  credibility  of  the 
testimony  of  defendant  the  jury  are  to  take  into  consideration  the 
fact,  if  such  is  the  fact,  that  he  has  been  contradicted  by  other 
witnesses,  is  objectionable  as  in  effect  telling  the  jury  that  they 
must  consider  such  contradiction,  regardless  of  "whether  it  is  in 
respect  to  a  matter  which  is  material  or  relevant  to  the  issues,  or 
not,  and  regardless  of  whether  the  witnesses  contradicting  the  de- 
fendant are  deemed  by  the  jury  to  be  worthy  of  credit.'^ 

the  jury  of  his  statements  before  the  22  state  v.  Sanders,  106  Mo.  18S,  17 

examining  magistrate   tliat  his   wife  S.  W.  223. 

was  Ivilled  by   an  unlvnown  burglar,  23  Miller   v.   People,  82  N.   E.  391, 

which  were  introduced  by  the  state  229  111.  376;   Maguire  v.  People,  76  IN. 

as  a  part  of  its  evidence  in  chief,  an  E.  67,  219  TU.  16;    Faulkner  v.  Terri- 

instruction,  given  for  the  prosecution,  tory,  6  N.  M.  464,  30  P.  90o;    State  v. 

that  in  weighing  defendant's  testimo-  Reyner,  91  P.  301,  50  Or.  224 ;   Com- 

ny  the  jury  had  a  right  to  consider  his  monwealth  v.  Wendt,  102  A.  27,  25S 

interest  in  the  result,  was  not  objec-  Pa.  325. 

tionable  on  the  ground  that  it  tended  Contradiction  by  "credible"  wit- 
to  discredit  him.  Gott  v.  People,  58  In'.  nesses.  Where  accused  testified  in 
E.  293,  187  111.  249.  his  own  behalf,   an  instruction   that 

19  Keigans  v.  State,  41  So.  886,  52  the  jury  in  determhiiug  his  credibility 
Fla.  57 ;  People  v.  Fitzgerald,  130  N.  should  consider  the  fact,  if  such  is 
B.  720,  297  111.  264  ;  Hellyer  v.  People,  the  fact,  that  he  has  been  contradicted 
58  N.  E.  245,  186  111.  550;  Bird  v.  by  other  witnesses,  is  not  erroneous. 
State,  8  N.  E.  14,  107  lud.  154  ;  State  because  of  the  omis,sion  of  the  qualify- 
V.  Graham,  45  S.  E.  514,  133  N.  C.  ing  word  "credible"  before  the  word 
645.  "witnesses."      Higgins   v.    People,    98 

20  People  V.  Gerdvine,  104  N.  E.  129,  111.  519. 

210  N.  Y.  184.  2*  People   v.    Harrison,    104    N.    E. 

21  State  V.   Hunter,  92  N.   W.  872,       259.  261  111.  517. 

118    Iowa.   686;     State  v.    Patterson,  -5  Purdv  v.  People,  140  111.  40    29 

98  Mo.  283,  11  S.  W.  728.  '  N.  E.  700." 


§  170  INSTRUCTIOXS  TO  JURIES  336 

§  170.     Effect  of  false  testimony 

Where  the  accused  has  given  testimony  in  his  own  behalf,  the 
court  may,  in  some  jurisdictions,  in  a  proper  case,  charge  gener- 
ally that,  if  the  jury  believe  that  any  witness  has  willfully  testi- 
fied to  any  material  fact,  they  may  disregard  his  entire  testi- 
mony,-^ such  an  instruction  not  being  open  to  objection  as  being 
directed  especially  against  the  defendant,^'  and  in  some  jurisdic- 
tions, as  has  already  been  indicated,  it  is  proper  to  specifically 
point  out  the  defendant  and  apply  such  an  instruction  to  his  tes- 
timony,^* so  long  as  the  qualification  with  respect  to  lack  of 
corroboration  is  included,^^  and  so  long  as  the  jury  are  told  that 
the  same  tests  apply  to  other  witnesses.^**  Such  an  instruction, 
as  in  the  case  of  other  witnesses,  must  require  that  the  false  tes- 
timony be  willfully  so,^^  and  must  relate  to  a  material  fact.^^ 

§  171.     Unsworn  statement  of  defendant 

Where  the  defendant  makes  an  unsworn  statement  at  the 
trial,  it  is  held  to  be  reversible  error  to  fail  to  charge  tVie  rule  of 
law  applicable  thereto,  although  no  request  is  made  to  so  in- 
struct,^^ 

Usually,  in  charging  on  the  weight  to  be  accorded  to  the  state- 
ment of  the  accused,  not  given  under  oath,  it  will  be  well  to  fol- 
low the  language  of  the  statute,^*  although  the  failure  to  use  the 
exact  language  of  the  statute  touching  such  statement  will  not 
constitute  error.^^ 

2  6  state  V.  Raice,  123  N.  W.  70S,  24  so  People  v.  Harrison.  104  N.  E.  259, 

S.  D.  1-11.  2G1  111.  517;    State  v.  Melvern,  72  P. 

2T  Shumwav    v.    State.    117   N.    W.  4S9.  r.2  Wasli.  7. 

407,  82   Neb.  152,  .iuclsment  affirmed  si  Keef  v.  State,  60  So.  963,  7  Ala. 

on  rehearing  119  N.  W.  517,  82  Neb.  Aitp.    15;    Lambert  v.  People,  34  111. 

166.  App.  637. 

2  8  Parham  v.  State,  42  So.  1,  147  32  Funderburk   v.    State,    145    Ala. 

Ala.  57.  661,  39  So.  672. 

20  McCracken   v.    People,  70  N.   E.  33  Bryant  v.  State,  97  S.  E.  271,  23 

749,  209  111.  215;    Hirschman  v.  Peo-  Ga.  App.  3. 

pie.  101  111.  568.  3  4  McLane  v.  State,  93  S.  E.  558,  20 

Materiality  of  facts  concerning  Ga.  App.  825 ;    Lucas  v.   State,  91  S. 

which  false  testimony  given.     On  E.  72,  146  Ga.  315 ;    Glover  v.  State, 

a  prosecution  for  perjury,  an  instruc-  72  S.   E.  926.  137  Ga.  82 ;    Washing- 

tiou    that,    unless    corroborated,    the  ton  v.  State,  70  S.  E.  797,  1.36  Ga.  66; 

jury  may  disregard  all  of  defendant's  Kouse  v.   State,  58   S.   E.  416,  2  Ga. 

testimony,  if  they  believe  he  willfully  App.  184 ;    Caesar  v.  State,  57  S.  E. 

swore  fal-sely  as  to  any  of  the  facts  66,  127  Ga.  710;    Howell  v.  State,  52 

in  issue,  is  substantially  the  same  as  S.   E.  649,   124   Ga.   698 ;    Morgan   v. 

telling  the  jury  they  must  believe  he  State,  46  S.  E.  836,  119  Ga.  566. 

so  swore  to  some  material   fact  be-  8  5  Hill  v.  State,  86  S.  E.  657,  17  Ga. 

fore   they   can   disregard   his   uncor-  App,  294;    Mixon  v.   State,  68  S.  E. 

roborated  testimony.    Johnson  v.  Peo-  315,  '7    Ga.    App.    805;    Brundage    v. 

pie,  94  111.  505.  State,  67  S.  E.  1051,  7  Ga.  App.  726. 


337 


CREDIBILITY  OF  WITNESSES 


171 


Under  the  Georgia  decisions  the  court  may  instruct  that  such 
unsworn  statement  should  be  considered  m  connec  ion  w  th  a  I 
the  evidence,-  that  the  jury  may  take  the  -^d^"-;-- J^^^^^^f. 
timonv  of  the  witnesses  and  the  statement  of  the  de  endant, 
th"t  such  statement  is  to  be  given  such  weight  as  the  jury  may 
think  Droper3«  that  they  may  believe  it  in  preference  to  the  sworn 
te^mony'  provided  they  believe  it  to  be  true,-  and  that,  m  de^ 
ernihi°n^  the  weight  to  be  given  such  statement,  the  jury  should 

."e  such  statement  any  faith  or  credit  ^hey  should  considei    it 
along  with  all  the  testimony  in  the  case. 

36  Murphy  V.  State,  50  S   E   48  122 

Ga    149 :    Sutherland  v.  State,  4S  fe. 

E  915   121  Ga.  190 :    Smalls  v.  State, 

31  S.  E.  571,  105  Ga.  669. 

Instructions  held  proper.    An  in- 
struction   that    the    prisoner    has    a 

risht  to  make  a  statement  not  under 

oath,   and  it  is  the  province  of  the 

iurv   to   consider   such   statement   m 

connection  with  the  sworn  testimony 

in  the  case,  and  give  it  such  weight 

as   they   think   proper,   and,   if   they 

find  the  statement  true,  they  lia\e  a 

right  to  believe  it  in  preference  to  the 

sworn  testimony  in  the  case,  but  under 

their  oaths  as  jurors  they  must  con- 
sider the  statement  in  connection 
with  the  sworn  testimony  in  the  case, 
and  test  it  in  the  light  of  that  testi- 
mony, giving  it  such  weight  as  they 
think  proper.  Barnes  v.  State,  d9  b. 
E.  4SS,  113  Ga.  716. 

3  7  Hendrix  v.  State,  63  S.  E.  939,  5 

^'3st!oug?as-v.  State,  79  S.  E.  1134 
14  Ga.  App.  14;  Woods  v.  State,  16 
S.  E.  60S,  10  Ga.  App.  476. 

Permitting  jury  to  act  arbitra- 
"  rily.  An  instruction  that  the  jury 
can  give  the  statement  of  accused 
such  credence  as  they  think  it  ought 
1?o  have  they  may  believe  it  in  prefer- 
ence to  the  sworn  testimony  in  the 
case  or  believe  it  in  part,  or  reject 
it  in  part,  or  reject  it  altogether,  giv- 
ing it  just  such  weight  as  they  think 
it  ought  to  have,  was  not  erroneous 
as  giving  the  jury  to  understand  that 
they  could  act  arbitrarily  in  the  mat- 
INST.TO  Juries— 22 


ter.    Adams  v.  State,  53  S.  E.  804,  125 

^39  Smith  V.  State,  79  S.  E.  764,  13 
Ga.  App.  663;  Mason  v.  State,  9(  Ga. 
388,  23  S.  E.  831. 

Such  a  charge  is  not  o^Jjection- 
able  as  excluding  the  privilege  of  be- 
lieving the  statement  only  in  part, 
and  as  requiring  the  jury  either  to 
entirely  accept  or  re3ect  it  Wilder 
V    State   96  S.  E.  325,  148  Ga.  2<0. 

.oRy^ls  V.  State,  54  S.  B.  168  125 
Ga.  266;  Hackett  v.  State,  33  S  E 
842,  108  Ga.  40 ;  Teasley  v.  State,  6Z 
S  E  335,  105  Ga.  842;  Poppell  v. 
State,  71  Ga.  276. 

Reference    to    fact    that    state- 
ment  is   not   under   oath.      An   in- 
struction, on  a  trial  for  assault  with 
intent  to  murder,  in  reference  to  de- 
fendant's  statement,   that  defendant, 
as  in   all  other  criminal    cases,  was 
allowed  to  make  a  statement  not  un-  . 
der  oath,  but  to  state  such  matters 
as  he  liked  or  deemed  best,  that  the 
jury  were  authorized   to  accept  the 
statement  and  believe  the  whole  of  it 
and   disregard   his   sworn   testimony, 
or   to    discard    the   statement,    or   to 
take  such  portion  of  it  as   they  de- 
sired and  discard  the  rest,  and  that 
it    was    for    the    jury    to    determine 
the    weight    and    credit    they    would 
give     to     the     statement,     was     sub- 
stantiallv    correct,   and   not   unfavor- 
able to  defendant.     Parker  v.  State, 
57    S.    E.   1028,    1   Ga.    App.    781.     A 
charge,   in   a    murder  case,   that  no 
penalty  attaches  for  the  making  of  a 


172 


INSTRUCTIONS   TO  JURIES 


338 


G.  Ti;sTiMONY  OF  Accomplice;s 

Province  of  court  or  jury,  see  ante,  §  21. 

§  172.     Instructions  as  to  who  axe  accomplices 

It  is  held  that  an  accused,  who  desires  that  the  question  of 
whether  a  witness  is  an  accomplice  be  presented  to  the  jury, 
should  request  an  instruction  submitting  such  issue.*^  Where 
the  court  submits  to  the  jury  the  question  whether  a  witness  is 
an  accomplice,  it  should  state  to  them  the  elements  essential  to 
constitute  one  an  accomplice,*^  and  the  evidence  may  be  such  as 
to  require  the  court  to  charge,  on  request,  that  if  certain  facts  are 
established  a  witness  is  an  accomplice,  although  it  has  previously 
given  a  correct  abstract  definition  of  an  accomplice  ;*^  but  no 
such  definition  is  necessary  where  the  court  in  a  proper  case  tells 
the  jury  that  a  witness  is  an  accomplice.**  Ordinarily  the  ques- 
tion of  whether  a  witness  is  an  accomplice  is  one  of  fact,  and  the 


false  statement  by  accused,  but  tliat 
the  jury  can  sive  to  it  such  weight 
and  credit  as  they  deem  it  entitled  to, 
and  act  upon  it,  and  acquit  accused, 
even  in  preference  to  the  sworn  testi- 
mony, if  they  desire,  or  can  set  the 
statement  aside,  and  look  to  the 
sworn  testimony  for  the  truth,  is  not 
erroneous,  because  not  in  the  exact 
language  of  the  statute.  Webb  v. 
State,  69  S.  E.  601,  8  Ga.  App.  430. 
An  instruction  that  statement  of  ac- 
cused is  not  made  under  oath,  and 
has  only  such  force  as  the  jury  may 
think  right  to  give  it,  and  that  they 
may  believe  it  in  preference  to  the 
sworn  testimony  is  not  erroneous, 
as  being  subject  to  the  construction 
that  the  statement  could  have  been 
made  under  oath.  Oppenheim  v. 
State,  77  S.  E.  652,  12  Ga.  App.  480. 
Instruction  that  defendant  had  made 
statement  in  his  own  l)ehalf,  not  un- 
der oath,  and  that  jury  was  not  l)Ound 
to  give  it  any  weight,  but  might  be- 
lieve it  in  preference  to  sworn  testi- 
mony in  case,  was  in  accord  with 
statute,  and  not  erroneous,  or  objec- 
tionable as  minimizing  statement. 
Mitchell  V.  State,  04  S.  E.  570,  147 
Ga.  468.  It  is  not  ground  for  new 
trial  that  the  court  charged,  as  to 
accused's  statement,  that  "it  is  your 
province  to  give  such  weight  to  the 
evidence   and   statement   as   you   see 


proper,  bearing  in  mind  that  defend- 
ant's statement  is  not  under  oath, 
and  sworn  evidence  is  under  oath," 
where  the  court  immediately  added : 
"This  distinction,  however,  will  not 
control  you  in  the  consideration  of 
the  evidence  or  statement,  they  being 
entirelv  within  your  province."  Kea- 
ton  v.  'state,  25  S.  E.  615,  99  Ga.  197. 

41  People  V.  Richardson,  118  N.  E. 
514,  222  N.  Y.  103,  affirming  judg- 
ment 165  N.  Y.  S.  1104,  178  App.  Div. 
925. 

4  2  Spencer  v.  State,  194  S.  W.  863, 
128  Ark.  452;  Suddeth  v.  State,  37 
S.  E.  747,  112  Ga.  407;  Chappell  v. 
State,  119  P.  139.  6  Old.  Cr.  398; 
Pace  V.  State,  124  S.  W.  949,  58  Tex. 
Cr.  R.  90;  Thomas  v.  State,  73  S.  W. 
1045,  45  Tex.  Cr.  R.  81. 

Instructions  held  to  suJBSciently 
define  an  accomplice.  An  instruc- 
tion that  an  accomplice  is  one  who 
willfully  and  knowingly  aids,  en- 
courages, or  assists  another  in  the 
commission  of  the  crime  is  not  ob- 
jectionable because  the  disjunctive 
conjunction  was  used,  in  view  of  the 
use  of  the  qualifying  words  "willfully 
and  knowinglv."  People  v.  Kosta, 
112  P.  907,  14  Cal.  App.  696. 

4  3  Crawford  v.  State  (Tex.  Cr.  App.) 
34  S.  W.  927. 

*i  Winfipld  V.  State,  72  S.  W.  182, 
44  Tex.  Cr.  R.  475. 


339 


CREDIBILITY   OF    WITNESSES 


§  173 


general  rule  is  therefore  that  the  court  cannot  be  required  to  af- 
lirmatively  charge  that  a  certain  witness  is  an  accomplice.'*^  The 
fact  that  a  witness  has  been  indicted  for  the  same  offense  with 
which  the  defendant  is  charged  does  not  entitle  the  latter  to  such 
an  instruction.^**  Where,  however,  the  undisputed  evidence  shows 
that  a  witness  is  an  accomplice  the  court  should  so  instruct  on 
request.'*' 

When  under  the  facts  it  is  for  the  jury  to  say  whether  a  wit- 
ness is  an  accomplice,  and  there  is  not  sufficient  evidence  to  cor- 
roborate him  if  he  is  an  accomplice,  the  court  should  charge,  on 
request,  that  the  defendant  must  be  acquitted  if  the  jury  should 
tind  that  the  witness  was  an  accomplice.'*^ 

§  173.  Necessity  and  propriety  of  instructions  on  reliability  of 
accomplice  testimony 
While,  in  the  absence  of  any  statute  requiring  the  testimony  of 
an  accomplice  to  be  corroborated  in  order  to  support  a  convic- 
tion, the  court  should  not  charge  as  to  the  policy  of  using  ac- 
complice testimony,*^  it  is  proper  in  some  jurisdictions,  for  the 
court  to  advise  the  jury  that  it  is  unsafe  to  find  a  verdict  of 
guilt}^  on  the  uncorroborated  testimony  of  an  accomplice,  not- 
withstanding the  lack  of  such  a  statutory  provision,^  and  in  some 


4  5  Driggers  v.  United  States,  104 
S.  W.  1166,  7  Ind.  T.  752,  judgment 
reversed  95  P.  612,  21  Old.  60.  1  Okl. 
Cr.  167,  129  Am.  St.  Rep.  823,  17  Ann. 
Cas.  66;  Carroll  v.  State,  62  S.  W. 
1061 ;  Martin  v.  State,  43  S.  W.  352, 
.38  Tex.  Cr.  R.  462;  Dill  v.  State, 
(Tex.  Cr.  App.)  28  S.  W.  950;  Beach 
v.  State,  32  Tex.  Cr.  R.  240,  22  S.  W. 
976. 

46  Hunter  v.  State,  65  S.  E.  154, 
133  Ga.  78 ;  Davis  v.  State,  50  S.  E. 
376,  122  Ga.  564;  Grau  v.  Common- 
wealth. 214  S.  W.  916,  185  Ky.  Ill ; 
State  V.  Price,  160  N.  W.  677,  135 
Minn.    159. 

47  Malone  v.  State,  214  S.  W.  36, 
139  Ark.  385  ;  People  v.  Southwell,  152 
P.  939,  28  Cal.  App.  430 ;  Dedeaux  v. 
State,  87  So.  664,  125  Miss.  326; 
Wadkins  v.  State.  124  S.  W.  959.  58 
Tex.  Cr.  R.  110,  137  Am,  St.  Rep.  922, 
21  Ann.  Cas.  556:  Clifton  v.  State, 
79  S.  W.  S24,  46  Tex.  Cr.  R.  18,  108 
Am.   St.  Rep.  983. 

Instructions  held  sufficient  \Fitli- 
in  rule.  An  instruction  that  tlie 
.iuiT,-  could  not  convict  accused  on  the 
testimony   of   H.   alone,    unless   they 


first  believed  his  testimony  to  be  true- 
and  that  it  connected  accused  with 
the  offense  charged,  and  not  then  un- 
less they  believe  that  there  was  other 
testimony  corroborative  of  H.'s  testi- 
mony connecting  defendant  with  the 
offense,  and  that  the  corroboration 
was  insufficient  if  it  merely  showed 
the  commission  of  the  offense,  was 
equivalent  to  charging  that  H.  was 
an  accomplice,  and  was  sufficient  on 
such  subject.  King  v.  State,  123  S. 
W.  135,  57  Tex.  Cr.  R.  363. 

4  8  Morris  v.  State,  82  So.  574,  17 
Ala.  App.  126. 

49  Long  v.  State,  23  Neb.  33,  36  N. 
W.  310. 

50  Freed  v.  U.  S.  (D.  C.)  266  F. 
1012;  United  States  v.  Murphv  (D.  C. 
N.  Y.)  253  F.  404 ;  State  v.  Robin.son. 
103  A.  657.  7  Boyce  (Del.)  106 ;  Luerv 
V.  State,  81  A.  685;  Id.,  81  A.  681, 
116  Md.  284.  Ann.  Cas.  1913D,  161  r 
Commonwealth  v.  Simon,  44  Pa.  Su- 
per. Ct.  538,  545. 

Advising  against  conviction.  In 
Louisiana,  it  is  held  that  to  advise 
tlie  jury  not  to  convict  upon  tlie  uncor- 
roboi-ated  testimony  of  an  accomplice 


§  173 


INSTRUCTIONS   TO  JURIES 


340 


jurisdictions,  where  no  such  statutory  provision  exists,  the  de- 
fendant is  entitled,  at  least  upon  request,  to  an  instruction  cau- 
tioning the  jury  with  respect  to  the  reliability  of  such  testi- 
mony,^^ or  advising  them  not  to  convict  upon  such  testimony, 
unless  it  is  corroborated  by  other  evidence  as  to  some  material 
fact,^"  or  unless  they  are  satisfied  beyond  a  reasonable  doubt, 
after  a  careful  examination  of  such  testimony,  of  its  truth  and 
that  they  can  safely  rely  upon  it.^^  In  other  jurisdictions  there 
is  no  absolute  rule  of  law  which  requires  that,  whenever  an  ac- 
complice testifies,  the  court  must  instruct  that  it  is  unsafe  to  con- 
vict upon  his  testimony  alone,^*  or  that  they  should  not  rely  on 


especially  in  a  case  lacking  such  cor- 
roboration, would  be  to  express  an 
opinion  on  the  facts.  State  v.  Hen- 
derson, 87  So.  721,  14S  La.  713. 

31  U.  S.  (C.  C.  A.  Mo.)  Sykes  v. 
United  States,  204  F.  909,  123  C.  C.  A. 
205;  (C.  C.  A.  N.  Y.)  McGinniss  v. 
United  States,  256  F.  621,  167  C.  O. 
A.  651. 

Colo.  O'Brien  v.  People,  94  P.  2S4, 
42  Colo.  40. 

Fla.  Anthony  v.  State,  32  So.  S18, 
44  Fla.  1. 

111.  HoTt  V.  People,  140  111.  588, 
30  N.  E.  315,  16  L.  R.  A.  239. 

Iia.  State  V.  Hopper,  38  So.  452, 
114  La.  557. 

Miss.  Dedeaux  v.  State,  87  So. 
G64.  125  Miss.  326. 

Mo.  State  v.  Meysenburg.  71  S. 
W.  229.  171  Mo.  1 ;  State  v.  Woolard, 
ni  Mo.  248,  20  S.  W.  27. 

N.  M.  Territory  v.  Chavez,  45  P. 
1107,  8  N.   M.  528."^ 

Ohio.  Allen  v.  State,  10  Ohio  St. 
287. 

Pa.  Commonwealth  v.  Haines,  101 
A.  641,  257  Pa.  289:  Commonwealth 
V.  Klein,  42  Pa.  Super.  Ct.  66. 

AVash.  State  v.  Engstrom,  150 
1'.  1173.  86  Wash.  499. 

W.  Va.  State  v.  Perry,  41  W.  Va. 
641,  24  S.  E.  634. 

5  2  State  V.  Patterson,  52  Kan.  335, 
34  P.  784. 

Instruction  held  improperly  re- 
fused 'nrithin  rule.  Where,  in  a 
prosecution  for  cattle  theft,  the  state 
introduced  an  accomplice  previously 
convicted,  it  was  error  to  refuse  to 
charge  that  sucli  witness  was  an  ac- 
complice, and  that,  while  defendant 
might  be  convicted  on  the  uncorrobo- 


rated testimony  of  an  accomplice, 
where  the  honest  judgment  is  satis- 
fied beyond  a  reasonable  doubt,  still 
the  jury  should  act  on  such  testimony 
with  great  care,  and,  if  such  accom- 
pUce  had  testified  differently  at  an- 
other time  from  his  testimony  in  the 
case,  they  could  not  find  defendant 
guilty  on  his  uncorroborated  testimo- 
ny, but  that  the  corroboration  must  be 
as  to  some  fact  connecting  defendant 
with  the  commission  of  the  offense, 
other  than  the  fact  that  the  offense 
was  committed,  and  the  circumstan- 
'ces  thereof.  State  v.  Pearson,  79  P. 
985,  37  Wash.  405. 

5  3  People  V.  Sapp.  118  N.  E.  416,  282 
111.  51;  People  v.  Rosenberg,  108  N. 
E.  54.  267  111.  202. 

5*  U.  S.  (C.  C.  A.  Okl.)  Reeder  v. 
U.  S.,  262  F.  36,  certiorari  denied  252 
U.  S.  581,  40  S.  Ct.  346,  64  L.  Ed.  726. 

Conn.  State  v.  Carey,  56  A.  632, 
76  Conn.  342. 

La.  State  v.  Hauser,  36  So.  396, 
112  La.  313 ;  State  v.  De  Hart,  33  So. 
605,  109  La.  570 ;  State  v.  Banks,  40 
La.  Ann.  736,  5  So.  18. 

Mass.  Commonwealth  v.  Leven- 
thal,  128  N.  E.  864,  236  Mass.  516; 
Commonwealth  v.  Phelps,  78  N.  E. 
741.  192  Mass.  591 ;  Commonwealth 
V.  Clune,  162  Mass.  206,  38  N.  E.  435; 
Commonwealth  v.  Wilson,  152  Mass. 
12,  25  N.  E.  16. 

Mich.  People  v.  Dumas,  125  N.  W. 
766,  161  Mich.  45. 

Miss.  Cheatham  v.  State,  67  Miss. 
335,  7  South.  204,  19  Am.  St.  Rep. 
310. 

Vt.  State  V.  Ilier,  63  A.  877,  78 
Vt.  488 ;    State  v.  Potter,  42  Vt.  495. 


541 


CREDIBILITY   OF   WITNESSES 


§173 


such  testimony  unless  it  produces  in  their  minds  the  most  posi- 
tive conviction  of  its  truth,^^  and  the  discretion  of  the  trial  judge 
with  respect  to  giving  such  an  instruction  is  determined  by  the 
character  and  interest  of  the  accomplice,  and  not  solely  by  his 
participation  in  the  alleged  crime.^  In  some  jurisdictions  it  is 
held  that,  while  it  is  the  duty  of  the  court  to  give  such  a  caution- 
ary instruction,  the  failure  to  give  it  will  not,  in  the  absence  of  a 
statute  regulating  the  subject,  constitute  reversible  error.^' 

In  jurisdictions  where  the  statute  provides  that  a  conviction  can- 
not be  had  upon  the  testimony  of  an  accomplice,  unless  it  is  cor- 
roborated by  other  evidence  tending  to  connect  the  defendant  with 
the  commission  of  the  alleged  offense,  an  instruction  to  this  ef- 
fect must  be  given  in  a  proper  case  at  the  request  of  the  de- 
fendant,^*   and,    in    some    jurisdictions,    although    no    request    is 


The  particular  language  in  which 
the  cautionary  instruction  is  stated 
must,  in  a  large  measure,  be  left  to 
•  the  discretion  of  the  trial  court.  De- 
deaux  v.  State,  87  So.  664,  125  Mis;?. 
326. 

5  5  Nee  V.  U.  S.  (C.  C.  A.  Pa.)  267 
F.  84. 

5G  State  V.  Kritchman,  79  A.  75,  84 
Conn.  152. 

Necessity  of  moral  turpitude. 
It  is  only  when  moral  turpitude  at- 
taches to  the  fact  that  accused  and  a 
witness  for  the  state  are  accessories 
that  the  court  is  required  to  caution 
the  jury  that  corroboration  of  the  ac- 
complice's testimony  is  essential. 
State  V.  Weiner,  80  A.  198,  84  Conn. 
411. 

5  7  Biggs  y.  United  States  (C.  C.  A. 
Cal.)  220  F.  545,  136  C.  C.  A.  147,  cer- 
tiorari granted  Caminetti  v.  United 
States,  35  S.  Ct.  939,  238  U.  S.  636,  59 
L.  Ed.  1500,  and  judgment  affirmed  37 
S.  Ct.  192,  242  U.  S.  470,  61  L.  Ed. 
442,  L.  R.  A.  1917F,  502,  Ann.  Cas. 
1917B,  1168. 

5  8  Ark.  Beck  v.  State.  216  S.  W. 
497.  141  Ark.  102;  Mui-phv  v.  State, 
197  S.  W.  585,  130  Ark.  353 ;  Kennedy 
V.  State,  171  S.  W.  878,  115  Ark.  480. 

Cal.  People  v.  Southwell,  152  P. 
939,  28  Cal.  App.  430 ;  People  v.  Law- 
lor.  131  P.  63,  21  Cal.  App.  63. 

Idaho.  State  v.  Grant,  140  P.  959, 
26  Idaho,  189. 

Iowa.  Ray  v.  State,  1  G.  Greene, 
316,  48  Am.  Dec.  379. 

Ky.    Taylor  v.  Commonwealth,  8  S. 


W.  461 ;  Adams  v.  Commonwealth,  7 
Ky.  Law  Rep.  (abstract)  529:  Craft 
V.  Commonwealth,  80  Ky.  349,  4  Ky. 
Law  Rep.  182. 

Nev.  State  v.  Carey,  122  P.  868,  34 
Nev.  309. 

N.  Y.  People  v.  Ferola,  109  N.  E. 
500,  215  N.  Y.  285:  People  v.  Stehr,  153 
N.  Y.  S.  296.  168  App.  Div.  119,  re- 
hearing granted  153  N.  Y.  S.  1134. 
169  App.  Div.  967,  and  judgment  af- 
firmed on  rehearing  156  N.  Y.  S.  1139. 
172  App.  Div.  970,  order  affirmed  114 
N.  E.  1077 :  People  v.  Thomsen,  3  N. 
Y.  Cr.  R.  562. 

Okl.  P.lankenship  v.  State.  174  P. 
298,  14  Okl.  Cr.  575  ;  Souther  v.  State, 
1.53  P.  293.  12  Okl.  Cr.  195;  Fair- 
grieve  V.  State,  134  P.  837,  10  Okl.  Cr. 
109 :    Id.,  134  P.  838,  10  Okl.  Cr.  646. 

Or.  State  V.  Bunyard.  144  P.  449. 
73   Or.  222. 

Tex.  Franklin  v.  State,  227  S.  W. 
488 ;  Clark  v.  State,  218  S.  W.  366,  86 
Tex.  Cr.  R.  585 ;  Hornbuckle  v.  State, 
216  S.  W.  880,  86  Tex.  Cr.  R.  352: 
Flores  v.  State,  216  S.  W.  185,  86  Tex. 
Cr.  R.  267;  Childress  v.  State.  210  S. 
W.  193,  85  Tex.  Cr.  R.  22;  Davidson 
V.  State.  208  S.  W.  664,  84  Tex.  Cr. 
R.  4.33 ;  Winn  v.  State,  208  S.  W.  506. 
84  Tex.  Cr.  R.  475  :  Williams  v.  State. 
199  S.  W.  296,  82  Tex.  Cr.  R.  215: 
Bagley  v.  State,  179  S.  W.  1167,  77 
Tex.  Cr.  R.  539;  Cooper  v.  State,  177 
S.  W.  975.  77  Tex.  Cr.  R.  209 ;  Davis 
V.  State.  1.58  S.  W.  288,  70  Tex.  Cr.  R. 
524 ;  Thomas  v.  State,  147  S.  W.  262, 
66  Tex.  Cr.  R.  374;   Carlisle  v.  State, 


§  173 


INSTRUCTIONS  TO  JURIES 


342 


made.^^  In  other  jurisdictions  the  failure  to  give  such  an  in- 
struction will  not  be  error,  in  the  absence  of  a  request  therefor.''*^ 
As  indicated  in  the  preceding  section  where  there  is  no  suffi- 
cient evidence  of  corroboration  of  an  accomplice  upon  whose  tes- 
timony the  state  relies,  the  court  should  charge  the  jury  that  if 
they  find  the  witness  to  be  an  accomplice  they  should  acquit.^*^ 
An  instruction  as  to  the  corroboration  of  the  testimony  of  an  ac- 
complice is  not  necessary,  where  the  accomplice  testifies  in  favor 
of  the  accused,^-  or  where  he  gives  no  testimony  to  assist  the  state 
to  make  out  its  case,^^  or  where  he  refuses  or  fails  to  testify.^* 


142  S.  W.  1178,  64  Tex.  Cr.  R.  535; 
Polk  V.  State,  131  S.  AV.  580,  60  Tex. 
Cr.  R.  150;  Johnson  v.  State,  125  S. 
W.  16,  58  Tex.  Cr.  R.  244;  Green  v. 
State,  120  S.  W.  1002,  56  Tex.  Cr.  R. 
599 ;  Russell  v.  State,  116  S.  W.  573. 
55  Tex.  Cr.  R.  3.S0 ;  Gonzales  v.  State 
(Cr.  App.)  105  S.  W.  196;  Garland  v. 
State,  104  S.  W.  898,  51  Tex.  Cr.  R. 
643 ;  Saye  v.  State,  99  S.  W.  551,  50 
Tex.  Cr.  R.  569 ;  Simmons  v.  State, 
97  S.  W.  1052,  50  Tex.  Cr.  R.  527; 
Leak  v.  State  (Cr.  App.)  97  S.  W.  476 ; 
Sapp  V.  State  (Cr.  App.)  77  S.  W.  456 ; 
Brooks  V.  State  (Cr.  App.)  56  S.  W. 
924 ;  Wilson  v.  State,  51  S.  W.  916,  41 
Tex.  Cr.  R.  115;  Collins  v.  State  (Cr. 
App.)  51  S.  W.  216:  Humphries  v. 
State,  48  S.  W.  184.  40  Tex.  Cr.  R.  59; 
Smith  V.  State  (Cr.  App.)  45  S.  W. 
707 ;  Clark  v.  State,  45  S.  W.  576,  39 
Tex.  Cr.  R.  179.  73  Am.  St.  Rep.  918; 
Robinson  v.  State,  43  S.  W.  526,  35 
Tex.  Cr.  R.  54,  00  Am.  St.  Rep.  20; 
TJrann  v.  State  (Cr.  App.)  .30  S.  W. 
940;  Martin  v.  State,  38  S.  W.  194, 
36  Tex.  Cr.  R.  632;  Parr  v.  State  (Cr. 
App.)  38  S.  W.  180,  36  Tex.  Cr.  R. 
403  ;  Ballew  v.  State  (Cr.  App.)  34  S. 
W.  616 ;  Boren  v.  State.  23  Tex.  App. 
28,  4  S.  W.  463 ;  Sitterlee  v.  State,  13 
Tex.  App.  587;  Watson  v.  State,  9 
Tex.  App.  237. 

Utah.  State  v.  McCurtain,  172  P. 
481.  .52  Utah,  63. 

See  Ryal  v.  State,  182  P.  253,  16 
Okl.  Cr.  266. 

Duty  to  explain  scope  of  statute. 
In  Texas  interdict  of  conviction  upon 
uncori-oboi'ated  evidence  of  an  accom- 
plice applies  to  all  participes  criminis, 
and  an  omission  so  to  explain  the 
word  ''accomplice"  to  the  jury  is  a 
ground  for  reversal  of  a  conviction  of 


murder  although  not  objected  to  at 
the  trial.  Roach  v.  State,  4  Tex.  App. 
46 :    Miller  v.  Same,  4  Tex.  App.  251. 

In  California,  however,  it  has  been 
held,  overruling  earlier  cases  (People 
V.  Sternberg,  43  P.  201,  111  Cal.  11; 
People  v.  Bonney,  98  Cal.  278,  33  P. 
98,  distinguishing  Same  v.  O'Brien,  96 
Cal.  171,  31  P.  45;  People  v.  Strybe, 
36  P.  3.  4  Cal.  Unrep.  .505),  that,  not- 
withstanding the  provisions  of  a  stat- 
ute that  the  jui-y  is  to  be  instructed 
on  all  proper  occasions  that  the  testi- 
mony of  an  accomplice  is  to  be  view- 
ed with  distrust,  error  cannot  be  pred- 
icated upon  the  refusal  of  the  court 
to  so  instruct.  People  v.  Ruiz,  77  P. 
907,  144  Cal.  2.51. 

Effect  of  incriminating  evidence 
independent  of  testimony  of  ac- 
complice. Henry  v.  State  (Tex.  Cr. 
App.)  43  S.  W.  340. 

5  9Weems  v.  State,  182  P.  264.  16 
Okl.  Cr.  198;  Hollingswortn  v.  State. 
189  S.  W.  488,  80  Tex.  Cr.  R.  299; 
Kelly  V.  State,  1  Tex.  App.  628. 

Rule  in  misdemeanor  cases. 
Where  the  defendant,  in  a  prosecution 
for  misdemeanor,  does  not  request  a 
Avritten  charge  as  to  the  weight  of 
accomplice  testimony,  the  failure  to 
instruct  thereon  will  not  be  consider- 
ed on  appeal.  Tracv  v.  State,  61  S.  W. 
127,  42  Tex.  Cr.  R.  494. 

0  0  People  v.  Rose,  183  P.  874  :  Butts 
V.  State,  82  S.  E.  375,  14  Ga.  App.  821. 

01  Jones  V.  State,  129  S.  W.  1118,  59 
Tex.  Cr.  R.  559. 

G-'  Bosselman  v.  United  States  (C. 
C.  A.  N.   Y.)  239  F.  82,  152  C.  C.  A. 

03,  04  See  notes  03  and  64  on  fol- 
lowing page. 


343 


CREDIBILITY   OF   WITNESSES 


§  174 


§  174.  Necessity  and  sufficiency  of  evidence  of  complicity  in 
crime  to  authorize  or  require  instructions  on  accomplice 
testimony 

There  nuist  be  some  evidence  of  the  complicity  of  a  witness  in 
the  crime  for  which  a  defendant  is  being  prosecuted,  to  require  or 
warrant   an   instruction   on   accomplice   testimony j**^   although   the 


132 ;  State  v.  Smith,  77  N.  W.  499,  106 
Iowa,  701. 

Necessity  of  instruction  that  ev- 
idence for  defendant  need  not  be 
corroborated.  Where  an  accomplice 
'is  witness  for  defendant,  but  not  for 
the  state,  an  instruction  requiring  cor- 
roboration of  evidence  of  the  accom- 
plice if  relied  upon  for  conviction, 
without  stating  that  evidence  of  the 
accomplice  for  the  defendant  need  not 
be  corroborated  is  error.  Josef  v. 
State,  34  Tex.  Cr.  R.  446,  30  S.  W. 
1067. 

6  3  Moseley  v.  State,  37  S.  W.  736, 
36  Tex.  Cr.  E.  578. 

64  State  V.  Burns,  74  P.  983,  27  Nev. 
289 ;  Wyres  v.  State,  166  S.  W.  1150, 
74  Tex.  Cr.  R.  28 ;  Gracy  v.  State,  121 
S.  W.  705.  57  Tex.  Cr.  R.  68;  Wag- 
goner V.  State,  35  Tex.  Cr.  R.  199,  32 
S.  W.  896. 

6  0  Cal.  People  v.  Balkwell,  76  P. 
1017,  143  Cal.  259;  People  v.  Ward,  66 
P.  372,  134  Cal.  301. 

Fla.  Tuherson  v.  State.  26  Fla. 
472,  7  So.  858. 

Ga.  Rouse  v.  State,  71  S.  E.  667, 
136  Ga.  356;  Bridges  v.  State,  70  S. 
E.  968,  9  Ga.  App.  235;  Baker  v.  State, 
48  S.  E.  967.  121  Ga.  189. 

Ky".  Commonwealth  v.  Stites,  227 
S.  W.  574.  190  Ky.  402 :  Elmendorf  v. 
Commonwealth,  188  S.  W.  483, 171  Ky. 
410 ;  Wellington  v.  Commonwealth, 
164  S.  W.  333,  158  Ky.  161 ;  Nelms  v. 
Commonwealth,  82  S.  W.  260,  26  Ky. 
Law  Rep.  604. 

Mo.  State  v.  Richardson,  154  S. 
W.  735,  248  Mo.  563,  44  L.  R.  A.  (N.  S.) 
307 ;  State  v.  Shapiro,  115  S.  W.  1022, 
216  Mo,  359;  State  v.  Bailey,  88  S. 
W.  733,  190  Mo.  257. 

Okl.  Hisaw  v.  State,  165  P.  636,  13 
Okl.  Cr.  484;  Maggard  v.  State,  131 
P.  .549.  9  Okl.  Cr.  236. 

S.  C.  State  V.  Lee,  29  S.  C.  113,  7 
S.  E.  44. 

Tex.     Clark  v.  State,  218  S.  W.  366, 


86  Tex.  Cr.  R.  585;  Fisher  v.  State, 
197  S.  W.  189,  81  Tex.  Cr.  R.  568;  H.v- 
roop  V.  State,  179  S.  W.  878,  79  Tex. 
Cr.  R.  150 ;  Womack  v.  State,  170  S. 
W.  1.39,  74  Tex.  Cr.  R.  640 ;  Coker  v. 
State,  160  S.  W.  366,  71  Tex.  Cr.  R. 
504 ;  Holmes  v.  State,  156  S.  W.  1172, 
70  Tex.  Cr.  R.  214  ;  Williams  v.  State, 
144  S.  W.  622,  65  Tex.  Cr.  R.  193; 
Miller  v.  State,  138  S.  W.  113,  62  Tex. 
Cr.  R.  .507;  Tucker  v.  State,  124  S.  W. 
904,  .58  Tex.  Cr.  R.  271;  Fields  v. 
State.  124  S.  W.  652,  .57  Tex.  Cr.  R. 
613;  Reno  v.  State,  120  S.  W.  430,  56 
Tex.  Cr.  R.  242;  Scott  v.  State,  111 
S.  W.  657,  53  Tex.  Cr.  R.  332 ;  Powell 
v.  State  (Cr.  App.)  106  S.  W.  362; 
Jenkins  v.  State,  93  S.  W.  726,  49 
Tex.  Cr.  R.  457 ;  Prendergast  v.  State, 
57  S.  W.  8.50.  41  Tex.  Cr.  R.  3-58; 
Smith  V.  State,  37  S.  W.  743,  36  Tex. 
Cr.  R.  442;  Lawrence  v.  State.  35 
Tex.  Cr.  R.  114,  32  S.  W.  530;  Wil- 
son V.  State  (Cr.  App.)  24  S.  W.  649; 
Trent  v.  State,  31  Tex.  Cr.  R.  251,  20 
S.  W.  547;  Pitner  v.  State,  23  Tex. 
App.  366,  5  S.  W.  210 ;  May  v.  State, 
22  Tex.  App.  595,  3  S.  W.  781 ;  Kerri- 
gan v.  State,  21  Tex.  App.  487,  2  S. 
W.  756;  Smith  v.  State,  8  Tex.  App. 
39. 

Evidence  tending  to  cast  suspi- 
cion on  tiTitness  as  against  direct 
evidence  that  he  was  not  an  ac- 
complice. Where  there  was  direct 
evidence  from  both  sides  that  a  cer- 
tain witness  was  not  an  accomplice  in 
the  crime,  though  the  evidence  as  a 
whole  tended  to  cast  suspicion  on  him, 
it  was  held  that  it  was  proper  to  re- 
fuse to  instruct  that  the  witness  was 
an  accomplice,  and  that  his  uncorrob- 
orated testimony  could  not  convict, 
though  it  would  have  been  proper,  if 
requested,  to  have  submitted  to  the 
jui-y  the  fact  whether  he  was  an  ac- 
complice, together  with  the  effect  of 
comolicit.v,  on  his  testimony.  State  v. 
Haynes,  75  N.  W.  267,  7  N.  D.  352. 


§174 


INSTRUCTIONS  TO  JURIES 


344 


defendant  contends  that  a  certain  witness  is  an  accomplice.®^ 
Mere  knowledge  on  the  part  of  a  witness  that  the  defendant  com- 
mitted the  crime  of  which  he  is  accused  does  not  call  for  such  an 
instruction.^'  On  the  other  hand  inculpatory  testimony  against 
a  witness  may  render  it  necessary  for  the  court  to  charge,  on  re- 


Evidence  lield  sufficient  to  ne- 
cessitate an  instruction  on  accom- 
plice testimony.  Where  the  princi- 
pal state's  witness,  who  has  twice 
been  arrested  for  other  murders,  tes- 
tifies that  he  accompanied  defendants 
to  the  body,  by  traveling  several  miles 
through  dense  brush;  that  they  in- 
formed him  that  they  were  going  to 
bury  deceased;  that  witness  dug  the 
grave  at  their  instruction,  and  helped 
to  bury  the  body  ;  and  that  the  father 
threatened  to  injure  him  if  anything 
became  known — the  inference  is  de- 
ducible  that  witness  was  intimately 
connected  with  the  crime,  and  it  is  er- 
ror to  refuse  to  charge  in  regard  to 
the  necessary  corroboration  of  an  ac- 
complice. Conde  v.  State,  33  Tex.  Cr. 
R.  10,  24  S.  W.  415.  Where,  in  a  mur- 
der case,  a  witness  for  the  state  testi- 
fied, in  regard  to  a  piece  of  quilt  and 
a  sack  found  together  the  morning 
after  the  murder,  on  the  road  between 
the  house  of  the  murdered  persons 
and  that  of  defendant,  that  he 
thought  the  quilt  belonged  to  defend- 
ant, but  was  positive  that  the  sack  be- 
longed to  the  principal  witness  for  the 
state,  who  had  testified  that  defend- 
ant confessed  to  him  that  he  com- 
mitted the  murder  and  the  principal 
witness  had  said  nothing  about  this 
confession  until  after  he  knew  that  he 
liimself  was  suspected  of  the  crime, 
and  had  then  lied  about  his  knowledge 
of  the  murder  before  telling  of  the 
confession,  it  was  held  that  the  evi- 
dence called  for  a  charge  on  the  testi- 
mony of  an  accomplice.  Shulze  v. 
State,  28  Tex.  App.  316,  12  S.  W.  10S4. 
A  refusal  to  give  an  instruction  as  to 
the  weight  of  accomplice  testimony  is 
error  where  one  of  the  witnesses  for 
the  state  was  shown  to  have  had 
knowledge  of  the  whereabouts  of  the 
deceased  at  the  time  of  the  killing, 
whore  his  tracks  were  found  going  to 
and  from  the  body,  and  he  had  been 
seen  going  with  a  gun  in  the  direction 
of  the  scene  of  the  killing  shortly  be- 


fore; and  where  he  had  told  some 
one  before  the  body  was  found  that 
the  deceased  had  been  killed,  and  re- 
lated the  maijner  of  the  killing. 
Hines  v.  Statif,  27  Tex.  App.  104,  10 
S.  W.  448.  Testimony  that  defendant 
proposetl  to  witness  and  others  that 
they  break  into  a  car ;  that  they  all 
walked  to  the  car ;  that  defendant 
broke  into  the  car,  and  all  went  in, 
except  witness  and  another;  that, 
witness,  with  the  others,  was  fined, 
and  placed  in  jail  on  the  same  charge 
of  burglary  for  which  defendant  was 
tried — is  sufficient  evidence  of  the 
witness'  complicity  to  necessitate  an 
instruction  as  to  accomplice  testimo- 
ny. Hamilton  v.  State,  26  Tex.  App. 
206,  9  S.  W.  687.  On  a  trial  for  theft, 
where  it  was  shown  that  P.  received 
a  sack  of  money  from  defendant, 
knowing  that  he  was  arrested  for 
stealing  it,  and  carried  it  away  to 
conceal  it,  a  charge,  in  connection 
with  his  evidence,  requested  by  de- 
fendant, upon  the  law  of  accomplice 
testimony,  should  have  been  given. 
Kelley  v.  State,  34  Tex.  Cr.  R.  412,  31 
S.  W.  174. 

6c  Walker  v.  State,  44  S.  E.  850, 118 
Ga.  34 ;  Powell  v.  State,  81  S.  E.  396, 
14  Ga.  App.  484. 

6  7  Smith  V.  State,  28  Tex.  App.  .309, 
12  S.  W.  1104. 

Effect  of  remaining  silent. 
Where,  on  a  trial  for  murder,  certain 
Mexicans  were  witnesses  for  the 
state,  and  at  the  time  of  the  murder, 
which  they  witnessed,  they  were 
among  strangers,  hundreds  of  miles 
from  their  homes  and  were  assisting 
in  driving  cattle  to  a  distant  market, 
did  not  know  the  English  language, 
and  defendant  and  deceased  were 
Americans,  in  whom  they  had  no  par- 
ticular interest,  it  was  held  that  the 
mere  fact  of  their  having  remained 
silent  as  to  the  murder  did  not  call 
for  instructions  on  accomplice  testi- 
mony. O'Connor  v.  State,  28  Tex. 
App.  288,  13  S.  W.  14. 


345 


CREDIBILITY   OF   WITNESSES 


§1- 


quest,  on  accomplice  testimony,  although   he  denies  any  connec- 
tion with  the  crime. ^* 

§  175.  Sufficiency  of  instructions  on  right  to  convict  upon  ac- 
complice testimony 
In  jurisdictions  where  the  jury  may  convict  upon  the  uncor- 
roborated testimony  of  an  accomplice,  it  is  proper  for  the  court 
to  instruct  that,  while  such  testimony  is  to  be  received  wdth  cau- 
tion, the  jury  will  be  justified  in  acting  upon  it  if  they  believe  it 
to  be  true,*^  and  in  such  a  jurisdiction  an  instruction  that  an  ac- 


es Scales  V.  State,  217  S.  W.  149,  86 
Tex.  Cr.  R.  433. 

6  0  u.  S.  (C.  C.  A.  Tex.)  Eiseuberg 
V.  U.  S.,  261  F.  598. 

Colo.  Wisdom  v.  People,  11  Colo. 
170,  17  P.  519. 

Conn.  State  V.  Maney,  54  Conn. 
178,  6  A.  401. 

111.  People  V.  Rees,  109  N.  E.  473, 
26S  111.  585 ;  People  v.  Harris,  105  N. 
E.  303,  263  111.  406;  People  v.  Darr, 
179  111.  App.  130,  judgment  affirmed 
104  N.  E.  389,  262  111.  202. 

La.  State  v.  Swindall,  56  So.  702, 
129  La.  760 ;  State  v.  Prudhomme,  25 
La.  Ann.  522;  State  v.  Bayonne,  23 
La.  Ann.  78. 

Mo.  State  V.  Cummins,  213  S.  W. 
969,  279  Mo.  192;  State  v.  Shelton, 
122  S.  W.  732,  223  Mo.  118 ;  State  v. 
Donnelly,  130  Mo.  642,  32  S.  W.  1124 ; 
State  V.  Minor,  117  Mo.  302,  22  S.  W. 
1085. 

Neb.  Olive  v.  State,  11  Neb.  1,  7 
N.  W.  444. 

N.  C.  State  v.  Register,  46  S.  E. 
21,  133  N.  C.  746. 

Vt.  State  V.  Hler,  63  A.  877,  78  Vt. 
488. 

See  State  v.  Greenburg,  53  P.  61,  59 
Kan.  404. 

Instructions  held  proper  ivithin 
rule.  An  instruction  to  the  effect 
that  the  testimony  of  an  accomplice 
is  competent  evidence,  the  credibility 
of  such  accomplice  is  for  the  jury  to 
pass  upon  as  they  do  upon  any  other 
witness,  that,  while  the  testimony  of 
an  accomplice  will  sustain  a  verdict 
when  uncorroborated,  such  testimony 
must  be  received  with  great  caution, 
but,  if  it  carries  conviction,  and  the 
jury  are  convinced  of  its  truth,  they 
should  give  to  it  the  same  effect  as 


would  be  allowed  to  a  witness  who  is 
tn  no  way  implicated  in  the  offense,  is 
not  erroneous.  Shiver  v.  §tate,  27 
So.  36,  41  Fla.  630.  An  instruction 
that  the  testimony  of  an  accomplice  is 
admissible,  yet,  when  uncorroborated 
by  some  person,  not  implicated  in  the 
crime,  as  to  matters  connecting  de- 
fendant with  its  commission,  ought  to 
be  received  by  the  jury  with  great  cau- 
tion, and  they  ought  to  be  fully  satis- 
fied of  its  truth  before  convicting  de- 
fendant on  such  testimony,  but  they 
are  at  liberty  to  convict  on  the  uncor- 
roborated testimony  of  an  accomidice, 
if  they  believe  his  statements,  and 
that  the  facts  sworn  to  by  him  estab- 
lish defendant's  guilt,  fairly  presents 
the  law.  State  v.  Crab,  121  Mo.  554, 
26  S.  W.  548.  Where  the  court  charg- 
ed "that  they  [the  jury]  might  convict 
on  the  unsupported  testimony  of  an 
accomplice,  but  that  it  was  dangerous 
and  unsafe  to  do  so;  but  if  the  story 
of  the  accomplice,  taken  with  the  oth- 
er facts  and  circumstances  in  the 
case,  caiTy  conviction  to  the  minds  of 
the  jury,  then  it  is  their  duty  to  con- 
vict. The  jury  must  be  satisfied,  be- 
yond a  reasonable  doubt,  of  the  guilt 
of  the  defendant,  before  they  can  con- 
vict," it  was  held  that  such  instruc- 
tion was  not  objectionable  as  tending 
to  mislead  the  jury  as  to  the  weight 
to  be  given  to  an  accomplice's  testi- 
mony. State  V.  Barber,  113  N.  C.  711, 
18  S.  E.  515. 

Instructions  lield  not  erroneous 
as  authorizing  a  conviction  on  the 
uncorroborated  testimony  of  an 
accomplice.  An  instruction  that  the 
testimony  of  an  accomplice  is  admis- 
sible, yet,  when  uncorroborated,  ought 
to  be  received  with  great  caution,  and 


§  175 


INSTRUCTIONS  TO  JURIES 


34G 


complice    must   be    corroborated    requires    too    high    a    degree    of 
proof  from  the  state.''® 

An  instruction  as  to  the  right  to  convict  upon  the  uncorrobo- 
rated testimony  of  an  accomplice  should  inform  the  jury  as  to 
what  is  meant  by  corroboration.'^  In  such  an  instruction,  telling 
the  jury  to  weigh  the  testimony  of  an  accomplice  with  great  cau- 
tion and  that  they  may  disregard  it  altogether,  it  is  not  error  to 
add,  "if  they  believe  it  to  be  untrue,"'  or  "if  they  have  a  reason- 


that  the  jury  can  convict  on  the  un- 
corroborated testimony  of  an  accom- 
plice if  they  believe  it  to  be  true,  and 
if  the  facts  sworn  to  by  such  witness 
will  establish  the  guilt  of  defendant; 
State  V.  Dawson,  124  Mo.  418,  27  S. 
W.  1104.  An  instruction,  in  a  prose- 
cution for  theft,  that,  in  case  the  jury 
believed  a  certain  person  to  be  an 
accomplice,  "you  should  consider  with 
greater  care  whether  the  story  he  has 
told  on  the  witness  stand  is  corrobo- 
rated by  any  fact  or  facts  testified  to 
by  otlier  witnesses,"  and  that  "you 
should  not  decide  the  case  on  the  tes- 
timony" of  the  alleged  accomplice 
alone,  but  upon  all  the  evidence. 
State  V,  Harras,  65  P.  774,  25  Wash. 
416.  In  a  prosecution  for  burglary, 
an  instruction  that,  "while  it  is  a  rule 
of  law  that  a  person  may  be  convicted 
on  the  uncorroborated  testimony  of 
an  accomplice,  still  a  jury  should 
always  act  on  such  testimony  with 
great  care  and  caution,  and  subject  it 
to  careful  examination  in  the  light  of 
all  other  evidence  in  the  case,  and  the 
jury  ought  not  to  convict  on  such  tes- 
timony alone,  unless  satisfied  beyond 
all  reasonable  doubt  of  its  truth,"  was 
not  erroneous,  in  that  it  implied  that 
the  jury  might  convict  on  the  evi- 
dence of  the  accomplice  alone.  State 
V.  Coates,  61  P.  726,  22  AYash.  601. 

Instructions  held  susceptible  of 
a  construction  prejudicial  to  ac- 
cused. Where,  in  a  prosecution  for 
breaking  and  entering  a  storehouse, 
the  court  charged  that  it  was  unsafe 
to  convict  on  uncorroborated  testimo- 
ny of  an  accomplice,  but,  if  the  jury  is 
convinced  of  the  truthfulness  of  the 
accomplice's  testimony  and  sees  fit  to 
convict  on  such  testimony,  if  the  trial 
judge  refused  to  set  aside  the  verdict, 
the  Supreme  Court  will  let  it  stand 
according  to  its  decision,  that  some- 


times the  state  cannot  make  out  a 
case  without  using  an  accomplice's 
testimony,  as  an  outrageous  crime 
may  be  committed,  and,  if  it  were  not 
l>ermitted  the  use  of  such  testimony, 
criminals  would  sometimes  be  permit- 
ted to  go  free,  it  was  held  that  the 
charge  might  have  been  construed  to 
the  prejudice  of  accused.  State  v. 
Clark,  67  S.  E.  300,  85  S.  C.  273. 

7  0  State  V.  Black,  143  Mo.  166,  44 
S.  W.  .340. 

•^1  State  V.  Sprague,  50  S.  W.  901, 
149  Mo.  409,  followed  and  approved 
149  Mo.  425,  50  S.  W.  1117 ;  Smith  v. 
State,  67  P.  977,  10  Wyo.  157. 

Instructions  held  to  sufficiently 
dejine  "corroborate."  An  instruc- 
tion that  the  testimony  of  an  accom- 
plice, while  admissible,  must  be  cor- 
roborated by  some  other  witness  or 
witnesses  not  implicated  in  the  crime 
as  to  facts  connecting  defendant  with 
its  commission,  and  should  be  receiv- 
ed with  great  caution,  but  if  the  jury 
were  satisfied  that  the  accomplice's 
testimony  was  true,  and  that  such  tes- 
timony was  sufficient  to  establish  de- 
fendant's guilt,  then  they  could  con- 
vict on  it  alone,  was  proper,  and  not 
objectionable  for  the  court's  failure  to 
define  "corroborate."  State  v.  Bob- 
bitt,  114  S.  W.  511,  215  Mo.  10.  A 
charge  that  accused  in  a  murder  case 
could  be  convicted  on  the  uncorrobo- 
rated testimony  of  an  accomplice 
alone  if  the  jury  believed  the  accom- 
plice's statements  to  be  true  and  suf- 
ficient in  proof  to  establish  accused's 
guilt,  but  the  testimony  of  an  accom- 
plice when  not  corro])orated  by  some 
person  not  implicated  in  the  crime  as 
to  matters  material  to  the  issue  ought 
to  be  received  with  great  caution,  etc., 
sufficiently  explains  the  meaning  of 
the  word  "corroborate."  State  v.  Sas- 
saman,  114  S.  W.  590,  214  Mo.  695. 


347  CREDIBILITY   OF   WITNESSES  §  176 

able  doubt  of  its  truth."  '-  An  instruction  that,  in  order  to  deter- 
mine the  truth  or  falsity  of  the  testimony  of  an  accomplice,  it 
should  be  weighed  by  the  same  rule  as  the  testimony  of  any 
other  witness  is  proper,'^  and  is  not  objectionable  as  leading  the 
jury  to  think  that  they  need  not  consider  the  turpitude  of  the 
accomplice  in  determining  the  weight  to  be  given  to  his  testi- 
mony.''"* In  jurisdictions  where  corroboration  of  an  accomplice 
is  required,  a  charge  on  accomplice  testimony,  to  be  sufficient, 
should  define  an  accomplice,  state  the  statutory  inhibition  against 
a  conviction  on  accomplice  testimony  without  corroboration,  tell 
the  jury,  in  substance,  that  the  corroborating  evidence,  to  be 
sufficient,  must  be  as  to  some  material  matter  and  must  tend  to 
connect  the  accused  with  the  commission  of  the  ofifense,  and 
apply  the  law  to  the  facts. ''^  A  charge,  which  authorizes  a  con- 
viction on  accomplice  testimony,  if  it  is  believed  and  the  re- 
quirements as  to  the  corroboration  of  such  testimony  are  met, 
should  also  state  that  it  is  necessary  that  the  accomplice  testimony, 
in  connection  with  the  other  evidence,  should  show  defendant's 
guilt  beyond  a  reasonable  doubt.'®  An  instruction  as  to  the  value 
of  accomplice  testimony  in  the  language  of  a  statute  regulating 
the  subject  will  ordinarily  be  sufficient.'' 

§  176.     Sufficiency  of  instructions  on  corroboration  of  accomplice 

In  jurisdictions  where  corroboration  of  an  accomplice  is  not 
required  by  statute  it  has  been  held  that,  in  a  proper  case,  it  may 
not  be  error  to  instruct  that  the  testimony  of  an  accomplice  may 
be   corroborated   by   the   circumstances   given    in   evidence.'* 

In  jurisdictions  where  the  statute  requires  such  corroboration, 
instructions  which  follow  the  language  of  the  statute  will  ordi- 
narily be  sufficient,  if  no  others  are  asked.'®     Under  such  a  stat- 

7  2  Brown  v.  State,  72  Miss.  990,  18  24  S.  W.  SS5;    Elizando  v.  State,  31 

So.  4.31 ;   Wilson  v.  State,  71  Miss.  SSO,  Tex.  Cr.  R.  237.  20  S.  W.  .560  ;    Lock- 

16  So.  .•',04.  hart  v.  State,  29  Tex.  App.  35,  13  S. 

7  3  Butt  V.  State,  98  S.  W.  723,  81  W.  1012. 
Ark.  173,  118  Am.  St.  Rep.  42.  Instructions  held  su£Bicient.     Un- 

7  4  State  V.  Weldon,  71  S.  E.  828,  89  ^^^^'  ^   statute  pro^-iding  tliat  a  con- 

S   O  308  vietion  cannot  be  had  on  the  testimo- 

'75  Standfield  v.  State,  208  S.  W.  532,  '\  «/  ^^  accomplire  unless  corrobo- 

84  Tex    Cr    R    437  rated,    a    charge    that    a    conviction 

7B  T    "  1  1      A       0*.  4-     010  CI   Ttr  r^~n  cannot  be  had  on  an  accomplice's  testi- 

,_  TT      T  ^  ,.,.    ^  that  proof  of  the  death  of  deceased  is 

«  ^^,7lY'o^V-  r  T^'^^oJJ'.oi  ^«t  sufficient  to  justify  a  conviction 

K      '.i     '  ^'"  '     ^^'*         '  °"  "^^  accomplice's  testimony  "alone," 

is.y.  _Jb.  jg   jjQj.   erroneous,    the  words   ''only" 

78  state  V.  Shaffer,  161  S.  W.  805,  and    "alone"    being    implied    in    the 

253  Mo.  320.  statute.    State  v.  Smith,  77  X.  W.  499, 

79  Vaughan   v.  State,  58  Ark.  353,  106  Iowa,  701. 


176 


INSTRUCTIONS  TO  JURIES 


348 


lite  an  instruction  which  fails  to  define  the  character  of  corrobo- 
ration and  the  nature  of  the  corroborative  testimony  required 
will  be  erroneous.**  In  a  proper  case  the  court  may  instruct 
that  the  required  corroboration  of  an  accomplice  may  be  drawn 
"from  the  circumstances  of  the  case  shown  in  evidence,"  *^  The 
defendant  is  entitled  to  an  instruction  that,  if  the  jury  do  not 
believe  the  evidence  tending  to  corroborate  the  testimony  of  the 
accomplice,  they  must  acquit  the  accused.*"  Under  the  usual 
wording-  of  such  statutes  it  is  error,  in  some  jurisdictions,  to 
charge  merely  that  the  jury  cannot  convict  alone  on  accomplice 
testimony,*^  but  they  should  be  expressly  informed  that  the  tes- 
timony of  an  accomplice,  to  sustain  a  conviction,  must  be  cor- 
roborated by  other  evidence  tending  to  connect  the  accused  with 
the  commission  of  the  crime  charged,**  and  the   accused  is   en- 


80  state  V.  Holter,  138  N.  W.  953, 
30  S.  D.  353;  Id.,  142  N.  W.  657,  32 
S.  D.  43,  46  L.  R.  A.  (N.  S.)  376,  Ann. 
Cas.  1916A,  193;  Mitchell  v.  State, 
42  S.  W.  989,  38  Tes.  Cr.  R.  325. 

Instructions  lield  insufficient 
witliin  rule.  An  instruction,  in  a 
trial  for  robbery,  that  if  the  jury  be- 
lieve, beyond  a  reasonable  doubt, 
from  tlie  testimony  of  an  accomplice 
who  testified  for  the  people,  that  de- 
fendant is  guilty  of  the  offense  charg- 
ed, and  if  they  believe  from  the  evi- 
dence, "outside  of  that  which  tends  to 
connect  the  defendant  with  the  com- 
mission of  the  offense,  other  than 
shown  in  the  commission  of  the  of- 
fense itself  and  the  circumstances 
thereof,"  they  should  find  defendant 
guilty,  failed  to  state  with  suflicient 
clearness  the  rule  that  testimony  of 
an  accomplice  is  insuflicient  of  itself 
to  justify  conviction,  and  the  degree 
of  proof  sufficient  to  corroborate  such 
testimony.  People  v.  Lynch,  55  P. 
248,  122  Cal.  501.  An  instruction  that 
slight  evidence  that  the  crime  was 
committed  by  defendant,  and  identify- 
ing him  with  it,  will  corroborate  the 
accomplice,  and  warrant  a  finding  of 
guilty.  Chapman  v.  State,  34  S.  E. 
3G9,  109  Ga.  157. 

81  State  V.  Shaffer,  161  S.  W.  810, 
253  Mo.  320. 

8  2  McDaniels  v.  State,  50  So.  .324, 
162  Ala.  25. 

S3  II(,llin2sworth  v.  State,  189  S.  W. 
488,  80  Tex.  Cr.  R.  299;    Loessin  v. 


State,  81  S.  W.  715,  46  Tex.  Cr.  R.  553. 

8  4  State  V.  Wong  Si  Sam,  127  P. 
683,  63  Or.  266 ;  CroMell  v.  State.  24 
Tex.  App.  404,  6  S.  W.  318;  Watson 
V.  State,  9  Tex.  App.  237. 

Instructions  held  sufficient 
within  rule.  An  instruction  that  a 
conviction  cannot  be  had  on  the  testi- 
mony of  an  accomplice,  unless  corrob- 
orated by  other  evidence  which  in  it- 
self tends  to  connect  him  with  the  of- 
fense, etc.  Rain  v.  State,  137  P.  550, 
15  Ariz.  125.  Under  a  statute  provid- 
ing that  an  accused  cannot  be  convict- 
ed by  the  evidence  of  an  accomplice, 
unless  corroborated  by  other  evidence 
"tending  to  prove"  defendant's  com- 
plicity, an  instruction  that  a  convic- 
,tion  for  receiving  stolen  goods  cannot 
be  had  on  the  testimony  of  the  thief, 
unless  corroborated  by  such  evidence 
as  tends  to  impute  to  defendant 
knowledge  that  the  goods  were  stolen, 
is  not  erroneous  in  using  the  expres- 
sion "tends  to  impute,"  instead  of 
"imputes."  People  v.  Ribolsi,  89  Cal. 
492,  26  P.  1082.  A  charge.  "If  you 
believe  that  an  accomplice  has  testi- 
fied in  this  case,  and  you  believe  be- 
yond all  reasonable  doubt  from  his 
testimony,  to  a  moral  certainty,  that 
the  defendant  is  guilty  of  the  alleged 
offense  in  the  information  mentioned, 
and  then  in  connection  therewith  you 
believe  there  is  evidence  outside  of 
that  which  tends  to  connect  the  de- 
fendant with  the  commission  of  tlie 
offense,  outside  of  showing  the  com- 


349 


CREDIBILITY  OF  WITNESSES 


176 


titled  to  an  instruction  that  the  corroboration  is  not  sufficient,  if 


mission  of  the  offense  itself  and  tlie 
circumstances  thereof,  then  it  would 
be  3'our  boundcu  duty  to  convict  him." 
People  V.  Cloush,  73  Cal.  348,  15  P. 
5.  An  instruction  that  testimony  to 
corroborate  an  accomplice  is  sufficient 
"if  it  tends  to  connect  defendants 
with  commission  of  the  offense,  though 
of  itself,  standing  alone,  it  would  be 
entitled  to  but  little  weight."  People 
V.  Blunkall,  161  P.  997,  31  Cal.  App. 
778.  In  homicide,  a  charge  in  the 
language  of  the  statute,  providing 
that  a  conviction  cannot  be  had  on 
the  testimony  of  an  accomplice,  un- 
less corroborated  hy  other  evidence 
which  in  itself  tends  to  connect  de- 
fendant with  the  commission  of  the 
offense,  etc.,  and,  in  concluding,  de- 
clared that  the  corroborative  evidence 
was  sufficient  "if  it  tended  to  connect 
defendant  with  the  commission  of  the 
offense."  People  v.  Balkwell,  76  P. 
1017,  143  Cal.  259.  An  instruction,  re- 
quiring testimony  of  accomplice  to  be 
corroborated  by  additional  evidence 
relating  to  facts  and  circumstances 
tending  to  show  that  defendant  com- 
mitted the  crime  either  alone  or  with 
the  witness.  State  v.  Price,  160  N.  W. 
677,  135  Minn.  159.  Where  an  accom- 
plice testifies  for  the  state,  a  charge 
that  his  evidence,  to  warrant  a  con- 
\^ction,  must  be  corroborated,  both  as 
to  its  truth  and  the  identity  of  the  de- 
fendant, by  other  evidence  which 
"satisfactorily  amounts  to  the  swear- 
ing of  one  credible  witness,  either  in 
direct  evidence  or  from  facts  and  cir- 
cumstances." is  not  prejudicial  to  de- 
fendant. Clapp  V.  State,  94  Tenn, 
186.  30  S.  W.  214.  A  charge  that, 
though  the  accomplice  has  testified  to 
the  essential  facts  of  the  crime,  there 
cannot  be  a  conviction  on  her  evidence 
alone,  but  there  must  be  other  evi- 
dence tending  to  show  such  fact,  and 
that  the  corroborative  evidence  need 
not  be  direct  and  positive,  but  such 
facts  and  circiunstances  as  tend  to 
support  her  testimony,  and  which  sat- 
isfy the  jury  that  she  is  worthy  of 
credit  as  to  the  essential  facts,  are 
sufficient  corroboration,  and  that  it 
is  for  the  jury  to  say,  from  all  the 
facts  and  circumstances  in  evidence, 


whether  she  has  been  sufficiently  cor- 
roborated, is  not  erroneous,  as  it 
could  not  be  imderstood  by  the  jury 
to  refer  to  anything  el.se  than  the 
concrete  case  and  the  facts  before 
them.  Beeson  v.  State,  130  S.  W. 
1006,  60  Tex.  Cr.  R.  39.  In  a  prose- 
cution for  seduction,  a  charge  upon 
the  testimony  of  an  accomplice,  "that 
the  corroborating  evidence  need  not 
be  direct  and  positive,  independent  of 
the  testimony  of  [the  accomplice],  but 
proof  of  such  facts  and  circumstanc- 
es as  tend  to  support  her  testimony, 
and  which  satisfy  the  jury  that  she 
is  worthy  of  credit  as  to  the  facts  es- 
sential to  constitute  the  offense,"  etc., 
was  not  erroneous.  Capshaw  v.  State 
166  S.  W.  737,  73  Tex.  Cr.  E.  609. 
Where  the  jury  returned  into  court 
and  asked  whether  accused's  testimo- 
ny could  be  used  as  corroborative  of 
that  of  an  accomplice,  an  instruction 
that  any  testimony  in  tl>e  case,  other 
than  the  testimony  of  an  accomplice, 
believed  by  the  jury  to  be  true,  might 
be  considered  in  corroboration  of  the 
testimony  of  an  accomplice,  provided 
it  tended  materially  to  connect  de- 
fendant with  the  commission  of  the 
crime,  was  proper.  Morawitz  v. 
State,  91  S.  W.  227,  49  Tex.  Cr.  R. 
366.  Though  it  is  better  practice  to 
follow  the  statute,  pro^ddiug  that  a 
conviction  cannot  be  had-  on  accom- 
plice testimony,  "unless  corroborated 
by  other  evidence  tending  to  connect 
defendant  with  the  oft'en.se  commit- 
ted," a  charge  is  not  erroneous  be- 
cause merely  requiring  corroboration 
l)y  evidence  tending  in  "some  degree" 
to  connect  defendant  with  the  offense. 
McKinney  v.  State,  88  S.  W.  1012,  48 
Tex.  Cr.  R.  402.  An  instruction  re- 
lating to  the  conviction  of  one  charged 
with  crime  on  the  testimony  of  an 
accomplice  that  there  should'  be  evi- 
dence tending  to  show  that  accused 
took  part  in  the  actual  commission  of 
the  crime  sufficiently  stated  what  con- 
stitutes a  material  fact  on  which  a 
corroboration  of  the  accomplice  is 
necessary.  Clay  v.  State,  86  P.  17,  15 
Wyo.  42. 

Corroboration     on     question     of 
identity  of  accused.     An  instruction 


176 


INSTRUCTIONS   TO   JURIES 


350 


it  merely  shows  the  commission  of  the  offense  or  the  circum- 
stances thereof,*^  and  in  some  cases  it  may  be  error  to  refuse  to 
charge,  not  only  that  there  must  be  evidence  tending  to  connect 
the  defendant  with  the  commission  of  the  alleged  offense,  but 
that  this  requires  more  than  such  evidence  as  merely  raises  a  sus- 
picion of  guilt. ^® 

Under  the  Texas  statute  requiring  that,  in  order  to  convict 
a  defendant  upon  the  testimony  of  an  accomplice,  it  must  be  cor- 
roborated by  other  evidence  tending  to  connect  the  accused  with 
the  crime  charged,  there  is  a  long  line  of  cases  holding  that  the 
jury  should  be  told  that  in  order  to  convict  they  must  believe 
the  testimony  of  the  accomplice  to  be  true  and  that  it  connects 
the  defendant  with  the  offense  alleged  against  him,  not  merely 
that  it  tends  to  show  such  connection.*'*     A  charge,  calculated  to 


that  the  testimony  of  accomplices 
should  be  carefully  scrutinized,  and 
that,  unless  corroborated  by  other 
witnesses,  especially  as  to  the  identity 
of  the  accused  as  the  person  against 
whom  the  aT^complices  have  testified, 
such  testimony  is  insufficient  to  con- 
vict, is  correct ;  as  it  sufficiently  pre- 
sents the  necessity  for  corroboration 
on  the  question  of  identity.  State  v. 
Walker.  98  Mo.  95,  9  S.  W.  646. 

S5  State  V.  Smith,  72  N.  W.  279,  102 
Iowa,  656 ;  Moore  v.  State,  170  P.  519, 
14  Okl.  Cr.  292:  Fisher  v.  Territory, 
87  P.  301,  17  Okl.  455. 

Instructions  held  sufficient.  An 
instruction  that  the  corroboration  of 
an  accomplice  which  will  justify  a 
conviction  cannot  come  from  facts 
that  merely  showed  the  commission 
of  the  offense  or  the'  circumstances 
thereof,  leaving  it  to  the  jury  to  say 
whether  or  not  there  is  corroboration 
in  the  other  evidence,  is  correct. 
State  v.  Jackson,  73  X.  W.  467,  103 
Iowa.  702. 

«'5  People  V.  Williams,  1  X.  Y.  Cr.  R. 
336.  29  Hun,  520. 

S7  Savage  v.  State,  170  S.  W.  730,  75 
Tex.  Cr,  R.  213  ;  P.aggett  v.  State,  144 
S.  W.  1136,  65  Tex.  Cr.  R.  425:  Long 
V.  State.  138  S.  W.  401,  62  Tex.  Cr. 
R.  540 ;  Franklin  v.  State,  138  S.  W. 
112,  62  Tex.  Cr.  R.  4.33;  Shrewder 
v.  State,  133  S.  W.  281,  60  Tex.  Cr. 
R.  659:  Grant  v.  State.  132  S.  W. 
350,  60  Tex.  Cr.  R.  358;  Ware  v. 
State,  129  S.  W.  836,  60  Tex.  Cr.  R. 


38 ;  Maibaum  v.  State,  128  S.  W.  378, 
59  Tex.  Cr.  R.  386:  Jordan  v.  State, 
128  S.  W.  139,  59  Tex.  Cr.  R.  208; 
Dorham  v.  State,  125  S.  W.  397,  58 
Tex.  Cr.  R.  283:  Wadkins  v.  State, 
124  S.  W.  959.  58  Tex.  Cr.  R.  110.  137 
Am.  St.  Rep.  922,  21  Ann.  Cas.  556; 
Pace  V.  State,  124  S.  W.  949.  58  Tex. 
Cr.  R.  90:  Snelling  v.  State,  123  S. 
W.  610,  57  Tex.  Cr.  R.  416;  Camp- 
bell V.  State,  123  S.  W.  583,  57  Tex. 
Cr.  R.  301;  Fruger  v.  State,  120  S. 
W.  197,  56  Tex.  Cr.  R.  393 ;  Maples  v. 
State,  119  S.  W.  105,  56  Tex.  Cr.  R. 
99;  Gardner  v.  State,  117  S.  W.  148, 
55  Tex.  Cr.  R.  400 ;  Xewman  v.  State, 
110  S.  W.  577,  .55  Tex.  Cr.  R.  273: 
Gates  V.  State,  103  S.  W.  859,  51  Tex. 
Cr.  R.  49.  See  Middleton  v.  State, 
217  S.  W.  1046.  86  Tex.  Cr.  R.  307. 

Instructions  held  ej-roneous  as 
not  requiring  the  jury  to  believe 
testimony  of  accomplice  to  be 
true.  An  instruction  that  a  certain 
witness  was  an  accomplice,  and  the 
jury  could  not  evict  accused,  unless  it 
found  from  the  evidence  that  the  tes- 
timony of  such  witness  had  been  cor- 
roborated by  other  evidence  connect- 
ing accused  with  the  offen.se  charged 
in  either  the  first  or  second  counts, 
and  that  the  corroboration  was  not 
sufficient  if  it  merely  showed  the 
commission  of  the  offense  cliarged, 
was  erroneous.  Tims  v.  State,  130  S. 
W.  1003,  60  Tex.  Cr.  R.  58.  An  in- 
struction that  a  conviction  cannot  be 
had  on  testimony  of  an  accomplice. 


351 


CREDIBILITY   OF   WITNESSES 


177 


lead  the  jury  to  think  that  the  corroboration  of  the  accomplice 
on  main  facts  other  than  the  connection  of  the  defendant  with 
the  alleged  crime  is  sufficient,  is  erroneous.^* 

§  177.     Corroboration  of  one  accomplice  by  another 

Where   the   state  relies   mainly   upon   the   testimony  of  two   or 
more  accomplices,  the  failure  or  refusal  of  the  judge  to  charge 


imless  corroborated  by  other  evidence 
to  connect  defendant  with  the  offense, 
and  corroboration  is  not  sufficient  if 
it  merely  shows  commission  of  the  of- 
fense, followed  by  a  definition  of  "ac- 
complice," but  nowhere  applying  the 
law  to  the  facts,  nor  charging  that 
his  testimony  must  be  considered  true 
by  the  jury,  was  defective.  Floyd  v. 
State  (Tex.  Cr.  App.)  117  S.  W.  138; 
Close  V.  State,  117  S.  W.  137,  55  Tex. 
Cr,  R.  380.  A  charge  that  the  jury 
cannot  find  defendant  guilty  upon  the 
testimony  of  an  accomplice  unless  the 
same  is  corroborated  by  other  evi- 
dence is  erroneous  in  that  it  author- 
izes a  conviction  if  the  accomplice's 
testimony  is  corroborated,  regardless 
as  to  whether  it  is  true  or  not.  Cren- 
shaw V.  State,  85  S.  W.  1147,  48  Tex. 
Cr.  R.  77.  A  charge,  in  a  prosecution 
for  seduction,  that  the  prosecutrix  is 
an  accomplice  of  defendant,  and  no 
conviction  can  be  had  on  her  testi- 
mony, unless  corroborated  by  evi- 
dence sufficient  to  satisfy  the  jury  of 
the  truth  of  the  evidence  of  prosecu- 
trix. Lemmons  v.  State,  125  S.  W. 
400,  58  Tex.  Cr.  R.  269.  A  charge 
that  prosecutrix,  on  a  trial  for  seduc- 
tion, was  an  accomplice  with  accused 
in  the  commission  of  the  offense,  and 
that  accused  could  not  be  convicted 
on  her  testimony  alone,  unless  it  was 
corroborated  by  other  evidence  con- 
necting accused  with  the  offense,  but 
that  such  corroborating  evidence  need 
not  be  direct  and  positive,  or  suffi- 
cient to  convict  independent  of  the 
accomplice,  but  simply  such  as  would 
support  her  testimony  and  satisfy  the 
jury  that  she  was  worthy  of  credit 
was  erroneous.  Vantreese  v.  State, 
128  S.  W.  383,  59  Tex.  Cr.  R.  281. 

Instructions  held  not  objection- 
able as  authorizing  a  conviction 
on  a  less  amount  of  proof  than  re- 
quired   by    statute.     Where,    after 


charging  that  the  jury  could  not  con- 
vict on  the  testimony  of  an  accom- 
plice or  any  number  of  accomplices, 
unless  corrolwrated  1»y  other  evidence 
connecting  defendant  with  the  offense 
and  that  the  corroboration  was  not 
sufficient  if  it  merely  showed  the  com- 
mission of  the  offense,  the  court  de- 
fined the  word  "accomplice,"  and  then 
charged  that  two  of  the  state's  wit- 
nesses were  accomplices,  and  that  the 
jury  could  not  find  defendant  guilty 
on  their  testimony  unless  satisfied 
that  the  same  was  true,  and  that  it 
had  been  corroborated  by  other  evi- 
dence that  defendant  did. in  fact  com- 
mit the  offense,  that  the  evidence  of 
one  accomplice  CQuld  not  be  corrobo- 
rated by  another,  but  that  the  jury 
must  be  satisfied  that  the  testimony 
of  each  accomplice  was  true  and  cor- 
roborated by  other  evidence  that  de- 
fendant, in  fact,  committed  the  of- 
fense, it  was  held  that  such  instruc- 
tions were  not  objectionable  as  au- 
thorizing a  conviction  if  the  jury 
found  that  the  accomplices  testified 
truthfully.  McCue  v.  State  (Tex.  Cr. 
App.)  103  S.  W.  883.  A  charge,  in 
a  prosecution  for  larceny,  that  anoth- 
er was  an  accomplice  if  any  offense 
was  committed,  and  the  jury  could 
not  find  accused  guilty  upon  the  ac- 
complice's testimony  unless  they  be- 
lieved it  to  be  tiirie  and  that  it  show- 
ed accused  guilty  as  charged,  and 
could  not  convict  even  then  unless 
they  believed  that  there  was  evidence 
outside  of  the  accomplice's,  tending  to 
connect  accused  with  the  offense 
charged,  and  believed  beyond  a  rea- 
sonable doubt  from  all  the  evidence 
that  accused  was  guilty.  Brown  v. 
State,  124  S.  W.  101,  57  Tex.  Cr.  r! 
570. 

8  8  state  V.  Hughes,  75  So.  416,  141 
La.  578. 


§  178  INSTRUCTIONS  TO  JURIES  352 

that  one  accomplice  cannot  be  corroborated  by  another  will  con- 
stitute error,*^  and  in  such  case  it  is  prejudicial  error  to  instruct 
that  the  defendant  cannot  be  convicted  upon  the  uncorroborated 
testimony  of  "an  accomplice,"  instead  of  using  the  words  "an 
accomplice  or  accomplices."  ^^ 


H.  Instructions  on  Efs'Hct  of  Falsi;  Ti;stimony 

Effect  of  false  testimony  of  accused,  see  ante,  §  170, 
Invading  province  of  jury,  see  ante,  §  22. 

§  178.     Necessity  and  propriety   of  instructions 

In  some  jurisdictions  the  rule  is  that,  as  the  jury  are  the  sole 
judge  of  the  credibility  of  the  witnesses,  it  is  their  right,  untram- 
meled  by  any  direction,  check,  or  restraint  on  the  part  of  the 
court,  to  adopt  their  own  rules  or  modes  of  testing  the  credit  to 
which  a  witness  is  entitled,  and  that  therefore  the  court  cannot 
be  required  to  give  as  a  charge  the  legal  maxim,  "falsus  in  uno, 
falsus  in  omnibus."  ^^  In  other  jurisdictions  the  propriety  or 
necessity  of  giving  an  instruction  as  to  the  effect  of  a  false  state- 
ment by  a  witness  on  his  entire  testimony  rests  largely  in  the 
discretion  of  the.  trial  court,^'^  and  failure  to  so  instruct  will  not 
be  error,  where  no  request  is  made  for  such  a  charge.^^  In  some 
jurisdictions  a  charge  stating  the  statutory  rule  that  a  witness 
false  in  one  part  of  his  testimony  is  to  be  distrusted  in  others  is 
proper.^*     In  most  jurisdictions  it  is  proper  to  give  an  instruc- 

89  Lockliead  v.  State,  213  S.  W.  653,  S.   W.   267,   274   Mo.    625 ;    Lloyd   v. 

85  Tex.  Cr.  R.  459;   Franklin  v.  State,  Meservey,  108  S.  W.  595,  129  Mo.  App. 

110  S    W    909,  53  Tex.  Cr.  R.  547 ;  636 ;   Paddock  v.  Somes,  51  Mo.  App. 

Whitlow  v.  State  (App.)  18  S.  W.  865 ;  320. 

McConnell  v.   State   (App.)  18  S.  W.  vt.     Doyle  v.  Melendy,  75  A.  881, 

645 ;    Hannahan  v.  State,  7  Tex.  App.  §3  yt.  339. 

664;   Heath  v.  State,  7  Tex.  App  464.  ,3  ^^^^  ^    ^           ^^^  g    ^ 

Sufficiency  of  ciarge.     A  charge  34  Ga.  App.  338 ;    Harrell  v.  State,  71 

which  fails  to  distinctly  tell  the  jury  g    j,   ^^^^^   ^  ^^   ^        ^24;    State  v. 

that   one  accomplice  cannot  corrobo-  ^^^^^      ^^^  p     g  3  ^             ' 

rate  another,  but  the  effect  of  which  '     ,  ^,    ,       ,^    ^     . 

is   to  so   insti-uct   them,   is   sufficient.  "' ^^.""IJ.- ^''^nf.^A  n^n^l  ^t 

Stevens  v.  State  (Tex.  Cr.  App.)  49  S.  Alaska)  260  F    807    171  C.  C.  A    533; 

■ry  -.Q-                      •  People  V.  MacDonakl,  140  P.  2o6,  167 

00  Powers  V.  Commonwealth,  61  S.  Cal.  545;    People  v.  Grill,  91  P.  515, 

W.  735,  110  Ky.  386.  53  L.  R.  A.  245,  1^1  Cal.  592. 

22  Ky.  Law   Rep.  1807.  "Deliberately"    false.     A    charge 

81  State  V.  Banks,  40  La.  Ann.  736,  that  a  witness  who  deliberately  tes- 

5  So.  18.  tifies  falsely  in  one  part  of  his  testi- 

02  Ga.    Ilarrell  v.   State,  71   S.  E.  mony  is  to  be  distrusted  in  other  parts 

1030,  9  Ga.  App.  624.  is  not  erroneous  by  reason  of  the  use 

Mo.     Milton    V.    Holtzman    (App.)  of  the  word  "deliberately."    People  v. 

216  S.  W.  828 ;    State  v.  Barnes,  204  Brown,  152  P.  58,  28  Cal.  App.  261. 


353 


CREDIBILITY   OF   WITNESSES 


§178 


tion,  where  the  evidence  is  in  conflict  on  a  material  point,  permit- 
ting the  jury,  with  proper  qualifications,  to  disregard  entirely  the 
testimony  of  a  witness  whom  the  jury  believe  to  have  willfully 
testified  falsely  on  a  material  matter,'*"  this  rule  applying  to  crim- 
inal cases,^''  and  in  the  majority  of  jurisdictions  the  circumstances 
may  be  such  as  to  make  it  error  for  the  court  to  refuse  such  an 
instruction.®' 


9  5  111.  City  of  Sandwich  v.  Dolan. 
141  111.  430,  31  N.  E.  416.  followin.? 
Reynolds  v.  Greenbaum,  80  111.  416; 
Marshall  v.  Illinois  Cent.  R.  Co.,  207 
111.  App.  619. 

Mo.  State  v.  Weiss  (Sup.)  219  S. 
W.  36S;  Sampson  v.  St.  Louis  &  S. 
F.  R.  Co.,  13S  S.  W.  98,  156  Mo.  App. 
419;  Selisrman  v.  Rogers,  113  Mo. 
642,  21  S.  W.  94;  Henry  v.  Wabash 
Western  Ry.  Co.,  109  Mo.  488.  19  S. 
W.  239 ;  State  v,  Johnson,  91  Mo.  439, 
3  S.  W.  868. 

Wis.  Rounds  v.  State,  57  Wis. 
45.  14  N.  W.  865. 

Duty  of  jury.  A  charge  that, 
where  any  witness  has  willfully 
sworn  falsely  as  to  any  rnaterial  mat- 
ter, it  is  the  duty  of  the  jury  to  dis- 
trust his  entire  testimony  may  be 
properly  given.  Spear  v.  United 
Railroads  of  San  Francisco,  117  P. 
956,  16  Cal.  App.  637. 

Instructions  criticized  as  too 
broad  or  too  restrictive.  An  in- 
struction that  the  jury  are  the  judges 
of  the  credibility  of  the  witnesses, 
and  of  the  weight  to  be  given  their 
statements,  and  if  the  jury  believe, 
from  all  they  have  "seen  and  heard 
at  the  trial."  that  a  witness  has 
sworn  falsely,  they  may  disregard  en- 
tirely his  testimony,  while  too  broad, 
will  not  be  held  to  have  misled  the 
jury  to  suppose  they  could  go  outside 
the  evidence  and  the  demeanor  of 
the  witnesses.  Eikenberry  v.  St. 
Louis  Transit  Co.,  80  N.  W.  360.  103 
Mo.  App.  442.  An  instruction  that 
if  the  jury  believed,  from  all  they 
had  seen  and  heard  at  tln^  trial,  that 
any  witness  had  willfully  sworn 
falsely  as  to  any  of  the  facts  men- 
tioned in  the  instructions,  they  could 
disregard  his  entire  testimony,  was 
erroneous,  as  too  restrictive,  since,  if 
any  witness  willfully  swore  falsely  to 
In  ST. TO  Juries— 2d 


any  material  fact,  whether  mention- 
ed'in  the  instructions  or  not,  the  jury 
should  disregard  his  testimony. 
Hansberger  v.  Sedalia  Electric  Ry., 
Light  &  Power  Co.,  82  Mo.  App.  .566. 

Argumentative  instructions.  A 
charge  that  it  is  a  sound  rule  of  law 
that,  if  a  witness  is  found  to  willfully 
swear  falsely  in  one  material  thing, 
the  jury  may  disregard  the  whole  of 
his  testimony,  is  argumentative,  and 
properly  refused.  IMcClendon  v.  M'c- 
Ki<:saPk.  38  So.  1020.  143  Ala.  188. 

9  6  Cal.  People  V.  Fitzgerald.  70  P. 
1014.  138  Cal.  39 ;  Same  v.  Wilder,  66 
P.  228,  134  Cal.  182:  People  v.  Ar- 
lington. 63  P.  347,   131  Cal.  231. 

Idalio.  State  V.  Bogris,  144  P. 
789.  26  Idaho,  587. 

ni.  People  V.  Scarbak,  92  N.  E. 
286.  245   111.   435. 

Mo.  State  V.  Lamont  (Sup.)  ISO  S. 
W.  861  ;  State  v.  Swisher,  S4  S.  W. 
911,  186  Mo.  1 ;  State  v.  Hale.  56  S. 
W.  881,  156  Mo.  102;  State  v.  Mar- 
tin. 124  Mo.  514,  28  S.  W.  12. 

Neb.  Mauder  v.  State.  149  N.  W. 
SOO.  97  Neb.  380:  Titterington  v. 
State,  106  'N.  W.  421,  75  Neb.  153. 

W.  Va.  State  v.  Ringer,  100  S.  E. 
413,  84  W.  Va.  546. 

Effect  of  false  testimony  of  ac- 
cused.    See  ante,  §  170. 

0  7  Ala.  Taylor  v.  State,  81  So.  364, 
17  Ala.  App.  28;  Kelly  v.  State,  72 
So.  573,  15  Ala.  App.  63;  Reynolds 
V.  State,  72  So.  20,  196  Ala.  586 :  Har- 
rison v.  State.  68  So.  ,5.32.  12  Ala. 
App.  284 ;  Aycock  v.  Schwartzchild  & 
Snlzsberger  Co.  of  America.  58  So. 
811,  4  Ala.  App.  610;  Penney  v.  Mo- 
Cauloy,  57  So.  510,  3  Ala.  App.  497  ; 
Merriweather  v.  Sayre  Mining  &  Mfg. 
Co..  49  So.  916.  161  Ala.  441 ;  Burton 
v.  State,  22  So.  585,  115  Ala.  1. 

Ga.  Pelham  &  H.  R.  Co.  v.  Elliott, 
75  S.  E.  1062,  11  Ga.  App.  621 ;   Plum- 


178 


INSTRUCTIONS   TO   JURIES 


354 


Where  the  court  has  given  such  an  instruction  in  general  terms, 
it  need  not  instruct  as  to  the  effect  of  false  testimony  upon  a 
particular  point.^*  To  warrant  such  an  instruction  there  must 
be  a  suf^cient  basis  in  the  evidentiary  facts  and  circumstances 
tending  to  show  that  a  witness  has  been  willfully  guilty  of  false 
swearing,^^  and  a  mere  conflict  in  the  testimony  does  not  consti- 


mer  v.  State,  36  S.  E.  233,  111  Ga. 
839. 

Idaho.  State  v.  Wain.  80  P.  221, 
14  Idaho,  1.  ■ 

111.  Conlou  V.  Chicago  Great 
Western  Ry.  Ck).,  139  111.  App.  555. 

MisE.  Owens  v.  State,  32  So.  15::. 
80  Miss.  499. 

Mo.  State  v.  Dwire,  25  Mo.  553 ; 
Gillett  V.  Wimer,  23  Mo.  77;  Peck- 
ham  V.  Lindell  Glass  Co.,  7  Mo.  App. 
563. 

Neb.  Barber  v.  State,  106  N.  W. 
423,  75  Neb.  543. 

S.  D.  State  v.  Goodnow,  170  X.  W. 
661.  41  S.  D.  391. 

W.  Va.  State  v.  Perry,  41  W.  Ya. 
641.  24  S.  E.  634. 

Circumstances  making  it  duty 
of  court  to  give  such  instruction. 
Where  a  witness  swore  to  a  certain 
state  of  facts  before  a  grand  jury  ma- 
terial to  the  issue,  and  afterwards, 
on  the  trial  of  the  issue  on  the  in- 
dictment found,  swore  to  a  different 
state  of  facts  concerning  the  same  is- 
sue, and  that  his  testimony  before 
the  grand  jury  was  false,  assigning 
as  the  reason  for  his  false  testimony 
before  the  grand  jury  that  he  was 
at  that  time  a  friend  of  the  accused, 
but  was  at  the  time  of  the  trial  at  en- 
mity with  him,  it  was  error  to  fail  to 
charge- the  jury  that,  if  a  witness  M'ilt- 
fully  and  knowingly  swears  falsely  to 
a  material  matter,  his  testimony  ought 
to  be  disregarded  entirely,  unless  cor- 
roborated. Plummer  v.  State,  36  S. 
E.  233,  111  Ga.  839.  In  a  prosecution 
for  assault,  it  is  error  to  refuse  an 
Instruction  that,  if  the  jurj'  believe 
from  the  evidence  that  any  witness 
or  witnesses  have  knowingly  or  will- 
fully testified  falsely  as  to  any  ma- 
terial fact,  they  are  at  liberty,  unless 
corroborated  by  other  credible  evi- 
dence, to  disregard  the  testimony  of 
such  witness  or  witnesses  in  toto, 
where   the   court,   at   the   state's    re- 


quest, has  called  especial  attention 
to  the  testimony  of  accused  and  his 
interest  in  the  result  of  the  prosecu- 
tion, as  bearing  on  his  credibility. 
Gorgo  V.  People,  100  111.  App.  13U. 

Eifeet  of  corroboration.  When 
there  are  facts  in  a  case  tending  to 
corroborate  a  witness  who  has  will- 
fully and  corruptly  sworn  falsely  to 
a  material  fact  therein,  it  is  not  er- 
ror to  refuse  a  charge  that  the  rule, 
"Falsus  in  uno,  falsus  in  omnibus,'" 
applies,  and  to  charge  that  the  wit- 
ness" false  swearing  went  "greatly  to 
discredit  liis  testimony,  and  to  im- 
peach him  in  considering  the  rest  of 
his  evidence."  Brett  v.  Catlin,  47 
Barb.  (N.  Y.)  404. 

Instructions  with  respect  to 
particular  viritness.  Where  no  ef- 
fort was  made  to  impeach  a  witness, 
and  it  cannot  be  said  that  defendant's 
guilt  was  dependent  upon  his  testi- 
mony, a  charge  that  if  defendant's 
guilt  deiJended  upon  his  testimony, 
and  the  jury  believed  that  it  was  will- 
fully false  as  to  any  matex'ial  partic- 
ular, then  they  might  disregard  all 
of  his  testimony,  was  properly  refus- 
ed. PhilUps  v.  State,  50  So.  194,  162 
Ala.  14. 

8  8  People  V.  Demousset,  71  Cal.  611, 
12  P.  788. 

9  9  Ga.  Bell  v.  G.  Ober  &  Sons  Co., 
96  Ga.  214.  23  S.  E.  7. 

lia.  State  v.  Allen,  35  So.  495,  ill 
La.  154. 

Mo.  Guidewell  v.  Patterson  (INIo. 
App.)  229  S.  W.  225;  Logan  v.  Met- 
ropolitan St.  Ry.  Co.,  82  S.  W.  126, 
183  Mo.  582. 

Neb.  Wunrath  v.  People's  Furni- 
ture &  Carpet  Co.',  160  N.  W.  971,  100 
Neb.  539. 

Wis.  Pumorlo  v.  City  of  Merrill, 
103  N.  W.  464,  125  Wis.  102 ;  Ingalls 
V.  State,  48  Wis.  647,  4  N.  W.  785. 

Where  there  is  no  conflict  in 
the  testimony,  and  no  witness  makes 


355 


CREDIBILITY   OF   WITNESSES 


179 


tute  such  a  basis. ^  The  fact,  however,  that  a  witness  is  not  di- 
rectly impeached  does  not  preclude  the  court  from  charging  on 
the  effect  of  false  testimony,-  and,  as  has  already  been  indicated, 
such  an  instruction  will  be  proper  where  there  is  a  material  and 
direct  conflict  in  the  testimony ,3  or  where  the  testimony  of  a 
witness  is  wholly  discredited,'*  or  where  the  testimony  of  a  wit- 
ness is  palpably  contradictory ,5  or  he  has  made  previous  contra- 
dictory statements.® 

§  179.     Sufficiency  of  instructions 

An  instruction  permitting  the  jury  to  disregard  the  entire  tes- 
timony of  a  witness  whom  they  find  to  have  testified  falsely  on  a 
material   point,   which   fails   to   require   that  such   false   testimony 


any  inconsistent  or  contradictory 
statement,  and  no  effort  is  made  to 
imi>each  any  of  tliem,  it  is  proper  to 
refuse  an  instruction  that  the  jury 
are  the  sole  judges  of  the  credibility 
of  witnesses  and  the  probability  or 
improbability  of  the  testimony  of  any 
witness ;  and  that,  if  they  believe  any 
witness  has  sworn  falsely,  they  may 
disregard  his  whole  testimony.  Bra- 
zis  V.  St.  Louis  Transit  Co.,  76  S,  W. 
70S,  102  Mo.  App.  224. 

Cases  in  ivliicli  sucli  instruction 
held  improper.  Where  several  wit- 
nesses give  testimony  in  support  of 
plaintiff's  case,  substantially  without 
contradiction,  an  instruction  "that 
the  testimony  of  one  creditable  wit- 
ness may  be  entitled  to  more  weight 
than  the  testimony  of  many  others, 
if,  as  to  those  other  witnessjes,  you 
have  reason  to  believe,  and  do  believe, 
from  the  evidence  and  all  the  facts 
before  you,  that  such  other  witnesses 
have  knowingly  testified  untruthiully, 
and  are  not  corroborated  by  other 
credible  witnesses,  or  by  circumstanc- 
es proved  in  the  case,"  Is  not  appli- 
cable to.  the  testimony,  and  is  Qiuse 
for  reversal  where  the  verdict  is  for 
defendant.  La  Bonty  v.  Lundgren,  31 
Neb.  419,  48  N.  W.  65.  Wliere  in  an 
action  for  injuries  to  a  pedestrian 
Avho  stepped  into  a  hole  in  a  side- 
walk, she  testified  that  she  passed 
over  the  walk  in  daylight  at  differ- 
ent times  during  several  weeks  be- 
fore the  accident,  and  that  she  did  not 
see  the  hole,  that  she  went  from  lior 
home,  and  called  on  another  woman 
for  about  20  minutes,  before  passing 


over  the  walk  at  the  time  of  such 
injury,  the  fact  that  it  appears  that 
on  a  former  trial  of  the  cause  she  had 
not  testified  as  to  the  call,  and  that  it 
is  contended  that  the  fact  of  the  call 
was  adduced  for  the  purpose  of  show- 
ing that  she  passed  over  the  walk  at 
so  late  an  hour  that  it  was  impossible 
for  her  to  see  the  hole  does  not  in- 
dicate a  willfully  false  statement  or 
suppression  of  facts  as  to  warrant  the 
giving  of  an  instruction  on  the  rule  of 
"Falsus  in  uno.  falsus  in  omnibus." 
Puraorlo  V.  City  of  Merrill,  103  N.  W. 
464,  125  Wis.  102. 

1  Carter  v.  Chambers,  79  Ala.  223 ; 
Reed  v.  City  of  Mexico,  76  S.  W.  53, 
101  AIo.  App.  155. 

2  Gorman  v.  Fitts,  69  A.  357,  80 
Conn.  531 ;  Sanders  v.  Illinois  Cent. 
R.  Co.,  90  111.  App.  582;  Schuler  v. 
Metropolitan  Life  Ins.  Co.,  170  S.  W. 
274,   191  Mo.  App.  52. 

3  Mo.  Volk  V.  Zepp  (App.)  190  S. 
W.  609 ;  Walker  v.  St.  Louis  &  S.  Rv. 
Co.,  80  S.  W.  282.  100  Mo.  App.  321 ; 
ELartpence  v.  Rodgers,  45  S.  W.  650, 
143  Mo.  623;  Gerdes  v.  Christopher 
&  Simpson  Architectural  Iron  & 
Foundrv  Co.,  124  Mo.  347.  27  S.  W. 
615 ;  Britton  v.  City  of  St.  Louis,  120 
Mo.  437,  25   S.   W.   366. 

Neb.  Walker  v.  Hagertv,  30  >s'eb. 
120,  46  N.  W.  221. 

*  Fields  V.  Missouri  Pac.  Ry.  Co., 
88   S.   W.  134,  113  Mo.  App.  642. 

5  Millar  v.  Madison  Car  Co.,  1.30 
Mo.  517,  31  S.  W.  574. 

6  McCuUough  Bros.  v.  Sawtell.  68 
S.  E.  89,  134  Ga.  512. 


§179 


INSTRUCTIONS  TO  JURIES 


356 


shall  have  been  willfully  given,  Avhile  not  regarded  as  improper 
in  some  jurisdictions,  on  the  theory  that  the  v^^ord  "willfully"  does 
not  add  anything  to  the  meaning  of  the  word  "false"  or  "false- 
ly" '  is  considered  erroneous  in  the  majority  of  jurisdictions,*  and 
such  error  is  presumed  to  be  prejudicial,®  although  not  necessa- 


7  People  V.  Righetti,  66  Cal.  184,  4 
P.  11S5 ;  State  v.  Connors,  94  P.  199, 
37  Mont.  15;  State  v.  Merlo,  173  P. 
317,  92  Or.  67S ;  State  v.  Meyers,  117 
P.  818,  59  Or.  537 ;  State  v.  Kyle,  14 
Wash.   550,   45   P.   147. 

Compare  Poor  v.  W.  P.  Fuller  & 
Co.,  159  P.  233,  30  Cal.  App.  650. 

8  Ala.  Bamett  v.  State,  79  So. 
675,  16  Ala.  App.  539,  certiorari  de- 
nied State  V.  Barnett,  202  Ala.  191, 
79  So.  677 ;  Ellis  v.  State,  72  So.  578, 
15  Ala.  App.  99 ;  Robinson  v.  State, 
58  So.  121,  4  Ala.  App.  1;  Hamilton 
V.  State,  41  So.  940,  147  Ala.  110; 
Prater  v.  State,  107  Ala.  26,  18  So. 
238 :    Childs  v.  State,  76  Ala.  93. 

Ariz.  Babb  v.  State,  163  P.  259, 
18  Ariz.  505,  Ann.  Cas.  191SB.  925. 

Colo.  Ward  v.  Ward.  52  P.  1105, 
25  Colo.  33. 

Ga.  Central  R.  &  Banking  Co.  of 
Georgia  v.  Phinazee,  93  Ga.  488,  21  S. 
E.  66. 

111.  Panton  v.  People,  114  111.  505, 
2  X.  E.  411 ;  Noonan  v.  Maus,  197  111. 
App.  103 ;  Stephens  v.  Elkins,  169  111. 
App.  269;  People  v.  Welch.  143  111. 
App.  191 ;  Geringer  v.  Novak,  117  111. 
App.  160. 

Ind.  Pittsburgh,  C,  C.  &  St.  L. 
Ry.  Co.  V.  Haislup,  79  X.  E.  1035,  39 
Ind.  App.  394. 

Mich.  Gerardo  v.  Brush,  79  X.  W. 
646.  120  Mich.  405. 

Miss.  State  v.  Wofford,  56  So.  162, 
99  Miss.  759;  Howell  v.  State,  53  So. 
954.  98  Miss.  439;  Sardis  &  D.  R.  Co. 
V.  McCov,  37  So.  706.  85  Miss.  391. 

Mo.  State  v.  Jordan  (Sup.)  225  S. 
W.  905;  Jackson  v.  Powell,  84  S.  W. 
11.32, 110  Mo.  App.  249  ;  Iron  Mountain 
Bank  of  St.  Louis  v.  :Murdock,  62 
Mo.  70;  Smith  v.  Wabash,  St.  L. 
&  P.  Rv.  Co.,  19  Mo.  App.  120 ;  Evans 
V.  St.  Louis,  I.  M.  &  S.  Ry.  Co.,  16 
Mo.  App  522 ;    Fath  v.  Hake,  Id.  537. 

Nev.  State  V.  Burns,  74  P.  983,  27 
Xev.  289. 

N.  J.  State  V.  Samuels,  104  A. 
322,  92  X.  J.  Law,  131. 


N.  Y.  People  v.  Parsons,  183  N. 
Y.  S.  100,  192  App.  Div.  841;  Lack 
V.  Weber  (Sup.)  113  N.  Y.  S.  102,  61 
Misc.  Rep.  91 ;  Jennings  v.  Kosmak 
(Sup.)  45  X.  Y.  S.  802,  20  Misc.  Rep. 
300.  reversing  judgment  (City  Ct.)  43 
X.  Y.  S.  1134,  19  Misc.  Rep.  433. 

N.  D.  State  V.  Johnson,  103  N.  W. 
565,  14  X.  D.  288. 

Wis.  Gehl  v.  Milwaukee  Produce 
Co.,  93  X.  W.  26.  116  Wis.  263 ;  Cahn 
V.  Ladd,  68  X.  W.  652,  94  Wis.  134; 
Little  v.  Superior  Rapid  Transit  Ry. 
Co.,  88  Wis.  402,  60  X.  W.  705. 

Instructions  not  objectionable 
within  rule.  An  instruction  that 
the  jury  is  not  bound  to  believe  any- 
thing to  be  a  fact  simply  because  a 
witness  has  stated  it  to  be  so,  provid- 
ing the  jury  believe  from  all  the  tes- 
timony that  the  witness  is  mistaken 
or  has  testified  falsely,  was  not  ob- 
jectionable as  authorizing  the  jury  to 
disregard  the  testimony  of  a  witness, 
if  he  has  testified  falsely,  without  re- 
quiring that  the  testimony  be  "know- 
inglv  and  willfully"  false.  Devaney 
V.  Otis  Elevator  Co.,  95  N.  E.  990, 
251  111.  28. 

Palpable  falsity.  An  instruction 
which  tells  the  jury  that,  before  they 
should  disregard  the  testimony  of  a 
witness,  they  should  believe  that  such 
witness  has  palpably  testified  falsely, 
is  erroneous,  as  requiring  too  high  a 
degree  of  proof  of  falsity.  West  Chi- 
cago St.  Ry.  Co.  V.  Moras,  111  111. 
Ap^  ,531. 

""Willfully  or  corruptly."  The 
phrases,  "willfully  and  corruptly  tes- 
tifying falsely,"  and  "willfully  or 
corruptly  testifying  falsely,"  used  in 
an  instruction  upon  the  question  of 
the  credibility  of  witnesses,  are  iden- 
tical, and  the  use  of  either  of  them  is 
proper.  Hanchett  v.  Haas,  125  111. 
App.  111. 

8  McPherrin  v.  Jones,  5  N.  D.  261 , 
65  N.  W.  685. 


357 


CREDIBILITY   OF   WITNESSES 


§   179 


rily  ground  for  reversal.^"  Either  of  the  words  "winfully,"  or 
"knowingly,"  ^^  or  "intentionally"  ^''  will  be  sufficient  to  comply 
with  this  rule. 

It  is  further  required  that  an  instruction  as  to  the  effect  of 
false  testimony  upon  the  credibility  of  a  witness  shall  inform 
the  jury  that  such  testimony  must  have  been  given  with  regard 
to  some  material  fact  or  issue. ^^  This  rule  has  been  applied  to 
an  instruction  that  the  testimony  of  one  credible  witness  may 
be,  or  is,  entitled  to  more  weight  than  the  testimony  of  many 
others  whom  the  jury  believe  to  be  mistaken  or  to  have  know- 
ingly testified  untruthfully.^*  A  failure,  however,  to  expressly 
include  the  element  of  materiality  in  such  an  instruction  will  not 
be   error,   if  all   the   testimony   of   the   witness   sought   to   be   im- 


10  Beck  V.  People,  115  111.  App.  19. 

11  Peterson  v.  Pusey,  86  N.  E.  692, 
237  111.  2(M;  Owens  v.  Kansas  City, 
St.  J.  &  C.  B.  R.  Co.,  95  Mo.  169,  8 
S.  W.  350,  6  Am.  St.  Rep.  39. 

12  State  V.  Winney,  128  N.  W.  680, 
21  'N.  D.  72. 

13  Ala.  Montgomery  v.  State,  86 
So.  132,  17  Ala.  App.  469;  Butler  v. 
State,  77  So.  72,  16  Ala.  App.  234; 
Patton  V.  State,  46  So.  S62,  156  Ala. 
23 ;  Hill  V.  State,  41  So.  621,  146  Ala. 
51. 

Cal.  People  v.  Ford,  143  P.  1075, 
25  Cal.  App.  388;  Same  v.  Suhr,  143 
P.  1088,  25  Cal.  App.  805;  People  v. 
Plyler,  53  P.  553,  121  Cal.  160. 

Ill,  Vittum  V.  Drnry,  161  HI.  App. 
603 ;  Cummins  v.  Cleveland,  C,  C.  & 
St.  L.  Ry.  Co,  147  111.  App.  291; 
Clark  V.  O'Gara  Coal  Co.,  140  111.  App. 
207;  Bickerman  v.  Tarter,  115  111. 
App.  278. 

Ind.     Lemmon  v.  Moore,  94  Ind.  40. 

Mich.  Gerardo  v.  Brush,  79  N.  W. 
646.  120  Mich.  405. 

Minn.  State  v.  Henderson,  74  N. 
W.   1014,  72  Minn.  74. 

Miss.  Boykin  v.  State,  38  So.  725, 
86  Miss.  481. 

Mo.  Lloyd  V.  Meservey,  108  S.  W. 
595,  129  Mo.  App.  636. 

N.  M.  Territory  v.  Lucero,  46  P. 
IS,  8  N.  M.  543. 

N.  Y.  Tucker  v.  Dudley,  111  N.  Y. 
S.  700,  127  App.  Div.  403. 

N.  D.  First  Nat.  Bank  v.  Minne- 
apolis &  N.  Elevator  Co.,  91  N.  W. 
436,  11  N.  D.  280. 


Instructions  not  improper  Tiritn- 
in  rule.  An  instruction  that  if  the 
jury  believe  any  witness  has  willfully 
sworn  falsely  as  to  any  of  the  facts 
mentioned  in  the  otlier  instruction  as 
hearing  upon  thq  claim  sued  on,  or 
the  defenses  thereto,  they  are  at  lib- 
erty to  entirely  disregard  his  testi- 
mony, is  not  open  to  the  objection 
that  it  does  not  confine  the  false 
swearing  to  material  facts  in  evi- 
dence. Hart  V.  Hopson,  52  Mo.  App. 
177. 

Permitting  jury  to  say  what  are 
material  facts.  It  was  not  error,  as 
leaving  to  the  jury  to  say  what  are 
material  facts,  to  instruct  them  that 
in  considering  the  credibility  of  a 
witness  tliey  may  take  into  account 
any  eontradictoiy  statement  as  to  a 
material  fact,  made  by  such  witness 
out  of  court,  and  that  false  testimony 
as  to  a  material  fact  would  justify 
them  in  disregarding  the  entire  testi- 
mony of  a  witness.  State  v.  Dent,  70 
S.  W.  881,  170  Mo.  398;  State  v. 
Hutcliison  (Mo.  Sup.)  186  S.  W.  1000. 

i4Tri-City  Ry.  Co.  v.  Gould.  75 
N.  E.  493,  217  111.  317,  reversing  judg- 
ment 118  111.  App.  602;  Keller  v. 
Hansen,  14  111.  App.  640. 

In  North  Dakota,  however,  such 
an  instruction  is  not  erroneous  be- 
cause it  is  not  confined  to  material 
matters  the  view  being  taken  that 
it  is  not  an  attempi;  to  apply  the  max- 
im of  "falsus  in  uno,  falsus  in  omni- 
bus." McGilvra  v.  Minneapolis,  St.  P. 
&  S.  S.  M.  Ry.  Co.,  159  -N.  W.  854,  35 
N.  D.  275. 


§179 


INSTRUCTIONS   TO  JURIES 


358 


peached  is  material/^  nor  will  such  omission  be  ground  for  re- 
versal, if  it  appears  that  the  alleged  false  testimony  was  as  to  a 
material  matter. ^^ 

Instructions  should  not  be  so  framed  as  to  authorize  the  jury  to 
disregard  the  entire  testimony  of  a  witness  swearing  falsely  to 
some  point,  although  on  other  material  matters  they  may  believe 
his  testimony  to  be  true,^''  and  in  some  jurisdictions,  in  connec- 
tion with  an  instruction  that  the  jury  may  disregard  entirely  the 
testimony  of  a  witness  who  has  sworn  falsely  to  a  material  fact, 
the  jury  should  be  given  to  understand  that  there  is  no  rule  of 
law  that  prevents  them  from  giving  the  testimony  of  such  a  wit- 
ness not  shown  to  be  false  such  weight  as  they  may  believe  it 
to.  be  justly  entitled  to.^*  Thus,  in  one  jurisdiction  the  proper 
form  of  instruction  is  that,  if  the  jury  believe  that  any  witness 
has  given  false  testimony  as  to  a  material  fact,  they  may  dis- 
regard the  whole  of  his  testimony,  or  give  it  such  weight  on  other 
points  as  they  may  think  it  entitled  to,  they  being  the  exclusive 
judges  of  the  weight  of  the  testimony. ^^ 


15  Alabama  G.  S.  R.  Co.  v.  Frazier, 
93  Ala.  45,  9  So.  303.  30  Am.  St.  Rep. 
28. 

16  Butz  V.  Schwartz,  32  111.  App. 
156.  affirmed  135  111.  180,  25  N.  E. 
1007. 

17  Little  V.  State,  39  So.  674.  145 
Ala.  662 ;  Burgess  v.  State,  158  S.  W. 
774,  108  Ark.  508;  Taylor  v.  Slate, 
102  S.  W.  367,  S2  Ark.  540;  Davis 
V.  State,  42  So.  541,  89  Miss.  119. 

Instmctions  not  improper  with- 
in rale.  A  charge  in  a  larceny  pros- 
ecution that  the  .lury  were  the  .ludges 
of  the  weight  of  the  evidence  and 
credibility  of  the  witnesses,  and  that 
if  they  believed  a  witness  swore  false- 
ly they  should  disregard  his  testimo- 
ny, and  if  they  believed  he  swore 
falsely  in  part  and  tnithful  in  part, 
they  should  disregard  the  part  believ- 
ed to  be  false  and  accept  that  believ- 
ed to  be  true.  Jackson  v.  State.  126 
S.  W.  843,  94  Ark.  169.  In  prosecu- 
tion for  niurdor,  cautionary  instruc- 
tion that  if  jury  believed  that  any 
witness  had  knowingly  sworn  falsely 
to  any  material  fact  they  might  re- 
ject all  or  any  portion  of  such  wit- 
ness' testimouA-.  State  v.  Barnes  (Mo. 
Sup.)  204  S.  W.  264. 

isSiever  v.  Coffman,  92  S.  E.  669, 


SO  W.  Va.  420 ;  Hansberger  v.  Sedal- 
ia  Electric  Ry.,  Light  &  Power  Co., 
S2  Mo.  App.  566. 

In  Iowa,  an  instruction  that  the 
jury  may  disregard  the  entire  testi- 
mony of  any  witness  if  he  has  sworn 
falsely  in  relation  to  any  material 
matter  is  properly  qualified  by  adding 
that  they  are  not  bound  to  do  so  if 
they  still  believe  it  worthy  of  credit. 
State  V.  Baker,  89  Iowa,  188,  50  X.  W. 
425. 

In  Michigan,  it  is  held  that,  while 
an  instruction  that  the  jury  are  un- 
der no  obligation  to  believe  any  of 
the  testimony  of  a  witness  who 
swears  falsely  as  to  one  material  fact 
is  technically  correct,  it  is  safer  to 
further  instruct  them,  in  the  same 
connection,  that  the  credibility  of 
such  a  witness  is  exclusively  a  ques- 
tion for  them,  and  that  there  is  no 
rule  of  law  which  prevents  their  giv- 
ing him  credit  as  to  such  portions 
of  his  testimony  as  they  believe  to 
be  true  and  credible.  Hill  man  v. 
Schwenk,  36  N.  W.  77,  68  Mich.  293. 

19  State  v.  Wilson,  83  S.  E,  44,  74 
W.  Va.  772 ;  State  v.  Clark,  63  S.  E. 
402.  64  W.  Va.  625 ;  Cobb  v.  Dunlevie. 
60  S.  E.  384,  63  W.  Va.  398;  State 
V.   Thompson,   21   W.   Va.   741, 


359 


CREDIBILITY   OF   WITNESSES 


180 


§  180.  Corroboiration  of  part  of  testimony  not  shown  to  be  false 
In  some  jurisdictions  it  is  error  to  instruct  that,  if  a  ^vitness 
knowingly  and  willfully  gives  false  testimony  as  to  a  material 
matter,  his  entire  testimony  may  or  should  be  disregarded  unless 
the  instruction  is  limited  to  cases  in  which  there  is  no  corrobora- 
tion of  such  testimony,'**  and  in  other  jurisdictions  an  instruction 
which  includes  such  a  limitation  or  qualification  is  proper.'^  In 
Oklahoma,  earlier  cases  to  the  contrary^^  have  been  overruled,-* 
and  an  instruction  permitting  the  jury  to  disregard  the  whole  of 
the  testimony  of  a  witness  who  has  testified  falsely  to  any  ma- 
terial question,  except  so  far  as  his  testimony  may  be  corrobo- 
rated, is  now  upheld ;  the  instruction  being  construed  to  mean 
that,  if  the  testimony  of  such  witness  is  .corroborated  in  some 
respects,  then  the  jury  should  not  arbitrarily  disregard  it.  In 
jurisdictions  where  this  rule  prevails  the  approved  form  of  in- 
struction is  that  the  jury  may  disregard  the  entire  testimony  of 
such  a  witness  in  so  far  as  they  believe  it  to  be  false,'"*  and  ex- 
cept so  far  as  such  testimony   is  corroborated  by  other  credible 


2  0  Ga.  Humplireys  v.  Smith,  66  S. 
E.  158,  133  Ga.  456. 

III.  Souleyret  v.  O'Gara  Coal  Co., 
161  111.  App.  60;  Himrod  Coal  Co. 
V.  Clingf-n,  114  Til.  App.  568;  Szym- 
kus  V.  Eureka  Fire  &  Marine  Ins.  Co., 
114  111.  App.  401. 

Micli.  People  v.  Breen,  158  N.  W. 
142,  192  Mich.  39;  Heddle  v.  City 
Electric  Ry.  Co.,  70  N.  W.  1096,  112 
Mich.  547. 

Minn.  State  v.  Henderson,  74  N. 
W.  1014,  72  Minn.  74. 

Wis.  Beauregard  v.  State,  131  N. 
W.  347,  146  Wis.  280;  Miller  v.  State. 
81  N.  W.  1020,  106  Wis.  156;  Bratt  v. 
Swift,  75  N.  W.  411,  99  Wis.  579. 

See  People  v.  Blnger,  124  N.  E. 
583,  289  111.  582. 

Instructions  not  erroneous 
witliin  rule.  An  instruction  thnt 
the  .jury  are  judges  of  the  credibility 
of  witnesses,  "and  you  are  not  bound 
to  believe  anything  to  be  a  fact  be- 
cause a  witness  has  stated  it  to  be 
so,  provided  you  believe  from  all  the 
evidence  that  such  witness  is  mis- 
taken, or  has  knowingly  testified 
falsely,"  did  not  tell  the  .iury  to  dis- 
believe a  witness  who  was  mistaken, 
or  who  has  spoken  falsely,  without 
the  qualification,  "unless  corroborat- 
ed   by    other    competent    evidence." 


State  V.  Fenton,  70  P.  741,  30  Wash. 
325. 

2  1  Trimble  v.  Territory,  71  P.  932. 
S  Ariz.  273  ;  Faulkner  v.  Territory,  30 
P.  905,  6  N.  M.  464;  State  v.  Goff. 
142  P.  564,  71  Or.  352 ;  State  v.  Hill- 
strom,  150  P.  935,  46  Utah,  341. 

Sufficiency  of  corroboration.  An 
instruction  that  jury  may  entirely  dis- 
regard testimony  of  any  witness 
whom  they  believe  has  willfully 
sworn  falsely  to  any  material  mat- 
ter, unless  it  is  corroborated  by  testi- 
mony or  facts  in  evidence  establish- 
ed to  its  satisfaction,  did  not  tell 
jury  that  such  corroboration  must  be 
practically  proof  absolute.  Baird  v. 
Gibberd,  189  P.  56.  .32  Idaho,  796.    '' 

2  2  Robarts  v.  State.  127  P.  894,  8- 
Okl.  Cr.  .394 ;  Gilbert  v.  State,  127  P. 
889,  8  Old.  Cr.  329 ;  Rogers  v.  State, 
327  P.  365.  8  Okl.  Cr.  226:  McKnight 
V.  State,  122  P.  1118.  7  Okl.  Cr.  235 ; 
Sims  V.  State,  120  P.  1032,  7  Okl.  Ur. 
7;  Gibbons  v.  Territorv.  115  P.  129, 
5  Okl.  Cr.  212;  Rea  v.' State.  105  P. 
381,  3  Okl.  Cr.  269. 

2  3  Davis  V.  State  (Okl.  Cr.  App.i 
190  P.  146;  Cole  v.  State  (Okl.  Cr. 
App.)  195  P.  901. 

21  Tartt  V.  Ramsey.  158  111.  App. 
468;  St.  Louis.  P.  &  N.  Ry.  Co.  v. 
Rawley,  106  111.   App.  550. 


180 


INSTRUCTIONS  TO  JURIES 


360 


evidence  or  by  facts  and  circumstances  appearing  in  the  case.-^ 
An  instruction  with  respect  to  corroboration  by  other  evidence 
will  be  erroneous,  if  it  qualifies  the  word  "evidence"  by  the  word 
"competent,"  instead  of  the  word  "credible,"  or  other  equivalent 
word.-^  So  it  will  be  error  in  such  an  instruction  to  use  the 
phrase  corroborated  "by  other  credible  witnesses,"  instead  of  "by 
other  credible  evidence,"  -"  and  an  instruction  is  erroneous  which 
excludes  corroboration  by  circumstances  and  documents,-* 
or  which  requires  corroboration  by  more  than  one  witness,-^  and 
such  an  instruction  is  improper  if  it  requires  the  entire  testimony 
of  such  a  w^itness  to  be  corroborated  to  prevent  the  jury  from 
rejecting  it.^" 

In  some  jurisdictio^ns  the  above  qualification  with  respect  to 
corroboration  of  a  witness  testifying  falsely  by  other  credible 
evidence  is  not  required,^^  at  least,  where  the  instruction  merely 
permits  the  entire  testimony  of  such  a  witness  to  be   disregard- 


's Monk  V.  CasevA-iUe  Ry.  Co.,  202 
111.  App.  641;  Osberg  v.  Cudahy 
Packing  Co.,  19S  111.  App.  551;  Slier- 
hurne  v.  McGuire,  197  lU.  App.  4S6; 
Richardson  v.  Babcock.  96  X.  W.  554, 
119  Wis.  141. 

The  criticism  of  sncli  an  in- 
strnetion  made  by  some  text-wrrit- 
ers,  that  it  is  susceptible  of  the  im- 
plication that  if  a  witness  who  has 
given  false  testimony  is  corroborated 
as  to  other  matters  the  .iury  will  not 
be  at  liberty  to  reject  all  or  a  part 
of  his  testimony  is  considered  by  the 
Supreme  Court  of  Utali  as  refined  and 
abstruse  rather  than  substantial  and 
fundamental.  State  v.  Morris,  122  P. 
3S0.  40  Utah.  431. 

In  Georgia,  it  is  held  to  be  the 
better  practice  to  instruct  that  the 
testimony  of  witnesses  who  have  will- 
fully sworn  falsely  as  to  a  material 
matter  is  to  be  entirely  re.iected  un- 
less corroborated  in  a  legal  manner 
and  that  it  is  inacoirate  to  omit  the 
word  "entirely."  Garland  v.  State,  53 
S.   E.  .314,   124  Ga.  SVs. 

Duty  to  inform  jury  that  wit- 
ness may  be  corroborated  by  cir- 
enmstances.  An  instruction,  that  if 
any  witness  testified  falsely  to  any 
material  fact  his  entire  testimony 
may  be  disregarded  unless  corroborat- 
ed by  other  testimony,  is  not  errone- 
ous, because  not  informing  the  jury 
that  it  could  be  corroborated  by  cir- 


cumstances, as  the  jury  cannot  have 
been  misled.  Pilgrim  v.  Brown.  150 
X.  W.  1.  168  Iowa,  177. 

2  6  Weston  V.  Teufel,  72  X.  E,  908, 
213  111.  291. 

2  7  Johnson  v.  Farrell.  74  X.  E.  760. 
215  111.  542;  Dohmen  Co.  v.  Xiagara 
Fire  Ins.  Co.  of  Citv  of  Xew  York.  71 
X.  W.  69,  96  Wis.  38. 

Harmless  error.  In  declaring  the 
rule  to  a  jury  that,  where  a  witness 
is  found  to  have  testified  falsely  in  a 
material  matter,  his  testimony  may 
be  disregarded  in  toto  unless  corrob- 
orated, it  is  well  to  say  that  the  cor- 
roboration may  be  that  of  any  credi- 
ble evidence,  or  of  facts  and  circum- 
stances, rather  than  to  confine  it 
to  other  unimpeached  "testimony." 
though  in  a  case  where  there  is  no 
corroboration  outside  of  the  testimo- 
ny, such  an  Instruction  is  not  sub- 
stantiallv  erroneous.  Lyts  v.  Keevey, 
5  Wash.  606,  32  P.  534. 

2s  Xiezorawski  v.  State,  111  X.  W. 
250,  131  Wis.  166. 

2  9  Weddemann  v.  Lehman,  111  111. 
App.  231 ;  Junction  Min.  Co.  v. 
Goodwin,  109  111.  App.  144. 

3  0  Zoeller  v.  Schmitz,  172  111.  App. 
167. 

31  Britton  v.  City  of  St.  Louis,  120 
Mo.  437.  25  S.  W.  366;  Titteringron 
V.  State.  106  X.  W.  421,  75  Xeb.  153 : 
State  V.  Raice,  123  N.  W.  708,  24  S. 
D.  111. 


361 


CREDIBILITY  OF  WITNESSES  §  181 


ed,^2  and  in  one  jurisdiction,  under  a  statute,  an  instruction  in- 
vades the  province  of  the  jury  which  informs  them  that  they 
may  disregard  the  entire  testimony  of  such  a  witness,  except  as 
he  is  corroborated  by  other  evidence;  it  being  considered  that 
the  jury  have  the  right  to  beheve  or  disbeHeve  any  part  of  such 
testimony,  whether  corroborated  or  not,^^  b^i-  j„  ^j^jg  jurisdiction 
it  is  also  considered  that,  while  an  instruction  containing  such  a 
qualification  is  technically  wrong,  it  is  not  ordinarily  a  ground 
for  reversal.^-*  The  jury  should  not  be  led  to  think  that  they  have 
a  discretion  as  to  whether  to  reject  testimony  which  they  may 
believe  to  be  false,  and  the  above  qualifying  clause  as  to  cor- 
roboration is  inapplicable  in  the  case  of  such  a  belief.^^ 

I.  Effect  of  Making  Contradictory  Statements 

Invading  province  of  jury,  see  ante,  §§  23,  24. 

§  181.     Necessity  of  instructions 

The  general  rule  is  that,  where  there  is  a  sufficient  basis  in  the 
evidence,  a  party  is  entitled  on  request  to  a  charge  that,  if  the 
jury  believe  that  a  witness  has  made  statements  in  conflict  with 
his  testimony  as  to  material  facts,  they  may  consider  such  contra- 
diction in  determining  his  credibility,^®  and  in  a  proper  case  it 
will  be  error  to  refuse  to  charge  that  a  witness  may  be  impeached 
by  showing  that  at  other  times  and  places  he  has  made  state- 
ments materially  diflferent  from  his  testimony  on  the  stand,  and 
that  where  a  witness  is  shown  to  have  made  such  contradictorv 
statements  the  jury  may  disregard  his  testimony,  except  so  far  as 
corroborated.^'     Where  testimony  of  a  witness  is  in  direct  con- 

32  Minich  v.  People,  9  P.  4,  8  Colo.  &  H.  R.  R.  Co.,  65  Hun,  578,  20  N. 

440.  Y.  S.  557. 

33 State  V.  Kanakaris,  169  P.  42,  54  Implied  contradiction.     It  is  ei- 

:\Iont.  180;   State  v.  Penna,  90  P.  787,  ror  to  rofuse  to  chargce  that  a  person 

35  Mont.  535.  who  attaches  his  name  as  a  witness 

3  4  State  V.    Penna,   90   P.    787,   35  to  a  will  inii)lio(lly  certifies  that  the 

Mont.  535 ;    State  v.  Lee,  87  P.  977,  testator  is  competent  to  make  a  will, 

34  Mont.  584.  and  while  the  law  will  permit  him  to 

3  ff  Spick   V.    State,   121   X.   W.  664,  subsequently  testify  to  the  contrary. 

140  Wis.  104.  yet    the  jury    in    weighing  his    testi- 

3  6  Ala.     Birmingham  Ry.,  Light  &  mony  may  consider  the  fact  of  such 

Power  Co.  v.  Cockrum.  60  So.  304,  179  implied      contradiction.        Stark      v. 

Ala.   372 ;     Bennett    v.    State,    49    So.  Cress,  4  Ohio  App.  92. 

296,  160  Ala.  25;    Wilkerson  v.  State,  37  People  v.  Corev,  97  P.  907,  8  Cal 

37  So.  265,  140  Ala.   165;     Harris  v.  App.  720;    Owens  v.  State,  32  So.  152 

State,  96  Ala.  24,  11  So.  2.55.  80  Miss.  499:    State  v.  Chandler   112 

Colo.     Clammer  v.  Eddy,  92  P.  722,  P.   1087,   57  Or.  561. 

41   Colo.  2.35.  Application  of  rule  to  prosecut- 

N.  Y.     Lennon  v.  New  York  Cent,  ing  witness.     Where  the  verdict  de- 


§  182  INSTRUCTIONS  TO  JURIES  362 

tradiction  to  his  testimony  on  a  former  trial,  it  is  error  to  re- 
fuse an  instruction  that,  if  the  jury  believe  the  former  testimony, 
they  must  ignore  the  testimony  in  the  instant  case.^* 

§  182.     Propriety  and  sufficiency  of  instructions 

An  instruction  which  permits  the  jury  to  disregard  the  testi- 
mony of  a  witness,  except  as  he  is  corroborated,  on  account  of 
having-  made  contradictory  statements  as  to  material  matters, 
without  requiring  the  jury  to  believe  that  he  has  knowingly  and 
willfully  testified  falsely  as  to  such  matters,  is  erroneous,^*  as 
is  an  instruction  which  authorizes  the  impeachment  of  a  witness 
because  of  conflicting  statements  with  respect  to  immaterial  mat- 
ters.'*" It  is  not  improper  to  instruct  that  testimony  as  to  contra- 
dictory statements  of  a  witness  is  uncertain  and  somewhat  unre- 
liable,*^  and  instructions  that  the  jury  may  disregard  the  entire 
testimony  of  a  witness  who  has  been  contradicted,  although  they 
do  not  believe  the  contradicting  evidence,*^  or  although  the  un- 
contradicted part  of  his  testimony  is  undisputed,  or  whether  any 
of  it  is  corroborated  or  not,*^  are  erroneous.  On  the  other  hand, 
it  is  error  to  instruct  that  testimony  as  to  contradictory  state- 
ments of  a  witness  is  not  to  be  considered  for  the  purpose  of 
proving  that  he  has  sworn  falsely.*"' 

pends  upon  the  evidence  of  the  pros-  jury  in  immediately  rejecting  his  evi- 

ecuting    witness    alone,    and    the   de-  dence,   and  that   tliey  must   consider 

fense   proved  that,   on   several  occa-  the  variance  and  determine  whether 

sions.  she  liad  made  statements  ma-  it  affected  his  credibility,  was  proper. 

terially  conflicting  with  her  testimo-  State  v.  Rosa,  62  A.  695,  72  N.  J.  Law, 

ny,  the  court  should,  as  a  part  of  the  462. 

law  applicable  to  the  case,  charge  the  4o  Seawright  v.   State,   49   So.  325, 

legal  principles  controlling  the  appli-  160  Ala.  3.3;   Cobb. v.  State.  22  So.  506, 

cation   and  effect  of  the   impeaching  115  Ala.   18;    Flecli   v.   Weipert,   195 

evidence.    Henderson  v.  State,  1  Tex.  111.  App.   57. 

App.  432.  -iiTliorp  v.  Town  of  Brookfield.  .36 

38  0'Leary    v.    Buffalo    Union   Fur-  Conn.  320;    State  v.  Roberts,  63  Vt. 

nace  Co.,  91  N.  T.   S.  579,  100  App.  1.39.  21  A.  424. 

Div.  136.  "  Maxwell  v.  Stale.  65  So.  732,  II 

30  Godair  v.  Ham  Nat.  Bank,  80  N.  Ala.   App.   -53. 

E.  407,  225  111.  572.  116  Am.  St.  Rep.  4  3  Mornu   v.  People,  45   N.   E.   2-30, 

172.  8  Ann.  Cas.  447.  163  111.  372. 

Instructions  held  not  improper.  44  Cliue  v.   State,  27  S.   W.   12S.  .33 

A  charge  in  a  criminal  case  that,  if  Tex.  Cr.  R.  482;    Howard  v.  State,  25 

the  testimony   of  a   witness  differed  Tex.  App.  686,  8  S.  W.  929. 

from   testimony   previously    given   by  Rule     where     witness     testifies 

him  on  another  occasion,   it  was  the  that  he  does  not  remember  mak- 

duty  of  the  jury  to  consider  that  fact  ing  conflicting  statements.    Where 

and  to  determine  how  his  credibility  a  witness  for  the  prosecution  testified 

was    affected    thereby,    but    that    the  that  he  did  not  remember  statements 

mere  fact  that  there  was  a  di^cn-pan-  restified  to  have  been  made  by  him  to 

cy  in  the  testimony  of  the  witness  on  another  witness   conflicting  with  his 

the  two  occasions  did  not  justify  the  testimony  on  the  trial,  and  did  not  de- 


363 


CREDIBILITY   OF   WITNESSES  §  182. 


Instructions  should  not  be  so  framed  as  to  be  likely  to  lead  the 
jury  to  think  that  the  fact  that  a  witness  has  made  contradictory 
statements  may  be  considered  on  the  question  of  the  guilt  or  in- 
nocence of  an  accused.*^  On  the  contrary,  it  is  proper  to  charge 
that  such  impeaching  testimony  cannot  be  considered  as  tending 
to  establish  guilt,  or  any  fact  in  the  case.^^  A  charge  in  a  criminal 
case  that  contradictory  statements  of  a  witness  upon  material 
points  may  be  sufficient  to  cause  a  reasonable  doubt  of  the  guilt 
of  the  defendant  is  properly  refused,  as  incomplete  and  unintelli- 
gible,'*''' but  it  is  reversible  error  to  refuse  to  charge  that  proof  of 
such  contradictory  statements  may  be  sufficient  to  raise  a  rea- 
sonable doubt  as  to  the  truth  of  the  testimony  of  the  'witness 
making  them.** 

J.  Singling  out  Particular  WiTNE;ssiiS  or  Classes  of  Witnesse;s 
FOR  Comment  as  to  Credibility 

§  183.     Rule  that  such  instructions  are  improper 
InvacUng  province  of  jury,  see  ante,  §  27. 

The  right  of  the  court  to  single  out  a  party  who  has  taken  the 
witness  stand  for  the  purpose  of  instructing  as  to  his  credibility 
has  been  treated  in  a  preceding  section.*^  With  respect  to  wit- 
nesses other  than  parties  the  weight  of  authority  supports  the 
proposition  that  as  a  g'eneral  rule,  the  court  has  no  right  to  sin- 
gle out  a  particular  witness  for  the  purpose  of  commenting  on 
matters  affecting  his  credibility  or  telling  the  jury  what  they  mav 
consider   in   determining  the   weight  to  be  given   to   his  testimo- 

sire  to  change  or  explain  his  testimo-  Instructions     held     argumenta- 

ny,  it  was  not  error  to  charge  that  tes-  live.  A  charge  that,  if  the  guilt  of 
timony  as  to  such  statements  was  in-  a  prisoner  depends  on  the  testimony 
troduced  to  show  the  witness  not  of  a  certain  witness,  proof  of  con- 
worthy  of  credit,  and  did  not  show  tradictory  statements  or  declarations 
such  statements  to  be  true  or  untrue,  of  that  witness  made  as  to  a  material 
and  it  was  for  the  jury  to  weigh  the  point  mav  be  sufficient  to  raise  a  rea- 
evidence.  and  tliat  such  a  statement  sonahlo  doubt  of  defendant's  guilt  and 
was  a  declaration  made  outside  the  warrant  an  acquittal,  was  argumon- 
court,  and  was  not  original  evidence.  tative,  and  properlv  refused  Jack- 
Bondurant  v.  State,  27  So.  77o,  125  gon  v.  State,  34  So."  ISS,  136  Ala.  22. 
^^^'.c}\  T^  ■  ^A  T  r-o  oo  ^^  charge  that  any  contradictorv 
V    w   lo!  ^'      ^^''^'                 '  statement  made  by  a  witness  mav  be 

'  ■-Old;  ;.  State,  33  So.  296,  44  Fla.      •"'^tmuentnth?  ^.nrt'^tinfii^"  ''^"^' 
4^0 .    Hunter  V    State    120  S    W   T^t  aiguraentatne.    and  violates   com- 

59  Tefcr'R:-4l9      '                     '         '  oT  1?"  Tin  'Jf '^""  "'  '''*''  ''  ^"• 

4  7  Rose  v.  State,  42  So.  21,  144  Ala.  ' 

114;    Cobb  v.   Same.  22  So.  506,  115  -^^^  Williams  v.  State,  21  So.  993,  114 

Ala.   18;    Crawford  v.   State,  21   So.  ^^^^-  ^^• 

214,  112  Ala.   1.  4  9  Ante,  §  1G4. 


183 


INSTRUCTIONS  TO  JURIES 


364 


ny,^"  the  general  instructions  covering  the  credibility  of  all 
witnesses  being  a  sufficient  rule  for  the  guidance  of  the  jury  in 
determining  the  credibility  of  any  witness,^^  and  such  an  instruc- 
tion is  properly  refused.^^     The  charge  of  the  court  is  decidedly 


5  0  Fla.  Roberts  v.  State,  72  So.  649, 
72  Fla.  132. 

111.  Ploffman  v.  Stephens,  109  N. 
E.  994,  269  111.  376 ;  People  v.  Mendel- 
son,  106  N.  E.  249,  264  111.  453,  L.  R. 
A.  1915C,  627;  Harronn  v.  Benton, 
197  111.  App.  138;  Wolf  v.  Mattox, 
393  111.  App.  482;  People  v.  Carter, 
188  111.  App.  22  ;  People  v.  Dietmeyer, 
164  111.  App.  405;  Tanner  v.  Clapp, 
139  111.  App.  353 ;  Parlin  &  Orendorff 
Co.  V.  Finfrouck,  65  111.  App.  174. 

Mo.  Fitzsimmons  v.  Commerce 
Trust  Co.  (App.)  200  S.  W.  437; 
State  V.  Westbrook,  171  S.  W.  016,  ISO 
Mo.  App.  421. 

Mont.  White  v.  Chicago,  M.  &  P. 
S.  Ry.  Co.,  143  P.  561,  49  Mont.  419. 

Okl.  Brumbaugh  v.  State,  150  P. 
SS.  11  Okl.  Cr.  596 ;  Heacock  v.  State, 
112  P.  949,  4  Okl.  Cr.  606. 

Tenn.  Cooper  v.  State,  138  S.  W. 
S26,  123  Tenn.  37. 

Wis.  Schutz  V.  State,  104  N.  W. 
90.  125  Wis.  452. 

Where  several  witnesses  testi- 
fy to  the  same  facts  the  court  can- 
not siuffle  out  a  particular  witness, 
and  instruct  the  jury  what  conclusion 
to  come  to  if  they  do  not  believe  him. 
People  V.  Simpson,  48  Mich.  474,  12 
N.  W.  662. 

Instrnctions  improper  within 
rule.  A  charge:  "It  is  therefore  im- 
portant for  you  to  determine  wheth- 
er [a  certain  witness]  is  testifying  to 
the  truth.  *  *  •  If  he  is  testify- 
ing to  the  truth,  then  the  effect  of 
this  contract  is  entirely  destroyed. 
*  *  *  These  parties,  being  inter- 
ested, take  the  stand  and  testify  pos- 
itively to  tho.se  facts."  Seitz  v. 
Starks,  108  N.  W.  354,  144  INIich. 
448.  An  instruction  that,  if  S. 
testified  at  a  former  trial  with  ref- 
erence to  material  matter  at  variance 
with  his  testimony  on  the  present  tri- 
al, the  fact  tended  to  impeach  him, 
and.  unless  his  testimony  was  corrob- 
orated, the  .iury  could  disregard  it 
entirely,  etc.  Matthews  v.  Granger,  63 


N.  E.  658,  196  111.  164,  affirming  judg- 
ment 96  111.  App.  536. 

Comment  on  conduct  of  ^vitness 
on  stand.  An  instruction  is  not  ob- 
jectionable for  the  reason  merely  that 
it  points  out  a  witness  by  name  and 
directs  the  jury  to  take  into  consid- 
eration his  conduct  while  testifying 
as  affecting  his  testimony,  for  it  will 
be  presumed  that  the  manner  of  the 
witness  justified  the  instruction.  Am- 
merman  v.  Teeter,  49  111.  400. 

Instrnctions  general  in  form.  A 
general  instraction  as  to  the  right  of 
the  jury  to  disregard  the  testimony  of 
any  witness  who  has  willfully  sworn 
falsely  as  to  any  material  matter,  un- 
less corroborated,  is  not  objectionable 
as  aiming  at  the  testimony  of  a  par- 
ticular witness.  Healea  v.  Keenan, 
91  N.  E.  646,  244  111.  484. 

Harmless  error.  It  is  not  reversi- 
ble error  for  the  court  to  instruct  the 
jury  that  the  weight  to  be  given  the 
testimony  of  an  uncontradicted  wit- 
ness is  for  them.  Davis  v.  Coblens, 
12  App.  D.  C.  51. 

51  Darneal  v.  State,  174  P.  290,  14 
Okl.  Cr.  540,  1  A.  L.  R.  638. 

52  Ala.  Moore  v.  State,  72  So.  596, 
15  Ala.  App.  152  ;  Bullington  v.  State, 
69  So.  319,  13  Ala.  App.  61.  See  Her- 
ring v.  State,  71  So.  974,  14  Ala.  App. 
93. 

Cal.  People  v,  Emmons,  95  P. 
1032,  7  Cal.  App.  685  ;  People  v.  Keith. 
75  P.  304.  141  Cal.  686. 

111.  Helbig  V.  Citizens'  Ins.  Co.,  84 
N.  E.  S97,  234  111.  251,  affirming  judg- 
ment Citizens'  Ins.  Co.  v.  Helbig,  138 
111.  App.  115;  Employers'  Liability 
Assur.  Corp.  of  London,  England,  v. 
Kelly-Atkinson  Const.  Co.,  195  111. 
App.  620 ;  Wolf  v.  City  of  Venice,  15? 
111.  App.  585. 

Ind.  Leseuer  v.  State,  95  N.  E. 
239.  176  Ind.  448. 

Minn.  State  v.  Meyers,  155  N.  W. 
760.  132  Minn.  4;  Krahn  v.  .1.  L. 
Owens  Co.,  145  N.  W.  626,  125  Minn. 
33,  51  L.  R.  A.  (N.  S.)  650. 

Mo.     State  v.  Kelley,  90  S.  W.  834, 


365 


CREDIBILITY   OF   WITNESSES 


18b 


better  and  wiser  when  couched  in  impersonal  and  general  lan- 
guage than  it  would  be  if  it  points  out  by  name  a  particular  wit- 
ness."^^  In  Missouri  it  is  held/'*  practicall}'  overruling  earlier 
cases,^^  that  the  court  has  no  right  to  single  out  a  particular  wit- 
ness, whether  he  is  a  party  to  the  suit  or  not,  call  attention  to 
his  interest,  and  tell  the  jury  to  be  careful  how  they  give  cre- 
dence to  what  he  may  say. 

An  instruction  which  singles  out  a  class  of  witnesses,^®  or  the 
witnesses  for  one  side,^'^  and  calls  the  attention  of  the  jury  to 
matters  afifecting  their  credibility,  is  erroneous,  and  in  criminal 
cases  instructions  on  the  credibility  of  witnesses  should  apply 
alike  to  all  the  witnesses,  whether  they  are  for  the  state  or  the 
defendant.^*  Under  this  doctrine,  when  the  test  of  interest  is 
applied,  it  should  extend  to  all  witnesses  who  are  interested,  ei- 


191  Mo.  680;  State  v.  Pollard,  74  S. 
W.   969.   174  Mo.   607. 

Mont.  State  v.  McClellan,  59  P. 
024.  23  Mont.  532,  75  Am.  St.  Rep. 
558. 

Wis.  Loose  V.  State,  97  N.  W. 
520,  120  Wis.  115. 

5  3  Woodard  v.  State,  63  S.  E.  573,  5 
Ga.  App.  447. 

C4  State  V.  Shellman  (Mo.  Sup.)  192 
S.  W.  435 ;  Stetzler  v.  Metropolitan 
St.  Ry.  Co.,  109  S.  W.  666,  210  Mo. 
704. 

■^5  0"'Neill  V.  Blase,  68  S.  W.  764,  94 
Mo.  App.  648. 

5G  People  V.  O'Brien,  119  N.  Y.  S. 
788.  135  App.  Div.  85. 

Testimony  of  impeaching  vidt- 
nesses.  It  was  error  to  Instruct  thai, 
testimonj-  of  impeaching  witnesses 
should  be  weighed  as  that  of  other 
witnesses,  and  when  impeaching  wit- 
nesses testify  falsely,  tlie  jury 
might  disregard  entirely  their  testi- 
mony in  so  far  as  false,  and  give  to 
the  testimony  of  the  witnesses  attack- 
ed such  weight  and  credence  as  is 
deserved.'  Babb  v.  State,  163  P.  259, 
18  Ariz.  505,  Ann.  Cas.  191SB,  925. 

Comparative  credibility  of  dif- 
ferent classes  of  witnesses.  No 
witness  is  to  bo  discredited  merely 
because  of  his  race  or  color;  and, 
where  counsel  have  asserted  1:hat  com- 
paratively little  credit  is  to  be  attach- 
ed to  the  evidence  of  ignorant  and 
semibarbarous  Indian  witnesses, 
there  is  no  error  in  the  court's  saying 
that  botli  white  men  and  Indians  lie, 
and  that  the  evidence  of  both  is  en- 


titled to  the  same  credit,  and  such 
credibility  is  to  be  determined  by  the 
same  rules  of  law,  when  this  is  cou- 
)>led  with  a  correct  statement  of  the 
jury's  right  to  consider  the  intelli- 
gence, appearance,  apparent  candor, 
opportunities  of  knowledge,  etc.,  or 
each  witness.  Shelp  v.  L'nited  States 
(C.  C.  A.  Alaska)  81  F.  694,  26  C.  C. 
A.  570. 

5  7  Waters  v.  People,  50  N.  E.  148, 
172  111.  .367. 

Harmless  error.  An  instruction, 
on  a  trial  for  murder,  tliat  the  jury, 
in  considering  the  evidence  of  the  wit- 
nesses for  defendant,  might  consid- 
er their  interest  in  the  result  of  the 
trial  and  their  feelings  towards  de- 
fendant, etc.,  although  it  should  have 
included  all  the  witnesses  in  the  case, 
is  not  reversible  error  where  tliere 
were  other  instructions  of  similar  im- 
port, which  included  all  the  witnesses. 
Belt  V.  People,  97  111.  461. 

5  8  State  V.  Rogers,  163  P.  912,  30 
Idaho,  259 ;  Fletcher  v.  State,  101  P. 
599,  2  Okl.  Cr.  300,  23  L.  R.  A.  (N.  S.) 
581. 

Instructions  lield  proper  xrithin 
rule.  A  cautionary  instraction  in  a 
nuirder  trial  as  to  the  credibility  of 
witnesses  that  in  hearing  their  testi- 
mony the  jury  may  take  into  consid- 
eration his  or  her  interest,  feeling 
for,  or  relation  to  defendant  was  not 
erroneous,  as  not  including  state's 
witnesses,  since  it  would  embrace  an- 
taffouism  as  well  as  friendship.  State 
V,  Garrett,  207  S.  W.  784,  276  Mo. 
302. 


183 


INSTRUCTIONS  TO  JURIES 


366 


ther  as  parties,  agents,  or  servants  of  the  parties  or  otherwise,^* 
and  an  instruction  which  singles  out  the  witnesses  for  one  side, 
and  calls  the  attention  of  the  jury  to  the  effect  of  their  interest 
upon  their  credibility,  without  referring  to  the  witnesses  for  the 
other  side  who  are  also  interested,  is  erroneous.^® 

It  is  improper  to  instruct  that  the  jury  may  consider  the  efifect 
of  the  fact  of  the  employment  of  any  witness  by  either  party,  when 
the  only  witnesses  so  employed  are  those  called  by  one  of  tjie 
parties.®^  So  an  instruction  laying  down  the  rule  of  "falsus  in 
uno,  falsus  in  omnibus,"  should  apply  alike  to  all  ^witnesses, 
whether  for  the  plaintiff  or  the  defendant.^"  However,  the  use 
of  the  masculine  gender  in  referring  to  witnesses  will  not  render 
an  instruction  erroneous,  as  being  applicable  only  to  a  particular 
witness  or  to  witnesses  of  the  male  sex.^^ 

§  184.     Rule  that  such  instructions  may  be  given 

In  some  jurisdictions  cautionary  instructions  with  respect  to 
the  credibility  of  a  particular  witness  rest  largely  in  the  discre- 
tion of  the   court.*'*     In   other  jurisdictions   it  is  considered   that 


esCitv  of  Dixon  v.  Scott,  81  111. 
App.  368,  affirmed  54  N.  E.  897.  ISl 
111.  116. 

Instructions  not  improper  ^»rith~ 
in  mle.  An  Instruction  that  in  pass- 
ing on  the  testimony  of  all  the  wit- 
nesses the  jury  may  consider  any  in- 
terest which  such  witnessi>s  may  fo(l 
is  not  objectionable  as  singling  out 
witnesses,  and  calling  special  atten- 
tion to  their  credibility.  Chicago  & 
A.  R.  Co.  V.  Anderson,  46  N.  E.  1125, 
166  111.  572,  judgment  affirmed  67 
111.  App.  386.  An  instruction  to  con- 
sider the  interest  of  named  witnesses 
in  the  result  of  the  action  is  not  er- 
roneous, where  the  court  in  such  con- 
nection names  practically  all  the  wit- 
nesses interested.  In  re  Paulson's 
Estate,  1!50  N.  W.  914,  128  Minn.  277. 
"Where  the  attorney  for  plaintiff  testi- 
fied on  behalf  of  his  client,  and  the 
attorney  for  defendant  testified  on 
behalf  of  the  defendant,  an  instruc- 
tion that  an  attorney  is  a  conii>eteut 
witness,  and  his  testimony  must  not 
be  disregarded  simply  because  he  is 
an  attorney  testifying  in  behalf  of  his 
client,  is  not  objectionable  as  casting 
discredit  on  one  of  the  witnesses  for 
defendant.  King  v.  Hanson,  99  N.  W. 
1085,  13  N.  D.  85. 
«o  Phoenix  Ins.  Co.  v.  La  Pointe,  118 


111.  384.  8  N.  E.  353 ;  Zapel  v.  Ennis, 
104  111.  App.  175. 

'51  Ovens  V.  Chicago  City  Ry.  Co., 
171  111.  App.  647. 

C2  People  V.  Arlington,  63  P.  347, 
131  Cal.  231 ;  Thomas  v.  Gates,  58  P. 
315,  126  Cal.  1 ;  State  v.  Dunn,  168  N. 
W.  2,  140  Minn.  308;  Argabright  v. 
State,  69  N.  W.  102,  49  Neb.  760. 

6  3  Morello  v.  People,  80  N.  E.  903, 
226  111.  388 :  State  v.  Clark,  163  N.  W. 
250,  ISO  Iowa,  477;  Marek  v.  State, 
94  S.  W.  469,  49  Tex.  Cr.  R.  428. 

Directing  attention  to  accnsed. 
In  a  prosecution  for  embezzlement, 
where  the  prosecuting  witness  was  a 
woman,  and  accused  testitied  in  his 
own  behalf,  an  instruction  that  the 
jury  are  the  sole  judges  of  the  credi- 
bility of  the  witnesses,  and  that  they 
should  consider  all  the  circumstances 
under  which  any  witness  testified,  his 
demeanor,  his  interest  in  the  case, 
and  the  manner  in  which  he  might  be 
affected  by  the  verdict,  was  not  er- 
roneous in  directing  special  attention 
to  the  crgdibility  of  accused,  without 
requiring  the  same  attention  to  tho 
credibility  of  the  prosecuting  witness. 
People  V.  Goodrich,  96  N.  E.  542,  251 
111.  558. 

"4  People  V.  Breen,  158  N.  W.  142, 
102  Midi.  39 ;  Ileddle  v.  City  Electric 
Ry.    Co.,    70    N.   W.    1096,    112    Mich. 


367 


CREDIBILITY   OF    WITNESSES 


184 


in  a  proper  case  it  is  not  erroneous  to  single  out  a  particular  wit- 
ness and  charge  as  to  the  effect  of  giving  false  testimony,**^  and 
in  some  jurisdictions,  under  some  circumstances,  it  may  be  error 
not  to  call  the  attention  of  the  jury  to  the  credibility  of  a  par- 
ticular witness  and  matters  bearing  thereon.*'® 

Where  only  a  single  witness  is  sought  to  be  impeached,  it  is 
not  improper  to  specifically  refer  to  such  witness  in  an  instruction 
on  the  testimony  of  witnesses  who  have  been  successfully  im- 
peached.®'^ In  such  a  case  a  general  instruction  as  to  the  right  to 
believe  or  disbelieve  the  testimony  of  a  witness  who  has  been 
impeached  is  not  improper,  as  bringing  into  prominence  the  evi- 
dence of  the  single  witness  against  whom  impeaching  testimony 
has  been  presented.®* 

Where  a  rule  of  law  relates  solely  to  the  credibility  of  a  par- 
ticular class  of  witnesses,  as  prosecuting  witnesses,  an  instruc- 
tion which,  in  declaring  such  rule  of  law,  incidentally  names  the 
prosecuting  witness,  is  not  erroneous,  as  singling  out  his  testi- 
mony for  special  treatment.®^ 


547;    PeoDlp  v.  Wallin,  22  N.  W.  15, 
55  JNIich.  497. 

The  fact  that  a  ■witness  testi- 
fies to  matters  to  which  he  did 
not  testify  when  sworn  on  a  foinner 
trial  of  the  ease  does  not  call  for  an 
instruction  cautioning  the  jury  as 
to  his  credibility,  where  he  explains 
that  he  was  not  questioned  regarding 
such  matters  on  the  previous  trial. 
Reiser  v.  Portere,  6.3  N.  W.  1041,  106 
Mich.  102. 

GsLangowski  v.  Wisconsin  Cent.  R. 
Co.,  141  N.  W.  2.36.  153  Wis.  418; 
Bunce  v.  IMcJMahon,  6  Wyo.  24,  42  P. 
23.  See  Cunninsham  v.  Springer,  82 
P.  232,  13  N.  M.  259,  affirmed  27  S. 
Ct.  301,  204  U.  S.  647,  51  L.  Ed.  662. 
68  Kelly  V.  State,  72  So.  573,  15 
Ala.  App.  63;  Harrison  v.  State,  68 
So.  532,  12  Ala.  App.  284;  Branch  v. 
State,  64  So.  .507,  10  Ala.  App.  94; 
Commonwealth  v.  House,  72  A.  804, 
223  Pa.  487.  reversing  judgment  36 
Pa.  Super.  Ct.  363;  Fineburg  v.  Sec- 
ond &  Third  Streets  Pass.  Ry.  Co.,  37 
A.  925,  182  Pa.  97. 

Cases  in  xirhich  such  an  instruc- 
tion held  necessary.  Wliore,  in  an 
action  for  injury  to  a  woman  while 
boarding  a  car,  three  witnesses  whose 
credibility  was  unimi^eached  testified 
that  the  signal  to  start  the  car  was 
not  given   by   the  conductor,   but   by 


an  unauthorized  passenger  standing 
on  the  back  platform,  the  passenger 
himself  being  one  of  the  witnesses, 
and  to  the  contrary  there  was  only  the 
testimony  of  the  woman's  husbana, 
which  was  weakened  on  cross-exami- 
nation, it  was  held  that  it  was  the 
the  duty  of  the  judge  to  call  the  jury's 
attention  to  the  fact  that  the  hus- 
band's statement  was  unsupported 
and  to  caution  them  against  an  ar- 
bitrary or  capricious  disregard  of 
the  weight  of  evidence  for  defend- 
ant. Cohen  v.  Philadelphia  Rapid 
Transit  Co.,  77  A.  500,  228  Pa.  243. 
"^Hiere  there  are  circumstances  to 
show  that  the  witnesses  for  the  T">^o- 
ple  are  guilty  of  the  crime  charged, 
and  that  they  consjured  to  testify 
falsely  against  defendant  for  the  pur- 
liose  of  shielding  themselves,  the 
court  should  direct  the  attention  of 
the  jury  thereto,  and  to  the  claim  of 
the  defendant  arising  therefrom. 
People  V.  Marks,  90  Mich.  555,  51  N. 
W.  638. 

6  7  Shaw  V.  State,  29  S.  E.  477.  102 
Ga.  660 ;  Stevens  v.  People,  74  N.  E. 
786,  215   111.  593. 

6  8  State  V.  Feeley,  92  S.  W.  663. 
194  Mo.  300,  3  L.  R.  A.  (N.  S.)  351,  112 
Am.  St.  Rep.  511. 

6  9  People  V.  Akey,  124  P.  718,  163 
Cal.  54. 


§  185  INSTRUCTIONS  TO  JURIES  368 

CHAPTER  XII 
INSTRUCTIONS    ON    PRESUMPTIONS    AND    INFERENCES 

A.     Peesumptions  and  Inferences  in  Civil  Cases 

§  185.     Inferences  in  general. 
186.    Presumption  of  innocence. 
187.'    Necessity  of  request  for  instructions. 

B.     Pbesumptions  in  Criminal  Cases 
1.    Presumption  of  Innocence 

188.  Necessity  of  instructions. 

189.  Sufficiency  of  instructions  on  presumption  of  innocence. 

190.  Instructions  as  to  duration  of  presumption  of  innocence. 

191.  Instructions  as  to  nature  and  purpose  of  such  presumption. 

2.     Other  Presumptions  and  Inferences  Than  That  of  Innocence 

192.  Presumptions  and  inferences  favorable  to  defendant. 

193.  Unfavorable  presumptions. 

194.  Presumption  that  one  intends  the  natural  and  proximate  cconsequen- 

ces  of  his  acts. 

195.  Inferences  from  possession  of  stolen  goods. 

196.  Inferences  from  flight  of  accused. 

C.    Failure  to  Produce,  and  Suppression  oe  Fabrication  of,  Evidence 

197.  Rule  in  civil  cases. 

198.  Rule  in  criminal  cases. 

D.     Failure  of  Party  in  Civil  Case  to  Testify 

199.  In  general. 

E.     P^AiLURE  of  Accused  to  Testify 

200.  Propriety  of  instructions  at  common  law. 

201.  Propriety  and  necessity  of  instructions  under  statutes. 

202.  Cautioning  jury  against  considering  failure  to  testify. 

Instructions  criticized  as  invading  province  of  jury,  see  ante,  §§  58-62. 

A.  Presumptions  and  Inferences  in  Civil  Cases 

§  185.     Inferences  in  general 

As  has  been  shown  in  a  preceding  chapter,^  the  question  of 
what  inferences  of  fact  shall  be  drawn  from  the  evidence  is  en- 
tirely for  the  jury  and  the  court  cannot  be  required  to  instruct  the 
jury  to  consider  whether  certain  inferences  may  not  be  drawn 
from  a  particular  state  of  facts  they  may  find  to  exist.^  However, 
the  court  may  lay  down  general  rules  to  guide  the  jury  in  their  de- 

1  Ante,  §§  58-62.  2  Farrell  v.  G.  O.  Miller  Co.,  179 

N.  W.  566. 


369  INSTRUCTIONS   ON   PRESUMPTIONS  AND   INFERENCES  §  186 

w   h  n XnW  injuring  another,  is  presumed  to  have  comphed 

purpose  of  determining  the  facts  at  issue 

A  delay  in  bringing  action  may  be  such  or  may  be  under  such 
cirimstJn's  as  i  ^entitle  defendant  to  an  -^^ruct^on  tha^^ 

jury  may  or  should  consider  it  ^-^f^J^^TXtZr  "  te  llhe 
debt  has  been  in  some  manner  satisfied.*     It  is  proper  to  tea  i 

LToX  irsl.otrtHerursh:.&nar..,  .n  sta^^^ 

ruL   inform  the  jury  that  such  presumpt.on  '^  °-  f/^^;^J;;^  t. 
may  be  rebutted  by  circumstantial  as  well  as  direct  evidence. 

^  merrtrSfutsVi  dv"il"uTinvolve  a  charge  of  wrongdoing 
or'ln":cu':tL"of  crime  against  a  party,  the  court  s-M  „o 
ignore  in  its  instructions,  the  presumption  of  tanocence,  as  Dy 
directin..  the  jury  to  presume  the  continuance  of  a  course  of  con- 
duct nvlolation  of  law,"  although  the  court  .s  no  required  o 
instruct  as  to  the  presumption  of  innocence,  ■«  *^  f  ^J"  \°''; 
that  the  presumption  of  law  is  against  wrongdoing,'-  and  it  has 
been  held  that  an  instruction  that  the  law  presumes  that  the  per- 
so"  so  accused  is  innocent  is  erroneous,  as  directing  the  ,u  y  o 
look  for  more  conclusive  proof  than  in  ordinary  civil  cases.  In 
Ti„..i,    ii    H.™   (N    T>  B  People  T.  "Williams,  175  N.  W.  1S7. 

3  Price  V.  Heath,  41  Hun  (N.  Y.)       ^og  Mloh.  5S6. 

''"•Latremouille  v.  Benni„|ton  &  R.       ^  "f  *'|?°4,^-  *  |J:  H]  ''°-  " 
Ky.  Co..  22  A.  656.  63  Vt  336.  "f^^E^rhbun';.  Whit?.  107  P.  309,  157 

5  Thayer  v.  Glynn,  106  A.  bdl,  yd  ^^^ 

^^'  ^^7'  >T  r-orv^r^hoii   11  Hpisk  12  Hale  V.  Mattliews,  118  Ind.  527, 

6  Johnson  v.  McCampbell,  11  Heisis.       ^^  n    E  43 

(Tenn.)  27.  „     .     ^  -.^  tp-       s  is  "«?<-qVp  px  rel    Detroit  Fire  &  Ma- 

„:.rK.%fTr^urc?      ri„erc|.^S^^S^?.TipS 

INST.TO  Juries— 24 


187 


INSTRUCTIONS   TO  JURIES 


370 


such  a  case,  in  the  absence  of  a  request  for  an  instruction  on  the 
presumption  of  innocence,  it  will  usually  not  be  error  to  fail  to 
give  it.^* 

§  187.     Necessity  of  request  for  instructions 

In  a  civil  case  the  general  rule  is  that  the  court  need  not  in- 
struct as  to  a  presumption  of  fact  or  legal  inference  unless  spe- 
cially requested  so  to  do.*^  Thus  the  failure  to  explain  the  doc- 
trine of  res  ipsa  loquitur  cannot  be  complained  of,  in  the  absence 
of  a  request  embodying  the  instruction  desired.^® 

B.  Pre;sumptions  in  Criminal  Cases 
1.  Presumption  of  Innocence 

§  188.     Necessity  of  instructions 

As  a  general  rule  the  defendant  in  a  criminal  prosecution  is 
entitled  to  have  the  jury  instructed  that  he  is  presumed  to  be  in- 
nocent until  his  guilt  is  established  by  competent  evidence  be- 
yond a  reasonable  doubt,^'  and  in  some  jurisdictions  the  duty  so 


i*Treschman  v.  Treschman,  61  N. 
E.  961,  28  Ind.  App.  206. 

15  Ga.  Charleston  &  W.  C.  E.  Co. 
V.  Brown,  79  S.  E.  932,  13  Ga.  App. 
744;  Brooks  v.  Griffin,  73  S.  E.  752,  10 
Ga.  App.  497 ;  Randall  v.  State,  60  S. 
E.  328,  3  Ga.  App.  653. 

Ind.  Cleveland,  C,  C.  &  St.  L.  Ry. 
Co.  V.  Lynn.  98  N.  E.  67,  177  Ind.  311, 
modifying  judgment  on  rehearing  95 
N.  E.  577. 

Iowa.  Pfarr  v.  Standard  Oil  Co., 
157  N.  W.  132,  176  Iowa,  577. 

Tex.  Dnpree  v.  Alexander,  68  S. 
AV.  739,  29  Tex.  Civ.  App.  31. 

18  Islev  V.  Virginia  Bridge  &  Iron 
Co.,  53  S"^.  E.  841,  141  N.  C.  220;  Lyles 
V.  Brannon  Carbonating  Co.,  52  S.  E, 
233,  140  N.  C.  25. 

17  Ala.  Amos  v.  State,  26  So.  524, 
123  Ala.  50;  Harris  v.  State,  26  So. 
515,  123  Ala.  69 ;  Rogers  v.  State,  23 
So.  82,  117  Ala.  192 ;  Bryant  v.  State, 
23  So.  40,  116  Ala.  44.5. 

D.  C.  Fields  v.  United  States,  27 
App.  D.  C.  433,  certiorari  denied  and 
writ  of  error  dismissed  27  S.  Ct.  543, 
205  U.  S.  292,  51  L.  Ed.  807. 

Fla.  Long  v.  State,  28  So.  775,  42 
Fla.  509. 

Ga.     Finch  v.  State,  100  S.  E.  793, 


24  Ga.  App.  3.39;  Innes  v.  State,  93 
S.  E.  229.  20  Ga.  App.  719. 

111.  People  V.  Israel,  109  N.  E.  969, 
269  111.  284. 

Ind.  Line  v.  State,  51  Ind.  172; 
Fisher  v.  State,  28  N.  E.  565,  2  Ind. 
App.  365. 

Mich.  People  v.  Yund,  128  N.  W. 
742.  163  Mich.  504:  People  v.  De  Fore, 
64  Mich.  693,  31  N.  W.  585,  8  Am.  St. 
Rep.  863. 

Minn.  State  v.  Sailor.  153  N.  W. 
271.  130  Minn.  84. 

Mo.  State  V.  Hardelein,  70  S.  W. 
130.  169  Mo.  579. 

N.  Y.  People  v.  Van  Houter,  38 
Hun.  168. 

Okl.  Jenkins  v.  State,  145  P.  500, 
11  Okl.  Cr.  168. 

Tex.  Dugan  v.  State,  216  S.  W. 
161,  86  Tex.  Cr.  R.  1.30;  Pierce  v. 
State  (Cr.  App.)  22  S.  W.  587;  Mace 
V.  State,  6  Tex.  App.  470;  Stapp  v. 
State,  1  Tex.  App.  734. 

Wash.  State  v.  Mayo,  85  P.  251, 
42  Wash.  540.  7  Ann.  Cas.  881. 

Wis.  Fosdahl  v.  State,  89  Wis. 
4S2,  62  X.  W.  185. 

Instructions  held  improperly 
refused.  A  defendant  is  entitled  to 
a  ciiarge  that  his  innocence  must  be 


371 


INSTRUCTIONS   ON   TRESUMPTIONS   AND   INFERENCES 


§  188 


to  instruct  rests  upon  the  court  in  cases  of  misdemeanor,  where 
intent  is  not  an  element  of  the  crime,  as  well  as  in  all  other 
cases,^*  and  the  refusal  to  give  such  an  instruction  will  ordina- 
rily constitute  reversible  error.^** 

In  some  jurisdictions  the  refusal  of  such  an  instruction  consti- 
tutes error,  although  the  court  has  instructed  that  the  jury  can- 
not convict  if  they  have  a  reasonable  doubt  of  the  guilt  of  the 
defendant.'*  In  other  jurisdictions,  however,  an  omission  to 
charge  on  the  presumption  of  innocence  is  not  reversible  error, 
where  the  jury  is  fully  instructed  on  the  law  of  reasonable  doubt.~* 


presumed  until  the  case  proved 
against  him  is,  in  all  its  material  cir- 
cumstances, beyond  any  reasonable 
doubt;  that  to  find  him  guilty,  as 
charged,  the  evidence  must  be  so 
strong  and  cogent  as  to  show  defend- 
ant's guilt  to  a  moral  certainty.  Salm 
v.  State,  89  Ala.  56,  8  So.  66.  It  is 
error  to  refuse  to  instruct  the  jury 
that  "the  law  presumes  the  defendant 
to  be  innocent  of  the  commission  of 
any  crime,  and  this  presumption  cop- 
tinues  in  his  favor  throughout  the 
trial  of  the  cause,  step  by  step,  and 
you  cannot  find  the  accused  guilty  of 
the  crimes  covered  by  the  indictment 
until  the  evidence  in  the  cause  satis- 
fies you,  beyond  a  reasonable  doubt, 
of  his  guilt;  and,  so  long  as  you  or 
any  one  of  you  have  a  reasonable 
doubt  as  to  the  existence  of  any  one 
of  the  elements  necessary  to  consti- 
tute the  several  crimes  above  defined, 
the  accused  cannot  be  convicted  of 
such  crime."  Aszman  v.  State,  123 
Ind.  347,  24  N.  E.  123,  8  L.  R.  A. 
.S3,  following  Castle  v.  Same,  75  Ind. 
146.  On  a  trial  for  homicide,  the  re- 
fusal to  charge  that  the  jury  must 
start  out  in  the  trial  with  the  pre- 
sumption that  accused  is  innocent, 
which  presumption  must  be  overcome 
by  evidence  so  convincing  that  the 
jury  can  say  beyond  any  reasonable 
doubt  that  accused  is  guilty,  was  er- 
roneous. People  V.  Stewart,  42  N.  W. 
662,  75  Mich.  21. 

Inferences  from  finding  inclict- 
ment.  An  instruction  that  the  mere 
fact  of  an  indictment  found  is  no  evi- 
dence of  defendant's  guilt,  and  that 
the  presumption  of  innocence  contin- 
ues with  the  defendant  until  the  jui-y 
are   convinced   beyond   a    reasonable 


doubt  of  his  guilt,  was  improperly  re- 
fused where  no  similar  instruction 
was  given.  People  v.  Kritteubrink, 
109  N.  E.  1005,  269  111.  244.  The 
court,  on  the  request  of  accused,  must 
chai'ge  that  the  finding  of  the  indict- 
ment did  not  create  a  presumption  of 
guilt,  where  the  district  attorney  stat- 
ed that  the  grand  jury  had  heard  the 
evidence  and  had  found  the  indict- 
ment. State  V.  Atkins,  67  So.  926,  136 
La.  844. 

Conflicting  presumptions.  There 
cannot  be  two  presumptions  in  a  crim- 
inal case;  and  so  it  is  not  erroneous 
to  refuse  an  instruction  that  the  pre- 
sumption of  innocence  will  prevail 
over  the  presumption  of  a  criminal 
purpose.  State  v.  Blaine,  124  P.  516, 
45  Mont.  482. 

18  People  V.  Potter,  89  Mich.  353, 
50  N.  W.  994. 

19  Fowler  v.  State,  45  So.  913,  155 
Ala.  21 ;  Reeves  v.  State,  29  Fla.  527, 
10  So.  901;  Gardner  v.  State,  87  S.  E. 
150,  17  Ga.  App.  410 ;  Gentry  v.  State, 
66  So.  9S2,  108  Miss.  505;  Hampton  v. 
State,  1  Tex.  App.  652. 

2  0  Gentry  v.  State,  66  So.  982,  108 
Miss.  505;  Franklin  v.  State,  92  Wis. 
269,  66  N.  W.  107. 

Effect  of  defining  reasonable 
doubt.  It  is  error  to  refuse  to 
charge  that  accused  is  presumed  inno- 
cent until  proven  guilty  bfeyond  a 
reasonable  doubt,  though  the  court 
gave  an  instruction  defining  a  reason- 
able doubt.  State  v.  Harrison,  57  P. 
647,  23  Mont.  79. 

21  State  V.  Douglas,  107  S.  W.  552, 
25S  Mo.  281 ;  State  v.  Dudley.  149  S. 
W.  449.  245  Mo.  177 ;  State  v.  Maupin, 
93  S.  W.  379,  196  Mo.  164. 


188 


INSTRUCTIONS  TO  JURIES 


372 


In  some  jurisdictions  this  is  the  rule,  if  the  attention  of  the  court 
is  not  called  to  such  omission,-^  and  where  the  court  has  charged 
that  the  law  presumes  the  defendant  to  be  innocent,  and  that  the 
burden  is  on  the  state  to  prove  his  guilt,  it  will  ordinarily  not  be 
error  to  refuse  additional  instructions  still  further  elucidating  and 
emphasizing  the  rule  of  such  presumption.^^ 

The  court  need  not  charge  on  the  presumption  of  innocence, 
where  the  only  question  is  whether  the  defense  of  insanity  has 
been  established  by  satisfactory  proof.^*  In  some  jurisdictions 
the  rule  is  stated  to  be  that  the  mere  omission  to  charge  on  the 
presumption  of  innocence  is  not  error,  in  the  absence  of  a  request 
so  to  charge.^^  In  other  jurisdictions  a  request  is  not  necessary 
to  make  it  the  duty  of  the  court  to  charge  that  the  defendant  en- 
ters upon  his  trial  with  the  presumption  of  innocence  in  his  favor, 
and  that  such  presumption  remains  with  him  throughout  the 
trial,  until  his  guilt  is  established  by  proof.^^ 

§  189.     Sufficiency   of  instructions   on   presumption   of  innocence 
Instructions  which  tend  to  disparage  the  presumption  of  inno- 
cence are  erroneous,^'  and  instructions  which  in  effect  require  the 
jur}'-,  before  acquitting,  to  believe  that  the  defendant  is  innocent, 


2  2  Sylvia  V.  U.  S.  (C.  C.  A.  Tenn.) 
264  F.  593 ;  State  v.  Smith,  65  Conn. 
283,  31  A.  206;  People  v.  Ostrander, 
110  Mich.  60,  67  N.  W.  1079,  following 
Same  v.  Smith,  92  Mich.  10,  52  N.  W. 
67,  and  Same  v.  Graney,  91  Mich.  646, 
52  N.  W.  66;  Commonwealth  v.  Rus- 
sognlo,  106  A.  180,  263  Pa.  93. 

See  People  v.  Parsons,  105  Mich. 
177,  63  N.  W.  69.  Compare  People  v. 
Macard,  73  Mich.  15,  40  N.  W.  784. 

2  3  State  V.  Linhoff,  97  N.  W.  77,  121 
Iowa,  632  ;  State  v.  Edie,  147  Mo.  535, 
49  S.  W.  563. 

Refusal  to  charge  that  such  pre- 
somptioiL  is  not  a  mere  form. 
Where  the  court  charged  the  jury  in  a 
criminal  case  that  "every  person  is 
presumed  by  the  law  to  be  innocent, 
and  the  burden  is  on  the  government 
to  prove  beyond  a  i-easonable  doubt 
that  the  defendants  are  guilty  as 
charged  in  the  indictment,"'  it  was 
not  error  to  refuse  to  charge  further 
that  "such  presumption  of  innocence 
is  not  a  mere  form  which  the  jury 
may  disregard  at  its  pleasure,  but  a 
substantial  part  of  the  law  of  the  land 
and   binding   upon   the  jury  in  this 


case."  Garst  v.  United  States  (C.  C. 
A.  Va.)  180  F.  339,  103  C.  C.  A.  469. 

2  4  Commonwealth  v.  Wheeler,  92  A. 
718,  246  Pa.  528. 

25  Hutto  v.  State,  7  Tex.  App.  44; 
Frye  v.  Same,  7  Tex.  App.  94. 

2  6  Finch  V.  State,  100  S.  E.  793.  24 
Ga.  App.  ,339. 

2  7  People  V.  Gerold,  107  N.  E.  165, 
265  III.  448,  Ann.  Cas.  1916A,  636. 

Instructions  not  improper  'witli- 
in  rule.  An  instruction  which,  after 
stating  the  rule  as  to  presumption  of 
innocence,  adds  that  in  doubtful  cas- 
es this  presumption  is  sufficient  to 
turn  the  scale  in  favor  of  the  defend- 
ant, and  that,  unles.s  the  jury  find 
accused  guilty  beyond  a  reasonable 
doubt,  he  is  entitled  to  an  acquittal. 
State  V.  Knapp,  71  N.  E.  705,  70  Ohio 
St.  380,  1  Ann.  Cas.  819,  reversing 
judgment  25  Ohio  Cir.  Ct.  R.  571.  A 
part  of  an  instruction  on  the  burden 
of  proof  and  presumption  of  inno- 
cence, to  the  effect  that,  if  accused  "is 
the  man  who  is  to  blame  you  must 
say  so,  if  he  is  not  to  blame  .vou  must 
say  so."  State  v.  Aurand,  136  P.  1139, 
76  Wash.  529. 


373 


INSTRUCTIONS  ON   PRESUMPTIONS  AND   INFERENCES 


189 


are  erroneous,  as  depriving  him  of  the  benefit  of  such  presump- 
tion,'^* as  is  an  instruction  that,  if  the  jury  are  unable  to  reconcile 
all  the  evidence  with  the  theory  of  the  innocence  of  the  defendant, 
they  should  find  him  guilty ;  ~^  but  an  instruction  that  such  pre- 
sumption is  a  piece  of  evidence  to  be  taken  into  consideration  and 
given  such  weight  as  the  jury  think  it  ought  to  have  is  not  objec- 
tionable as  allowing  the  jury  to  disregard  the  presumption.^* 
Where  there  is  a  statute  enunciating  the  rule  of  the  presumption 
of  the  innocence  of  one  accused  of  crime,  an  instruction  on  such 
presumption  which  follows  the  language  of  the  statute  will  ordi- 
narily be  sufficient.'^ 

It  is  proper  to  instruct  that  the  defendant  is  presumed  to  be 
innocent  until  his  guilt  is  proven  by  competent  evidence  beyond 
a  reasonable  doubt,  and  that  if  the  jury  have  a  reasonable  doubt 
of  his  guilt  they  will  acquit  him.^~     Such   an  instruction   is   not 


28  Vaughn  v.  State,  130  P.  1100,  9 
Okl.  Cr.  121;  Hedden  v.  State,  103 
P.  737.  2  Okl.  Cr.  588. 

2  9  Territory  v,  Baca,  71  P.  460,  11 
N.  M.  559. 

3  0  State  V.  Rossi,  102  A.  1030,  92 
Vt.  187. 

31  People  V.  Lumsden,  125  N.  Y.  S. 
1079,  141  App.  Div.  158,  judgment  re- 
versed 94  N.  E.  859,  201  N.  Y.  264. 

3  2  Okl.  Berry  v.  State,  111  P.  676, 
4  Okl.  Cr.  202,  31  L.  R.  A.  (N.  S.)  849. 

Tex.  McDowell  v.  State,  155  S.  W. 
521,  69  Tex.  Cr.  R.  545 ;  Flournoy  v. 
State,  122  S.  W.  26,  57  Tex.  Cr.  R.  88; 
Adams  v.  State,  84  S.  W.  231,  47  Tex. 
Cr.  R.  .347 ;  Gaines  v.  State  (Cr.  App.) 
20  S.  W.  .397;  Johnson  v.  State  (Cr. 
App.)  20  S.  W.  368. 

Failure  to  include  element  of 
competency  of  evidence.  A  charge 
that  "defendant  is  presumed  to  be  in- 
nocent until  his  guilt  is  established  by 
the  evidence  beyond  a  reasonable 
doubt"  is  not  erroneous  because  the 
word  "legal,"  as  used  in  the  statute, 
is  omitted  before  the  word  "evidence." 
Williams  v.  State,  35  Tex.  Cr.  R.  606, 
34  S.  W.  943,  Giving  an  instruction 
that  every  person  is  presumed  inno- 
cent until  his  guilt  has  been  establish- 
ed beyond  a  reasonable  doubt  was  not 
error  because  of  failure  to  state  that 
the  guilt  must  be  proven  by  compe- 
tent evidence,  where  all  the  evidence 
admitted  was  competent,  and  in  other 
instructions  the  jury  had  been  fully 


instructed  as  to  the  essentials  of  the 
crime  charged,  and  that  they  must  be 
proven  beyond  a  reasonable  doubt. 
Dalzell  V.  State,  53  P.  297,  7  Wyo.  450. 

Use  of  "sliOTOTi"  in  place  of 
''proved."  Use  of  the  word  "shown" 
in  place  of  the  word  "proved"  in  a 
charge  that  accused  is  presumed  to  be 
innocent  until  his  guilt  is  "shown" 
by  evidence  beyond  reasonable  doubt, 
does  not  render  the  instruction  er- 
roneous. State  V.  Cox,  175  S.  W.  50, 
264  Mo.  408. 

Use  of  -word  "unless"  instead  of 
"until."  An  instruction  that  "ev- 
eryone accused  of  crime  is  by  law  pre- 
sumed to  be  innocent  unless  the  con- 
trary" is  proved  by  the  evidence  be- 
yond a, reasonable  doubt  was  not  er- 
roneous for  using  the  word  "unless"' 
instead  of  "until."  People  v.  War- 
field,  103  N.  E.  979,  261  111.  293,  re- 
versing judgment  172  111.  App.  1. 

Other  illustrations  of  proper 
or  sufficient  instructions  on  pre- 
sumption of  innocence.  A  state- 
ment that  all  the  presumptions  of  the 
law,  independent  of  the  evidence,  are 
in  favor  of  innocence,  and  that  every 
person  is  presumed  to  be  innocent  un- 
til he  is  proven  guilty.  Everett  v. 
People,  75  N.  E.  188,  216  111.  478.  A 
charge  that  the  law  raises  no  pre- 
sumption against  the  prisoner,  but 
every  presumption  is  in  favor  of  his 
innocence;  and,  in  order  to  convict, 
every  material  fact  necessary  to  con- 


189 


INSTRUCTIONS  TO  JURIES 


374 


objectionable  as  depriving  the  defendant  of  the  right  to  have  -the 
jury  know  that  he  is  in  fact  as  well  as  in  law  presumed  to  be  in- 


stitute the  crime  must  be  proved  be- 
yond a  reasonable  doubt,  aud  that,  if 
they  entertain  any  reasonable  doubt 
upon  any  single  fact  or  element  neces- 
sary to  constitute  the  crime,  it  was 
their  duty  to  acquit.    Burgess  v.  Ter- 
ritory, 19  P.  558,  8  Mont.  57,  1  L.  R. 
A.  808.    A  charge  that  it  was  not  for 
defendant  to  prove  his  innocence,  that 
the  prosecution  must  satisfy  the  jury 
lieyond  a  reasonable  doubt  of  defend- 
ant's guilt,  and  that  defendant  must 
be    acquitted    unless    his    guilt    was 
strictly  and  impartially  proven.    Peo- 
ple V.  Graney,  91  Mich.  646,  52  N.  W. 
66.  distinguishing  People  v.  Potter,  89 
Mich.  353,   50  N.   W.  994,   People  v. 
Macard,  73  Mich.  15,  40  N.  W.  784, 
and  People  v.  Murray,  72  Mich.  10, 
40  N.  W.  29.    An  instruction  that  de- 
fendant was  presumed  to  be  innocent, 
and  the  burden  was  on  the  state  to  re- 
move the  legal  presumption  of  inno- 
cence by  proving  the  guilt  of  accused 
beyond  a  reasonable  doubt,  was  suffi- 
ciently    comprehensive.     McBeth     v. 
State,  50  S.  E.  931,  122  Ga.  737.     In- 
struction that  accused  is  presumed  to 
be  innocent  and  entitled  to  an  acquit- 
tal  in   case   of   a   reasonable   doubt. 
State  v.  Anthony,  124  P.  475,  62  Or. 
141.    An  instruction  that  every  person 
charged  with  crime  is  presumed  to  be 
innocent  until  proven  guilty  by  com- 
l)etent  evidence,  and  that  reasonable 
f-ertainty  is  all  that  can  be  ob'tained. 
Thigpen  v.  State,  76  S.  E.  .596,  11  Ga. 
App.  846.    Charges  that  defendant  en- 
ters into  the  trial  with  a  presumption 
of  innocence,  which  is  a  fact  to  be 
considered   as   evidence,   and   should 
not  be  disregarded,  and  that  the  bur- 
den is  on  the  state  to  convince  the 
jury  of  defendant's  guilt  to  the  exclu- 
sion of  every  reasonable  doubt  and  by 
evidence  that  overcomes  the  presump- 
tion of  innocence.     Neilson  v.  State, 
40  So.  221,  146  Ala.  683.     A  charge 
that    a    criminal    prosecution    begins 
with  the  presumption  that  the  defend- 
ant,   although    accused,    is    innocent, 
and  that  to  overcome  this  legal  pre- 
sumption the  evidence  must  be  clear 
and  convincing,  and  sufficiently  strong 


to  convince  the  jury  beyond  a  reason- 
able   doubt    that    the    defendant    is 
guilty.     Holt  V.  United  States,  31  S. 
Ct.  2,  218  U.  S.  245,  54  L.  Ed.  1021, 
20  Ann.  Gas.  1138,  affirming  judgment 
United  States  v.  Holt  (C.  C.  Wash.) 
168  F.  141.    An  instruction  that  on  a 
plea  of  not  guilty  a  presumption  of 
innocence  arises,  that  such  presump- 
tion  "goes  with  you  in  your  retire- 
ment," and  that  the  jury  must  "ex- 
amine the  evidence  by  the  light  of 
that  presumption."     People   v.    Win- 
throp,  50  P.  390,  118  Cal.  85.    Charges 
that  "the  law  presumes  every  man  in- 
nocent of  the  crime  charged,     *     *     * 
and  this  presumption  abides  with  him 
throughout     the     entire     trial,     aud 
should  be  borne  in  mind  at  each  suc- 
cessive step  in  your  deliberations  as 
to  your  verdict,"  and  that  the  burden 
of  proof  rests  on  the  prosecution  to 
prove  the  guilt  of  the  accused  "beyond 
a  reasonable  doubt."     People  v.  Wil- 
lett,   105   Mich.   110,   62   N.   W.   1115. 
A  charge  that  "the  jury  start  with 
the  presumption  that  the  defendants 
are  not  guilty  until  the  evidence  satis- 
fies you  differently,  but,  when  the  evi- 
dence    *     *     *     satisfies  you  beyond 
any  reasonable  doubt,  the  evidence  in- 
troduced by  the  government  and  the 
evidence  of  the  defendants,  when  you 
are  satisfied  on  that  evidence  that  the 
defendants     are     guilty,     then     you 
should  say  so;  otherwise,  you  say  the 
case  is  not  proved,  and  return  a  ver- 
dict of  not  guilty."     Commonwealth 
V.  Clancy,  187  Mass.  191,  72  N.  E.  842. 
Instruction  that  defendant  is  presum- 
ed to  be  innocent  and  the  burden  is  on 
the  state  to  establish  his  guilt,  not 
with  mathematical  precision,  but  to  a 
moral  and   reasonable  certainty  and 
beyond  a  reasonable  doubt.     Ponder 
V.  State,  90  S.  E.  365,  18  Ga.  App.  703. 
Illustrations  of  instructions  held 
insufficient.    An  instruction  that  ac- 
cused   goes    to    trial    with    "the   pre- 
sumption of  law"  in  his  favor.    Thur- 
man    v.   State,   81    S.   E.  796,   14   Ga. 
App.   543.      An    instruction    that,    for 
the   purpose  of   the  trial  and   before 
any  evidence  is  heard,  a  presumption 


INSTRUCTIONS   ON   PRESUMPTIONS   AND   INFERENCES 


§   190 


nocent  until  his  guilt  is  so  established,^^  or  as  failing  to  charge 
that  the  burden  of  proving  guilt  is  on  the  state.^^  But  it  is  error 
to  merely  charge  that  the  defendant  is  presumed  to  be  innocent 
until  his  guilt  is  established  by  legal  evidence.^^ 

§  190.     Instructions   as  to  duration  of  presumption  of  innocence 

It  is  proper  to  instruct  in  a  criminal  case  in  nearly  all  juris- 
dictions that  the  presumption  of  the  innocence  of  the  defendant 
attends  him  to  the  end  of  the  trial,  or  until  a  verdict  is  reached, 
and  will  prevail,  unless  it  is  overcome  by  evidence  which  con- 
vinces the  jury  beyond  a  reasonable  doubt  of  his  guilt,^**  and  such 
an   instruction   should   be  given   on   request.^'     Accordingly   it   is 


of  the  innocence  of  the  accused 
arises,  and  tliat,  independent  of  evi- 
dence, accused  is  pi'esunied  to  be  in- 
nocent, which  presumption  attends 
him  throughout  the  trial.  People  v. 
Maughs,  86  P.  187,  149  Cal.  253.  An 
instruction  that  it  is  the  duty  of  the 
jury  to  presume  that  accused  is  not 
guilty  and  give  him  the  benefit  of  the 
presumption  throughout  the  trial  "un- 
til evidence  shall  have  been  introduc- 
ed which  *  *  *  is  sufficient  to 
establish  the  guilt  of  defendant  be- 
yond all  reasonable  doubt,  and  if 
such  evidence  be  not  introduced,  then 
defendant  should  have  the  benefit  of 
such  presumption  throughout  all 
stages  of  the  trial"  is  erroneous  as 
authorizing  the  juiy,  if  they  deem  the 
evidence  establishes  guilt  beyond  a 
reasonable  doubt,  to  consider  the  evi- 
dence offered  by  defendant  without 
any  regard  to  the  presumption  of  in- 
nocence. Flynn  v.  People,  78  N.  B. 
617,  222  111.  303. 

33  Hughes  v.  State,  67  S.  W.  104,  43 
Tex.  Cr.  R.  511. 

34  Pritchett  v.  State,  90  S.  E.  492, 
18  Ga.  App.  737 ;  Huggins  v.  State,  60 
S.  W.  .52,  42  Tex.  Cr.  R.  364  ;  Slade 
V.  State,  29  Tex.  App.  381,  16  S.  W. 
253;  Zwicker  v.  State,  27  Tex.  App. 
539,  11  S.  W.  633. 

35  Mitchell  V.  State,  101  P.  1100,  2 
Okl.  Cr.  442. 

36Paxton  V.  State,  157  S.  W.  396, 
108  Ark.  316;  Hodge  v.  State,  43  S. 
E.  2.55,  116  Ga.  852;  Richardson  v. 
State,  68  S.  E.  518.  8  Ga.  App.  26; 
State  V.  Krug,  12  Wash.  288,  41  P. 
126;  Emery  v.  State,  78  N.  W.  145, 
101  Wis.  627. 

Instructions  Iield  not  objection- 
able  as   argumentative.      A  charge 


that  the  defendant  entered  the  trial 
with  the  presumption  of  innocence  in 
his  favor,  and  that  it  remained  with 
defendant  throughout  the  trial  and 
until  the  state  overcame  the  same  and 
established  his  guilt  beyond  a  reason- 
able doubt,  the  burden  of  proof  being 
on  the  state  to  establish  each  of  the 
material  allegations  of  the  indictment 
to  a  reasonable  certainty,  is  not  argu- 
mentative. Clay  v.  State,  60  S.  E. 
1028,  4  Ga.  App.  142. 

3T  Townsend  v.  State,  82  S.  E.  253, 
14  Ga.  App.  757;  Reddick  v.  State,  74 
S.  E.  901.  11  Ga.  App.  150 ;  Farley  v. 
State,  127  Ind.  419,  26  N.  E.  898. 

Instructions  held  objectionable 
within  rule.  An  instruction  that  ac- 
cused was  presumed  to  be  innocent, 
"and  that  presumption  remained  until 
such  time  as  the  minds  of  the  jury 
are  convinced  from  the  evidence  that 
he  is  guilty.  You  are  to  just  start 
out,  and  just  say,  without  regard  to 
the  indictment:  'Now,  we  have  got 
to  start  out  on  the  proposition  that 
this  man  is  innocent.  Now,  has  the 
state  proved  his  guilt,  and  proved  It 
beyond  a  reasonable  doubt?'" — was 
erroneous,  as  permitting  the  jury  to 
discard  the  presumption  before  they 
had  agreed  upon  a  verdict.  People 
V.  Ambach,  93  N.  E.  310,  247  111.  451. 
An  instruction  that,  if  the  jury  find 
that  accused  did  not  sell  or  assist  in 
the  sale  of  certain  liquor,  to  acquit 
was  erroneous  as  substantially  in- 
structing against  the  presumption  ol 
innocence  until  guilt  has  been  e.stab- 
lished  beyond  a  reasonable  doubt. 
Remillard  v.  State,  137  P.  370,  10  Okl. 
Cr.  4.38,  reversing  judgment  on  re- 
hearing 133_P.  1132,  10  Okl.  Cr.  438. 
Instructions   held   not  improper 


§  190  INSTRUCTIONS  TO  JURIES  376 

error  to  instruct,  as  in  violation  of  the  above  rule,  that  all  pre- 
sumptions yield  to  the  facts,  and  that  the  jury  are  not  to  presume 
anything  where  they  have  facts  on  which  to  act,^*  or  to  instruct 
that  the  presumption  of  innocence  continues  until  such  time  in 
the  progress  of  the  cause  as  the  jury  may  be  satisfied  beyond  a 
reasonable  doubt,^^  or  to  instruct  that  the  presumption  of  inno- 
cence should  cease  to  influence  the  minds  of  the  jury  the  moment 
they  are  reasonably  convinced  that  the  evidence  is  sufficient .  to 
overcome  such  presumption,***  or  to  instruct  that  the  presumption 
of  innocence  goes  with  the  defendant  through  the  case  until  it 
is  submitted  to  the  jury.*^  On  the  other  hand,  an  instruction 
that  the  presumption  of  innocence  remains  with  the  defendant 
throughout  the  trial  is  not  objectionable,  on  the  ground  that  it 
does  not  expressly  continue  such  presumption  until  the  verdict 
is  rendered,*^  and  where  instructions  as  to  reasonable  doubt  and 
the  presumption  of  innocence  are  given,  and  there  has  been  no 
effort  to  shift  the  burden  of  proof,  it  is  proper  to  refuse  a  charge 
that  such  presumption  remains  through  the  entire  case.*' 

In  one  jurisdiction  it  is  held  to  be  error  to  instruct  that  the  pre- 
sumption of  the  innocence  of  the  defendant  goes  with  him 
throughout  the  trial,**  the  theory  in  this  jurisdiction  being  that 
such  presumption  terminates  on  the  introduction  of  evidence 
which  convinces  the  jury  beyond  a  reasonable  doubt  of  the  guilt 
of  the  defendant,*^ 

within  rule.    The  court's  instructing  cused ;    that  he  comes  clothed    with 

that  the  accused  was  presumed  to  be  the  presumption  of  innocence — is  not 

innocent,    and   was   not   required    to  objectionable    as    implying    that    the 

prove  himself  innocent,  until  a  prose-  presumption   might   be  changed   dur- 

cution  had  proven  his  guilt  beyond  a  ing  the  trial,  before  the  jury  are  sat- 

reasonable  doubt,  does  not  deprive  ac-  isfied  beyond   a  reasonable  doubt  of 

cused  of  the  presumption  of  innocence  accused's  guilt.    State  v.  Cline,  132  N. 

at  some  time  in  the  trial,  where  it  W.  160,  27  S.  D.  573. 

was  further  stated  that  the  presump-  ss  Howell  v.  State,  53  So.  954,  98 

tion  abided  with  accused  throughout  Miss.  439. 

the  trial  of  the  case,  until  the  evi-  so  Bush   v.    State,    168   P.   508,    19 

dence  convinced  the  jury  to  the  con-  Ariz.  195. 

trarv' beyond    all    reasonable   doubt.  4o  Horn  v.  Territory,  56  P.  846,  8 

People  V.   Arlington,   63   P.  347,   131  Old.  52. 

Cal.  231.    An  instruction  in  a  murder  4i  People  v.  McNamara,  94  Cal.  509, 

trial  that  throughout  the  trial  accus-  29  P.  953. 

ed  was  presumed  to  be  innocent,  and  42  People  v.  James,  90  P.  561,  5  CaL 

that  the  presumption  should  prevail  App.  427. 

unless  overcome  by  evidence  of  guilt  43  Brown  v.  State,  53  S.  W.  866,  41 

beyond  a  reasonable  doubt,  was  not  Tex.  Cr.  R.  232. 

objectionable  as  implying  that  one  wit-  44  Strickland   v.   State,  44   So.   90, 

ness'  testimony  early  in  the  trial  might  151  Ala.  31 ;    Belser  v.  State,  65  So. 

overcome  the  presumption.     Kigsby  v.  312,  10  Ala.  App.  80. 

State,  91  N.  E.  925,  174  Ind.  284.    An  4d  Williams   v.    Same,    40    So.    405, 

Insti-uction  that  there  can  be  no  pre-  144  Ala.  14 ;   Bell  v.  State,  37  So.  281, 

sumption   to  begin   with  against   ac-  140  Ala.  57. 


377  INSTRUCTIONS   ON   PRESUMPTIONS  AND   INFERENCES  §  191 

§  191.     Instructions  as  to  nature  and  purpose  of  such  presump- 
In  someTrisdictions  the  accused  is  entitled  to  an  instruction 

tJ^:.  t\Zl^c:  with' the  rule  set  forth  in  the  preced.ng 
''ififnot  improper  for  the  court  to  instruct  that  the  rule  as  to 

'z"  i;;"'.'.,  Si  ;":,-;«i.*'™..i, .«. ».. — c 

innocence.^** 

.eDian^ond  v.  State,  72  So   558   15  -idencem  behalf  of  d^^^^^^^^^^ 

Ala.  App.  33  certion^ri  demed  Ex  par-  l^-^^^^f^tt'urtioiTlas  made.     State 

te   State,  73  So.  1002,  198  ^l^    bU-i ,  spe^             ^3  p  337   75  Kan.  406,  H 

Chaney  v.  State   59  So.  ^0^-  l^|,^lfg  ]'  ^^  f'k    S.)  87,  12  Ann.  Cas.  412, 

S    TpTeS  •    foS'  '"i^:  ^3  Neb.  de^-in.  rUearW  89  R  1046. 

33    36  N   W.  310;    State  v.  Marston,  47  people  v.  Moran,  77  P.  777,  144 

70'  A   1075.  82  Vt.  250.  Ckl.  48. 

'instructions     sufficient     within  45  Summerlin   V.    State   (Ga.    App.) 

rule      An  instruction  as  to  the  pre-  ^^S  S.  E.  832:    State  v.  Hiul^peth,  GO 

snmntion    of    innocence   was   not   ob-  j.,    w.   136,  159  Mo.    178;    Mc\  ey  v. 

iectionable   because   it    was    charged  ^^^^^^   77  N.  W.   1111,  57   Neb.  471 ; 

that    the    presumption    partakes      ot  Bartlev   v.    State,  73  N.   W.    <44,   5-. 

the  nature  of   evidence,"   instead  ot  -^^^   oj^O 

that    the    presumption    is    evidence.  ^^  People  v.  Searbak,  92  N.  E.  286, 

Holmes  v.  State,  118  N.  W.  99,  82  Nev.  ^^^  ^^^   ^3_.    rr,„.ner  v.  State,  1  N.  E. 

406.    An  instruction  that  the  law  pre-  -       ^^2  ind  425  ;   State  v.  Medley,  54 

sumes,  and  the  jury  must  presume,  -,^^    ^^7,  39  P.  227 ;    State  v.  Keith, 

defendant  to  be  innocent  until  he  is  ^^             3g3 

proved    guilty    beyond    a    reasonable  ^^r.  ^   e.  165, 

doubt   by    competent    evidence,    suft-  j^^g]  Ann.   Cas.    1916A,   636; 

ciently  indicates  that  the  presumption  26o   111.  44*,                             ^        ^^ 

of  innocence  is  equivalent  to  so  much  State  v.  Komeo,  xza 


§   192  INSTRUCTIONS   TO  JURIES  378 


2.     Presumptions  and  Inferences  Other  Than  Those  of  Innocence 

I^resumptions  and  burden  of  proof  as  to  defense  of  insanity,  see  post,  §§  3iiS, 
329. 

§  192.     Presumptions  and  inferences  favorable  to  defendant 

■Where  applicable,  presumptions  of  law  which  are  favorable 
to  the  accused  should  be  given  to  the  jury.^^  Thus,  in  a  prosecu- 
tion of  one  for  a  criminal  offense  against  his  wife,  the  defendant 
is  entitled  to  a  charge  that  he  is  to  be  accorded,  not  only  the  ordi- 
nary presumption  of  innocence,  but  the  added  and  equally  favor- 
able presumption  which  arises  from  the  matrimonial  relation."' 
It  has  been  held,  however,  that  the  presumption  arising  from  the 
failure  of  the  defendant  to  flee,  being  a  commonplace  matter,  need 
not  be  given  to  the  jury,^^  and,  although  the  court  may  be  author- 
ized to  comment  on  the  evidence,  the  defendant  is  not  entitled  to 
have  the  court  call  the  attention  of  the  jury  particularly  to  cer- 
tain portions  of  the  testimony  and  suggest  to  them  certain  infer- 
ences of  fact  to  be  drawn  therefrom.^* 

§  193.     Unfavorable  presumptions 

Presumptions  of  law  that  are  against  the  accused  should  not 
ordinarily  be  given  in  the  charge,^^  and  it  is  error  to  refuse  to 
instruct  that  no  inference  can  arise  against  the  accused  from  the 
silence  of  a  witness,^  or  from  the  fact  that  the  defendant  refused 
to  allow  his  house  to  be  searched  without  a  warrant.^'  Since,  how- 
ever, as  to  collateral  facts  aft'ecting  the  main  question  of  guilt, 
the  presumption  of  law  is  often  against  the  accused,^*  it  is  proper 
to  refuse  to  instruct  that  nothing  is  to  be  presumed  or  taken  by 
implication  against  him.^^ 

51  Snowberger  v.   State,  126  S.  W.  wholly  on  circumstantial  evidence,  it 

878,  58  Tex.  Cr.  R.  ,530 :  Coker  v.  is  error  to  refuse  an  instruction  that 
State,  128  S.  W.  137,  59  Tex.  Cr.  R.  the  mere  fact  that  deceased  died  sud- 
241.  denly  is  not  proof  that  her  death  was* 

5  2  State  V.  Moxley,  102  Mo.  374,  14  the  result  of  a  criminal  act;    but  the 

S.  W.  960,  15  S.  W.  556.  state  must  prove  such  to  be  the  fact. 

53  Cobb   V.    State,    22    So.    506.    115  and   without   such   proof   it  must  be 

Ala.   18 ;    People  v.   Ilerrera,    163   P.  presumed  that  she  died  from  natui'al 

879,  32  Cal.  App.  610;  Thomas  v.  causes.  State  v.  Moxley,  102  Mo.  374, 
State,  36  So.  161,  47  Fla.  99.  14  S.  W.  969 ;    Id.,  102  Mo.  374,  15  S. 

5  4  State  V.  Quigley,  58  A.  905.  26  R.  W.  556. 

I.  263,  67  L.  R.  A.  322,  3  Ann.  Cas.  se  People  v.  H'all.  12  N.  W.  665,  48 

920.  Mich.  482.  42  Am.  Rep.  477. 

55  Snowberger  v.  State,  126  S.  W.  57  Murdock  v.  State.  08  Ala.  567. 

878.  .58  Tex.  Cr.  R.  530.  5.s  Thalheim  v.  State,  20  So.  938,  38 

Presumption   arising   from    sud-  Fla.  109. 

den  death.     In  the  prosecution  of  a  so  Gass.v.  State,  32  So.  109,  44  Fla. 

husband   for  killing  his  wife,  based  70. 


379  INSTRUCTIONS   ON   PRESUMPTIONS  AND   INFERENCES  §  195 

An  instruction  that  the  fact  of  the  indictment,^"  or  of  the  pres- 
ence of  the  accused  in  the  courtroom,''^  furnishes  no  evidence  of 
his  guilt,  while  proper,  is  not  necessary,  at  least  in  the  absence  of 
a  request  therefor.^^ 

§  194.     Presumption  that  one  intends  the  natural  and  proximate 
consequences  of  his  acts 

It  is  proper  to  instruct  in  some  jurisdictions  in  a  criminal  case 
that  one  is  presumed  to  have  intended  the  natural,  probable,  and 
usual  consequences  of  his  acts,^^  if  the  instruction  is  so  framed  as 
to  indicate  that  such  presumption  is  not  conclusive,®*  and  in  one 
jurisdiction  it  is  proper  to  instruct,  under  a  statute,  that  a  mali- 
cious and  guilty  intent  is  conclusively  presumed  from  the  delib- 
erate commission  of  an  unlawful  act  for  the  purpose  of  injuring 
another.®^  In  other  jurisdictions,  however,  an  instruction  that 
every  sane  man  is  presumed  to  intend  the  natural  and  probable 
consequences  of  his  acts  is  considered  erroneous.^® 

§  195.     Inferences  from  possession  of  stolen  goods 
Invading  province  of  jury,  see  ante,  §  61. 

In  a  proper  case  the  court  may,®''^  and  should,***  charge  on  the 
effect  of  the  possession  of  property  recently  stolen  as  evidence 
of  the  crime  of  larceny  or  burglary.  The  court  may  be  required 
to  instruct  in  relation  to  the  explanation  given  by  defendant  of 
his  possession  of  stolen  property,  if  such  explanation  is  a  reason- 
able one,*"*  and  one  found  in  possession  of  stolen  goods  and  ac- 

eoAszman   v.    State,   123   Ind.  347,  Cal.  66;    People  v.  Botkin,  98  P.  861, 

24  N.  E.  123,  S  L.  R.  A.  83 ;    State  v.  9  Cal.  App.  244. 

Baker,    136   Mo.    74,    37    S.    W.    810;  go  Coulter  v.  State,  161  S.  W.  186, 110 

Same  v.  Donnelly,  130  Mo.  642,  32  S.  Ark.  209 ;    Rogers  v.  Commonwealth, 

W.  1124;    Same  v.  Pratt,  121  Mo.  566,  96   Ky.   24,  27    S.   W.   813  ;     State  v. 

26  S.  W.  556;     Same  v.  Brown.  115  Schaefer,    88    P.    792,    35   Mont.   217; 

Mo.  409,  22  S.  W.  367  ;   Crane  v.  State,  Thomas  v.  State,  125  S.  W.  35,  57  Tex. 

123  S.  W.  422,  57  Tex.  Cr.  R.  476.       "  Cr.  R.  452. 

Contra— State  v.  Ilollingsworth,  56  6  7  state  v.  Ryan,  85  N.  W.  812,  113 

S.  W.  1087,  156  Mo.  178.  Iowa,   536;     Williams  v.   State  (Tex. 

61  State  V.  Shaw,  94  A.  434,  89  Vt.  Cr.  App.)  33  S.  W.  371. 

121,  L.  R.  A.  1915F,  1087.  es  State   v.    Randolph,    166   P.    555, 

62  Brooks  V.  State,  90  S.  E.  989,  19  85  Or.  172;  Coleman  v.  State,  199  S. 
Oa.  App.  3.  W.  473,  82  Tex.  Cr.  R.  332;   Robertson 

63  People  V.  Webster,  109  P.  637,  13  v.  State,  26  S.  W.  508,  33  Tex.  Cr.  R. 
Cal.  App.  348;  Krchnavy  v.  State,  43  366;  Coward  v.  State,  24  Tex.  App. 
Keb.  337,   61  N.   W.  628;     People  v.  590,  7  S.  W.  332. 

Meadows,  92  N.  E.  128,  199  N.  Y.  1,  go  Wilson  v.  State,  129  S.  W.  836, 

attirming  judgment  121  N.  Y,   S.  17,  59  Tex.  Cr,  R.  623;    Gather  v.  State 

136  App.  Div.  226.  (Tex.  Cr.  App.)  81  S.  W.  717 ;    Carter 

6  4  State  V.  Taylor,  50  S,  E.  247,  57  v.  State  (Tex.)  12  S.  W,  740. 

W.  Va.  22S ;    Weisenbach  v.  State,  119  See  Brooks  v.  State,  47  S.  W.  640, 

N.  W.  843,  138  Wis.  152.  39  Tex.  Cr.  R.  622 ;    Wright  v.  State, 

6  5  People  V.  McGlade,  72  P.  600,  139  35   Tex.   Cr.    R.   470,   34   S.   W.   273; 


§   195  INSTRUCTIONS  TO  JURIES  380 

cnsed  of  their  larceny  or  of  the  bnrg-lary  of  the  premises  from 
which  the  goods  were  stolen  is  entitled  to  have  his  theory  of 
how  he  came  into  the  possession  of  the  goods  submitted  to  the 
jury,  however  improbable  his  evidence  in  support  of  such  theory 
may  seem  to  the  trial  court.'** 

Instructions  with  respect  to  the  effect  of  the  possession  of 
stolen  property  as  evidence  of  guilt,'^  or  as  to  the  effect  of  an 
explanation  of  such  possession,  must  be  predicated  upon  the  evi- 
dence.*^ Such  a  charge  is  not  necessar}-,  where  defendant  denies 
that  he  had  possession  of  the  stolen  goods,'^  nor  where  the  de- 
fendant does  not  attempt  to  account  for  his  possession  of  the 
stolen  property,''*  and  it  has  been  held  that  a  charge  on  recent 
possession  of  stolen  goods,''^  or  a  charge  on  the  explanation  by 
defendant  of  his  possession,'®  is  only  required  when  such  ex- 
planation is  offered  at  the  time  his  title  or  possession  is  first 
called  in  question.  A  charge  as  to  effect  of  possession  is  not 
erroneous  for  failure  to  qualify  possession  by  "unexplained,"  when 
defendant  makes  no  attempt  to  explain  his  possession."  In  some 
jurisdictions  the  court  need  not  grant  a  special  request  to  in- 
struct on  the  effect  of  the  possession  of  property  recently  stolen^ 
if  it  has  given  a  full  charge  on  circumstantial  evidence.'* 

The  presumption  of  guilt  arising  from  the  possession  of  re- 
cently stolen  property  being  one  of  fact  the  court  should  care- 
fully instruct  the  jury  as  to  its  nature  and  proper  scope,  and  how 
they  may  consider  it  as  evidence  in  view  of  the  facts  of  the  case.'* 
The  proper  instruction  in  most  jurisdictions  is  that  the  posses- 
sion of  recently  stolen  property,  if  unexplained,  is  a  circumstance 

Conners  v.  State,  31  Tex.  Cr.  R.  458,  125  Mich.  .535;    Richardson  v.  State 

20  S.  W.  981;  Navarrow  v.  State  (Tex.  (Tex.  Cr.  App.)  42  S.  W.  996. 

App.)  17  S.  W.  545;    Miller  v.  State,  ^4  McGee  v.  State,  155  S.  W.  246,  69 

18  Tex   App    34  Tex.  Cr.  R.  580;    Dixon  v.  State,  136 

7  0  p.ond  V.  State,  23  Tex.  App.  180,  «.  W.  462,  62  Tex.  Cr.  R.  53 ;   Holland 

4  S.  W.  580;    Heath  v.  State,  7  Tex.  v.   State,  134  S.  W.  693    61  Tex.  Cr. 

\nn   464  ^-   -^^ '     Ellison   V.    State    (Tex.   Cr. 

*    --people   V.    Abl^ott,    34   P.    500,   4  t^V'^c;  r'  5S9 '.f  S^w%79^'^''' 

Cal.  Unrep.  276;    Brantley  y.  State,  ^\Tr^.\i^'^\^- f.V^J^Tw  aq«  ac 

41   S.  E.  695,  115  Ga.  229;    State  v.  ^ex    ^    R    312 

Williams,  94  N.  W.  255,  120  Iowa,  36;  vg  .Tones  v   State   132  S   W  476   60 

State  V.  James,  92  S.  W.  679,  194  Mo.  t^^-  q^  r  426;  Smotherman  v.  State, 

268.    5    Ann     Cas.    1007  ;     Wilson    v.  gS  S.  W.  838,  47  Tex.  Cr.  R.  309. 

State  (Tex.  Cr.  App.)  34  S.  W.  284.  77  state  v.  Gufifey,  163  N.  W.  679, 

7  2  State  V.  McClain,  106  N.  W.  376,  39  s.  D.  84. 

130  Iowa,  73;    Kinkead  v.  State,  135  TsBonners  v.  State  (Tex.  Cr.  App.) 

S.  W.  573,  61  Tex.  Cr.  R.  651;  Disereu  35  S.  W.  650 

V.  State,  127  S.  W.  1038,  59  Tex.  Cr.  to  state    v.    Harrington,    96    S.    E. 

R.   149;     Jackson    v.    State,    28   Tex.  892,  176  N.  C.  716;    Bovd  v.  State.  24 

App.  143,  12  S.  W.  701.  Tex.  App.  570,  6  S.  W.  853,  5  Am.  St. 

73  People  V.  Carey,  84  N.  W.  1087,  Rep   908 


381  INSTRUCTIONS   ON  PRESUMPTIONS  AND   INFERENCES  §  195 

to  be  considered  by  the  jury  the  same  as  any  other  fact,  and  given 
such  weight  as  they  may  deem  it  entitled  to  in  connection  with 
all  the  other  evidence.^**  An  instruction  that  the  unexplained  pos- 
session of  recently  stolen  property  is  a  circumstance  to  be  con- 
sidered by  the  jury  in  arriving  at  their  verdict,  as  tending  to  show 
the  larceny  of  the  property  by  defendant,  is  erroneous  in  some 
jurisdictions.*^  On  the  other  hand,  an  instruction  so  framed  as 
to  be  likely  to  mislead  the  jury  into  the  belief  that  they  cannot 
draw  the  presumption  of  guilt  as  a  matter  of  fact  from  the  unex- 
plained possession  of  recently  stolen  goods  is  properly  refused.*" 
In  some  jurisdictions  it  is  proper  to  instruct  that  such  posses- 
sion is  a  circumstance  tending  to  show  guilt,  but  not  of  itself 
sufficient  to  warrant  conviction,*^  and  in  other  jurisdictions  an  in- 
struction that  the  unexplained  possession  of  recently  stolen  goods 
raises  a  presumption  of  fact  that  the  possessor  is  guilty  of  tlie 
theft  is  not  erroneous.**  Such  an  instruction  would  seem  to  in- 
vade the  province  of  the  jury,  but,  as  explained  elsewhere,*^ 
while  the  presumption  in  question  is  denominated  one  of  fact,  it 
is,  in  jurisdictions  which  permit  such  an  instruction,  regarded 
as  of  such  an  inevitable  nature  that  the  law  attaches  to  it  definite 
evidential  consequences.  In  one  jurisdiction,  where  this  view  is 
entertained,*^  it  is  held  that  either  of  the  terms,  "presumption  of 
law"  or  "presumption  of  fact"  may  be  used  to  express  the  same 
thought,  for  they  are  identical  in  meaning. 

Where  the  chief  inculpatory  fact  relied  on  by  the  state  in  a 
prosecution  for  larceny  is  the  possession  by.  defendant  of  the 
stolen  property  soon  after  the  theft,  the  court  should  charge,  on 
request,  that  such  possession  is  not  of  itself  sufficient  to  warrant 
a  conviction ;  *'  but  it  is  proper  to  refuse  an  instruction  that  mere 
possession  of  stolen  property  by  accused  is  not  prima  facie  evi- 
dence of  his  guilt,  if  there  is  proof  of  other  facts  tending  to  show 
his  guilt.** 

80  state   V.    White,   92   P.    829,    76  84  Holliday  v.  State,  98  S.  E.  386, 

Kan.   654,   14  L.   R.   A.    (N.  S.)   556;  23  Ga.  App.  400;    Lattv  v.  State,  91 

Territory  v.   Caldwell,  98  P.  167.   14  S.  E.  942,  19  Ga.  App.  621;    Temples 

N.   W.  535;    State  v.  Vierclv,  120  N.  v.   State,   89   S.  E.  600,   18  Ga.  App. 

W.   1098,   23   S.  D.   166,   139  Am.  St.  510 ;    Murray  v.  State  (Miss.)  36  So. ' 

Rep.  1040;    State  v.  Peach,  40  A.  732,  541 :    State  v.  Good,  132  Mo.  114,  33  S. 

70  Vt.  283.  W.    790;     State   v.    Robbins,    65   Mo. 

siJohuson   V.    State,  96  S.   W.   45,  443. 

50  Tex.  Cr.  R.  116;   Robinson  v.  State,  ^^^  Ante,  §  63. 

106  P.  24,  18  Wyo.  216.  so  state  v.  Kelly,  11  N.  W.  635,  57 

52  Bellamy  v.  State,  17  So.  560,  35  Iowa,  644. 

Fla.  242.  8-  Dreyer  v.  State,  11  Tex.  App.  503. 

53  People  V.  Gibson,  116  P.  987,  16  ss  Hicks  v.  State,  09  Ala.  160,  13 
Cal.  App.  347.                                                So.  375 ;    Knickerbocker  v.  People,  43 


§   195  INSTRUCTIONS  TO  JURIES  382 

In  a  proper  case  the  court  may  be  required  to  charge  that  the 
possession  of  recently  stolen  property  is  only  a  circumstance 
against  the  defendant,  and  that,  if  the  defendant  gives  a  rea- 
sonable explanation  of  such  possession^  consistent  with  his  in- 
nocence, it  will  then  devolve  upon  the  state  to  prove  the  falsity 
of  such  explanation,  in  default  of  which  proof  the  jury  will  not 
consider  such  possession  as  ,a  criminating  circumstance,^^  and 
where  the  evidence  furnishes  such  a  reasonable  explanation,  the 
court  should  instruct  that,  if  the  evidence  offered  in  explanation 
raises  a  reasonable  doubt  of  the  guilt  of  defendant,  the  jury 
should  acquit  him.^®  So,  if  possession  of  recently  stolen  property 
is  the  only  inculpatory  fact  relied  on  by  the  state,  it  will  be 
proper  to  instruct  that,  if  the  defendant  has  given  a  reasonable 
and  probable  explanation,  consistent  with  innocence,  of  such  pos- 
session, the  defendant  should  be  acquitted,  unless  the  state  shows 
the  explanation  to  be  false.^^  A  charge  in  effect  that,  if  the  de- 
fendant is  shown  to  have  been  in  possession  of  the  stolen  prop- 
erty soon  after  the  theft,  the  jury  must  find  a  verdict  of  guilty, 
unless  the  defendant  proves  the  innocent  possession  of  the  goods, 
takes  away  from  the  jury  the  question  whether  the  evidence  of 
the  defendant  in  explanation  of  his  possession,  may  not  have 
raised  in  the  minds  of  the  jury  a  reasonable  doubt  as  to  his  guilt, 
and  is  therefore  erroneous.'^' 

An  instruction  on  the  presumption  arising  from  the  possession 
of  stolen  property  must  be  predicated  on  the  assumption  that  the 
possession  was  recent.^^  If  it  is  not  clear  that  the  possession  by 
defendant  of  stolen  goods  was  recent  after  the  theft,  the  court 
should  explicitly  instruct  that,  unless  the  jury  find  that  such  pos- 
session was  recent,  they  cannot  indulge  in  any  presumption  there- 
from of  the  guilt  of  defendant.^*  In  submitting  to  the  jury  the 
effect  of  the  unexplained  possession  by  defendant  of  recently 
stolen  property,  the  court  should  require  the  consideration  of  all 
the  circumstances  for  and  against  him,  such  as  the  fact  that  the 
possession  by  defendant  was  open,  and  that  his  reputation  was 
good."' 

,N.  Y.  177;    Insralls  v.  State,  48  Wis.  92  state  v.  Lax,  59  A.  18,  71  K  J. 

647,  4  X.  W.  785.  Law,  386.     . 

80  Colcburn  v.  State,  133  S.  W.  882,  93  Mance  v.  State,  62  S.  E.  1053,  5 

61  Tex.  Cr.  R.  26.    See  Hayes  v.  State,  Ga.  App.  229. 

35  S.  W.  983,  36  Tex.  Cr.  R.  146.  9*  Boyd  v.  State,  24  Tex.  App.  570, 

90  State  V.  Anderson,  77  S.  E.  238,  6  S.  W.  853,  5  Am.  St.  Rep.  90S;  Cur- 
162  N.  C.  571 :  Knight  v.  State  (Tex.  lin  v.  State,  23  Tex.  App.  681,  5  S. 
Cr.  App.)  65  S.  W.  88.  W.  186. 

91  ITart  V.  State,  3  S.  W.  741,  22  95  state  v.  Sasseen,  75  Mo.  App. 
Tex.  App.  50.'5.  See  Johnson  v.  Com-  197;  Brown  v.  State,  151  N.  W.  924. 
monwealth   (Ky.)  15  S.  W.  671.  97  Xeb.  862 ;    State  v.  Fitzgerald,  47 


383 


INSTRUCTIONS   ON   PRESUMPTIONS   AND    INFERENCES 


196 


§  196.     Inferences   from    flight   of   accused 
Invading  province  of  jury,  see  ante,  §  G2. 

It  is  proper  to  charge  that  the  flight  of  a  person  accused  of  a 
crime  for  which  he  is  being  prosecuted  is  a  circumstance  to  be 
considered  by  the  jury  in  connection  with  the  other  evidence  in 
the  case  in  determining  whether  he  is  guilty,  and  given  such 
weight  as  the  jury  may  think  it  entitled  to,^^  and  in  some  juris- 
dictions it  is  not  improper  to  charge  that  flight  is  a  circumstance 


A.  403,  72  Vt.  142.  See  People  v. 
Farrington,  74  P.  288,  140  Cal.  656. 

9  6  Ariz.  Nevarez  v.  State  (Ariz.) 
196  P.  449. 

Cal.  People  v.  Easton,  82  P.  840, 
148  Cal.  50;  People  v.  Giancoli,  74 
Cal.  642,  16  P.  510. 

Iowa.  State  v.  O'Meara,  177  N.  W. 
563. 

Kan.  State  v.  Thomas^  51  P.  228, 
58  Kan.  805. 

La.  State  V.  Anderson,  46  So. 
357,  121  La.  366. 

Instructions  Iield  proper  T^itliin 
rule.  An  instruction,  in  a  prosecu- 
tion for  burglary,  that,  if  defendant 
fled,  that  would  be  a  circumstance 
of  guilt  that  the  jury  might  consider 
with  other  facts  on  the  issue  of  guilt, 
unless  his  flight  had  been  explained 
satisfactorily  to  the  jury  and  they 
should  find  that  he  fled  for  soiti  ^  other 
reason  than  the  consciousness  of 
guilt.  Hall  V.  State,  66  S.  E.  390,  7 
Ga.  App.  115.  An  instruction,  on  the 
trial  of  an  indictment  against  a  man 
who  had  not  been  seen  after  the  time 
at  which  the  offense  charged  was  com- 
mitted until  he  was  brought  from  an- 
other state  under  a  requisition  from 
the  Governor,  the  judge  instructed  the 
jury  that,  if  the  defendant  fled  be- 
cause he  was  charged  with  the  crime, 
it  was  a  suspicious  circumstance, 
which  he  was  called  upon  to  explain, 
but  that  they  must  find  that  it  was 
a  flight;  that  the  burden  of  proof 
was  not  shifted,  but  remained 
throughout  upon  the  commonwealth ; 
and  that,  even  if  the  defendant  could 
not  explain  his  flight,  they  need  not 
necessarily  find  him  guilty.  Common- 
wealth v.  Annis,  15  Gray  (Mass.)  197. 
An  instruction:  "Flight  is  considered 
as  evidence  of  guilt.  It  is  your  priv- 
ilege to  look  on  this  testimony  in  that 


light.  *  *  *  You  may  also  look 
on  it  as  evidence  of  fear  *  *  * 
of  summary  punishment  at  the  hands 
of  his  pursuers.  Weigh  it  carefully 
and  give  it  the  effect  it  reasonably 
should  have."  Commonwealth  v.  Ber- 
chine,  32  A.  109,  168  Pa.  603.  When 
the  fact  that  accused  fled  immediately 
after  the  homicide  is  proved,  it  is  not 
error  for  the  presiding  judge  to 
charge  that  such  flight  is  a  circum- 
stance tending  to  show  guilt ;  that  it 
is  only  a  slight  circumstance,  which 
may  be  explained,  and,  if  explained 
to  the  satisfaction  of  the  jury, 
should  not  be  considered  as  a  circum- 
stance against  him.  Hudson  v.  State, 
28  S.  E.  1010,  101  Ga.  520.  Where,  in 
a  prosecution  for  homicide,  the  court 
charged  that  flight  immediately  after 
the  commission  of  a  crime,  if  the  jury 
found,  from  the  evidence,  that  defend- 
ant fled,  or  after  a  crime  has  been 
committed  with  which  he  is  chai'ged. 
is  a  circumstance  in  establishing  his 
guilt,  not  sufficient  in  itself  to  estab- 
lish guilt,  but  which  the  jury  may 
consider  in  determining  the  possibili- 
ties for  or  against  him,  the  weight  to 
be  attached  to  which  is  a  matter  for 
the  jury,  it  was  held  that  the  instruc- 
tion was  not  erroneous  on  the  ground 
that  it  failed  to  instruct  as  to  the 
weight  to  be  given  to  the  fact  of 
flight.  State  v.  Stentz,  74  P.  588,  33 
Wash.  444.  A  charge  on  a  trial  for 
murder  that  flight  was  a  circumstance 
that  the  jury  must  consider  like  any 
other  fact,  that  because  a  man  flod 
from  the  scene  of  homicide  was  not 
conclusive  that  he  was  guilty,  but 
that  when  fliglit  was  proven  the  jury 
must  take  that  circumstance  and  con- 
sider It  as  any  other  evid-^nce  and  de- 
termine wliy  he  fled,  and  that  wlien 
they  had  so  determined  thev  should 


196 


INSTRUCTIONS  TO  JURIES 


384 


which  is  prima  facie  an  indication  of  guilt,*'  or  which,  unex- 
plained, raises  an  inference  of  guilt  akin  to  the  presumption 
deemed  to  arise  upon  the  fabrication  of  false  evidence^**  where 
it  is  further  stated  that  such  presumption  is  not  conclusive.*'-'  In 
other  jurisdictions  it  is  error  to  charge  that  the  flight  of  an  ac- 
cused raises  a  presumption  against  him.^  Instructions  tending 
to  prevent  the  jury  from  considering  flight  as  any  evidence  of 
guilt  are  ordinarily  properly  refused.^ 

Where  an  instruction  on  flight  as  tending  to  show  a  conscious- 
ness of  guilt  is  given,  it  should  contain  the  qualification  that  the 
accused  knows  he  is  charged  wnth  a  crime,^  and  when  the  facts 
tend  to  show  that  the  purpose  of  the  defendant  in  going  away 
was  not  to  avoid  arrest,  the  instructions  on  flight  should  be  so 
framed  as  to  include  all  the  circumstances,  that  the  defendant 
may  have  the  benefit  of  such  explanatory  facts,*  although,  in  the 
absence   of  anything  to    explain   the   apparent   flight  of   the    de- 


give  to  that  circumstance  the  weight 
they  thought  it  ought  to  have  in  de- 
termining the  case,  and  that  the  mere 
circumstance  that  a  man  fled  was  not 
of  itself  sufficient  to  convict,  but  that 
the  jury  should  give  it  such  weight 
as  they  thought  it  ought  to  have  in 
relation  to  the  other  circumstances, 
was  not  subject  to  the  objection  that 
it  was  not  sufficiently  comprehensive 
in  that  the  jury  might  find  that  de- 
fendant's flight  was  not  for  the  pur- 
iwse  of  eluding  arrest,  but  to  save  his 
own  life,  in  which  event  it  could  not 
be  considered  as  indicative  of  guilt. 
Thomas  v.  State,  59  S.  E.  246,  129  Ga. 
419. 

8  7  state  v.  Matheson,  103  N.  W. 
137,  130  Iowa,  440,  114  Am,  St.  Rep. 
427,  8  Ann.  Cas.  430;  State  v.  Rich- 
ards, 102  N.  W.  439,  126  Iowa,  497; 
State  v.  McLaughlin,  50  S.  W.  315, 
149  Mo.  19;  Stale  v.  Hunt,  43  S.  W. 
389,  141  Mo.  626;  State  v.  Ma  Foo, 
110  Mo.  7,  19  S.  W.  222,  33  Am.  St. 
Rep.  414. 

Instructions  proper  vnthm  rule. 
On  a  trial  for  felonious  assault, 
where  the  evidence  shows  that  de- 
fendant left  the  state  immediately 
after  the  assault,  as  he  had  previous- 
ly intended  to  do,  it  is  not  error  to 
charge  that  flight  raises  the  presump- 
tion of  guilt,  where  the  jury  are  fur- 
ther instructed  that  defendant  has  a 
right  to  show  other  good  reasons  for 


leaving,  and  that  they  shall  consider 
the  evidence  that  he  had  already 
made  arrangements  to  leave  on  that 
day.  State  v.  Potter,  108  Mo.  424,  22 
S.  W.  89.  An  insti-uction  that  flight 
raises  the  presumption  of  guilt,  and 
that,  if  defendant  fled  the  country,  the 
jury  miglit  consider  it  in  determining 
his  guilt  or  innocence,  but  that  they 
should  not  consider  such  leaving  as 
a  flight  if  defendant  left  on  his  own 
proper  ,and  legitimate  business,  and 
not  for  the  purpose  of  avoiding  ari-est 
or  trial,  is  unobjectionable,  where  de- 
fendant, after  the  commission  of  the 
crime,  left  for  another  state.  State  v, 
Jackson,  95  Mo.  623,  8  S.  W.  749. 

9  8  State  V.  Harrington,  94  A.  623, 
87  N.  J.  Law.  713. 

9  9  State  V.  Wallver,  98  Mo.  95,  9  S. 
W.  646;  State  v.  Brooks,  92  Mo.  542, 
5  S.  W.  257,  330. 

1  Sheffield  v.  State,  43  Tex.  378. 

2  Mitchell  V.  State,  .30  So.  348,  129 
Ala.  23 ;  Bodine  v.  State,  29  So.  926. 
129  Ala.  106;  People  v.  Giancoli,  74 
Gal.  642,  16  P.  510;  Smith  v.  State, 
63  Ga.  168. 

3  People  v.  Jones,  117  P.  176,  160 
Cal.  358. 

4  State  V.  Schniulbach.  147  S.  W. 
966,  243  Mo.  533  ;  State  v.  Harris,  134 
S.  W.  5.35,  232  Mo.  317;  State  v.  Fair- 
lamb,  121  Mo.  137,  25  S.  W.  895; 
State  v.  Hogg,  129  P.  115,  64  Or.  57. 


385 


INSTRUCTIONS   ON   PRESUMrTIONS   AND   INFERENCES 


§  196 


fendant,  the  court  is  not  required  to  charge  that  the  circumstanc- 
es explaining-  flight  may  be  considered.^ 

Instructions  on  flight  as  a  circumstance  tending  to  show  guilt 
must  be  based  on  the  evidence.^  Evidence  that  defendant  left 
the  jurisdiction  shortly  after  the  crime  of  which  he  is  accused  was 
committed,'''  or  that  he  escaped  from  jail,  where  he  was  awaiting 
trial   for  the   offense   charged   against    him,*   may   authorize    such 


5  State  V.  Deatherage,  77  P.  504,  35 
Wash.  326.  See  State  v.  Walker,  98 
Mo.     95,  9  S.  W.  646. 

6  Cal.  People  v.  Choy  Ah  Sing,  84 
Cal.  276,  24  P.  379. 

Colo.  Orin  v.  People,  188  P.  1114, 
68  Colo.   1. 

Ga.  Jones  v.  State,  51  S.  E.  312, 
123  Ga.  129. 

Mo.  State  v.  Goodwin  (Sup.)  217 
S.  W.  264 :  State  v.  Kyles,  153  S.  W. 
1047,  247  Mo.  640;  State  v.  Hopper. 
44  S.  W.  272,  142  Mo.  478;  State  v. 
Evans,  39  S.  W.  462,  138  Mo.  116,  60 
Am.  St.  Rep.  549. 

Illustrations  of  cases  in  xcrliicli 
evidence  held  sufficient  to  'warrant 
instruction  on  fliglit.  Where,  on  a 
trial  for  rape,  there  was  evidence 
that  accused  left  the  scene  of  the 
crime  and  remained  away  a  day  and 
a  half,  and  a  witness  testified  that 
accused  had  stated  that  he  left  soon 
after  prosecutrix  went  to  a  neighbor, 
and  that  he  left  because  he  was  afraid 
that  there  might  be  trouble,  there  was 
evidence  of  flight  sufficient  to  warrant 
an  instruction  that  evidence  of  flight 
might  be  considered  as  corroborating 
the  prosecutrix  as  to  the  identity  of 
her  assailant.  State  v.  Ralston,  116 
N.  W.  1058,  139  Iowa,  44.  Where 
there  was  evidence  tending  to  connect 
defendant  with  a  theft,  and  he  left 
the  state  three  days  after,  and  did 
not  return  until  brought  back  under 
arrest,  an  instruction  on  flight  was 
justified.  State  v.  Alley,  128  N.  W. 
.343,  149  Iowa,  196.  In  homicide,  evi- 
dence of  police  officers  who  had 
known  defendant  for  years  that  they 
could  not  find  him  around  his  usual 
haunts  after  the  crime,  and  after 
tracing  him  for  some  time  they  found 
him  in  a  hospital  under  an  assumed 
name,  is  sufficient,  in  the  absence  of 
explanatory  facts,  to  authorize  the 
Inst. TO  Juries— 25 


submission  of  the  question  of  flight  to 
the  jury.  State  v.  White,  87  S.  W. 
1188,  189  Mo.  339.  In  a  prosecution 
for  homicide,  wliere  it  appeared  that 
defendant  while  driving  his  team  up- 
on a  highway  had  run  down  a  bicyc- 
list and  killed  him,  and  that  there- 
after, instead  of  keeping  the  main 
road,  he  turned  off  into  an  obscure 
road  and  sought  to  avoid  meeting  or 
being  recognized  by  other  persons, 
and  changed  his  course,  and  that  his 
companions  separated  from  him  and 
left  him,  no  one  going  back  to  render 
assistance  to  the  injured  person,  an 
instruction  on  the  weight  to  be  giv- 
en to  the  evidence  of  flight  was  justi- 
fied by  the  evidence.  State  v.  Stentz. 
74  P.  588,  33  Wash.  444.  Defendant's 
statement  to  the  ofl^cer  who  arrested 
him  that  he  was  trying  to  get  away, 
in  connection  with  an  admission  that 
he  had  assaulted  prosecutrix,  justi- 
fied the  giving  of  an  instruction  as 
to  flight,  and  its  bearing  on  the  case. 
State  v.  Harrison,  149  N.  W.  432,  167 
Iowa,  334.  Where,  in  a  prosecution 
for  larceny,  the  evidence  showed  that 
immediately  after  the  commission  of 
the  crime  defendant,  instead  of  re- 
tui-ning  liome  as  he  said  he  would. 
M-ent  out  of  the  state,  where  he  re- 
mained for  several  months ;  that 
when  he  returned  to  the  state  he  did 
not  return  to  his  home  town,  but  to  a 
neighboring  town,  where  he  was  ar- 
rested, and  when  arrested  he  stated 
to  the  arresting  officer  that  he  "ought 
to  have  knov\Ti  better  than  to  have 
come  back,"  it  was  hold  that  the 
evidence  warranted  an  instruction  on 
flight.  State  v.  Soper,  106  S.  W.  3, 
207  Mo.  502. 

7  State  V.  O'Meara  (Iowa)  177  N.  W. 
563;  State  v.  Robinson,  152  N.  W. 
590,  170  Iowa,  267. 

8  Patterson  v.  State,  100  S.  E.  641, 
24  Ga.  App.  239. 


§   197  INSTRUCTIONS   TO  JURIES  386 

an  instruction.  In  some  jurisdictions  it  is  held  that  a  charge  on 
the  presumptions  arising  from  flight  is  erroneous,  if  it  is  neces- 
sary to  submit  to  the  jury  the  question  of  whether  or  not  the  evi- 
dence in  fact  showed  the  flight  of  defendant." 

C.  Faii^ure  to  Produce;,  and  Suppression  or  Fabrication  of, 

Evidence 
§  197.     Rule  in  civil  cases 

Under  some  statutory  provisions  relating  to  the  failure  of  a 
party  to  produce  evidence,  or  to  furnish  the  best  evidence  bear- 
ing on  issues  of  fact,  it  is  proper  for  the  court  tp  instruct  as  to 
the  presumption  arising  where  one,  who  has  evidence  in  his 
power  to  repel  or  explain  a  charge,  fails  to  present  it,^^  and  to 
comment  upon  the  failure  of  a  party  to  call  witnesses  having 
knowledge  concerning  the  matters  in  dispute,^^  and  under  such 
a  provision  it  is  held  in  one  jurisdiction  that  the  court  should  in- 
struct the  jury  that,  if  weaker  and  less  satisfactory  evidence  is 
offered  when  it  appears  that  stronger  and  more  satisfactory  evidence 
was  within  the  power  of  the  party,  the  evidence  offered  should  be 
viewed  with  distrust.^^ 

In  jurisdictions  where  no  constitutional  or  statutory  restric- 
tions against  commenting  on  the  evidence  exist,  and  in  some 
other  jurisdictions,  the  court  may  in  civil  cases  comment  on  the 
failure  of  a  party  to  produce  available  evidence,  or  to  call  w'it- 
nesses  as  to  a  material  fact  peculiarly  within  their  knowledge,^* 
and  may  tell  the  jury  that  they  may  consider  such  failure,^*  and 
that  they  may  draw  such  inferences  therefrom  as  are  reason- 
able,^^ or  that  they  may  infer  that  the  evidence  not  produced 
would  not  help  the  case  of  the  party  failing  to  produce  it,^^  or 
that  the  jury  will  be  warranted  in  accepting  as  true  testimony 
adverse  to  a  .party  who  fails  to  controvert  it  by  summoning  wit- 
nesses having  knowledge  of  the  facts,^'  or  that  the  jury  may  take 

0  Fountain  v.  State,  101  S.  E.  294.  20.",.  16  A.  765.  2.3  Wkly.  Notes,  Cas. 

149   Ga.   519.   reversing  judgment  9S  264 :    Frick  v.  Barbour,  64  Pa.  120. 
S.  E.   178.   23  Ga.  App.   113.   opinion  i*  Griggs  v.  Saginaw  &  F.  Ry.  Co., 

of   Supreme   Court  conformed   to    by  162  N.  W.  960.  196  Mich.  258 ;    Good- 

101  S.  E.  712,  24  Ga.  App.  558.  stein  v.  Brooklyn  Heights  R.  Co.,  74 

10  Moye  v.  Reddick,  93  S.  E.  256,  20  X.  Y.  S.  1017,  69  App.  Div.  617;  Hart- 
Ga.  App.  649.  man   v.   Pittsburg   Incline-Plane   Co., 

11  Sesler  v.   Montgomery    (Cal.)    19  11  Pa.  Super.  Ct.  438. 

P.  686.  15  Young  v.  Corrigan  (D.  C.  Ohio) 

12  Stamm  v.  Wood,   168   P.   69,  86     208  F.  431. 

Or.  174.  10  Robinson  v.  Doe,  112  N.  E.  1007, 

1 3  Ripley    V.    Second    Ave.    R.    Co.      224  Mass.  319. 

(Super.  N.  Y.)  8  Misc.  Rep.  449.  28  X.  it  Perlman    v.    Shanck,    182    X.    Y. 

Y.  S.  683;    Collins  v.  Leafey,  124  Pa.      S.  7G7,  192  App.  Div.  179. 


387 


INSTRUCTIONS  ON   PRESUMPTIONS  AND   INFERENCES 


197 


such  testimony  most  strongly  against  the  party  thus  failing  to 
controvert  it/*  and  in  some  jurisdictions  it  may  be  error  to  re- 
fuse such  an  instruction,^''  and  the  general  rule  is  that  the  court 
may  in  its  discretion  refuse  to  instruct  that  no  unfavorable  in- 
ferences shall  be  drawn  from  a  failure  to  produce  evidence.-" 
On  the  other  hand,  it  is  error  to  instruct  as  to  the  presumption 
arising  from  the  failure  of  a  party  to  testi'fy  or  to  produce  a  wit- 
ness, where  the  party  or  witness  is  not  shown  to  possess  peculiar 
knowledge  of  the  facts  in  issue,~i  or  where  a  witness  not  called 
has  disclaimed  all  knowledge  of  the  matter  in  issue,^~  and  in- 
structions are  erroneous  which  permit  the  jury  to  indulge  in  any 
speculation  with  respect  to  what  a  witness  whom  a  party  has 
failed  to  call  would  have  testified  to.^^  The  court  should  not 
charge  as  to  the  inferences  to  be  drawn  from  the  failure  of  a 
party  to  produce  evidence,  where  it  does  not  appear  that  he  could 
have  produced  the  evidence,  or  there  are  circumstances  oper- 
ating apparently  to  prevent  such  production,-*  or  where  it  does 
not  appear  that  witnesses  not  called  are  under  the  control  of  one 
party  more  than  of  another,-^  or  where  such  party  relies   upon 

isperlman  v.  Schanck,  182  N.  Y.  S. 
767,  192  App.  Div.  179. 

i9Werr  v.  Kohles,  S3  N.  Y.  S.  12«, 
86  App.  Div.  122. 

In<  Micliigan,  while  counsel  has 
the  right  to  make  proper  comments 
to  the  jury  upon  the  absence  of  a 
material  witness  for  the  opposing  par- 
ty, he  cannot  call  upon  the  court  to 
instruct  the  jury  that  such  absence 
militates  against  such  party.  Cross 
V.  Lake  Shore  &  M.  S.  Rv.  Co.,  .37  N. 
W.  361,  69  Mich.  363,  13  Am.  St.  Rep. 
399. 

2  0Closson  V.  Bligh,  83  N.  E.  263, 
41  Ind.  App.  14 ;  Taylor  v.  Chicago, 
St.  P.  &  K.  C.  Ry.  Co.,  76  Iowa.  753. 
40  N.  W.  84 ;  Appeal  of  Anderson,  165 
N.  W.  732,  199  Mich.  240 ;  Cox  v.  Nor- 
folk &  C.  R.  Co.,  35  S.  E.  237,  126  N. 
C.  103. 

21  Carter  v.  Chambers,  79  Ala.  223. 

Action  by  assignee.  Where  an 
action  is  prosecuted  by  the  assignee 
of  a  claim,  who  has  no  knowledge 
whatever  of  the  facts  in  issue,  and 
who  is  fully  represented  by  his  attor- 
neys in  the  conduct  of  the  trial,  it  is 
error  to  charge  that  his  absence  dur- 
ing the  trial  should  l)e  taken  into 
consideration  by  the  jury.  Hitchcock 
V.  Davis,  87  Mich.  629,  49  X.  W.  912. 


2  2  Fitzpatrick  v.  Woodruff,  47  N. 
Y.  Super.  Ct.  436. 

2  3  Perlman  v.  Schanck,  182  N.  Y. 
S.  767.  192  App.  Div.  179. 

2  4  Cal.  Lawyer  v.  Los  Angeles 
Pac.  Co.,  138  P.  920,  23  Cal.  App.  543. 

Ga.  Harrison  v.  Kiser,  79  Ga.  588, 
4  S.  E.  320. 

Ind.  Bump  v.  McGrannahan,  111 
N.  E.  640,  61  Ind.  App.  136. 

N.  Y.  Santiago  v.  John  E.  Walsh 
Stevedore  Co.,  137  N.  Y.  S.  611,  152 
App.  Div.  697 :  Carney  v.  New  York 
City  Ry.  Co.  (Sup.)  102  N.  Y.  S.  4S5, 
52  Misc.  Rep.  499;  Rooder  v.  Inter- 
urban  St.  Ry.  Co.  (Sup.)  96  N.  Y.  S. 
255.  48  Misc.  Rep.  519. 

Tex.  Parlin  &  Orendorff  Co.  v. 
Miller,  60  S.  W.  881,  25  Tex.  Civ. 
App.  190. 

Failure  to  call  incompetent  •wit- 
ness. A  defendant,  in  an  action 
where  his  wife  is  not  a  competent 
witness  in  his  behalf,  is  entitled ,  to 
an  instruction  that  such  is  the  fact, 
without  the  modification  that,  if  she 
had  been  offered  as  a  witness,  plain- 
tiff could  have  waived  objection  to 
her  competency.  Fourth  Nat.  Bank  v. 
Nichols,  43  Mo.  App.  385. 

2  5Flynu  V.  New  York  Elevated  R. 
Co.,  50  N.  Y.  Super.  Ct.  375. 


§197 


INSTRUCTIONS  TO  JURIES 


388 


the  improbability  of  the  evidence  produced  by  his  adversary.^® 
The  court  should  not  permit  the  jury  to  draw  unfavorable  in- 
ferences from  the  failure  of  a  party  to  produce  a  witness  who, 
mistakenly  or  corruptly,  may  be  willing  to  testify  to  facts  favor- 
able to  such  party.-'  So  it  is  proper  to  refuse  such  an  instruc- 
tion, where  a  witness  whom  a  party  fails  to  call  would  give  cumu- 
lative testimony  only.'^* 

It  is  proper  to  caution  the  jury  against  being  influenced  by  the 
fact  that  a  party  has  invoked  the  confidential  relation  of  physi- 
cian and  patient,  and  refused  to  call  the  physician  to  testily  to 
facts,  knowledge  of  which  was  acquired  by  him  in  such  rela- 
tion,^^  or  that  the  jury  shall  not  draw  unfavorable  inferences 
against  a  party  for  omitting  to  call  his  attorney  as  a  witness,^" 
or  that  the  jury  must  find  their  verdict  upon  the  evidence  actual- 
ly adduced,  and  not  upon  conjectures  arising  from  a  seeming 
withholding  of  testimony, ^^  and  it  is  error  to  refuse  to  tell  the 
jury  that  the  mere  fact  that  a  party  offers  no  evidence  does  not 
warrant   them    in    drawing   unfavorable    inferences   against   him.-'^'* 

A  party,  desiring  an  instruction  as  to  inferences  arising  from 
the  suppression  of  evidence,  a  failure  to  call  witnesses,  or  the 
failure  to  produce  the  best  evidence  available,  should  request  it,^^ 
and  such  an  instruction  must  b©  based  upon  the  evidence.^* 


Witness  competent  for  either 
party.  Where  a  person  whose  evi- 
dence would  be  competent  for  either 
party  to  an  action  was  in  court  dur- 
ing the  trial,  and  equally  accessible 
to  both  parties,  it  is  error  to  charge 
that  the  jurj-  could  draw  an  unfavor- 
able inference  against  one  of  the  par- 
ties for  failing  to  call  such  person  as 
a  witness.  Bates  v.  Morris,  101  Ala. 
282.  1.3  So.  138. 

2  0  Smith  V.  Chicago  City  Ey.  Co., 
16.5  111.  App.  190. 

2  7  Miller  v.  Dayton,  57  Iowa,  423, 
10  N.  W.  814. 

2  8Akalitis  v.  Philadelphia  &  Read- 
ing Coal  &  Iron  Co.  (C.  C.  A.  N.  Y.) 
239  F.  299,  152  C.  C.  A.  287;  Brown 
v.  Town  of  Swanton,  37  A.  280,  69  Vt. 
53. 

Failure  of  party  to  testify. 
Whore  plaintiff  establishes  by  compe- 
tent evidence  his  cause  of  action,  he 
may  decline  to  testify,  and  his  omis- 
sion to  state  the  amount  of  his  dam- 
ages does  not  require  the  court  in  the 
instructions  to  comment  unfavorably 


on  that  fact.  Westing  v.  Chicago,  B. 
&  Q.  R.  Co.,  127  N.  W.  1076,  87  Neb. 
655. 

2  0  Mortimer  v.  Daub,  98  N.  E.  845, 

52  Ind.  App.  30. 

3  0  Freeman  v.  Fogg,  82  Me.  408, 
19  A.  907. 

31  Bank  of   Statesville   v.    Pinkers, 

53  N.  C.  377. 

3  2  Simon  v.  Griffin  Wheel  Co.,  168 
111.  App.  533. 

3  3  Jones  V.  Boston  &  N.  St.  Ry.,  98 
N.  E.  500,  211  Mass.  552;  Paverman 
V.  Joline  (Sup.)  120  N.  Y.  S.  64. 

3  4  Cal.  In  re  Moore's  Estate,  182 
P.  285,  180  Cal.  570;  Thomas  v. 
Gates,  58  P.  315,  126  Cal.  1. 

Ga.  Central  of  Georgia  Ry.  Co.  v. 
Bernstein,  38  S.  E.  394,  113  Ga.  175; 
Anderson  v.  Southern  Ry.  Co.,  33  S. 
E.  644,  107  Ga.  500. 

N.  Y.  Kaplan  v.  Interborough 
Rapid  Transit  Co.  (Sup.)  165  N.  Y.  S. 
216;  Freyhan  v.  Kahn  (Sup.)  159  N. 
Y.  S.  640;  Robinson  v.  Metropolitan 
St.  Ry.  Co.,  92  N.  Y.  S.  1010,  103  Api). 
Div.  243. 


389  INSTRUCTIONS   ON   PRESUMPTIONS  AND   INFERENCES  §  198 

§  198.     Rule  in  criminal  cases 

In  some  jurisdictions  it  is  not  improper  to  instruct  m  a  crmi- 
inai  case  that,  if  evidence  which  will  explain  or  rebut  certain  facts 
or  circumstances  operating  against  the  defendant  is  peculiarly 
within  his  knowledge  or  reach,  and  is  not  accessible  to  the  state, 
the  fact  that  he  fails  to  produce  it  may  be  taken  into  considera- 
tion in  determining  his  guilt  or  innocence,^^  where  the  court  pre- 
serves the  constitutional  right  of  the  defendant  that  no  infer- 
ence shall  be  drawn  from  his  failure  to  testify .^^  and  such  an  in- 
struction is  not  objectionable  as  a  comment  on  the  failure  of  the 
defendant  to  testify  in  his  own  behalf.^'  In  other  jurisdictions 
a  contrary  rule  prevails  and  it  is  held  error  for  the  court  to 
charge  that  the  failure  of  the  defendant  to  produce  evidence 
within  his  reach  is  a  proper  matter  for  the  consideration  of  the 
jury,^*  or  to  charge  that,  if  a  party  does  not  offer  the  most  satis- 
factory evidence  within  his  power  to  produce,  the  evidence  oft'ered 
by  him  should  be  viewed  with  distrust,^^^  or  to  charge  in  general 
terms  that  the  omission  to  produce  evidence  within  a  party's  reach 
to  repel  an  accusation  raises  a  presumption  that  it  is  well  found- 
ed;  *"  it  being  held  in  one  jurisdiction  that  such  a  charge  is, 
where  the  defendant  has  introduced  no  testimony,  in  derogation 
of  his  privilege  to  make  a  statement  which  the  jury  may  believe 
if  it  sees  fit."  In  one  jurisdiction,  where  the  defendant  in  a  crim- 
inal case  can  use  his  wife  as  a  witness  if  she  consents,  it  is  not 
improper  to  instruct  that,  while  a  wife  is  not  a  competent  witness 
against  her  husband,  the  defendant  has  a  right  to  call  her  if  he 
so  desires ;  ^^  but  it  is  error  for  the  court  to  go  on  and  still  further 
instruct  that  the  failure  of  the  defendant  to  call  her  may  be  con- 
sidered as  a  circumstance  against  him.*^ 

In  some  jurisdictions,  if  it  does  not  appear  that  the  accused,  if 
innocent,  has  it  in  his  power  to  produce  evidence  controverting 
or  explaining  the  testimony  against  him,  except  by  testifying  in 
his  own  behalf,  the  court  is  bound  to  charge  on  request  that  the 

36  state    V.    Grebe,    17    Kan.    458;  Am.  Rep.  369 ;   Knowles  v.  People,  15 

Commonwealtli  v.  Brownell,  145  Mass.  Mich.  408. 

.•',19,  14  N.  E.  108;    State  v.  Callahan,  so  people  v.  Charles,  99  P.  383,  9 

09  A.  957,  76  N.  J.   Law.  426.  judg-  Cal.  App.  338. 

ment  affirmed  73  A.  235,  77  N.  J.  Law,  *'>  Jones  v.  State,  82  S.  E.  470.  14 

685.  Ca.   App.  811;    Mills  v.   State,   65  S. 

36  Commonwealth  v.  Johnson,  85  N.  E.  368,  133  Ga.  155. 

E.  188,  199  Mass.  55.  4 1  Wilson  v.  State,  70  S.  E.  193,  8 

Contra — Commonwealth     v.     Har-  Ga.  App.  816. 

low,  110  Mass.  411.  42  Rhea   v.   Territory,   105   P.   314. 

37  State  V.   Rodman.  62  Iowa,  456,  3  Okl.  Cr.  230. 

17  N.   W.  663.  43  Stutsman  v.  Territory,  54  P.  707, 

38  Clem    V.    State,   42   Ind.   420,    13      7  Okl.  490. 


§  198 


INSTRUCTIONS   TO   JURIES 


390 


failure  of  the  accused  to  produce  any  evidence  is  not  to  be  con- 
sidered by  the  jury,^*  and  the  court  may  be  required  to  charge 
that  the  failure  of  an  alleged  coconspirator  to  testify  raises  no 
presumption  that  his  testimony,  if  given,  would  be  against  the 
defendant.^^  On  the  other  hand,  it  is  proper,  in  some  jurisdic- 
tions, to  refuse  to  charge  that  the  failure  of  the  accused  to  offer 
any  evidence  other  than  his  own  shall  not  be  considered  a  cir- 
cumstance against  him,^®  or  that  the  failure  of  the  accused  to 
call  his  coindictees  as  witnesses  shall  not  be  considered  by  the 
jury.*'  Where  the  court  has  charged  that  no  presumption  is  to 
be  drawn  against  the  defendant  because  of  his  failure  to  testify, 
it  is  not  error  in  some  jurisdictions  to  refuse  to  further  charge 
that  the  jury  should  draw  no  inference  against  him  because  of 
his  failure  to  procure  w^itnesses  to  show  where  he  was  on  the 
day  of  the  crime.**  Ordinarily  the  court  has  discretion  to  refuse 
to  charge  that  the  failure  of  the  state  to  produce  witnesses  to 
certain  facts  to  testify  to  them  will  operate  against  the  conten- 
tions of  the  state  or  is  a  matter  to  be  considered  by  the  jury.*^ 
'The  circumstances  mav  be  such,  however,  that  it  will  be  error  to 


4  4  Ormsby  v.  People,  5.3  N.  Y.  472. 

Compare  People  y.  Hummel.  104  N. 
Y.  S.  308,  119  App.  Div.  153. 

Absence  of  evidence  on  •wliicli  to 
"base  instruction.  Instructions  to 
the  effect  tliat  no  inference  could  be 
drawn  against  accused  for  bis  fail- 
ure to  produce  witnesses  who  were 
beyond  the  reach  of  process,  or  could 
liave  been  called  by  the  prosecution 
as  readily  as  by  the  defendant,  were 
properly  refused,  where  there  was  no 
evidence  to  which  they  applied.  Peo- 
ple V.  Bond,  125  N.  E.  740,  291  111. 
74. 

4  5  People  V.  Glass,  112  P.  281,  158 
Cal.  650. 

46  Carter  v.  State,  118  P.  204.  6 
Okl.  Cr.  232. 

4T  State  V.  Hopran.  88  N.  W.  1074, 
115  Iowa.  455 ;  State  v.  White,  87  P. 
137,  48  Or.  416. 

4aTavlor  v.  Commonwealth,  90  Va. 
100,  17  S.  E.  812. 

40  Commonwealth  v.  Farrell.  137 
Mass.  579;  Commonwealth  v.  Sthmoiis. 
162  Pa.  326,  29  A.  644;  State 
V.  Buckman,  52  A.  427,  74  Vt.  309. 
See  State  v.  Hayden,  107  N.  W.  929, 
131  Iowa,  1. 


Failure  to  produce  w^itnesses  un- 
friendly to  tlie  state.  Where  the 
state  introduced  only  circumstantial 
evidence  of  defendant's  gruilt,  while 
eyewitnesses  of  the  homicide  were 
present  in  court,  but  were  unfriendly 
to  the  state,  a  charge  that  the  state 
was  required  to  introduce  the  best 
evidence  obtainable,  and  that,  if  it 
was  probable  that  there  were  eye- 
witnesses by  whom  the  state  could 
have  proven  the  act  of  killing,  it  was 
the  duty  of  the  state  to  produce  such 
evidence,  and  that,  if  it  did  not  do  so. 
defendant  could  not  be  convicted  on 
circumstantial  evidence,  was  properly 
refused.  McCandless  v.  State,  62  S. 
W.  745,  42  Tex.  Cr.  R.  655. 

Failure  to  produce  ^vitness  ac- 
cessible to  defendant.  Where  the 
state  in  a  prosecution  for  homicide 
omitted  to  introduce  a  witness  who 
was  present  at  the  place  of  the  homi- 
cide, but  was  not  shown  to  have  seen 
the  killing,  which  witness  was  in 
court  accessible  to  the  defendant,  the 
court  did  not  err  in  refusing  to  charge 
statute,  relating  to  the  presumption 
arising  from  a  failure  to  produce  evi- 
dence. Harper  v.  State,  59  S.  E.  792, 
129  Ga.  770. 


391  INSTRUCTIONS   ON   PRESUMPTIONS  AND   INFERENCES  §  199 

refuse  to  instruct  that  the  jury  may  consider  the  ^failure  of  the 
state  to  put  on  the  stand  witnesses  present  in  court.^^ 

It  is  proper  to  charge,  where  there  is  evidence  to  support  it, 
that  the  act  of  the  defendant  in  knowingly  invoking  false  evidence 
may  be  considered  against  him,^!  but  to  justify  such  an  instruc- 
tion there  must  be  something  more  than  a  mere  contradiction  be- 
tween the  testimony  of  the  defendant  and  that  of  the  witnesses 
against  him^-  and  it  is  error  to  instruct  that  such  an  act  will 
raise  a  strong  presumption  of  guilt.^^ 

D.  Failure  oi^  Party  in  Civil  Case  to  Testify 

§  199.     In  general 

In  civil  cases  in  some  jurisdictions  courts  frequently  with  en- 
tire propriety  comment  on  the  failure  of  a  party  to  testify  m  a 
case,^  and  in  some  jurisdictions  it  is  proper  for  the  court  to  per- 
mit the  jury  to  draw  inferences  unfavorable  to  a  party,  having 
knowledge  of  the  facts  in  controversy,  from  his  failure  to  be 
present  at  the  trial  and  testify.^  But  an  instruction  which  per- 
mits unfavorable  inferences  to  be  drawn  against  one  for  claiming 
the  protection  of  a  statute  which  precludes  the  adverse  party_  in 
an  action  bv  or  against  a  personal  representative  from  testifying 
is  erroneous,^®  and  it  is  error  to  authorize  adverse  inferences  from 
the  failure  of  a  party  to  take  the  stand,  where  it  does  not  appear 
that  he  knows  the  truth  of  the  transaction  in  question,  and  any 
evidence  that  he  could  give  would  be  purely  negative,^'  and  where 
the  plaintiff  has  failed  to  make  out  his  case,  it  is  error  to  tell  the 
jury  that  they  may  consider  the  fact  that  the  defendant  has  not 
been  called  to  deny  the  allegations  of  the  plaintiff/'"'*     In  some  ju- 

5  0  People  V.  Fiori,  108  N.  Y.  S.  416,  matter  connected   with   his  payment 

to^  Ann    Div    174;    People  v.  Smith,  should  not  be  considered  against  him, 

99  N  Y   S  lis,  113  App.  Div.  398.  was  properly  refused  as  prejudicing 

.1  Alio   '^  T  nupri  stntes    17  S    Ct  the  plaintift  for  exercising  a  lawful 

1  ^l  1  fS^n   <^  ^So^  4t  L  Ed  54  right ;   no  comment  having  been  made 

154,  164  U.  S.  49-,  41  L-  Ed   o-S.  »^^.^  ^^,^^^^  ^^  ^  ^^^^^.^^^^      ^^^j, 

3  2  state    y.    Vance,    SO    Ala.    3o6,  t^^^eier  v.  Barrett,  122  S.  W.  1095,  145 

Beck  V.  State,  80  Ala.  1.  ^^^   ^pp   ^g^^ 

53  Sater  v.  State,  56  Ind.  378.  s^  piunkett  v.  Levengston  (C.  C.  A. 

54  Steltemeier  v.  Barrett,  122  S.  W.  j^^ )    258   F.   889,    169    C.    C.    A.    609 ; 
1095,  145  Mo.  App.  534.  Wilson  v.  Northwestern  Nat.  Life  Ins. 

Refusal  to  give  reason  for  fail-  Co.,    114    N.    W.    251,    103    Minn.   35; 

Tire  of  party  to  testify.     In  an  ac-  Brooks  v.  Steen,  6  Hun  (N.  Y.)  516. 

tion  by  an  administrator  on  a  note,  a  g  Ludlow  v.  Pearl's  Estate,  55  Mich, 

a   requested   instruction   that,  as  de-  312,  21  N.  W.  315. 

f endant     could    not    testify    to    any  5  7  Emory  v.  Smith,  54  Ga.  273. 

transaction    with    decedent    showing  5  s  American  Underwriters'  Ass'n  v. 

payment,  his  failure  to  explain  any  George,  97  Pa.  238. 


§  200 


INSTRUCTIONS  TO  JURIES 


392 


risdictions  it  is  not  proper  for  the  court  in  any  way  to  call  the 
attention  of  the  jury  to  the  failure  of  a  party  to  testify  in  his 
own  behalf.^^ 

E.  Failure  op  Accused  to  Testify 

§  200.     Propriety  of  instructions  at  common  law 

At  common  law,  where  the  defendant  in  a  criminal  case  does 
not  take  the  witness  stand  in  his  own  behalf,  the  trial  court  may 
call  the  attention  of  the  jury  to  his  failure  to  deny  inculpatory 
facts  which,  if  false,  he  must  know  to  be  so,^**  and  this  rule  ap- 
plies where  the  accused,  on  voluntarily  testifying  for  himself, 
omits  to  explain  incriminating  circumstances  as  to  which  he  is 
informed.®^ 

§  201.     Propriety  and  necessity  of  instructions  under  statutes 

In  many  jurisdictions,  by  force  of  statutory  provisions,  it  is 
error  for  the  court  to  call  the  attention  of  the  jury  to  the  failure 
of  an  accused  to  avail  himself  of  his  privilege  to  testify,  or  to 
make  any  allusion  to  such  failure,  except  by  wlay  of  caution 
against  drawing  any  adverse  inference  therefrom.*'^     Such  a  stat- 


5  9  Moore  v.  Wright,  90  111.  470. 

60  N.  J.  State  v.  Frank,  102  A. 
1054,  91  N.  J,  Law,  718,  affirming 
.iudgment  100  A.  606,  90  N.  J.  Law, 
78 ;  State  v.  Connors,  94  A.  812,  87  N. 
.T.  Law,  419 ;  State  v.  Schlosser,  89  A. 
.522,  85  N.  J.  Law,  165,  judgment  af- 
firmed 91  A.  1071,  86  N.  J.  Law,  374 ; 
State  V.  Di  Benedetto,  82  A.  521,  82  N. 
J.  Law,  168,  judgment  affirmed  85  A. 
11.S5,  83  N.  J.  Law,  792;  State  v. 
Callahan,  73  A.  235,  77  N.  J.  Law, 
685,  affirming  judgment  69  A.  957,  76 
N.  J.  Law,  426 ;  State  v.  Skillman,  70 
A.  83,  76  N.  J.  Law,  464,  judgment  af- 
firmed 76  A.  1073,  77  N.  J.  Law,  804 : 
State  V.  Twining,  64  A.  1073,  1135,  73 
N.  J.  Law,  683,  affirming  judgment 
62  A.  402,  73  N.  J.  Law,  402,  and 
iudgment  affirmed  Twining  v.  State 
of  New  Jersey.  29  S.  Ct.  14,  211  U.  S. 
78,  53  L.  Ed.  97;  State  v.  Banusik,  64 
A.  994,  84  N.  ,T.  Law,  640;  State  v. 
Wines,  40  A.  702,  65  N.  J.  Law,  31. 

Pa.  Commonwealth  v.  Chickerella, 
96  A.  129,  251  Pa.  160. 

fii  Caminetti  v.  United  States,  37  S. 
Ct.  192,  242  U.  S.  470,  61  L.  Ed.  442, 
L.  R.  A.  1017F,  502,  Ann.  Cas.  1917B, 
1168,  atfirming  judgments  Diggs  v. 
Same  (C.  C.  A.  Cal.)  220  F.  545,  136 


C.  C.  A.  147,  and  Hays  v.  Same  (C.  C. 
A.  Okl.)  231  F.  106,  145  C.  C.  A.  294. 

6  2  Cal.  People  v.  Andrade,  154  P. 
283.  29  Cal.  App.  1. 

Mich.  People  V.  Peterson,  131  N. 
W.  153,  166  Mich.  10. 

Minn.  State  v.  Richman,  173  N. 
W.  718,  143  Minn.  314. 

Mo.  Steltemeier  v.  Barrett,  122  S. 
W.  1095,  145  Mo.  App.  534. 

Neb.  Lamb  v.  State,  95  N.  W. 
1050,  69  Neb.  212. 

N.  Y.  People  v.  Fitzgerald,  50  N. 
E.  846,  156  N.  Y.  253,  reversing  judg- 
ment 46  N.  Y.  S.  1020,  20  App.  Div. 
1.39;  RulofC  v.  People,  45  N.  Y.  213; 
In  re  Ruloff,  11  Abb.  Prac.  (N.  S.)  245. 

Okl.  McLaughlin  v.  State,  169  P. 
657,  14  Okl.  Cr.  192 ;  Holmes  v.  State, 
162  P.  446,  13  Okl.  Cr.  113. 

Instructions  erroneous  ivithin 
rule.  Instniction  that,  if  weaker  evi- 
dence is  offered  when  stronger  evi- 
dence was  within  the  party's  power, 
the  evidence  offered  should  be  viewed 
with  distrust,  was  erroneous,  where 
accused  offered  no  evidence.  People 
V.  Carroll,  128  P.  4,  20  Cal.  App.  41. 
To  insti-uct  that  the  jury  shall  not 
give  defendant's  failure  to  testify 
"any    unfair    consideration"    implies 


S03 


INSTRUCTIONS   ON    PRESUMPTIONS   AND    INFERENCES 


201 


;':^^,ly  be  it^drprovided  it  is  made  clear  that  noth.ng  pre.u- 


that  they  may  give  it  a  fair  considera- 
t  on  and  can  consider  it  so  long  as 
tiTy  do  not  do  so  unfairly  People  v. 
Mitchell,  129  N.  W.  698,  164  Mich  583 
Tender  the  statute  providing  that  a 
defendant  in  a  criminal  case  is  not  to 
be  prejudiced  by  his  failure  to  testify 
in  his  own  behalf,  where,  in  a  Prosecu- 
tion for  larceny,  the  defendant  was 
not  sworn  as  a  witness,  it  was  legal 
error  to  charge  that  the  failure  of  de- 
fendant to  take  the  stand  does  not 
create  a  presumption  against  him,  but 
?ha'  when  he  does  take  the  stand  in 
his  own  behalf,  he  can  be  sulxiectel  to 
all    forms   of  cross-exammatioii^  lU^e 

any  other  witness  in  t^e  c^a^^.^O  aSp 
V    Ryan,  105  N.  Y.  S.  160,  120  /PP. 
Div    975      Where  the  only  evidence 
connecting  the  defendant  with  the  of- 
fense of  keeping  intoxicating  liqnois 
^ith  intent  to  sell  them  was,  in  effect 
that  he  was  seen  in  a  room  adjoining 
Sf barroom  in  which  the  liquors  were 
kept,  and   the  defendants  offered  no 
evidence,  it  was  error  for  the  court  to 
read  to  the  jury  a  charge,  given  m 
another  case  on  a  different  state  of 
?acts   to  the  effect  that  an  mterence 
of  guilt  may  be  drawn  from  failure 
S  o1?er  explanatory  evidence,  when  it 
is  apparent  that  such  evidence   if  it 
exisS  is  within  the  power  of  the  ac- 
cused, although  such  charge  is  quali- 
fied bV  the  statement  that  the  explana- 
torv    evidence    referred    to   must    be 
evidence  other  than  defendant's  own 
testimony.  Commonwealth  v.  Maloney, 
113  Mass.  211.  , 

Instructions  not  erroneous  witn- 
in  rule.     A  charge,  on  the  trial  of 
an  indictment  for  the  violation  of  the 
oleomargarine  act,  as  follows :      Now, 
gentlemen,  the  only  question  for  you 
to  determine  is  whether  or  not  th  s 
testimony  is  to  be  relied  npon^  It  is 
not  contradicted  in  any  way.    No  w^it- 
Sesses  were  called  here  to  controveit 
what  has  been  said  by  these  witnesses 
(referring  to  witnesses  for  the  com- 
monwealth), and  it  will  be  for  you  to 
take  the  testimony  and  see  whether 
the  product  that  was  bought  as  oleo- 
margarine was  the  same  analyzed  by 


the  chemists  and  contained  coal  tar 
dye,  and  then  whether  the  chemists 
here,   without  being   contradicted   m 
anv   way,   are  to   be  relied  upon  as 
truthful  witnesses."     Commonwealrti 
V    McDermott,  37  Pa.  Super.  Ct.  19. 
\n    instruction     that    accused    may 
make   such    statement   as    He   deems 
proper  in  his  defense  as  to  which  he 
I   not    subject   to   cross-examination 
without  his  consent.    Harper  v.  State 
59V   E.  792,  129  Ga.  770.     On  a  trial 
for  larceny,  a  statement  "that  no  at- 
tempt had  been  made  by  defendant  to 
explain  his  possession  of  the  proper- 
ty "  when  borae  out  by  the  evidence 
Sill  not  be  construed  as  a  comment 
on    defendant's   failure   to   take    the 
stand   in   his  own  behalf.     State   a. 
Preston,  77  Mo   2S>4.     The  ^^  j-uctmn 
on  the  trial  of  B.  and  N.,  of  whom  H.    • 
onl     testified,  that  ^  defendant  may 
testify  or  not,  as  he  pleases,  and  that 
when  a  defendant  testifies  the  same 
rules  are  to  apply  to  him  as  to  otiier 
witnesses,  cannot  be  complained  of  by 
N     as    a    violation    of    the    statute 
against  reference  to  or  comment  on 
the  subject  of  a  defendant  not  testi- 
fying.   People  V.  Spira,  106  N.  E.  241, 
o*64   111    243.     An   instruction   to   the 
iurv  that  the  failure   of  accused  to 
testify  does  not  relieve  the  state  from 
the    obligation    to    produce    evidence 
^Yhich  will   establish  guilt  beyond   a 
reasonable  doubt  is  not  such  a  refer- 
ence to  the  refusal  of  accused  to  testi- 
fy as  to  require  reversal  of  a  judg- 
ment of  guilty.    Tate  v.  State,  81  K  E. 
973,  76  Ohio  St.  537,  10  Ann.  Gas.  949, 
afiirming  judgment  29  Ohio  Cir.  Ct. 
R    410      Where,  in  a  prosecution  for 
grand    larceny,    there    was    evidence 
that    defendant,    fraudulenUy    repre- 
senting himself  to  be  in  control  of  a 
corporation  owning  certain  lauds,  ob- 
tained money   from  prosecuting  wit- 
nesses, a  charge  that  "now  defendant 
has  not   taken    the   stand,    and   you 
must  not  pay  any  attention  whatever 
to  that.    We  are  not  here  to  save  fools 
from  the  consequences  of  their  folly ; 
the  duty  as   to   that  rests  with  the 
\lmighty"— was    not    prejudicial    to^ 


§202 


INSTRUCTIONS  TO   JURIES 


394 


dicial  to  him  may  be  assumed  from  his  faihire  to  testify.*'^  A 
reference  to  certain  testimony  for  the  prosecution  as  being  uncon- 
tradicted does  not,  in  itself,  constitute  an  improper  comment  on 
the  faikire  of  the  accused  to  testify;®*  it  not  being  plain  that  no 
one  but  the  defendant  could  have  disputed  such  testimony."^  In 
some  jurisdictions  a  charge  referring  to  the  right  of  the  defend- 
ant to  testify  and  his  failure  to  exercise  his  privilege  is  not  error, 
when  accompanied  by  the  statement  that  the  jury  should  not 
consider  such  failure  or  take  it  as  a  circumstance  against  the  de- 
fendant."® 

§  202.     Cautioning  jury  against  considering  failure  to  testify 

In  a  number  of  jurisdictions  the  court  should  charge  on  re- 
quest that  the  failure  of  the  defendant  to  testify  creates  no  pre- 
sumption against  him,  and  is  to  be  excluded  altogether  from  the 
consideration  of  the  jury,®''^  there  being  an  express  statutory  re- 


defendant  as  referring  to  his  failure 
to  testify  in  his  own  behalf.  People 
T.  Lan£:ley,  100  N.  Y.  S.  123,  114  App. 
Div.  427. 

Effect  of  provision  concerning 
unsworn  statements.  In  Wyoming, 
in  which  jurisdiction  the  statute  per- 
mits the  defendant  to  elect  either  to 
"be  sworn  and  examined  as  a  witness 
'or  to  make  a  statement  without  being 
sworn,  a  statutory  provision  that  no 
reference  to,  or  comment  upon,  the 
neglect  or  refusal  of  the  accused  to 
make  an  unsworn  statement  shall  be 
made,  is  held  to  prevent  comment 
upon  the  failure  of  the  defendant  to 
testify  under  oath  where  he  has  elect- 
ed to  make  an  unsworn  statement. 
Anderson  v.  State  (Wyo.)  196  P.  1047. 

63  State  V.  Dodson,  136  N.  W.  7S9, 
23  N.  D.  305. 

6  4  Sidebotham  v.  United  States  (C. 
C.  A.  Mont.)  253  F.  417,  165  C.  C.  A. 
159. 

65  Shea  V.  United  States  (C.  C.  A. 
Ohio)  251  F.  440,  163  C.  C.  A.  458. 
writ  of  certiorari  denied  39  S.  Ct.  132, 
248  U.  S.  581,  63  L.  Ed.  431. 

6  6  Neb.  Ferguson  v.  State,  72  N. 
W.  590,  52  Neb.  432,  66  Am.  St.  Rep. 
512. 

Tex.  O'Hara  v.  State,  124  S.  W. 
95,  57  Tex.  Cr.  R.  577  ;  Davis  v.  State, 
114  S.  W.  306,  54  Tex.  Cr.  R.  2.36;  Fine 
V.  State,  77  S.  W.  806,  45  Tex.  Cr.  R. 
290;  Fulcher  v.  State,  28  Tex.  App. 
465,  13  S.  W.  750. 


Vt.  State  V.  O'Grady,  65  Vt.  66,  25 
A.  905. 

6  7  Ala.  Thomas  v.  State,  36  So. 
734,  139  Ala.  80. 

Ark.  Threet  v.  State,  161  S.  W. 
139.  110  Ark.  152. 

111.  People  V.  Michael,  117  N.  E. 
193,  280  111.  11;  Farrell  v.  People,  133 
111.  244,  24  N.  E.  423. 

Iowa.  State  v.  Carnagy,  76  N.  W. 
805,  106  Iowa,  483. 

Kan.  State  v.  GofiC,  61  P.  683,  62 
Kan.  104,  reversing  judgment  61  P. 
680.  10  Kan.  App.  286  ;  State  v.  Evan.s, 
58  P.  240,  9  Kan.  App.  889. 

Me.  State  V.  Landry,  85  Me.  95,  26 
A.  998. 

IMich.  People  V.  Provost,  107  N. 
W.  716,  144  Mich.  17,  8  Ann.  Cas.  277. 

Miss.  Haynes  v.  State,  27  So.  601 ; 
Punches  v.  State,  87  So.  487. 

N.  M.  Territory  v.  Donahue,  113 
P.  601.  16  N.  M.  17. 

Wash.  State  v.  Gustafson,  152  P. 
335,  87  Wash.  613;  State  v.  Hanes, 
147  P.  193,  84  Wash.  601;  Linbeck 
V.  State,  1  Wash.  336,  25  P.  4.52. 

Instructions  Iield  sufficient  on 
this  point.  An  instruction  "that  de- 
fendant's failure  to  testify  must  not 
bo  referred  to  in  the  argument  of  the 
cause,  or  commented  upon,  referred 
to,  or  in  any  manner  considered  by 
the  jury  in  determining  the  case." 
Beavers  v.  State,  58  Ind.  530.  An  in- 
struction that  no  inference  of  guilt 
"should''    arise    in    the   jury's    mind 


395 


IXSTRUCTIONS   ON   PRESUMPTIONS   AND   INFERENCES 


202 


quirement  that  the  court  so  instruct  in  some  jurisdictions,^*  and 
the  fact  that  at  the  time  of  an  improper  reference  by  the' prose- 
cuting attorney  to  the  faikire  of  the  defendant  to  take  the  stand 
the  court  tells  the  jury  that  no  advantage  can  be  taken  by  the 
state  of  such  failure  does  not  justify  it  in  afterwards  refusing  to 
give  an  explicit  instruction  that  no  inference  can  be  drawn  against 
him  because  of  such  failure.*^ 

In  most  jurisdictions,  whether  requested  to  give  such  an  in- 
struction or  not,  it  is  proper  for  the  court  to  caution  the  jury 
against  drawing  any  inferences  unfavorable  to  the  defendant  from 
his  failure  to  testify. '•>     The  failure  to  give  such  a  cautionary  in- 


from  defendant's  silence  is  not  ground 
foi-  reversal  for  failure  to  use  the 
mandatory  word  "shall."  State  v. 
Krug,  12  Wash.  2SS,  41  P.  126. 

GsThrawley  v.  State,  55  N.  E.  95, 
1.53  Ind.  375;  Neal  v.  State,  175  N. 
W.  669,  104  Neb.  56 ;  State  v.  Myers, 
S  Wash.  177,  35  P.  5S0,  756 :  Leonard 
V.  Territory,  2  Wash.  T.  3S1,  7  P.  872. 
Instructions  sufficiently  comply- 
ing with  the  statute.  An  instruc- 
tion stating  that  the  "statute  express- 
ly declares  that  defendant's  neglect 
to  testify  shall  not  create  any  pre- 
sumption against  him."  State  v. 
Mitchell,  72  P.  707.  32  Wash.  64.'  An 
instruction  that,  "while  the  statute 
*  *  *  provides  that  a  person 
charged  with  crime  may  testify  in  his 
own  behalf,  he  is  under  no  obligation 
to  do  so,  and  the  statute  expressly 
makes  it  the  duty  of  the  court  to  in- 
struct the  jury  that  no  inference  of 
guilt  shall  arise  against  the  accused 
if  the  accused  shall  fail  or  refuse  to 
testif.v  as  a  witness  in  his  own  behalf, 
and  the  court  so  instructs."  State  v. 
Deatherage,  77  P.  504,  35  Wash.  320. 
C9  People  V.  Messer,  111  N.  W.  854, 
148  Mich.  168. 

7  0  tJ.  s.  (C.  C.  A.  Tenn.)  Robilio  v. 
United  States,  259  F.  101,  170  C.  C. 
A.  169. 

Ala.  Brandes  v.  State,  65  So.  307, 
10  Ala.  App.  239. 

Ga.  Stephens  v.  State,  94  S.  E.  69, 
21  Ga.  App.  151. 

Idaho.  State  v.  Lew,  75  P.  227,  9 
Ma  ho,  483. 

Iowa.  State  v.  Weems,  96  Iowa, 
426,  65  N.  W.  387. 

Kan.  State  v.  Olsen,  127  P.  625.  88 
Kan.  136 ;  State  v.  Skinner,  34  Kan 
256,  8  P.  420. 


La.  State  v.  Johnson,  23  So.  199, 
50  La.  Ann.  138. 

Mass.  Commonwealth  v.  Brown, 
45  N.  E.  1,  167  Mass.  144. 

Mich.  People  v.  MuiTphv,  108  N. 
W.  1009,  145  Mich.  524;  "People  v. 
Murnane,  182  N.  W.  62,  213  Mich. 
205. 

Mo.  State  V.  De  Witt,  84  S.  W. 
956.  186  Mo.  61. 

Mont.  State  v.  Fuller,  85  P.  369. 
34  Mont.  12,  8  L.  R.  A.  (N.  S.)  762, 
9  Ann.  Cas.  648. 

Neb.  Lillie  v.  State,  100  N.  W.  316, 
72  Xeb.  228. 

N.  M.  State  v.  Graves,  157  P.  160. 
21  N.  M.  556. 

N.  D.  State  v.  Wisnewski.  102  N. 
W.  883,  13  N.  D.  649,  3  Ann.  Cas.  907 ; 
State  V.  Currie.  102  N.  W.  875  13  N 
D.  655,  69  L.  K.  A.  405,  112  Am.  St. 
Rep.  687. 

Ohio.  Sullivan  v.  State,  9  Ohio. 
Cir.  Ct.  R.  652. 

S.  D.  State  v.  Carlisle,  1.32  N  W 
686,  28  S.  D.  109,  Ann.  Cas.  19146,' 
395. 

Tex.  Wlllingham  v.  State,  136  S. 
W.  .470,  62  Tex.  Cr.  R.  55 :  Kmkead 
V.  State,  1.35  S.  W.  573.  61  Tex.  Cr.  R. 
651;  Dougherty  v.  State,  128  S  W 
398,  59  Tex.  Cr.  R.  464;  Matthews 
V.  State,  122  S.  W.  544,  57  Tex.  Cr. 
R.  328 ;  Cravens  v.  State  (Cr.  Ann  > 
103  S.  W.  921 ;  Ilerndon  v.  State  99 
S.  W.  558,  ,50  Tex.  Cr.  R.  552 ;  McCov 
V.  State  (Cr.  App.)  81  S.  W.  46 :  Loun- 
der  V.  State,  79  S.  W.  552.  46  Tex.  Cr. 
R.  121;    Grant  v.  Same,  70  S.  W.  954, 

44  Tox.  Cr.  R.  311 ;  Pearl  v.  Same.  63 
S.  W.  1013,  43  Tex.  Cr.  R  189- 
Parker  v.  Same,  49  S.  W.  $0,  40  Tex 
Cr.  R.  119:   Unsell  v.  Same  (Cr.  App.) 

45  S.  W.  902;    Guinn  v.  State,  45  S 
W.  694,  39  Tex.  Cr.  R.  257. 


g  202 


INSTRUCTIONS   TO  JURIES 


396 


struction  will  not,  however,  ordinarily  constitute  error,  in  the 
absence  of  a  request  therefor,'^  and  in  some  jurisdictions  it  is 
proper  to  refuse  such  a  request;'^  it  being  considered  that  the 
statutes  prohibiting  comment  on  the  failure  of  the  accused  to 
testify  justify  such  refusal.'^.  In  two  jurisdictions  it  is  held  that 
the  defendant  is  entitled  to  absolute  silence  upon  the  subject  of 
his  failure  to  testify,  and  that  the  giving  of  such  a  cautionary  in- 
struction will  constitute  positive  error.'*  In  Oklahoma  such  an 
instruction,  while  regarded  as  improper,'^  is  not  considered  fun- 
damentally erroneous,  and  in  the  absence  of  any  objection  or 
exception  properly  taken,  will  not  be  cause  for  reversal.'^ 


Vt.  State  V.  Rossi,  102  A.  1030,  92 
Vt.  187 ;   State  v.  Cameron,  40  Vt.  555. 

Instrnctions  Iield  sufficient  on 
this  head.  An  instruction  that  it 
was  not  incumbent  on  defendant  to 
testify  in  his  own  behalf ;  that  a  fail- 
ure to  do  so  was  not  even  a  circum- 
stance against  liim,  and  no  presump- 
tion of  guilt  could  be  indulged  by  the 
jury  on  account  of  his  failure ;  nor 
could  the  same  be  considered  by  the 
jury  for  any  purpose — was  sufficient, 
without  a  further  statement  that  the 
jury  should  not  discuss,  comment  on, 
or  in  any  way  allow  it  to  influence 
them  in  arriving  at  their  verdict.  An- 
derson V.  State,  110  S.  W.  54,  53  Tex. 
Or.  R.  341.  In  a  trial  for  homicide, 
a  charge  that  the  law  allows  defend- 
ant to  testify  in  his  own  behalf,  but 
a  failure  to  do  so  is  not  even  a  cir- 
cumstance against  him,  and  no  pre- 
sumption of  guilt  can  be  indulged  in 
by  the  jury  on  account  of  such  fail- 
ure on  his  part,  and  the  jui-y  will  not 
mention,  discuss,  or  even  refer  to  the 
fact  that  defendant  failed  to  testify, 
was  proper,  and  not  objectionable  as 
not  in  terms  instructing  the  jury  that 
they  could  not  consider  defendant's 
failure  to  testify.  Singleton  v.  State, 
124  S.  W.  92,  57  Tex.  Cr.  R.  560. 

7 1  Cal.  People  v.  Rogers,  126  P. 
143,  163  Cal.  476;  People  v.  Flynn, 
73  Cal.  511,  15  P.  102. 

Colo.  Matthews  v.  People,  6  Colo. 
App.  456,  41  P.  839. 

Conn.  State  V.  Williams,  96  A. 
370.  90  Conn'.  126. 

Ga.  Bargeman  v.  State,  SS  S.  E. 
591,  17  Ga.  App.  807. 

Ind.  Felton  v.  State,  139  Ind.  531, 
.39  N.  E.  228;  Foxwell  v.  State,  63 
Ind.  539. 


Iowa.  State  V.  Stevens,  67  Iowa, 
557,  25  N.  W.  777. 

Kan.  State  v.  Younger,  78  P.  429. 
70  Kan.  226 ;  City  of  Holton  v.  Bim- 
rod.  55  P.  505,  8  Kan.  App.  265. 

Mich.  People  v.  Warner,  104  Mich. 
337.  62  X.  W.  405. 

Neb.  :Metz  v.  State,  46  Neb.  547. 
65  N.  W.  190. 

N.  D.  State  v.  Lesh,  145  N.  W.  829, 
27  X.  D.  165. 

Or.  State  v.  Magers,  58  P.  892,  36 
Or.  38. 

Tex.  Bosley  v.  State,  153  S.  W. 
878.  69  Tex.  Cr.  R.  100;  Adams  v. 
State  (Cr.  App.)  105  S.  W.  497;  Torev 
V.  State.  56  S.  W.  60.  41  Tex.  Cr.  R. 
543;  Prewitt  v.  Same,  53  S.  W.  879. 
41  Tex.  Cr.  R.  262 ;  Morrison  v.  State, 
51  S.  W.  358,  40  Tex.  Cr.  R.  473. 

7  2  Cal.  People  V.  Romero,  121  P. 
698.  17  Cal.  App.  680. 

Idaho.  State  v.  Gruber,  115  P.  1, 
19  Idaho,  602. 

Okl.  Conley  v.  State,  179  P.  480. 
15  Okl.  Cr.  531;  Dunn  v.  State,  176 
P.  86,  15  Okl.  Cr.  245. 

Wyo.  Leslie  v.  State,  65  P.  849, 
10  Wyo.  10 ;    Id.,  69  P.  2,  10  Wyo.  10. 

73  State  V.  Gifford  (Mo.  Sup.)  186 
S.  W.  1058;  State  v.  Taylor,  168  S. 
W.  1191,  261  Mo.  210;  State  v.  Robin- 
son, 117  Mo.  649.  23  S.  W.  1066. 

7  4  Tines  v.  Commonwealth,  77  S.  W. 
363,  25  Ky.  Law  Rep.  1233 ;  State  v. 
Pearce,  56  Minn.  226,  57  X.  W.  652. 

In  California  it  is  held  that  the 
giving  of  such  an  instruction  is  not 
]iroi)er  practice.  People  v.  Ruef,  114 
P.  54.  14  Cal.  App.  576. 

7  5  McLaughlin  v.  State,  169  P.  657, 
14  Okl.  Cr.  192. 

7  6  Russell  v.  State  (Okl.  Cr.  App.) 
194  P.  242. 


397 


INSTRUCTIONS   ON   BURDEN   OP   PROOF 


§203 


CHAPTER  XIII 
INSTRUCTIONS  ON  BURDEN  OF  PROOF 

§  203.  Necessity  and  propriety. 

204.  Necessity  of  request  for  iustructions. 

205.  Sutlicieucy  of  iustructions. 

206.  Stiifting  burden  of  proof. 

207.  Effect  of  erroneous  instruction. 

Propriety  of  instructions  on  burden  of  proof  as  to  alibi,  see  post,  §  336. 

§  203.     Necessity  and  propriety 

While  in  one  jurisdiction  it  is  considered  to  be  the  better  prac- 
tice not  to  refer  specially  to  the  burden  of  proof,  but  to  simply 
frame  the  instructions  so  as  to  indicate  such  burden,  and  to  tell 
the  jury  to  decide  as  they  believe  from  the  evidence  the  fact  to 
be,i  the  general  rule  is  that  instructions  telling  the  jury  upon 
whom  the  burden  of  proof  rests  are  proper,^  and  should  be  given 
both  in  civil  ^  and  in  criminal  cases,*  if  a  request  is  made  therefor.^ 


1  Bannon  v.  Louisville  Trust  Co., 
150  S.  W.  510,  150  Ky.  401 ;  Mussel- 
lam  V.  Cincinnati,  N.  O.  &  T.  P.  Ry. 
Co.,  104  S.  W.  337,  126  Ky.  .500,  31 
Ky.  Law  Rep.  90S ;  Henning  v.  Steven- 
son, SO  S.  W.  1135,  118  Ky.  31S,  26 
Ky.  Law  Rep.  159;  Mills  v.  Louisville 
&  N.  R.  Co.,  76  S.  W.  29,  116  Ky.  309, 
25  Kv.  Law  Rep.  488 ;  Macon  v.  Padu- 
cah  St.  Ry.  Co.,  62  S.  W.  496,  23  Ky. 
Law  Rep.  46,  110  Ky.  680 ;  Ragsdale 
v.  Ezell,  15  Ky.  Law  Rep.  (abstract) 
495;  Louisville  &  N.  R.  Co.  v.  Hofge- 
sang,  13  Ky.  Law  Rep.  (abstract)  829 ; 
Tabler  v.  Jones,  12  Ky.  Law  Rep. 
(abstract)  189. 

2  Coiui.  Coogan  v.  Lynch,  89  A. 
906,  88  Conn.  114. 

111.  Zink  V.  National  Council, 
Knigbts  and  Ladies  of  Security,  199 
111.  App.  376 ;  McMahon  v.  Scott,  132 
111.  App.  582. 

Md.  INIeyer  v.  Frenkil,  82  A.  208, 
316  Md.  411,  Ann.  Cas.  1913C,  875. 

Tex.  Chittim  v.  Martinez,  58  S. 
W.  04S,  94  Tex.  141. 

Wis.  Illinois  Steel  Co.  v.  Paczo- 
cba,  119  N.  W.  550,  139  Wis.  23. 

3  Buttrill  Guano  Co.  v.  Curry,  92  S. 
E.  521,  147  Ga.  11;  Levy  v.  Jarrett 
(Tex.  Civ.  App.)  198  S.  W.  333 ;  Bos- 
well  v.  Pannell,  180  S.  W.  593,  107 
Tex.  433,  modifying  Judgment  (Civ. 
App.)  146  S.  W.  233;  Irvin  v.  Jobnson, 


98  S.  W.  405,  44  Tex.  Civ.  App.  436. 
Special  issues.  The  court  should 
charge  on  the  issues  involved,  includ- 
ing the  burden  of  proof,  though  the 
case  is  submitted  on  special  issues. 
Goree  v.  Uvalde  Nat.  Bank  (Tex.  Civ. 
App.)  218  S.  W.  620;  Texas  Baptist 
University  v.  Patton  (Tex.  Civ.  App.) 
145  S.  W.  1063. 

4  Lane  v.  State,  85  Ala.  11,  4  So. 
730;  McGuire  v.  State,  13  Smedes  & 
M.  (Miss.)  257;  Gammel  v.  State,  163 
N.  W.  854,  101  Neb.  532,  opinion  modi- 
fied on  rehearing  166  N.  W.  250,  101 
Neb.  532;  Orner  v.  State,  143  S.  W. 
935,  65  Tex.  Cr.  R.  137;  Lensing  v. 
State  (Tex.  Cr.  App.)  45  S.  W.  572. 

Burden  of  sliotriiig  competency 
to  commit  crime.  In  a  prosecution 
of  a  person  between  the  ages  of  10 
and  14  years,  it  was  error  to  refuse 
an  instruction  that  the  burden  was 
on  the  state  to  prove  accused's  com- 
petency to  commit  the  crime,  though 
the  court  instructed  that,  in  deter- 
mining his  mental  responsibility  and 
knowledge  of  good  and  evil,  the  jury 
should  consider  all  the  circumstances, 
and  acquit  if  they  had  a  reasonable 
doubt.  Brown  v.  State,  78  S.  E.  352, 
12  Ga.  App.  722. 

5  Clouston  V.  Maingault,  150  S.  W. 
858,  105  Ark.  213 ;  Johnson  v.  Chica- 
go  City    Ry.    Co.,   166   111.    App.    79; 


§  203 


INSTRUCTIONS   TO  JURIES 


398 


Particularly  should  such  an  instruction  be  given  where  the  cir- 
cumstances are  such  as  to  place  the  burden  of  proof  upon  the 
defendant  as  to  certain  matters.^  The  state  of  the  evidence  or  the 
circumstances  of  the  case  may,  however,  make  it  proper  to  refuse 
a  charge  on  the  burden  of  proof,'  or  there  may  be  such  admissions 
by  one  party  or  the  other  as  to  make  it  harmless  error  to  refuse  to 
so  instruct.^  So  it  is  proper  to  refuse  such  a  charge  where  the 
evidence  is  practically  uncontradicted,  or  conclusively  proves 
the  fact  in  issue,^  or  where  the  question  is  simply  one  as  to  the 
credibility  of  conflicting  witnesses. ^*^ 

Where  the  court  has  charged  that  the  plaintifif,  in  order  to  re- 
cover, must  make  out  his  case  by  a  preponderance  of  the  evidence, 
it  is  not  error  to  refuse  a  further  charge  that  the  burden  is  on 
him  to  prove  his  case  by  the  evidence,"  and  the  trial  judge  is 
under  no  obligation  to  make  known  his  views  of  the  relative  con- 
dition of  the  parties  as  to  the  burden  of  proof  at  every  stage  of 
the  proceedings.-^^ 


Berger  v.  St.  Louis  Storage  &  Com- 
mission Co.,  116  S.  W.  444,  136  Mo. 
App.  .36;  Franklin  v.  Friehofer  Vien- 
na Balling  Co.,  58  A.  82,  71  N.  J.  Law, 
112 ;  McCoi-mick  v.  City  of  New  York, 
147  N.  Y.  S.  917,  162  App.  Div.  539. 

6  Stevens  v.  Pendleton,  53  N,  W. 
1108,  94  Mich.  405:  Mclninch  v. 
EK-ans,  133  N.  W.  187,  90  Neb.  243; 
Crugley  v.  Grand  Trunk  Ry.  Co.  (N. 
H.)  108  A.  293 ;  Smith  v.  Smith  (Tex. 
Civ.  App.)  200  S.  W.  540. 

7  St.  Louis  Southwestern  Ey.  Co.  of 
Texas  v.  Preston  (Tex.  Civ.  App.)  228 
S.  W.  928 ;  Producer's  Oil  Co.  v.  State 
(Tex.  Civ.  App.)  213  S.  W.  .349 ;  Davis 
v.  Davis,  49  S.  W.  726,  20  Tex.  Civ. 
App.  310 ;  Howard  v.  Britton,  71  Tex. 
286,  9  S.  W.  73, 

8  Dillard  v.  Louisville  &  N.  R,  Co,, 
2  Lea  (Tenn.)  288. 

9  In  re  Yetter's  Estate,  55  Minn. 
452,  57  N.  W.  147;  Milmo  Nat.  Bank 
V.  Convery  (Tex.  Civ.  App.)  49  S.  W. 
926. 

10  Texas  &  N.  O.  R.  Co.  v.  Syfan 
(Tex.  Civ.  App.)  43  S.  W.  551. 

11  City  of  Victoria  v.  Victoria  Coun- 
ty   (Tex.   Civ.   App.)    115    S.   W.   67; 


Houston  Ice  &  Brewing  Co.  v.  Nicolini 
(Tex.  Civ.  App.)  96  S.  W.  84;  Gal- 
veston City  Rv.  Co.  V.  Chapman,  80  S. 
W.  856,  35  Tex.  Civ.  App.  551 ;  West- 
em  Union  Tel.  Co.  v.  Bowles  (Tex. 
Civ.  App.)  76  S.  W.  456 ;  Houston  &  T. 
C.  R.  Co,  v.  Dotson,  38  S.  W.  642,  15 
Tex.  Civ,  App.  73. 

Effect  of  instruction  requiring 
clear  and  unequivocal  proof.  In 
an  action  for  personal  services,  where 
the  .iui-y  were  instructed  that  the  con- 
tract must  be  established  by  clear 
and  unequivocal  proof,  it  is  not  error 
to  refuse  to  give  another  instruction 
putting  the  burden  on  plaintiff  to 
prove  the  existence  of  the  contract, 
Rudy  V.  Rudy,  33  Ohio  Cir.  Ct.  R.  359. 

Failure  to  request  more  specific 
instructions.  An  instruction,  con- 
cerning the  burden  of  proof,  that 
plaintiff  must  prove  the  affirmative  is- 
sues tendered  by  his  complaint  by  a 
preponderance  of  evidence,  is  suffi- 
cient when  no  further  instruction  is 
requested.  Nichol  v.  Laumeister,  102 
Cal.  658,  36  P.  925. 

1 2  Hovey  v.  Hobson,  55  Me.  250 ; 
Mears  v.  Mears,  15  Ohio  St,  90. 


390 


INSTRUCTIONS   ON    BURDEN   OP   PROOF 


20-4 


S  204      Necessity  of  request  for  instructions 

In  the  absence  of  any  request  for  instructions  on  the  burden 
of  proof,  it  will  ordinarily  not  be  error  to  fail  to  give  them, 
and  where  the  court  has  laid  down  in  general  terms  the  rule  as 
to  preponderance  of  the  evidence,  the  failure  to  give  more  specific 
instructions  on  the  burden  of  proof  is  not  error,  in  the  absence 
of  a  request  therefor.^*  So  where  the  court  correctly  charges  as 
to  the  general  burden  of  proof,  its  failure  to  instruct  as  to  the 
shifting  of  the  burden  which  may  arise  during  the  case  is  not 
error,  unless  a  request  has  been  made  for  such  an  instruction, 
but  where  affirmative  matter  is  set  up  in  an  answer,  the  court, 
on  its  own  motion,  should  instruct  the  jury  that  as  to  such  mat- 
ter the  burden  of  proof  is  upon  the  defendant,i«  ^nd  a  positive 


isCal.     Wvatt  v.  Pacific  Electric 
Ry    Co.,  103  P.  S92,  156  Cal.  170. 

Conn.     Miles  v.  Strong,  36  A.  oo, 
68  Conn.  273.  .    ^ 

Ga.  Purity  Extract  &  Tonic  Co.  v. 
Holmes-Hartsfield  Co.,  92  S.  E.  548, 
20  Ga.  App.  105;  Lazenby  v.  Citi- 
zens' Bank,  92  S.  E.  391,  20  Ga.  App. 
53  •  Western  Union  Telegraph  Co.  v. 
Trkvis,  86  S.  E.  221,  141  Ga.  110; 
Martin  v.  Gibbons,  SO  S.  E.  522,  14  Ga. 
\pp  136;  Whittle  v.  Central  of  Geor- 
gia Ky.  Co.,  74  S.  E.  1100,  11  Ga. 
App  257 ;  Johnson  v.  Reeves,  6G  S.  E. 
1081,  133  Ga.  822 ;  Southern  Ry.  Co. 
V.  Wright,  64  S.  E.  703,  6  Ga.  App. 
172. 

111.     Drury  v.  Connell,  52  N.  E.  368, 

177  111.  43.  ^     ^ 

Iowa.  D.  M.  Osborne  &  Co.  v. 
Rin-land  &  Co.,  98  N.  W.  116,  122 
Iowa  329:  Harvey  v.  City  of  Clann- 
da  82  N.  W.  994,  111  Iowa,  528 ;  Reiz- 
enstein  v.  Clark,  73  N.  W.  588,  104 
Iowa,  287.  ^ 

Ky.     Anderson  v.  Baird,  40  S.  W. 

923. 
"Mass.     Nicholson  v.  Feindel,  107  N. 
E.  353,  219  Mass.  490. 

Mich.  Donovan  v.  Bromley,  71  N. 
W.  523,  113  Mich.  53. 

Minn.  In  re  Paulson's  Estate,  150 
N.  W.  914,  128  Minn.  277. 

Mo.  Denny  v.  Brown  (Sup.>  193  S. 
W.  552;  Eminence  Realty  &  Broker- 
age Co.  V.  Randolph  (App.)  180  S.  W. 
25. 

S.  D.  Frye  v.  Ferguson,  6  S.  D. 
392,  61  N.  W,  161. 


Tenn.     Shelby   County    v.   Fisher, 
194  S.  W.  576,  137  Tenn.  507. 

Tex.  San  Antonio  &  A.  P.  Ry.  Co. 
V.  Moerbe  (Civ.  App.)  189  S.  W.  128 ; 
Hall  V.  Ray  (Civ.  App.)  179  S.  W. 
1135 ;  Franklin  v.  International  &  G. 
N  Rv.  Co.  (Civ.  App.)  174  S.  W.  333; 
McKee  v.  Garner  (Civ.  App.)  168  S. 
W  1031 ;  Texas  Baptist  University  v. 
Pattou  (Civ.  App.)  145  S.  W.  1063; 
Louisiana  &  T.  Lumber  Co.  v.  Dupuy, 
52  Tex.  Civ.  App.  46.  113  S.  W.  973. 
Wis.  Coppins  V.  Town  of  Jeffer- 
son. 105  N.  W.  1078,  126  Wis.  57S. 

Evidence  not  conflicting.  Fail- 
ure to  instruct  the  jury  that  the  bur- 
den of  proof  was  on  plaintiff,  and 
that  before  he  could  recover  he  must 
produce  a  fan"  preponderance  of  the 
testimony,  is  not  error  when  the  evi- 
dence is  not  conflicting,  and  no  such 
instruction  is  requested  by  defendant. 
Smith  v.  Chicago,  M.  &  St.  P.  Ry.  Co., 
60  Iowa,  512,  15  N.  W.  303. 

i*  Brandon  v.  Pritchett,  66  S.  E. 
247,  133  Ga.  480;  Central  of  Georgia 
Ry.  Co.  V.  Manchester  Mfg.  Co.,  64  S. 
E.  1128,  6  Ga.  App.  254;  Houston  & 
T  C  R  Co.  V.  Lemair,  119  S.  W.  1162, 
55  Tex.  Civ.  App.  237 ;  Wichita  Land 
&  Cattle  Co.  V.  State,  80  Tex.  684,  16 
S.  W.  649. 

15  Albany  Warehouse  Co.  v.  Hill- 
man,  94  S.  E.  569,  147  Ga.  490. 

16  Whipple  V.  Preece,  56  P.  296,  18 
Utah,  454. 

In  a  will  contest,  where  the  court 
ruled  at  the  beginning  that  the  bur- 
den was  on  proponent,  but  charged 


§   205  INSTRUCTIONS  TO  JURIES  ^  400 

misdirection  as  to  the  burden  of  proof  is  ground  for  reversal, 
although  no  other  instruction  calling  the  attention  of  the  court 
to  such  error  is  requested/'^  and  in  a  criminal  case,  where  the 
state  has  put  in  evidence  the  written  statement  of  the  defendant 
as  to  the  manner  of  committing  the  act  alleged  to  constitute  the 
crime  of  which  he  is  accused,  the  court,  although  not  requested 
so  to  do,  should  charge  that  tlie  burden  is  on  the  state  to  disprove 
such  statement.^* 

§  205.     Sufficiency  of  instructions 

Where  a  charge  on  the  burden  of  proof  is  given,  it  should  be 
so  framed  as  to  place  the  burden  on  the  plaintiff  to  prove  all  the 
facts  necessary  to  entitle  him  to  recover, ^^  and  an  instruction  that 
the  plaintiff  has  the  burden  of  proving  the  material  allegations  of 
his  complaint,  without  stating  what  allegations  are  material,  will 
not  warrant  the  refusal  of  a  request  for  more  specific  instruc- 
tions.^" On  the  other  hand,  a  requested  charge  that  the  plain- 
tiff' has  the  burden  of  proving  the  averments  of  his  complaint,  or 
some  count  thereof,  is  too  exacting  in  its  requirements,^^  and  the 
court  is  not  required  to  instruct  that  the  burden  of  proving  all 
the  material  allegations  of  the  complaint  is  on  the  plaintiff,  where 
some  of  the  material  allegations  are  admitted  by  the  answer.'*" 
So  an  instruction  requiring  a  plaintiff,  in  order  to  succeed,  to 
prove  facts  the  existence  of  which  is  presumed  by  law  from  the 
existence  of  the  facts  shown,  is  erroneous,  as  imposing  a  burden 
beyond  that  which  the  law  exacts.^^  Where  the  case  is  submitted 
upon  special  issues,  the  court  will  sufficiently  charge  upon  the 
burden  of  proof  if  it  tells  the  jury  to  return  an  answer  with 
respect  to  each  of  such  issues  in  accordance  with  the  preponder- 
ance of  the  evidence.^* 

that  as  to  the  issue  of  insanity  only  that  it  devolves  on  the  government  to 

the   burden    was   on    protestant,    its  prove  "every  material  fact"  necessary 

failing  to  charge  as  to  the  burden  on  to  constitute  the  offense,  instead  of 

the  issue  of  undue  influence  was  er-  "every  material  ingredient,"  does  not 

roneous,   though  proponent's  counsel  constitute  error.    Guignard  v.  United 

did   not   request   instruction.     In    re  States  (C.  C.  A.  S.  C.)  258  F.  607,  170 

Hansen's  Will,  167  P.  256,  50  Utah,  C.  C.  A.  61. 
207.  2  0  Riddle  V.  Russell,  79  N.  W.  363, 

17  Gowdey  v.  Robbins,  3  App.  Div.  lOS  Iowa,  591. 

353,  .^S  N.  Y.  S  280.  21  Tutwiler   v.   Burns,   49   So.  455, 

18  Casey  v.  State,  113  S.  W.  534,  54       t^a   ai^    qsfi 

Tex.  Cr.  R.  5S4  ;    Combs  v.  State,  108  ",  ^,  *  ^„  ,,      ,    „    .^a 

S.  W.  649,  52  Tex.  Cr.  R.  613.  ^^^^  ^-  Conway,  78  Mo.  App.  490. 

'10  Metropolitan  St.  Ry.'co.  v.  Wish-  "  Dawson  v.  Wombles,  100  S.  W. 

ert  (Tex.  Civ.  App.)  89  S.  W.  460.  547,  123  Mo.  App.  340. 

Proof    of    every    ingredient    of  24  Texas  Power  &  Light  Co.  v.  Bris- 

crime.     That  an  instruction  charges  tow  (Tex,  Civ.  App.)  213  S.  W.  702. 


401  INSTRUCTIONS   ON   EDKDEN   OF   I'liOOF  §  206 

In  a  criminal  case  in  some  jurisdictions  an  i-*™!'!""  .f  ^^f,! 

A  f     Motnt    iQ   nresumed   to   be   innocent   until   his    guilt   is   esiao 

rc^:;i:^:,rsu«cient,,  in^orms^^^^^^^^ 

S:hTr-a7^o^^  s  i'nstructlon^^r:  the  state  must  prove  its 
eacn  para^rap  thereof  beyond  a  reasonable  doubt.-" 

"Wh^r'e  X  d    e"dant  sTsip  ?n  affirmative  defense,  it  is  error 

mmmmm 

an  f-ative  defense    .t  .s  P™Pey<>^  «^  'o^",;;r  evidence.^^ 

question  at  issue."*" 

^  'rL  phrf::"4ur"en"of1r';of  has  a  double  meaning.    It  is  not 
.mpoper  to  instruct  that' the  burden  of  proof   sW's  to™   - 
party  to  the  other,  when  that  phrase  is  employed  to  express  the 

c,4.  +      ao  «s    T?    qfifi    20  Instructions  not  improper  witli- 

26  Watts  V.  State,  92  S.E9bb^U  "^                   ^         considered    as    a 

Ga.  App.  182;  Day  ^^  State,  21  Tex.  ^Jj^^^^^'^here  the  court  distiuctly 
App.  213,  17  S.  W  ^62.  charged  that  if  plaintiff's  alleged  rep- 
See  Varner  v.  State  (C^a.  App.j  -Luo  j.gsg^tations  or  any  of  them  were 
S.  E.  SO.  ^  iiQ^  w  7^4  140  false  or  untrue,  defendant  was  justi- 
2  6  state  V.  Hart,  118  N.  TS .  <S4,  140  i,a  ^  .^  revoking  the  partnership  eon- 
Iowa,  456.  j^       J    an  instruction  that  defendant 

27  Stevens  v.  Stephens,  47  P.  76,  14  t^acc,  ^^^_^^^^.^j^  ^^^  ^^.^^^j^  ^^  the  alle- 

Utah,  255.  gations  of  his  affirmative  defenses  of 

28  Fisher  V  Shands,  102  S.  E.  190,  f^^^^^^^^^^^^^,^  ^„d  pUiintiff's  fraudu- 
24  Ga.  App.   lid.  ,.^^„    in   N        lent    representations,    etc.,    was    not 

2  9  Williamson  v.  Robinson,  111  N.  ^f '  '  ^  '  „„  imposing  on  defendant 
W.  1012  134  Iowa,  345;  Liverpoo^  &  ^fZfaen  of  pTovLg^ll  such  aver- 
se ^Te^x.  ^S.%;;  6lt  reh/ai^Vdt       Lent.^^  Kamsay  v.  Meade.  86  P.  lOlS, 

nied  ^ouaouj.^.  f  G-J^-^.^^p^-       "^fiJL  Castle  Bridge  Co.  v.  Doty. 
Same,  64  S.  W.  786.  26  Tex.  Oiv.  App.  ^^  ^^^^  ^pp_  g^_ 


613. 

I>'ST.T0  Juries— 20 


§   206  INSTRUCTIONS   TO  JURIES  402 

idea  that  it  is  incumbent  upon  a  party  at  a  certain  stage  of  the 
trial  to  go  forward  v/ith  the  evidence  on  a  given  question.^^  When, 
however,  such  phrase  is  used  to  convey  the  idea  that  a  named  Hti- 
gant  must  establish  a  given  proposition,  it  is  not  accurate  to  say 
that  the  burden  of  proof  shifts  at  any  point  in  the  proceedings.^'' 

In  criminal  cases  the  burden  of  proof  does  not'shift,  but  remains 
upon  the  people  during  the  whole  trial. ^^  It  is  therefore  error  for 
the  court  to  instruct  that,  when  the  state  has  made  out  a  prima 
facie  case,  it  is  then  incumbent  upon  the  defendant  to  restore 
himself  to  that  presumption  of  innocence  to  which  he  was  en- 
titled at  the  commencement  of  the  trial,^*  or  that  when,  in  the 
opinion  of  the  jury,  the  evidence  is  sufficient  to  show  the  guilt 
of  defendant  beyond  a  reasonable  doubt,  the  burden  then  rests 
upon  him  to  establish  his  innocence.^^  In  some  jurisdictions  the 
accused  is  entitled  to  an  instruction  declaring  that  the  burden  of 
proof  never  shifts  to  the  defendant.^*'  In  other  jurisdictions,  if 
the  usual  instructions  on  reasonable  doubt  and  presumption  of 
innocence  are  given,^'  it  is  not  error,  unless  the  peculiar  cir- 
cumstances of  the  case  require  it,^*  to  refuse  an  instruction  that 
the  burden  never  shifts  to  the  defendant. 

In  criminal  cases  instructions  should,  in  clear  and  unmistakable 
language,  place  the  burden  of  proof  upon  the  state  to  show  every 
essential  element  of  the  offense  charged,  and  an  instruction  which 

31  Hansen  v.  Oregon- Washington  R.  any    issue   tendered    by    the  petition 

&  Nav.  Co.,  188  P.  963,  97  Or.  190.  shifted,  but  merely  that  the  burden  of 

3  2  Hansen  v.  Oregon- Washington  R.  proof  rested  on  defendant  to  establish 

&  Nav.  Co.,  188  P.  963,  97  Or.  190 ;  its  affirmative  defense.     City,  of  Mc- 

Askay  v.  Maloney,  179  P.  899,  92  Or.  Cook  v.  McAdams,  106  N.  W.  988,  76 

566.  Neb.  1,  reversed  110  N.  W.  1005,  76 

Instructions        not        erroneous  Neb.  1. 
within  rule.     In  action  on  accident  3  3  People  v.   jNIcWhorter,  93   Mich, 
policy  involving  issue  of  whether  in-  641,  53  N.  W.  780. 
sured's  death  was  due  to  accident  or  34  Commonwealth    v.    Kimball,    24 
suicide  where  evidence  thereon  was  pick.  (Mass.)  366    35  Am    Dec    326  • 
purely      circumstantial,      instruction  ?;tate  v.  McCluer.' 5  Nev.  132;    Chap- 
that  presumption  was  in  favor  of  ac-  j^j^j^  .^,    state  1  Tex   App  7'?8' 
cident  was  proper,  and  did  not  oper-  35  Cau-hman  v    United   States  (C 
ate   to   shift  burden   of  proof  as   to  ^    A    S    0.^258  F.^S4    169  C.  S.  A. 
cause  of  death  from  plaintiff  to  de-  ,_^               '                     '             .  v^.  .□.. 
fendant.    Wilkinson  v.  Standard  Acci-  "^     ' 

dent  Ins.  Co.  of  Detroit,  Mich.,  ISO  P.  ^e  People  v.  Schultz-Knighten,  115 

607,  ISO  Cal.  252.    An  instruction  that  ^-  ^-  ^^O,  277  111.  238. 

the  burden  of  proof  was  on  i)laintiff  "  Beeson  v.  State,  130  S.  W.  1006, 

to  establish  the  material  allegations  60  Tex.  Cr.  R.  39. 

of  his  petition,  but  that  this  burden  ss  Hawkins  v.  State.  179  S.  W.  448, 

does  not  remain  with  the  plaintiff  on  77  Tex.  Cr.  R.  520 ;    Miller  v.  State, 

the  question  of  an  affirmative  defense,  144  S.  W.  239.  65  Tex.   Cr.  R.  302 ; 

was  not  erroneous,  as  instructing  the  Phillips  v.  State.  26  Tex.  App.  228,  9 

Jury  that  the  burden  of  proof  as  to  S.  W.  557,  8  Am.  St.  Rep.  471. 


403 


INSTRUCTIONS   ON   BURDEN   OF   PROOF 


206 


is  so  framed  or  so  involved  as  to  be  likely  to  mislead  the  jury 
into  thinking  that  the  burden  is  upon  the  defendant  to  prove  the 
absence  or  nonexistence  of  any  such  essential  element  is  cause  for 
reversal. ^^     An  instruction  that  a  doubt  to  justify  acquittal  must 


3  0  U.  S.  (C.  C.  A.  Ky.)  German  v. 
United  States,  120  F.  666,  57  C.  C.  A. 
128. 

Fla.  Padgett  v.  State,  24  So.  145, 
40  Fla.  451 ;  Alvarez  v.  State,  27  So. 
40,  41  Fla.  532. 

Ga.  Nixon  v.  State,  SO  S.  E.  513, 
14  Ga.  App.  261,  following  McDonald 
V.  State,  77  S.  E.  655,  12  Ga.  App.  526. 

Iowa.  State  v.  Brady,  91  N.  W. 
801. 

Neb.  Chamberlain  v.  State,  115  N. 
W.  555,  80  Neb.  812;  Snider  v.  State, 
76  N.  W.  574,  56  Neb.  309 ;  Burger  v. 
'   State,  34  Neb.  397,  51  N.  W.  1027. 

N.  J.  State  V.  Sandt  (Sup.)  Ill  A. 
651. 

Okl.  Adair  v.  State,  180  P.  253,  15 
Okl.  Cr.  619 ;  Findley  v.  State,  162  P. 
680,  18  Okl.  Cr.  128;  Courtney  v. 
State,  152  P.  1134,  12  Okl.  Cr.  109; 
Carter  v.  State,  152  P.  1132,  12  Okl. 
Cr.  164 ;  Bauer  v.  State,  107  P.  525, 
3  Okl.  Cr.  529 ;  Mumbrauer  v.  State, 
106  P.  559,  3  Okl.  Cr.  429 ;  Frazier  v. 
United  States,  103  P.  373,  2  Okl.  Cr. 
657. 

Pa.  Commonwealth  v.  Greene,  75 
A.  1024,  227  Pa.  86,  136  Am.  St.  Rep. 
867. 

Tex.  Alexander  v.  State,  204  S. 
W.  644,  84  Tex.  Cr.  R.  75;  Coy  v. 
State,  171  S.  W.  221,  75  Tex.  Cr.  R. 
85 ;  Maloney  v.  State,  125  S.  W.  36,  57 
Tex.  Cr.  R.  435 ;  Harris  v.  State,  117 
S.  W.  839,  55  Tex.  Cr.  R.  4G9;  Stew- 
art V.  State,  101  S.  W.  800,  51  Tex. 
Cr.  R.  223. 

Wash.  State  v.  Hatfield,  118  P. 
735,  65  Wash.  5.50,  Ann.  Cas.  1913B, 
895;  State  v.  Pilling,  102  P.  230,  53 
Wash.  464,  132  Am.  St.  Rep.  lOSO. 

Wyo.  Meldrum  v.  State,  146  P. 
596,  23  Wyo.  12. 

Instructions  improper  xrithin 
rule.  Instruction  that,  if  jury  found 
beyond  a  reasonable  doubt  that,  when 
defendant  killed  deceased,  the  deceas- 
ed was  attempting  to  assault  defend- 
ant, so  as  to  endanger  his  life  or  to  do 
him  great  bodily  harm  and  if  such 
danger  then  reasonably  appeared  to 


defendant,  and  he  then  killed  deceas- 
ed, it  was  in  self-defense,  and  defend- 
ant should  be  acquitted.  Slate  v. 
State,  175  P.  843,  15  Okl.  Cr.  201. 
An  instruction,  on  the  trial  of  a 
teacher  for  assaulting  a  scholar,  that 
the  teacher  had  the  right  to  the  ex- 
ercise of  moderate  restraint  over  the 
scholar,  and  that  if  the  teacher  chas- 
tised the  scholar,  and  used  no  more 
force  than  was  necessary  in  the  exer- 
cise of  such  restraint,  he  would  not 
be  guilty.  Greer  v.  State  (Tex.  Cr. 
App.)  106  S.  W.  359.  A  charge,  in  a 
murder  case,  that  if  the  jury  believe 
beyond  a  reasonable  doubt  that,  a 
short  time  pi'ior  to  the  alleged  killing 
of  decedent  by  accused,  decedent  had 
assaulted  accused,  and  that  decedent 
abandoned  the  assault  as  far  as  he 
could,  and  accused  then,  under  the 
immediate  influence  of  sudden  pas- 
sion, which  was  produced  by  the  as- 
sault, killed  deceased,  and  if  they  find 
beyond  a  reasonable  doubt  that  ac- 
cused was  not  acting  in  self-defense, 
then  he  would  be  guilty  only  of  man- 
slaughter. Huddleston  v.  State,  112 
S.  W.  64,  54  Tex.  Cr.  R.  93,  130  Am. 
St.  Rep.  875.  An  instruction  that  if 
the  jury  believed  defendant  was 
guilty  of  some  grade  of  offense,  but 
they  had  a  reasonable  doubt  whether 
he  was  guilty  of  some  grade  of  homi- 
cide or  of  an  aggravated  assault,  then 
they  must  give  defendant  the  benefit 
of  the  doubt  and  not  find  him  guilty 
of  a  higher  grade  of  offense  than  ag- 
gravated assault,  if  he  was  found 
guilty  of  that,  or,  if  they  found  from 
the  evidence  that  defendant  was  not 
guilty  of  any  offense,  they  should  re- 
turn a  verdict  of  not  guilty.  Grant  v. 
State,  120  S.  W.  481,  56  Tex.  Cr.  R. 
411.  An  instruction,  in  a  case  of 
criminal  prosecution  for  libel,  that 
it  was  incumbent  on  defendant  to  sat- 
isfy them  that  the  libel  was  not  pub- 
lished with  his  knowledge  or  author- 
ity, and,  unless  he  had  so  satisfied 
them,  they  should  return  a  verdict  of 
guilty.     State  v.  Grinstead,  64  P.  49, 


206 


li^STRUCTIONS  TO  JURIES 


404 


be  reasonable,  and  unless  it  would  cause  a  reasonable  man  to 
hesitate  it  is  insufficient  to  warrant  a  verdict  of  not  guilty,  is  er- 
roneous, as  intimating  that  guilt   is  a  natural  presumption,   and 


62  Kan.  593,  affirming  judgment  61  P. 
^76,  10  Kan.  App.  78.  A  charge  in  a 
criminal  case,  in  which  intent  was  an 
essential  ingredient  of  the  offense, 
was  erroneous,  where,  after  correctly 
stating  that  the  burden  rested  upon 
the  government  to  prove  such  intent 
beyond  a  reasonable  doubt,  but  that 
it  might  be  inferred  from  the  acts  of 
the  defendant,  who  was  presumed  to 
have  intended  the  natural  and  proba- 
ble consequences  of  his  acts,  it  was 
further  stated  that,  if  the  acts  prov- 
en were  such  as  to  raise  an  inference 
of  guilty  intent,  the  burden  was 
thrown  upon  defendant  to  rebut  such 
inference  by  evidence  sufficiently 
strong  to  satisfy  the  jury  beyond  a 
reasonable  doubt  that  there  was  no 
guilty  intent ;  and  the  error  cannot 
be  held  harmless  where  the  general 
instruction  that  the  burden  of  proof 
rested  on  the  government,  and  contin- 
ued throughout  the  case,  was  quali- 
fied by  the  words,  "subject  to  what 
will  be  thereafter  said  upon  the  ques- 
tion of  proof  of  intent."  McKnight 
V.  United  States  (C.  C.  A.  Ky.)  115  F. 
972,  54  C.  O.  A.  35S. 

Instmctions  not  improper  -witli- 
in  rule.  An  instruction  that  the  pre- 
sumption of  innocence  remains  with 
accused  till  by  competent  evidence  the 
state  establishes  guilt  beyond  a  rea- 
sonable doubt.  Van  Syoc  v.  State,  96 
N.  W.  266,  69  Neb.  520.  An  instruc- 
tion that,  if  defendant  did  not  as- 
sault the  prosecutrix,  or  if  thei-e  was 
a  reasonable  doubt  as  to  whether  he 
assaulted  her,  he  must  be  acquitted. 
Conger  v.  State,  140  S.  W.  1112,  63 
Tex.  Cr.  R.  312.  An  instruction  that 
the  burden  of  showing  an  alibi  is  on 
the  defendant,  but,  if  the  testimony 
in  the  whole  case  raises  a  reasonable 
doubt  of  defendant's  presence  when 
the  crime  was  committed,  he  should 
be  acquitted.  Rayburn  v.  State,  63  S. 
W.  356,  69  Ark,  177.  An  instruction 
on  the  defense  of  alibi,  that  if  ac- 
cused was  elsewhere  than  at  the  place 
of  the  commission  of  the  crime  charg- 
ed he  was  not  guilty,   and  if  on  a 


consideration  of  the  evidence  the  jury 
have  a  reasonable  doubt  as  to  wheth- 
er accused  was  elsewhere  than  at  the 
place  of  the  commission  of  the  crime 
at  the  time  of  its  commission,  a,  ver- 
dict of  not  guilty  should  be  rendered. 
State  V.  Bateman,  95  S.  W.  413,  196 
Mo.  35.  ^  A  charge,  in  a  prosecution 
for  burglary  where  an  accomplice  tes- 
tified against  accused,  that  if  the  ac- 
complice broke  into  the  house  without 
the  presence  of  accused  and  after- 
wards gave  accused  some  of  the  prop- 
erty taken,  accused  could  not  be  con- 
victed, even  if  he  knew  that  the  ac- 
complice had  stolen  the  property,  and 
unless  the  evidence  showed  beyond 
a  reasonable  doubt  that  accused  did 
not  so  obtain  the  goods,  if  he  had 
them,  and  that  he  was  present  at  the 
entry  into  the  house  and  agreed  to 
the  act,  he  must  be  acquitted,  did  not 
place  the  burden  of  proof  on  accused. 
Criuer  v.  State,  109  S.  W.  128,  53  Tex. 
Cr.  R.  174.  An  instruction  that,  if 
the  jury  found,  beyond  a  reasonable 
doubt,  that  while  a  congregation  was 
assembled  for  religious  worship  ac- 
cused willfully  disturbed  the  congre- 
gation by  loud  talking,  etc.,  he  was 
guilty.  Webb  v.  State,  140  S.  W.  95, 
63  Tex.  Cr.  R.  207.  A  charge,  in  a 
murder  trial,  that  if  accused  in  sud- 
den passion,  as  explained  in  the 
charge,  and  not  in  self-defense,  arous- 
ed by  adequate  cause,  unlawfully  shot 
decedent,  he  should  be  convicted  of 
manslaughter.  Oldham  v.  State,  142 
S.  W.  13,  63  Tex.  Cr.  R.  527.  A 
charge,  in  a  homicide  case,  that  a  per- 
fect right  of  self-defense  exists  only 
where  accused  acted  from  necessity, 
and  was  not  himself  in  the  wrong, 
and  where  his  conduct  was  not  in- 
tended or  reasonably  calculated  to 
produce  the  necessity  which  required 
his  action,  and  that  if  he  was  in  the 
wrong,  or  was  violating  the  law,  and 
because  of  his  own  wrong,  and  with 
intent  to  bring  on  the  difficulty,  he 
was  thereby  placed  in  a  position 
where  it  became  necessary  for  him  to 
defend  himself  from  attack,  the  law 


405 


INSTRUCTIONS   ON    BURDEN    OP   PROOF 


206 


that  they  must  find  a  doubt  from  the  evidence  in  order  to  justify 
acquittal.^" 

In  a  criminal  case  jurors  are  not  called  upon  to  pass  upon  the 
question  of  the  innocence  of  the  defendant,'*'^  and  instructions 
which  base  his  right  to  an  acquittal  on  the  belief  of  the  jury  in 
his  innocence  instead  of  his  sruilt  are  erroneous."*"     Thus  instruc- 


limits  his  right  of  self-defense,  ac- 
cording to  the  degree  of  his  own 
wrong,  and  if  accused  sought  deced- 
ent, armed  with  a  deadly  weapon, 
with  intent  to  kill  him  or  inflict  seri- 
ous bodily  harm  upon  him,  and  by 
acts  done  or  words  used  with  intent 
to  provoke  a  difficulty  with  decedent, 
and  reasonably  calculated  to  provoke 
decedent  to  attack  him,  and  decedent 
did  attack  him  or  made  a  demonstra- 
tion reasonably  indicating  to  accused, 
viewed  from  his  point  of  view,  that  he 
was  in  danger  of  death  or  serious 
bodily  harm,  accused  could  not  justi- 
fy the  killing  on  the  ground  of  self- 
defense,  and,  if  he  killed  decedent  un- 
der such  circumstances,  he  would  be 
guilty  of  first  or  second  degree  mur- 
der, does  not  cast  the  burden  upon 
accused  of  proving  that  he  did  not  in- 
tend to  provoke  the  difficulty.  Kee- 
ton  v.  State,  128  S.  W.  404,  59  Tex. 
Cr.  R.  316.  Where,  on  a  trial  for 
homicide,  the  court  charged  that  the 
burden  of  proof  rested  on  the  prose- 
cution, and  if,  on  the  evidence,  the 
jury  entertained  a  reasonable  doubt 
of  the  guilt  of  accused,  he  should  be 
acquitted,  and  that  the  burden  ot 
proof  remamed  with  the  prosecution, 
the  refusal  to  charge  that,  if  accused 
believed  himself  to  be  in  danger  of 
bodily  harm  from  decedent,  he  was 
justified  in  the  killing,  etc.,  was  not 
erroneous,  as  placing  on  the  accused  ' 
the  burden  of  convincing  the  jury 
that  his  testimony  was  true.  People 
v.  Mallon,  101  N.  Y.  S.  814,  IIG  App. 
Div.  425,  19  N.  Y.  Ann.  Cas.  •  325, 
judgment  affirmed  81  N.  E.  1171,  189 
N.  Y.  520. 

40  McAllister  v.  State,  88  N.  W. 
212,  112  Wis.  496. 

41  McNair  v.  State,  14  Tex.  App.  78. 

42  Moore  v.  State,  28  Tex.  App.  377, 
13  S.  W.  152;  Shamburger  v.  State, 
24  Tex.  App.  433,  6  S.  W.  540 ;    Wag- 


ner V.  State,  17  Tex.  App.  554;  Brink- 
oeter  v.  State,  14  Tex.  App.  67. 

Instructions  not  improper  ivitli- 
in  rule.  A  chai'ge,  in  a  prosecution 
for  murder,  that  if  the  jury  believed 
from  the  evidence  or  the  want  of  it 
that  defendant  did  not  place  strych- 
nine in  a  syringe  used  by  deceased, 
or  that  he  did  it  without  intent  to 
poison  and  kill  her,  or  that  she  did 
not  die  by  poison,  or  if  the  jury  had 
a  reasonable  doubt  of  either  of  these 
propositions  they  should  acquit  the 
defendant.  Rice  v.  State,  94  S.  W. 
1024,  49  Tex.  Cr.  R.  569.  An  instruc- 
tion that,  where  a  homicide  is  proved 
beyond  a  reasonable  doubt,  the  pre- 
sumption is  that  it  is  mui-der  in  the 
second  degree  and  if  the  state  would 
elevate  it  to  murder  in  the  first  de- 
gree it  must  prove  the  characteristics 
of  that  crime,  and  if  defendant  would 
reduce  it  to  manslaughter  the  burden 
is  on  him,  does  not  place  on  defendant 
the  burden  of  proving  he  is  not  guilty 
of  murder  in  the  second  degree. 
State  v.  Melvern,  72  P.  489,  32  Wash, 
7.  Where,  on  a  trial  for  murder,  the 
court  charged  as  to  what  constituted 
manslaughter,  and  that  to  convict  de- 
fendant of  that  ofllense  the  jury  must 
find  the  necessary  facts  beyond  a  rea- 
sonable doubt,  the  charge  was  not  ob- 
jectionable as  changing  the  burden 
of  proof,  and  requiring  defendant  to 
prove  manslaughter  beyond  a  reason- 
able doubt  before  the  jury  could  ac- 
quit him  of  murder,  though  man- 
slaughter is  a  defense  to  the  charge 
of  murder.  Spangler  v.  State,  61  S. 
W.  314,  42  Tex.  Cr.  R.  233.  A  charge 
in  a  prosecution  for  violation  of  a  lo- 
cal option  law  that,  if  the  evidence 
showed  beyond  a  reasonable  doubt 
that  defendant  accepted  money  from 
the  prosecuting  witness  vmder  an  im- 
plied agreement  to  furnish  him 
whisky,  and,  pursuant  thereto,  placed 


206 


INSTRUCTIONS   TO   JURIES 


406 


tions  which,  instead  of  positively  affirming  the  duty  of  the  state 
to  estabHsh  the  guilt  of  the  defendant,  approach  the  question 
negatively  and  inform  the  jury  that  if  they  believe,  or  are  satis- 
fied, that  the  accused  did  not  commit  the  crime  charged,*^  or  if 
they  are  satisfied  with  the  contentions  of  the  accused,**  or  if  they 
believe  from  the  evidence  that  certain  essential  facts  have  not  been 
established,*^  they  should  acquit  the  defendant,  are  objection- 
able, as  likely  to  lead  the  jury  to  think  that  he  must  prove  his 
innocence.  Instructions  which  require,  in  order  to  acquit  an 
accused,  that  the  facts  relied  upon  by  him  as  a  defense  be  shown 


whisky  where  he  could  get  it,  he  was 
guilty,  unless  he  acted  as  agent  for 
witness  in  procuring  the  whisky,  and 
had  no  pecuniary  interest  in  the  sale, 
in  which  case  he  was  not  guilty. 
Grimes  v.  State,  72  S.  W.  .589,  44  Tex. 
Cr.  R.  503.  An  instruction  in  a  trial 
for  theft  that  if  defendant,  acting 
with  another,  committed  the  theft,  he 
should  be  convicted,  but,  if  he  had  no 
guilty  connection  with  the  taking,  he 
should  be  acquitted.  Alderman  v. 
State  (Tex.  Cr.  App.)  22  S.  W.  1096. 
A  charge,  in  a  prosecution  of  a  bailee 
of  a  horse  for  theft  thereof,  that  if 
the  bailor  authorized  or  gave  defend- 
ant his  pennission  or  consent  to  sell 
or  otherwise  dispose  of  the  horse,  or 
if  the  jury  had  a  reasonable  doubt 
thereof,  they  should  acquit  defendant. 
Smith  V.  State,  76  S.  W.  434,  45  Tex. 
Cr.  K.  251.  A  charge,  where  defend- 
ant, on  indictment  for  larceny,  seeks 
to  establish  an  alibi,  that  the  burden 
is  on  the  state  to  establish  beyond  a 
reasonable  doubt  that  the  larceny 
was  committed,  and,  when  this  is 
done,  defendant  must  establish  his 
alibi  by  a  preponderance  of  the  evi- 
dence, "and  if  the  entire  evidence  on 
the  whole  case  raises  a  reasonable 
doubt  as  to  defendant's  guilt"  he 
must  be  acquitted^  is  not  erroneous, 
as  relieving  the  state  of  the  burden  of 
proving  defendant's  guilt  beyond  a 
reasonable  doubt.  State  v.  Van  Win- 
kle, 80  Iowa,  15.  45  N.  W.  388. 

4  3McNish  V.  State,  34  So.  219,  45 
Fla.  &3,  110  Am.  St.  Rep.  65;  Wil- 
liams V.  State,  42  S.  E.  745,  116  Ga. 
525;  Brady  v.  State,  115  P.  605,  4 
Okl.  Cr.  xiii;  Ilodge  v.  State,  115  P. 
379.  5  Okl.  Cr.  703 ;  Johnson  v.  State, 
201  S.  W.  177,  83  Tex.  Cr.  R.  49. 


44  State  V.  Kirkland,  101  S.  E.  560, 
178  N.  C.  810. 

45  Ark.  Lovejov  v.  State,  62  Ark. 
478,  36  S.  W.  575. 

Okl.  Davis  v.  State  (Cr.  App.)  191 
P.  1044. 

Tex.  Claunch  v.  State,  198  S.  W. 
307,  82  Tex.  Cr.  R.  114;  Green  v. 
State,  98  S.  W.  1059,  49  Tex.  Cr.  R. 
645 ;  Cooper  v.  State,  89  S.  W.  816, 
48  Tex.  Cr.  R.  608;  Rutherford  v. 
State.  88  S.  W.  810,  48  Tex.  Cr.  R. 
431;  Stanfield  v.  State,  62  S.  W.  917, 
43  Tex.  Cr.  R.  10;  Johnson  v.  State, 
30  Tex.  App.  419,  17  S.  W.  1070.  28 
Am.  St.  Rep.  930.  following  29  Tex. 
App.  150,  15  S.  W.  647;  Lewis  v. 
State,  29  Tex.  App.  105,  14  S.  W.  1008. 

Instructions  held  erroneous 
within  rule.  Where,  on  a  trial  for 
violatmg  the  local  option  law,  a  wit- 
ness testified  that  he  went  to  a  cold 
storage  and  filled  out  a  blank  for 
whisky;  that  defendant  furnishing 
the  hlank  stated  that  the  witness 
could  not  obtain  the  whisky  until  it 
got  there ;  that  the  witness  went  to  a 
third  person  in  another  part  of  the 
house,  informed  him  of  his  order,  and 
asked  if  he  could  not  obtain  whisky ; 
that  the  third  person  went  to  defend- 
ant and  told  him  to  let  the  witness 
have  one  of  the  third  person's  bottles  ; 
and  that  defendant  handed  to  witness 
a  bottle  of  whisky — an  instruction 
that  if  the  witness  made  an  order  for 
whisky  through  defendant,  and  bor- 
rowed whisky  from  the  third  person, 
and  defendant  took  no  part  in  such 
loan  for  the  purpose  of  evading  the 
law,  defendant  should  be  acquitted, 
was  erroneous,  as  shifting  the  burden 
of  proof  and  requiring  defendant  to 
prove  a  negative  in  order  to  establish 


407 


INSTRUCTIONS   ON    BURDEN   OF   PROOF 


§207 


to  the  satisfaction  of  the  jury,*<5  or  which  authorize  an  acquittal 
if  the  jury  find  the  facts  relied  upon  as  a  defense,'*'  are  erroneous, 
as  shifting  the  burden  of  proof  to  the  defendant.  On  the  issue  of 
self-defense  in  a  criminal  case,  a  charge  that  the  jury  must  find 
that  the  defendant  was  free  from  fault  in  bringing  on  the  diftl- 
culty  before  he  could  set  up  self-defense  misplaces  the  burden  of 
proof  on  the  issue.'** 

§  207.     Effect  of  erroneous  instruction 

An  instruction  misplacing  the  burden  of  proof  will  be  cause 
for  reversal,  if  the  appellate  court  cannot  say  that  prejudice  to 
the  complaining  party  did  not  result  therefrom ;  *»  but  the  rule 
is  otherwise  .where  it  appears  that  no  such  prejudice  has  re- 
sulted.^* 


his  innocence.     Randell  v.  State,  90 
S.  W.  1012,  49  Tex.  Cr.  R.  261. 

46  Trogdon  v.  iState,  13o  Ind.  1,  32 
N.  E.  725;  State  v.  Castle,  46  S.  E. 
1,  133  N.  C.  769;  Potts  v.  Common- 
wealth, 73  S.  E.  470,  113  Va.  732. 

Compare  State  v.  Garland,  90  N.  C. 
668. 

Effect  of  statute.  In  a  murder 
case,  it  was  not  error  to  charge  a 
statutory  provision  that,  upon  trial 
for  murder,  the  commission  of  the 
homicide  by  accused  being  proved,  the 
burden  of  proving  circumstances  of 
mitigation,  justification,  or  excuse  de- 
volves upon  him,  unless  the  proof  of 
the  prosecution  tends  to  show  that 
the  crime  committed  only  amounts  to 
manslaughter,  or  that  accused  was 
justifiable  or  excusable.  Lumpkin  v. 
State,  115  P.  478,  5  Okl.  Cr.  488.  Pro- 
visions of  a  statute  declaring  that, 
"when  the  facts  have  been  proved 
which  constitute  the  offense,  it  de- 
volves upon  the  accused  to  establish 
the  facts  or  circumstances  on  which 
he  relies  to  excuse  or  justify  the  act," 
should  not  be  given  in  charging  a 
jury,  except  in  exceptional  cases 
where  the  hurden  of  proof  rests  upon 
the  defendant  to  establish  his  defense. 
Thomas  v.   State,   14  Tex.  App.  200. 

47  Stuart  v.  State,  124  S.  W.  656,  57 
Tex.  Cr.  R.  592. 

Instructions  not  imprAper  ivith- 
in  rule.  In  a  tHal  for  assault  with 
intent  to  murder,  an  instruction  that, 
if  from  the  acts  or  words  of  prosecu- 
tor there  was  created  in  the  mind  of 


accused  a  reasonable  apprehension 
that  she  was  in  danger  of  losing  her 
life  or  of  suffering  serious  bodily 
harm,  she  had  the  right  to  defend 
herself  from  such  danger  viewed 
from  her  standpoint,  etc.,  and  that  if 
accused  committed  the  assault  as  a 
means  of  defense,  believing  that  she 
was  in  danger  of  losing  her  life,  etc., 
she  should  be  acquitted,  coupled  with 
a  charge  that  an  accused  is  presumed 
to  be  innocent  until  his  guilt  is  estab- 
lished beyond  a  reasonable  doubt, 
was  not  erroneous,  as  shifting  the 
burden  of  proof  and  requiring  accus- 
ed to  establish  affirmatively  the  facts 
constituting  her  defense.  Edwards  v. 
State,  125  S.  W.  894,  58  Tex.  Cr.  R. 
342. 

48  Brown  v.  State  (Ala.)  39  So.  719. 

4  9  Alabama  Fertilizer  Co.  v.  Re.vn- 
olds,  79  Ala.  497;  McNutt  v.  Kauf- 
man, 26  Ohio  St.  127 ;  Judge  v.  Ma- 
sonic Mut.  Ben.  Ass'n,  30  Ohio  Cir. 
Ct.  R.  133. 

5  0  Alai.  Ellis  V.  Allen,  SO  Ala.  515, 
2  So.  676. 

Ga.  Moore  v.  Brewer,  94  Ga.  260, 
21  S.  E.  460. 

Mont.  Donovan-McCormick  Co.  v. 
Sparr,  85  P.  1029,  34  Mont.  287. 

Neb.  Anderson  v.  Chicago,  B.  &  Q. 
R.  Co.,  35  Neb.  95,  52  N.  W.  840. 

Tex.  Texas  &  P.  Ry.  Co.  v.  Reed 
(Civ.  App.)  32  S.  W.  118;  Crutcher  v. 
Schick,  10  Tex.  Civ.  App.  676,  32  S. 
W.  75;  Marsalis  v.  Patton,  83  Tex. 
521,  18  S.  W.  1070. 


g   208  INSTRUCTIONS   TO  JURIES 


408. 


CHAPTER  XIV 

INSTRUCTIONS  WITH  REGARD  TO  PROBATIVE  FORCE  OF  PARTICU- 
LAR CLASSES  OF  EVIDENCE 

A.     Opinion  Evidence  . 

§  208.     Nonexpert  testimony. 

209.  Expert  testimony. 

210.  Value  of  opinion  evidence  as  dependent  upon  truth  and  materiality 

of  facts  on  wliicli  opinion  based. 

B.     Positive  and  Negative  Testimony 

211.  Necessity  and  propriety  of  instructions  as  to  relative  weight. 

212.  Sufhciency  of  instructions. 

C     Admissions  and  Confessions 
1.    Admissions  in  Civil  Vases 

213.  Fact  of  admissions. 

214.  Weight  of  admissions. 

2.    In  Criminal  Cases 

215.  Necessity  of  instructions. 

216.  Propriety  and  sufficiency  of  instructions  in  generaL 

217.  Instructions  on  issue  of  voluntary  character  of  confessions. 

218.  Instructions  on  corroboration  of  confessions. 

219.  Silence  under  accusation. 

220.  Admissions   or   confessions   containing   statements   favorable    to    de-^ 

fendant. 

221.  Necessity  or  sufficiency  of  evidence  as  predicate  for  instructions. 

D.    Acts  and  Declarations  of  Co-conspibatobs 

222.  Propriety  and  sufficiency  of  instructions. 

223.  Declarations  of  alleged  co-conspirator  who  has  been  acquitted. 

A.  Opinion  Evidknce 
Invading  province  of  jury,  see  ante,  §§  51,  56. 

§  208.     Nonexpert   testimony 

The  jury  should  give  weight  to  the  opinion  of  the  nonexpert 
only  as  it  is  based  upon  the  facts  detailed  by  him,  and  an  instruc- 
tion is  erroneous  if  it  authorizes  the  jury  to  take  into  considera- 
tion the  personal  knowledge  of  the  witness  independent  of  such 
facts.i 

§  209.     Expert  testimony 

The  court  should  not  cast  discredit  upon  expert  testimony,* 
and   an   instruction   calculated    to   give    the   jury   ^he   impression 

1  Vannost  v.  Murphy,  112  N.  W.  230,  135  Iowa,  123 ;  In  re  Jones'  Estate, 
106  I^.  W.  010,  130  Iowa,  177. 

2  Bradley  v.  State,  31  Ind.  492. 


409  EFFECT  OF   PARTICULAR   CLASSES   OF   EVIDENCE  §  209 

that  they  are  at  liberty  to  reject,  as  they  see  fit,  expert  testimony 
given  in  answer  to  hypothetical  questions,  is  erroneous.*  In  a 
criminal  case  the  court  cannot  charge  as  a  matter  of  law  that 
opinion  evidence  must  be  received  with  caution,  and  that  where 
there  is  an  honest  difference  of  opinion  among  experts  the  jury 
ought  not  to  convict.'*  It  is  not  improper,  however,  in  some  ju- 
risdictions, under  some  circumstances,  to  warn  the  jury  against 
the  value  to  be  given  to  expert  testimony,^  and  the  court  may 
tell  the  jury  to  consider  such  evidence  in  the  light  of  their  com- 
mon observation  and  ,  experience,®  and  that  they  may  disregard 
it  if  they  deem  it  to  be  unreasonable.'  In  other  jurisdictions  the 
giving  of  instructions  cautioning  the  jury  to  receive  expert  evi- 
dence with  caution  rests  largely  in  the  discretion  of  the  trial 
court.* 

The  jury  may  be  instructed  to  accept  or  reject  expert  testi- 
mony in  the  same  manner  as  other  testimony,^  and  the  court  may 
and  should  charge  that  the  jury  are  to  consider  such  testimony 
under  the  same  rules  of  credit  and  discredit  as  are  applied  to 
other  testimony,  and  that  the  opinions  of  experts  'neither  estab- 
lish nor  tend  to  establish  the  truth  of  the  facts  upon  which  they 
are  based,  but  that  whether  the  matters  testified  to  are  true  or 
false  should  be  determined  by  the  jury.^" 

3  City  of  Rock  Island  v.  Marshall,  lo  State  v.  Crane,  100  S.  W.  422. 
104  N.  E.  lOOS,  263  111.  133 ;  Indian-  202  Mo.  54 ;  State  v.  Wertz,  90  S.  W. 
apolis    Traction    &    Terminal    Co.    v.       838,  191  Mo.  569. 

Taylor,   103   N.   E.   812,   55   Ind.   App.  Instructions  lield  proper  within 

309;    Cohen  v.  Riesenberg  (Sup.)  126  rule.     Where  defendant  relied  on  in- 

N.  Y.  S.  77,  69  Misc.  Rep.  599;   Lubbe  sanity,  an  instruction  that  the  opin- 

V.  Hileert,  120  N.  Y.  S.  387,  135  App.  ion    of   an   expert   is   subject   to   the 

Div.  227.  same   rules   and   tests   as   other  evi- 

4  Commonwealth  v.  Howard,  91  N.  thence  and  if  the  opinions  were  utter- 
E.  397,  205  Mass.  12S.  ly  st  variance  with  facts  established 

6  Reinfry  v.  Mutual  Life  Ins.  Co.  of  ^l  unimpeached  evidence  the  opinion 
New  York   (Mo.  App.)  196  S.  W.  775.       f.^^^l^,  ^^   disregarded  is   not   objec- 

6-RnvP«  V    w-i^TiAr    77  TV    F    911  tionable.  as  practically  telhng  the  ju- 

oon^f?  o  J"  offii^fn;  V..JLS:,  H-.  ^y  ^«  t)elieve  the  experts  unless  their 

fn    /  n  90Q    ^^'^^'"^  judgment  llo  testimony  was  contradicted  by  unim- 

V^     ,    ,  r^  ■  ^     c    ^    ^  peachable  testimony.     State  v.  Bram- 

7  Buckalew  v.  Qumcy,   O.  &  K.  G,  i^tt,  ]03  S.  E.  755,  114  S.  C    3S9 

Ry.  Co.,  107  Mo.  App.  575,  81  S.   W.  Credibility   of   witness   and    op- 

1176;    Sta^e  V.  Darragh,  54  S.  W.  226,  portunity  for  knowing  facts.     An 

152  INIo.  522.  instruction  that  the  jury  should  con- 

8  Wood  V.  Los  Angeles  Traction  Co.,  gider  the  skill  of  the  expert,  and  val- 
82  P.  547,  1  Cal.  App.  474;  People  ue  his  testimony  accordingly,  is  too 
V.  Storke  (Cal.  Sup.)  60  P.  420,  order  narrow,  in  that  it  gives  undue  prom- 
reversed  60  P.  1090.  128  Cal.  4S6;  inence  to  the  mere  skill  of  the  ex- 
People  V.  Smith,  106  Cal.  73,  39  P.  40.  pert,  and  leaves  out  of  view  his  cred- 

J  State  V.  Lyons,  37  So.  890.  113  La.       ibility   as    exhibited    by   his   conduct 
939.  (in  the  v.'itness  stand.    Blough  v.  Par- 


209 


INSTRUCTIOXS   TO  JURIES 


410' 


In  the  absence  of  a  request  for  an  instruction  on  the  subject 
of  expert  testimony,  the  failure  of  the  court  to  give  such  an  in- 
struction cannot  ordinarily  be  urged  as  error. ^^ 

§  210.     Value  of  opinion  evidence  as  dependent  upon  truth  and 
materiality  of  facts  on  which  opinion  based 

An  instruction  is  erroneous,  which  implies  that  the  answers 
of  experts  to  hypothetical  questions  may  be  entitled  to  some 
weight,  although  the  statements  of  fact  assumed  in  such  ques- 
tions are  found  by  the  jury  to  be  untrue.^^  It  is  not  only  proper 
to  instruct  that  the  opinions  of  experts  expressed  in  such  an- 
swers will  be  of  little  or  no  weight  unless  the  jury  find  that  the 
facts  assumed  in  such  questions  are  true,^^  but  the  jury  should 
be  instructed  that  the  weight  to  be  given  to  such  answers  must 
in  the  first  place  depend  upon  the  truthfulness  of  the  facts  as- 
sumed,^"* and  the  court  should  charge  that  the  party  calling  a  wit- 
ness so  testifying  must  establish  the  premises  included  in  the 
hypothetical  question  by  a  preponderance  of  the  evidence. ^^  Such 
an  instruction  should  not  authorize  the  jury  to  pass  on  the  ma- 
teriality of  the  facts  and  circumstances  admitted  in  evidence  and 
incorporated  in  such  hypothetical  question,  as  this  would  be,  as 


ry,  144  Ind.  463,  40  N.  E.  70,  43  N.  E. 
560.  There  was  no  error  in  refusing 
to  charge  that  the  .jury  were  to  con- 
sider evidence  of  expert  witnesses  as 
they  did  evidence  of  other  witnesses, 
and  could  believe  it  in  preference  to 
other  evidence,  if  there  was  a  con- 
flict ;  the  request  leaving  out  any  con- 
sideration of  the  credibility  of  th'^ 
Vi'itnesses"  themselves  or  their  oppor- 
tunity for  knowing  the  facts  as  to 
which  they  testified.  Williams  v. 
State.  51  S.  E.  322,  123  Ga.  138. 

11  Colo.  Leitensdorfer  v.  King,  7 
Colo.  436,  4  P.  37. 

Ga.  Godwin  v.  Atlantic  Coast 
Line  R.  Co.,  48  S.  E.  139.  120  Ga. 
747;  Bertody  v.  Ison.  69  Ga.  317: 
City  of  Atlanta  v.  Champe,  66  Ga.  659. 

Iowa.  Paton  v.  Lund.  86  N.  W. 
296.  114  Iowa,  201;  Long  v.  Travel- 
lers' Ins.  Co.,  85  N.  W.  24,  113  Iowa, 
259. 

Mo.  Weber  v.  Strobel,  194  S.  W. 
272. 

1 2  West  v.  Knoppenberger,  26  Ohio 
Cir.  Ct.  R.  168. 

Basis  of  opinions  of  nonexperts. 
In    a    proceeding    to    determine    the 


sanity  of  M.  the  instruction  that  the 
value  of  opinions  of  nonexpert  wit- 
nesses is  measured  by  the  facts  dis- 
closed by  the  testimony  on  which 
they  are  based,  and,  if  they  do  not 
sustain  the  opinion,  then  it  is  of 
small  weight,  but,  if  they  do,  it  is 
entitled  to  proportionately  greater 
weight,  was  not  erroneous  as  permit- 
ting consideration  of  the  opinion  of  a 
witness,  even  though  the  jury  found 
some  of  the  facts  upon  which  it  was 
based  untime.  Conway  v.  MuiTphy, 
112  N.  W.  764,  135  Iowa,  171. 

13  State  V.  Saxon,  86  A.  590,  87 
Conn.  5;  Patterson  v.  Springfield 
Traction  Co.,  163  S.  W.  955,  178  Mo. 
App.  250. 

In  California  it  has  been  held  that 
such  an  instruction  may  be  properly 
refused  as  embodying  no  principle  of 
law.  People  v.  'Thompson,  117  P. 
1033.  16  Cal.  App.  748 ;  People  v.  Kir- 
by,  114  P.  794,  15  Cal.  App.  264. 

14  Woods  V.  Incorporated  Town  of 
Lisbon,  130  N.  W.  372.  150  Iowa,  433 ; 
Spiers  v.  Ilendershott,  120  N.  W. 
1058,  142  Iowa,  446. 

15  Haas  V.  Knndtz,  113  N.  E.  826, 
94  Ohio  St.  238. 


411 


EFFECT  OF   PARTICULAR  CLASSES   OF   EVIDENCE 


§211 


has  been  heretofore  shown,^®  to  permit  the  jury  to  determine  a 
question  of  law. 


B.  Positive  and  Negative  Testimony 

Power  of  courts  to  instruct  jury  as  to  comparative  values  of  positive  and 
negative  testimony,  see  ante,  §  57. 

§  211.  Necessity  ,and  propriety  of  instructions  as  to  relative 
weight 
There  is  a  seeming  conflict  of  authority  as  to  whether  a  party 
may  be  entitled  under  proper  circumstances  to  an  instruction 
thai  positive  testimony  should  be  accorded  more  weight  than 
negative.  As  we  have  seen  in  a  preceding  chapter,  such  an  in- 
struction is  regarded  in  many  jurisdictions  as  an  invasion  of  the 
province  of  the  jury;  but  in  jurisdictions  where  the  court  is  al- 
lowed to  comment  on  the  evidence,  it  is  not  improper  to  so  in- 
struct, the   matter   resting  largely  in   the   discretion   of  the  trial 

court.^' 

In  some  other  jurisdictions  such  an  instruction  may  be  war- 
ranted, or  a  party  may  have  a  right  to  it,  where  the  evidence  on 
one   side  is  purely   negative,   and   not  merely  negative  in  form.i* 


16  Burk  V.  Reese,  121  N.  W.  1016, 
143  Iowa,  496;  Vannest  v.  Murpliy, 
ll-T  N.  W.  236,  185  Iowa.  123;  Ball 
V.  Skinner,  111  N.  W.  1022,  134  Iowa, 
298. 

17  Chicago  Great  Western  Ry.  Co. 
V.  McDonough  (0.  C.  A.  Iowa)  161 
F.  657,  88  C.  C.  A.  517;  Cable  v. 
Paine  (C.  C.  Iowa)  8  Fed.  788,  3  Mc- 
Crarv,  169;  Rhodes  v.  United  States 
(C.  C.  A.  Mo.)  79  F.  740,  25  C.  C.  A. 
186. 

Where  there  is  positive  evi- 
dence by  those  in  charge  of  a 
train  that  the  whistle  was  sounded 
at  a  crossing,  and  negative  evidence 
of  those  within  hearing  that  they 
did  not  hear  it,  the  court  should,  on 
request,  call  the  attention  of  the  jury 
to  the  fact  that  the  law  gives  a  pref- 
erence to  positive  over  negative  testi- 
mony. Pyne  v.  Delaware,  D.  &  W.  R. 
Co..  61  A.  817,  212  Pa.   143. 

Testimony  that  a  thing  occur- 
red against  testimony  that  it  did 
not  occur.  Instructing  that  posi- 
tive evidence  is  entitled  to  more 
weight  than  negative  always  rests 
iargely  in  the  discretion  of  the  court. 


and  it  is  not  error  to  decline  to  give 
such  an  instruction  in  a  case  in  which 
witnesses  have  testified  as  positively 
on  the  one  side  that  a  thing  did  not 
occur  as  on  the  other  side  that  it  did. 
Denver  &  R.  G.  R.  Co.  v.  Loreutzen 
(C.  C.  A.  Colo.)  79  F.  291,  24  C.  C.  A. 
592. 

IS  Ga.  Williams  v.  State,  99  S.  E. 
43,  23  Ga.  App.  542;  Chewning  v. 
State,  88  S.  E.  904,  18  Ga.  App.  11; 
Heywood  v.  State.  77  S.  E.  1130,  ii: 
Ga.  App.  643 ;  Selman  v.  Malcom,  59 
S.  E,  85,  2  Ga.  App.  770;  Wood  v. 
State,  58  S.  E.  271,  1  Ga.  App.  684; 
Moon  v.  State.  68  Ga.  687. 

Kan.  St.  Louis  &  S.  F.  R.  Co.  v. 
Brock,  77  P.  80,  69  Kan.  448. 

Wis.  Canning  v.  Chicago  &  M. 
Electric  Ry.  Co.,  157  N.  W.  532,  163 
Wis.  448. 

Testimony  as  to  whether  de- 
fendant fired  a  gun.  Where,  on 
indictment  for  murder,  it  was  materi- 
al for  the  state  to  show  that  the 
prisoner  fired  the  fatal  shot,  and 
several  witnesses  testified  that  when 
the  fourth  shot  was  fired  the  weapon 
was   in   the    hands   of   the  prisoner, 


§  211 


INSTRUCTIONS   TO   JURIES 


412 


Thus  the  Wisconsin  courts,  defining  negative  testimony  as  the 
evidence  of  a  witness,  who  had  opportunity  to  see,  hear,  or  know 
of  an  alleged  occurrence,  testified  to  have  happened  by  some  other 
witness,  that  he  did  not  see,  hear,  or  recollect  it,^^  hold  that  in  a 
proper  case  it  will  be  error  to  refuse  an  instruction  that  positive 
testimony  is  to  be  preferred  to  negative.-"  In  this  and  other  ju- 
risdictions it  is  held  that  evidence  merely  negative  in  form,  by 
which  is  m^ant  evidence  which  takes  the  form  of  recollection  and 
positive  denial  based  thereon,  is  affirmative  in  effect,  and  conse- 
quently does  not  fall  within  the  above  rule,^i  and  that  it  is  er- 
ror in  such  case  to  instruct  on  the  value  of  negative  testimony  as 
compared  with  positive.^^ 


while  he  introduced  a  number  of  wit- 
nesses who  -  were  present,  but  testi- 
fied that  they  did  "not  see  the  pistol 
and  did  not  know  in  whose  hands  it 
was,"  an  instruction  defining  positive 
and  negative  evidence,  and  charging 
that  positive  evidence  was  entitled  to 
greater  weight  than  negative  testimo- 
ny, was  not  error;  the  court  having 
also  charged  that  the  jury  were  the 
sole  judges  of  the  faith  and  credit 
to  be  given  to  the  testimony  of  each 
of  the  witnesses.  State  v.  Murray,  51 
S.   E.   775,   139  N.   O.   540. 

IVitnesses  giving  negative  tes- 
timony not  shoAvn  to  have  equal 
opportunity  for  knowledge.  Giv- 
ing an  instruction  that,  other  things 
being  equal,  afiirmative  testimony  is 
entitled  to  more  weight  than  nega- 
tive testimony,  and  tlAt.  if  a  witness 
testifies  he  did  see  certain  things,  and 
another  of  equal  credilnlity  testifies 
he  did  not  see  such  things,  then,  if 
everything  else  is  equal,  the  witness 
testifying  negatively  isi  entitled  to 
less  credit  than  the  one  testifying  af- 
firmatively, is  not  error,  where  the 
witnesses  giving  the  negative  testi- 
mony are  not  shown  to  have  been 
in  as  good  position  as  the  others  to 
see.  In  re  \^^^arton's  Will,  109  N.  W. 
402,  1.32  Iowa,  714. 

19  Anderson     v.     Horlick's     Malted 
Milk  Co.,  119  N.  W.  342,  137  Wis.  569. 
20iiiidman  v.   City  of  Phillips,  82 
N.  W.  500,  106  Wis.  611. 

Negative  testimony  as  to  collat- 
eral circumstances.  Where  the 
evid<mce  as  to  whether  a  tannery  was 
a  nuisance  covered  several  years,  and 
the    witnesses    did    not    have    equal 


knowledge  as  to  its  character,  the  ju- 
ry should  have  been  instructed  that 
the  "positive  testimony"  of  one  crea- 
ible  witness  was  "entitled  to  more 
weight  than  the  testimony  of  several 
witnesses  who  testify  negatively  as 
to  collateral  circumstances,  merel.v 
negative  in  their  character,  from 
which  a  negative  may  be  inferred." 
Pennoyer  v.  Allen,  56  Wis.  502,  14  N. 
W.  609,  43  Am.  Rep.  728. 

21  Ga.  Nelms  v.  State,  51  S.  E. 
688,  123  Ga.  575. 

111.  West  Chicago  St.  R.  Co.  v. 
Mueller,  46  N.  E.  373,  165  111.  499,  56 
Am.  St.  Rep.  263,  afiirming  judgment 
64  111.  App.  601;  Great  Western  R. 
Co.  V.  Hanks,  25  111.  241. 

N.  Y.  Cridler  v.  (jolegrove,  5  N. 
Y.  St.   Rep.  232. 

Wis.  Anderson  v.  Horlick's  Malt- 
ed INIilk  Co.,  119  N.  W.  342,  137  Wis. 
569;  Kelley  v.  Schupp,  60  Wis.  76, 
18  N.  W.  725. 

Testimony  as  to  -wlietlier  one 
•was  of  temperate  habits.  There 
being  no  substantial  contradictory 
statement  as  to  the  matter  of  drink- 
ing by  insured  prior  to  his  application 
for  insurance,  but  the  real  question 
being  whether,  conceding  this,  he  was 
then  intemperate,  the  testimony  of 
witness,  based  on  knowledge  and  ob- 
servation as  to  whether  he  was  tem- 
perate, does  not  call  for  an  instruc- 
tion on  the  weight  to  be  given  posi- 
tive and  negative  testimony.  Taylor 
V.  Security  Life  &  Annuity  Co.,  59 
S.  E.  139,  145  N.  C.  383,  15  L.  R.  A. 
(N.  S.)  583,  13  Ann.  Cas.  248. 

22  Harper  v.  State,  81  S.  E.  817,  14 
Ga.  Apn.  603 ;    Peak  v.  State,  62  S.  E. 


413  EFFECT  OF   PARTICULAR  CLASSES   OF   EVIDENCE  §  211 

A  failure  to  charge  on  the  relative  ^  allies  of  positive  and  nega- 
tivt  te  timony  will  not  be  error,  in  the  absence  of  a  request  or 
.rh  an  instruction,'^^  ^nd  if  there  is  no  negative  testimony  m  the 
case  ^u^  an  instruction  would  be  misleading,  and  therefore 
should  not  be  given.^* 

ji  919      Sufficiency  of  instructions  .        . 

^  If■iurisdicT^ons^vhere  the  court  is  permitted  to  give  mstruc- 
tioi  s    o  the  effect  that  positive  is  to  be  preferred  to  negative  tes- 
mony     hey  should  be  based  upon  the  hypothesis  that  the  wi  - 
ne^ses  were  equal  in  credibility  and  opportunity  for  knowledge 
The     uTv    should    also   be    told   what   constitutes   negative    testi- 


665,  5  Ga.  App.  56;    Skinner  v.  State, 
32  S.  E.  844,  108  Ga.  747.  . 

Positive  testimony  that  enme 
was  committed  opposed  by  testi- 
mony supporting  alibi.  Where  tHe 
evidence  in  behalf  of  the  state  in  a 
criminal  case  consisted  of  the  testi- 
monv  of  a  witness  or  witnesses,  who 
swore  positively  to  the  commission  of 
the  crime,  and  the  evidence  m  behalt 
of  the  accused  consisted  of  testimo- 
ny tending  to  show  an  alibi,  and  to 
imneach  'the  state's  witness  or  wit- 
ne««es,  a  charge  on  the  law  as  to  tne 
relative  value  of  positive  and  nega- 
tive evidence  was  not  applicable  At- 
kinson v.  State,  37  S.  E..747,  112  Ga. 

411 

2  3  OTry  V.  State,  83  «.  E.  228,  1^ 
Ga.  600;   Patterson  v.  State,  67  S.  B:. 

^^t\  Stmphrief  V.  State,  28  S.  B.  25, 
100  Ga  260.  See  State  v.  Henson, 
185  P.  1039,  105  Kan.  5S1;  Fullerton 
Lumber  Co.  v.  Hosford,  176  N.  W. 
1017,  42  S.  D.  642. 

25U.  S.  (C.  C.  A.  N.  Y.)  Dela- 
ware, L.  &  W.  R.  Co.  V.  Devore,  114 
TT    155    5*^  C    C    A.  77. 

Ariz.  "Pabb  v.  State,  163  P.  259,  18 
Ariz    505.  Ann.  Cas.  1918B,  925. 

Ga.  McDnffie  v.  State,  lOl  S  E. 
81-^  '>4  Ga.  App.  653 ;  Estill  v.  Estill, 
lOo's'.  E.  365,  140  Ga.  384;  Cham  Wee 
V  Farmers'  &  Merchants'  Bank,  \)6  b. 
E  '^39  ''O  Ga.  App.  527;  Helms  v. 
State  72  S.  E.  246,  136  Ga.  799 ;  Sel- 
man  'v.  Malcom.  59  S.  E.  85  2  Ga. 
App  770;  Wood  v.  State,  58  S.  E. 
271  1  Ga.  Anp.  684;  Warrick  v. 
State,  53  S.  E.  1027,  125  Ga.  133 ;  Mi- 
nor V.   State,  48  S.   E.   198,   120   Ga. 


490;     Southern   Ry.   Co.   v.   O'Bryan, 
42  S.  E.  42,  115  Ga.  659. 

lU.  Indiana,  I.  &  I.  R.  Co.  v.  Ots- 
tot  72  N.  E.  387,  212  111.  429,  affirm- 
ing judgment  113  111.  App.  37 ;  Rock- 
wood  V.  Poundstone,  38  111.  199. 

Ind.  Ohio  &  M.  Ry.  Co.  v.  Buck, 
130  Ind.  300.  30  N.  E.  19. 

Kan.  Smith  v.  Bush,  169  P.  21  (, 
102  Kan.  150. 

Wis.  Suick  V.  Krom,  li7  N.  NN . 
20,   171   Wis.   254. 

See  Hess  v.  W^illiamsport  &  N.  b. 
R.  Co.,  37  A.  568,  181  Pa.  492. 

Instructions        beld        sufficient 
within    rule.     An    instruction    that 
the   existence   of   a   fact  testified   to 
by   one   positive   witness  was   rather 
to  be  believed  than  that  it  did  not 
exist    because    many    witnesses    who 
had  the  same  opportunity  of  obsei*va- 
tion  swore  that  they  did  not  see  or 
know  of  its  having  transpired  but  that 
tills  did  not  apply  \\hen  two  persons 
had    equal    facilities    for    seeing    or 
hearing  a  thing,  and  one  swore  that 
it  occurred  and  the  other  that  it  did 
not,  and  that  in  passing  on  the  ques- 
tion the  jurv  should  consider  and  pass 
on  the   credibility   of   the  witnesses. 
Green  v.  State   (Ga.  App.)  105  S.  E. 
634.     A  charge  that  direct  and  posi- 
tive evidence  is  rather  to  be  believed 
than    negative    evidence,    where    tne 
witnesses  are  of  equal  credibility,  and 
that  a  witness  who  testifies  positively 
to  the  occurrence  of  a  fact  is  rather 
to  be  believed  than  many   witnesses 
who  testify  that  they  did  not  see  the 
occurrence,    providing    they    are    or 
equal  credibility,  and  all  have  equal 
opportunity    for    knowing    the    facts 


§  213  INSTRUCTIONS  TO  JURIES  414 

mony,-^  what  character  of  testimony  is  to  be  weighed  under  the 
rule,  and  what  attendant  facts  and  circumstances  should  be  con- 
sidered,-'' and  in  one  jurisdiction  the  jury  should  be  informed  in 
such  connection  of  the  distinction  above  pointed  out  between  tes- 
timony essentially  negative  and  testimony  that  a  thing  did  not 
occur,  as  opposed  to  testimony  that  it  did  occur,  and  told  that 
in  the  latter  case  the  rule  as  to  the  preference  of  positive  over 
negative  testimony  does  not  apply,-*  and  it  is  proper  to  refuse  to 
charge  that  mere  negative  evidence  will  not  warrant  the  jury  in 
disregarding  the  positive  testimony  of  a  single  witness."* 

C.  Admissions  and  Confe;ssions 

1.  Admissions  in  Civil  Cases 

§  213.     Fact  of  admissions 

Testimony  in  a  civil  action  as  to  the  extrajudicial  admissions 
of  a  party  adverse  to  his  claim  presents  two  phases  for  the  con- 
sideration of  the  jury — one,  whether  they  were  made;  and  the 
other,  as  to  their  effect.^"  With  respect  to  such  testimony  the 
trial  court  may,  and  should,  as  the  evidence  renders  useful  and 
proper,  instruct  the  jury  concerning  the  degree  of  scrutiny  and 
caution  to  be  used  in  determining  whether  or  not  the  alleged  ad- 
missions were  in  truth  made,^^  if  care  is  taken  by  the  court  not 

about  which  they  testify,  is  not  sub-  2  8  Benton  v.  State,  60  S.  E.  116,  3 

jeet   to   the   objection  tnat   the  jury  Ga.  App.  453;    Sehnan  v.  Malcom,  59 

might  understand  therefrom  that  the  S.  E.  85,  2  Ga.  App.  770;    Whitfield 

witness  swearing  positively  was  not  v.  State,  58  S.  E.  385,  2  Ga.  App.  124 ; 

rather  to  be  believed  than  the  witness-  Wood  v.   State,  58  S.   E.  271,  1  Ga. 

es  swearing  negatively,  if  the  former  App.  684. 

had  better  opportunity  than  the  lat-  29  Campbell  v.  New  England   Mut. 

ter  for  knowing  the  facts.     Lyens  v.  Life  Ins.  Co.,  98  Mass.  381 ;    Dyer  v. 

State,  66  S.  E.  792,  133  Ga.  587.     An  Lalor  (Vt.)  109  A.  30. 

instruction    that    positive    testimony  so  Gangi  v.   Fradus,  227  N.  Y.  452, 

outweigh.s     negative    testimony,     the  125  X.  E.  677. 

witnesses  being  equally  credible,  suf-  si  U.  S.     (C.  C.  A.  Wash.)     Frank- 

fici'ently  qualifies  a  charge  on  the  sub-  fort  Marine,  Accident  &  Plate  Glass 

ject  of  positive  and  negative  testimo-  Ins.  Co.  v.  John  B.  Stevens  Co.,  220 

ny,  in  which  the  jury  are  told  that  F.  77,  135  C.  C.  A.  645. 

the  existence  of  a  fact  testified  to  by  Ga.     Pitts  v.  Eape  (App.)  104  S.  E. 

one  ix)sitive  witness  is  rather  to  be  be-  643 ;    Mims  v.  Brook  &  Co.,  59  S.  E. 

lieved  than  that  such  fact  did  not  ex-  711,  3  Ga.  App.  247 ;    Stewart  v.  De 

ist,    because    many    witnesses    swore  Loach,  86  Ga.  729,  12  S.  E.  1067. 

they  did  not  see  or  know  of  it  hav-  Iowa.     Allen  v.  Kirk,  81  Iowa,  658, 

ing   tr:insi)ired.      Wood    v.    State,    71  47  X.  W.  906. 

S.  E.  r,00.  9  Ga.  Apy.  365.  Minn.     Blume    v.    Chicago.    M.    & 

26  Snick  V.  Krom,  177  N.  W.  20,  171  St.   P.   Rv.   Co.,   158  N.    W.   418,   133 

Wis.  2.14.  Minn.  348.  Ann.  Cas.  1918D,  297. 

2-  St:itp  V.   McLepd,  89  P.   831,  35  Mont.     INTcCrimmon      v.      Murrajs 

Mont.  372.  117  p.  73,  43  Mont.  457. 


415 


EFFECT   OF   FAPwIICULAR   CLASSES   OF   EVIDENCE 


§214 


to  reflect  any  opinion  or  to  lead  the  jury  to  deny  to  the  testimony 
its  proper  weight,^^  and  the  jury  are  told  that  it  is  for  them  to 
determine  the  weight  of  such  evidence  according  to  the  way  it 
affects  their  own  minds,^^  and  it  has  been  held  that,  where  alleged 
verbal  admissions  were  made  in  casual  conversations  with  dis- 
interested persons,  it  is  error  to  refuse  an  instruction  that  testi- 
mony as  to  such  admissions  is  of  the  weakest  kind.^* 

§  214.     Weight  of  admissions 

As  is  indicated  in  the  foregoing  statement  of  the  rule  as 
to  ■  the  caution  to  be  observed  in  determining  whether  an 
alleged  admission  was  in  fact  made,  the  court  should  not  unduly 
minimize  the  effect  of  testimony  respecting  admissions, ^'^  or  deny 
to  such  evidence  its  natural  and  reasonable  effect.^*  An  instruc- 
tion that  all  verbal  admissions  should  be  received  with  caution 
should  be  accompanied  by  the  qualification  that,  when  an  admis- 
sion is  deliberately  made  and  precisely  identified,  the  evidence  it 
affords  is  often  of  the  most  satisfactory  nature,^'  and  it  is  error 
for  the  court  to  instruct  as  a  rule  of  law  that  admissions  of  a 
party  to  a  civil  action  are  probatively  weak  evidence  or  have  not 


N.  Y.  Gan^  v.  Fi-adus,  227  N. 
Y.  452,  125  N.  E.  452. 

Or.  Gleason  v.  Denson,  132  P.  530, 
65  Or.  199;  State  v.  Hanna,  57  P. 
629,  35  Or.  195. 

See  Merrill  v.  Hole,  85  Iowa,  66, 
52  N.  W.  4. 

Great  caution.  Where,  in  an  ac- 
tion seeking  to  charge  defendant  as 
a  partner  upon  an  admission  made  by 
Mm  under  circumstances  calling  for 
an  explicit  admission  or  denial,  his 
counsel  requested  an  instruction  to 
the  jury  that  "admissions  are  the 
lowest  class  of  proof,  and  should  be 
received  and  considered  by  the  .1ur,y 
with  great  caution,"  the  action  of  the 
court  in  refusing  to  give  such  instruc- 
tion, but  substituting  a  charge  that, 
"with  respect  to  verbal  admissions, 
they  ought  to  be  received  with  great 
caution"  was  held  proper.  Tozer  v. 
Hershey,  15  Minn.  257  (Gil.  197). 

32  Hart  V.  Village  of  New  Haven, 
89  N.  W.  677,  130  Mich.  181. 

3  3  Moore  v.  Dickinson,  39  S.  C.  441, 
17  S.  E.  998. 

3  4Grot.ian  v.  Rice,  102  N.  W.  5&J., 
124  Wis.  253. 


Contra — Gianini  v.  Cerini,  171  P. 
1007,  100  Wash.  687. 

3  5  Scurlock  V.  City  of  Boone,  120  N. 
W.  313,  142  Iowa,  580. 

Instructing  as  to  dangerous 
character  of  evidence.  Where  a 
defense  that  there  is  nothing  due  on 
the  note  in  suit  is  based  on  testimony 
of  alleged  admissions  of  plaintiff,  and 
the  .iury  are  instructed  that  such  tes- 
timony should  be  received  with  great 
caution,  a  request  for  an  instruction 
that  such  evidence  is  the  most  dan- 
gerous that  can  be  admitted  in  a 
court  of  justice,  and  the  most  Liable 
to  ■  abuse,  is  .properly  refused.  •  Mc- 
Carty  v.  Scanlon,  41  A.  345,  187  Pa. 
495,  43  Wkly.  Notes  Cas.  111. 

3  6  Brown  v.  Atlantic  Coast  Line  R. 
Co.,  64  S.  E.  1012,  83  S.  C.  53. 

Instructions  held  proper.  There 
was  no  error  in  charging  that  it  was 
the  duty  of  the  jury  to  scan  admis- 
sions, if  proved,  with  care,  but  that, 
so  scanning  them,  the  jurj^  should  give 
them  such  weight  as  they  thought 
such  admissions  entitled  to.  McBiide 
V.  Georgia  Ry.  &  Electric  Co.,  54  S. 
E.  674.   125  Ga.  515. 

3  7  Hill  V.  Newman,  47  Ind.  187. 


§  215  INSTRUCTIONS  TO  JURIES  416 

a  high  degree  of  quality  in  proof,^^  and  where  the  evidence  fairly 
shows  verbal  admissions  by  a  party,  and  there  is  no  claim  that 
the  witnesses  testifying  to  them  misunderstood  them,  it  will  be 
error  to  charge  that  such  evidence  is  to  be  received  with  caution.'^ 
An  instruction  in  a  negligence  case,  covering  not  only  statements 
of  a  party  admissible  as  casual  admissions,  but  also  statements 
admissible  as  a  part  of  the  res  gestae,  should  be  so  framed  as  to 
point  out  the  substantial  difference  between  the  two  classes  of 
statements,  and  so  as  to  avoid  misleading  the  jury  into  thinking 
that  the  res  gestae  statements  are  to  be  viewed  with  caution.*®  A 
party  is  entitled  to  an  instruction  that  admissions  made  by  him 
are  not  conclusive  against  him,**  although  in  the  absence  of  a  spe- 
cial request  the  judge  is  not  bound  to  instruct  as  to  the  effect  of 
an  admission  by  either  party .*^ 

2.  In   Criminal  Cases 

Instructions  on  this  head  as  invading  province  of  jury,  see  ante,  §§  46-49. 

§  215.     Necessity  of  instructions 

There  is  no  absolute  inflexible  rule  which  entitles  the  defendant 
in  a  criminal  case  to  an  instruction  that  evidence  of  admissions  *^ 

3  8  Gangi  v.  Fradns.  227  N.  Y.  452,  satipfactory,  and  the  .iury  should  be 

125  N.  E.  677.  cautious  before  they  give  credence  to 

3  0  Chrestenson  v.  Harms,  161  N.  W.  sucli   testimony,"   since  sufh   instruc- 

.343,  38  S.  D.  .3fi0.  tion  does  not  fully  state  the  law,  and 

40  .Tohn  V.  Pierce,  178  N.  "W.  297,  is  misleading.  Snodgrass  v.  Common- 
172  Wis.  44.  wealth,  S9  Va.  679.  17  S.  E.  238. 

41  Boswell  V.  Thompson,  49  So.  73,  Instructions  held  properly  re- 
160  Ala.  306.  fused    in    vievr    of    other   instruc- 

42  Wrightsville  &  T.  R.  Co.  v.  Lat-  tions  given.  Wliere,  on  a  prosecu- 
timore.  45  S.  E.  453,  118  Ga.  581.  tion  for  murder,  the  state  pi'oved  con- 

43  Cal.  People  v.  Mnljan,  167  P.  tradictory  statements  made  by  de- 
547,  34  Cal.  App.  384 ;  People  v.  "Wag-  fendant  as  to  the  manner  and  cause 
ner,  155  P.  649,  29  Cal.  App.  .363 ;  Peo-  of  decedent's  death,  and  the  court  told 
pie  V.  Raber.  143  P.  317-.  168  Cal.  316.  the  jury   they   were   the   sole  judges 

Mass.  Commonwealth  v.  How-  of  the  facts  and  the  weight  to  be  giv- 
ard,  91  N.  E.  397,  205  Mass.  128;  en  the  testimony,  it  had  amply  pro- 
Commonwealth  V.  Galligan,  113  Mass.  tected  defendant,  and  a  furtlier  in- 
202.  struction  cautioning  them  as  to  the 
Mo.  State  V,  Bobbst,  190  S.  W.  weight  to  be  given  the  testimony  as 
257.  269  ]\Io.  214.  to  such  statements  was  properly  re- 
Instructions  characterizing  evi-  fused.  State  V.  Coleman,  98  N.  W. 
dence  as  unreliable  and  unsatis-  175,  17  S.  D.  594.  There  being  in- 
factory.  The  court  properly  refused  dutiable  evidence  of  the  coi-pus  de- 
to  instruct  the  jury  that  "testimony  licti,  and  al.so  evidence  con-oborative 
concerning  oral  declarations  of  a  par-  of  the  inculpatory  admissions  of  de- 
ty,  wliether  they  be  threats  or  admis-  fendant,  it  is  not  error  to  refuse  to 
sions  or  other  declarations,  is  regard-  instruct  that  the  admissions  should 
ed  by  the  law  as  unreliable  and  un-  be  received  with  great  caution,  and 


417 


EFFECT  OF  PARTICULAR  CLASSES   OF  EVIDENCE 


215 


or  confessions  alleged  to  have  been  made  by  him,  whether  oral 
or  otherwise,  should  be  viewed  with  caution.**  It  is  proper  to 
give  such  an  instruction,*^  but  whether  it  shall  be  given  rests 
largely  in  the  discretion  of  the  court,  to  be  guided  by  the  cir- 
cumstances of  each  particular  case.*®  Where  admissions  of  a 
defendant  were  clear,  distinct,  and  unequivocal,  and  it  is  not 
claimed  that  he  did  not  make  them  in  the  manner  and  form  tes- 
tified to,  or  that  they  were  of  doubtful  meaning,  or  were  misunder- 
stood, an  instruction  that  such  admissions  should  be  received 
vv^ith  caution  is  properly  refused.*'  A  statute  making  it  the  duty 
of  the  court  on  all  proper  occasions  to  instruct  that  evidence  of 
the  oral  admissions  of  a  party  shall  be  viewed  with  caution  does 
not  require  such  an  instruction-  where  insanity  is  the  defense,*^ 
and  it  has  been  held  that  a  refusal  to  instruct  in  conformity  with 
such  a  statute  is  not  a  ground  for  reversal,  since  it  states  a  mere 
common-place  within  the  general  knowledge  of  jurors.*^ 

The  circumstances  may  be  such,  however,  as  to  make  it  error 
for  the  court  to  fail  or  to  refuse  to  caution  the  jury  with  respect 


are  not,  unless  corroborated,  suffi- 
cient to  warrant  a  conviction ;  the  ju- 
ry having  been  charged  to  weigh  such 
admissions  with  caution,  considering 
the  liability  of  the  witness  to  mis- 
understand defendant's  language. 
State  V.  Walljer,  98  Mo.  95,  9  S.  W. 
646. 

44  Burns  v.  State,  49  Ala.  370;  Bo- 
bo  V.  State  (Miss.)  16  So.  755 :  State 
V.  Clump.  16  Mo.  385 :  Hardesty  v. 
State,  146  N.  W.  1007,  95  Neb.  839; 
State  V.  Patrick,  4S  N.  C.  443. 

Warning  against  convicting  on 
simple  confession.  The  refusal  of 
a  judge,  on  a  trial  for  murder,  to 
instruct  the  jury  that  they  ought  not 
to  convict  on  a  simple  confession  for 
the  reason  that,  if  they  believe  the 
confession  to  be  true,  it  was  their  du- 
ty to  convict,  is  not  error.  State  v. 
Graham,  68  N.  C.  247. 

4  5  People  V.  Tiblis,  76  P,  904,  143 
Cal.  100 ;  State  v.  Chappell,  78  S.  W. 
585,  179  Mo.  324. 

4  6  State  V.  Hardee,  83  N.  C.  619. 

Right  to  instruction  xirliere  de- 
fendant contends  that  confession 
•was  mere  idle  talk.  Where,  in  .'i 
prosecution  for  homicide,  defendant 
admitted  that  he  had  made  certain 
statements  introduced  in  evidence  as 
Inst.to  Juries— 27 


a  confession,  when  he  was  not  imder 
arrest,  and  had  not  been  accused  of 
the  crime,  that  he  intended  the  per- 
son to  whom  the  confession  was  made 
to  understand  that  he  was  acknowl- 
edging his  commission  of  the  crime, 
his  only  contention  being  that  he  was 
intoxicated,  and  on  that  account  was 
indulging  in  boastful  talk,  and  that 
the  statements  made  were  mere  idle 
vaporings,  or  part  of  a  contest  in  tell- 
ing yams,  it  was  not  error  for  the 
court  to  refuse  to  charge  that  the 
confession  of  the  prisoner  out  of  court 
was  a  doubtful  species  of  evidence, 
and  should  be  acted  upon  by  the  jury 
with  great  caution.  Horn  v.  State, 
73  P.  705,   12  Wyo.  SO. 

4  7  State  V.  Jackson,  73  N.  W.  467, 
103  Iowa,  702 ;  Bode  v.  State,  113  X. 
W.    996,   SO  Neb.    74. 

4  8  State  V.  Feistei-,  50  P.  561,  32  Or. 
254. 

Instruction  to  viex?  xtdth  dis- 
trust, lender  a  statute  declaring 
that  evidence  of  the  oral  admissions 
of  a  party  i.s  to  be  viewed  with  "cau- 
tion," it  is  not  error  to  refuse  an  in- 
struction thf't  it  be  viewed  with  "dis- 
trust." People  v.  Sternberg,  111  Cal. 
11,  43  P.  201. 

4  0  People  V.  Wardrip.  74  P.  744.  141 
Cal.  229. 


§  215  INSTRUCTIONS   TO  JURIES  418 

to  evidence  of  alleged  verbal  statements  or  admissions  by  the 
defendant.^®  A  cautionary  instruction  will  usually  be  necessary, 
where  the  claimed  admissions  were  made  casually,  in  ordinary  con- 
versation, at  a  remote  period  of  time,'^^  or  where  statements  made 
by  the  defendant  at  the  time  of  being  arrested  are  sought  to  be 
used  against  him  as  admissions.^^ 

Where  the  evidence  in  a  case  outside  of  an  alleged  confession 
by  the  defendant  is  circumstantial,  and  hardly  sufficient  to  au- 
thorize a  conviction,  it  will  constitute  reversible  error  to  refuse 
to  charge  that  confessions  must  be  voluntary,  and  made  without 
hope  of  benefit  or  fear  of  injury,  in  order  to  support  a  convic- 
tion.^^ Where  there  is  evidence  tending  to  show  that  confessions 
of  the  defendant  admitted  in  evidence  were  not  voluntarily  made, 
the  failure  or  refusal  of  the  court  to  instruct  the  jury  to  disregard 
such  confessions,  if  they  believe  from  all  the  evidence  that  they 
were  not  voluntary  and  were  not  true,  will  constitute  error.^-* 

It  is  ordinarily  not  error  to  refuse  to  instruct  that  evidence  of 
admissions  or  confessions  is  of  the  weakest  kind,^^  even  where 
the  evidence  relates  to  admissions  made  in  casual  conversation 
with  disinterested  persons,^*'  and  in  some  jurisdictions  it  is  proper 
to  refuse  an  instruction  that  verbal  admissions  should  be  re- 
ceived with  great  caution,  if  not  accompanied  by  the  statement 
that,  if  such  admissions  are  deliberately  made  and  fully  proven, 
they  furnish  evidence  of  a  most  satisfactory  character.^' 

As  a  general  rule,  in  the  absence  of  a  request  for  a  special  in- 
struction the  court  need  not  expressly  charge  the  jury  to  determine 
whether  a  confession  has  been  made,^*  nor  give  instructions  with' 
respect  to  the  efTect  of  evidence  of  the  confessions  of  a  defend- 
so  Marzen  V.  People,  50  N.  E.  249,  Rule  nnder  statute.     A  requested 
173  111.  4.3;    Haynes  v.   State  (Miss.)       instruction     that    verbal    admissions 
27   So.  601 ;     State   v.    Hendricks,   73       ou.cht  to  be  received  with  great  cau- 
S.  W.  194,  172  I\Io.  654.                                  tion.    that    such    evidence   is    subject 
51  State   V.   Smith,   157  S.   W.  319,       to  much  imperfection,  the  party  hira- 
250  M'o.  .330 ;   State  v.  Moxley,  102  Mo.       self  not  having  clearly  expressed  his 
374,  14  S.  W.  969.                                          own  meaning  or  the  witness  having 
C2  poople    V.    McArron,    79    N.    TV.      misunderstood  him,  is  not  .iustified  by 
944,  121  Mich.  1.                                            a  statute  providing  that  the  jury  is 

53  Earp  V.  State,  55  Ga.  136.  to  be  instructed  that  evidence  of  oral 

54  Ellis  V.  State,  65  Miss.  44,  3  So.       admissions   of  a   party   ought   to  be 
188,  7  Am.  St.  Rep.  6.34;    Bozeman  v.    •  received     with     caution.       People    v. 
State,  215  S.  W.  319,  85  Tex.  Cr.  R.       Buckley,  77  P.  169,  143  Cal.  375. 
653 ;   Paris  v_.  State,  35  Tex.  Cr.  R.  82,  ,^  ^^^^^  ^^  ^^^^^^  ^7  j^^.  679,  11  S. 

31    S.     W.    SOO.  Ty     OCO 

5  5  Criner  V.  state,  49  S,  E.  700,  121  ^^•-'^^-                               „.    ^.    ^    o.o 

Ga.  614 ;    People  v.  Sweenev,  106  N.  "  l^Wf^ey  v.  People,  81  N.  E.  348, 

E.  913.  213  N.  y.  37,  aHinuing  judg-  227  111.  364. 

ment  146  N.  Y.  S.  637,  161  App.  Div.  ss  Cooper  v.  Slate,  77  S.  E.  878,  12 

221.  Ga.  App.  561. 


419 


EFFECT  OF  PARTICULAR  CLASSES  OF  EVIDENCE 


216 


ant;  5^  but  where  the  case  of  the  state  is  entirely  or  chiefly  de- 
pendent upon  a  confession,  the  court  should  of  its  own  motion 
give  appropriate  instructions,  and  inform  the  jury  that  such  con- 
fession must  be  corroborated  in  order  to  justify  a  conviction.«« 
So,  where  it  is  doubtful  whether  any  crime  has  been  committed, 
the  court  should  instruct  that  a  confession  of  a  defendant,  made 
while  in  fear  of  mob  violence,  will  not  warrant  a  conviction,  un- 
less accompanied  by  other  proof  of  the  commission  of  the  crime 
charged.^^ 
§  216.     Propriety  and  sufficiency  of  instructions  in  general 

It  is  proper  to  instruct  the  jury  in  effect  to  consider  the  circum- 
stances under  which  a  confession  was  made,  and,  if  they  find  it 
to  be  voluntary,  to  give  it  such  weight  as  they  think  it  is  fairly 
entitled  to  "^  In  some  jurisdictions  it  is  not  error  to  charge  that 
any  statements  by  the  defendant  unfavorable  to  himself  are  pre- 
sumed to  be  true.«3  j^  some  jurisdictions  it  is  not  improper  for 
the  court,  after  calling  the  attention  of  the  jury  to  the  circum- 
stances which  may  lessen  the  value  of  a  confession  as  evidence  to 
charge,  in  substance,  that  confessions,  when  freely  and  volun- 
tarily made,  are  a  high  order  of  evidence,^  and  m  some  junsdic- 

G4  People  V.  Borgetto,  99  Mich.  336, 
58  N.  W.  328. 

Instructions  proper  witliin  rule. 

A  charge  that,  "if  the  coufes>:ions 
were  freely  and  voluntarily  given, 
they  were  the  highest  kind  of  evi- 
dence," at  the  same  time  telling  the 
jury  that  "they  should  be  weighed  by 
them  as  any  other  testimony."  Mer- 
cer V.  State,  17  Ga.  146.  An  instrac- 
tion  that  evidence  of  a  confession 
should  be  examined  by  the  jury  witn 
care,  that  the  confession,  if  volun- 
tarily made,  uninfluenced  by  any 
threat  or  promise,  is  of  great  weight, 
but  should  not  be  considered  unless 
freely  made  without  undue  influence 
either  bv  the  promise  of  advantage  or 
threat  of  harm,  was  as  favorable  to 
defendant  as  the  law  warranted. 
State  v.  Bennett,  121  N.  W.  1021,  143 
Iowa,  214. 

Confession  proven  by  one  wit- 
ness only.  On  trial  for  murder, 
^\•here  the  state  relies  in  part  on  a 
confession  which  is  proven  by  one 
witness  only,  an  instniction  that 
"when  a  confession  is  made,  and  stat- 
ed to  the  jury  by  a  credible  witness, 


5  0  Cal.  People  v.  Fowler,  174  P. 
892.  178  Cal.  G57. 

Ga.  Jones  v.  State.  104  S.  E.  42o, 
150  Ga.  628;  Washington  v.  State. 
100  S.  E.  31,  24  Ga.  App.  Go ;  Mitchell 
V.  State,  99  S.  E.  889,  24  Ga.  App. 
135;  Scarboro  v.  State,  99  S.  E.  637, 
24  Ga.  App.  27;  McDuflie  v.  State, 
86  S.  E.  821,  17  Ga.  App.  342 ;  Smith 
V.  State,  76  S.  E.  1016,  139  Ga.  230; 
Lindsay  v.  State,  76  S.  E.  369,  138  Ga. 
818 ;  Kucker  v.  State,  -58  S.  E.  295,  2 
Ga.  App.  140. 

Mo.  State  v.  Brooks,  92  Mo.  542, 
5  S.  W.  257,  330. 

Wis.  Benihardt  v.  State,  82  Wis. 
23,  51  N.  W.  1009. 

6  0  Rucker  v.  State,  58  S.  E.  295,  2 
Ga.  App.  140 ;  Dunlap  v.  State,  98  S. 
W.  845,  50  Tex.  Cr.  R.  bU4. 

ci  Poison  v.  Commonwealth  (Ky.) 
108  S.  W.  844,  32  Ky.  Law  Rep.  1398. 

62  State  V.  Jordan,  87  Iowa,  86,  54 
K  W.  63;  ComraonwoaUh  v.  Brown, 
149  Mass.  35,  20  N.  E.  458. 

03  State  V.  Ilaniraontree  (Mo.  Sup.) 
177  S.  W.  367;  State  v.  Cox,  175  S. 
W.  50,  264  Mo.  408;  State  v.  Clow, 
110  S.  W.  632,  131  Mo.  App.  548. 


§  216  INSTRUCTIONS  TO  JURIES  420 

tions  it  is  not  reversible  error  to  charge  that  confessions  of  guilt, 
when  deliberately  made  and  pr-ecisely  identified,  are  among  the 
most  satisfactory  proofs  obtainable,®^  or  evidence  of  the  highest 
character  against  the  defendant,  the  jury  being  also  told  that  they 
are  to  determine  what  weight  should  be  given  to  the  evidence.*'® 
In  other  jurisdictions,  as  has  been  shown  in  a  preceding  chapter,®' 
such  instructions  are  erroneous,  as  on  the  weight  of  the  evi- 
dence.®* 

An  instruction  that  admissions  may  be  important  and  weighty 
evidence  should  tell  the  jury  that  they  must  be  clearly  proven 
and  shown  to  have  been  made  with  some  degree  of  deliberation,®* 
and  an  instruction  that,  if  the  jury  believe  any  statements  by 
the  defendant  have  been  proven  by  the  state  and  .not  denied 
by  him,  they  are  to  be  taken  as  true,  is  erroneous,  as  in 
violation  of  the  presumption  of  innocence  and  in  derogation  of  the 
statute  permitting  the  defendant  to  refrain  from  testifying  with- 
out raising  a  presumption  of  guilt.'"  It  is  not  necessary  that  a 
cautionary  instruction  with  respect  to  admissions  or  confessions 
should  be  accompanied  by  an  admonition  that  it  is  for  the  jury 
to  say  whether  or  not  any  admission  or  confession  of  guilt  has 
been  made.'^  An  instruction  that  the  jury  should  exercise  a  rea- 
sonable caution  with  respect  to  alleged  admissions  of  the  defend- 
ant, and  take  into  consideration  the  fact  that  sometimes  state- 
ments, or  conversations  are  not  correctly  reported,  or  may  be  mis- 
apprehended, or  that  the  circumstances  and  conditions  surrounding 
a  person  at  the  time  he  makes  a  statement  may  be  such  as  to 
weaken  the  efifect  that  ought  to  be  given  to  it,  is  sufficient  con- 
cerning admissions,  in  absence  of  a  request  for  fuller  instructions.'- 

it  is  the  highest  order  of  testimony;  ss  Thompson  v.  State,  73  Miss.  584, 

there  can  be  but  few  higher  sources  19  So.  204;    Harris  v.  State,  1  Tex. 

of  evidence  than  a  confession  volun-  App.  74. 

tarilv   and   freely    made" — is   errone-  e^  Colbert  v.   State,  104  N.  W.  61, 

ous. ' Calvin  v.  State,  44  S.  E.  84S,  118  125  Wis.  423. 

Ga.  73.  7  0  state  v.  Hudspeth,  51  S.  W.  483, 

66  Welsh  V.  State,  96  Ala.  92,  11  So.  150  Mo.  12. 

450.                                                •  71  Coney  v.    State,  90   Ga.   140,   15 

Instruction    not    in    compliance  S.  E.  746. 

•with     rnle.     An      instruction      that  7  2  people  v.  Holden,  109  P.  495,  13 

"when    confessions    are    deliberately  Cal.  App.  354;    People  v.  Jackzo,  172 

and     precisely     identified     they     are  N.  W.   557,   206   Mich.    183. 

among  the  most  satisfactory  and  ef-  Instructions  objectionable  witb- 

fectual  proofs  of  guilt,"  was  errone-  in  rule.     A  charge  that  the  law  is 

ous.     Shelton  v.  State,  42  So.  30,  144  as  much  vindicated  by  the  acquittal 

Ala.  100.  of  an  innocent  i>erson  as  by  the  con- 

60  state  V.  Wortman,  98  P.  217,  73  victiou  of  a  guilty  one;    that  the  ju- 

G°'  \V'   <j  AQ  ^^  must   receive  defendant's  alleged 

'  -"^"iP'  §  48.  confession  with  great  caution ;    that 


421 


EFFECT   OF  PARTICULAR  CLASSES   OF   EVIDENCE 


§217 


The  circumstances  of  the  case  may  be  such  as  to  authorize  or 
require  the  court  to  distinguish  between  admissions  and  confes- 
sions,'^ the  former  relating  to  the  acknowledgment  of  facts  and 
the  latter  to  the  acknowledgment  of  guilt,'**  and~an  instruction  is 
erroneous  which  characterizes  mere  inculpatory  admissions  as 
confessions/''  but  a  statement  freely  and  voluntarily  made  by  the 
defendant,  by  which  he  acknowledges  participation  in  the  main 
facts  essential  to  constitute  the  crime  charged  against  him,  may 
properly  be  referred  to  as  a  confession.'^ 

§  217.  Instructions  on  issue  of  voluntary  character  of  confes- 
sions 
In  the  great  majority  of  jurisdictions  as  shown  in  a  preceding 
chapter,"  it  is  proper  for  the  court  to  instruct  the  jury  to  disre- 
gard a  confession  admitted  in  evidence,  if  they  find  that  it  was 
not  voluntarily  made,  or  was  the  result  of  intimidation,  duress, 
or  other  improper  inducement,'**  and  the  general  rule  is  that  the 
court  should   so  instruct,   either  on  its  own  motion  '^  or  on  re- 


all  confessions  were  prima  facie  in- 
voluntary, and  must  be  cautiously  re- 
ceived and  considered ;  and  that  the 
jury  should  consider  with  great  care 
the  testimony  of  a  witness  who  is  in- 
terested, or  who  may  be  swearing  to 
shield  himself  from  prosecution. 
Strickland  v.  State,  44  So.  90,  151 
Ala.  31. 

7  3  Brown  v.  State,  32  Miss.  433; 
State  V.  Caseday,  115  P.  287,  58  Or. 
429. 

'•1  State  V.  Heidenreich,  29  Or.  381, 
45  P.  755. 

7  5  Fletcher  v.  State,  90  Ga.  468,  17 
S.  E.  100:  Covington  v.  State,  79  Ga. 
687,  7  S.  E.  153;  Ledbetter  v.  State. 
61  Miss.  22 ;  Hogan  v.  State,  46  Miss. 
274;    HOgsett  v.  State,  40  Miss.  522. 

Matters  amounting  merely  to 
admissions.  On  trial  for  larceny  ot 
cattle,  where  there  was  evidence  that 
defendant  had  told  to  others  the  cir- 
cumstances connected  with  his  pos- 
session of  the  animals,  and  testified  in 
his  own  behalf  that  he  bought  the 
property  from  one  who  represented 
that  he  was  the  owner  thereof,  and 
showed  in  detail  the  manner  in  which 
possession  was  obtained,  an  instruc- 
tion assuming  that  such  declarations 
and   such   testimony   amounted   to   a 


confession  was  erroneous.  State  v. 
Heidenreich,  29  Or.  381,  45  P.  755. 
Where  accused  after  his  arrest  was 
questioned  in  the  presence  of  the  sher- 
iff and  constable  and  others,  and  ad- 
mitted his  implication  in  an  affray  in 
which  he  shot  and  wounded  com- 
plainant, but  claimed  that  he  acted 
only  in  self-defense  and  used  his  re- 
volver as  a  club  only,  the  discharge 
being  accidental,  and  that  after  com- 
plainant had  Ivuocked  him  off  a  chair 
into  a  bedroom  complainant's  wife 
joined  in  the  assault,  it  was  error  for 
the  court  to  refer  to  such  admissions' 
as  a  "confession"  of  guilt.  People  v. 
Cismadija,  132  N.  W.  489,  167  Mich. 
210. 

7  0  Fouse  v.  State,  119  X.  W.  478, 
83  Neb.  258. 

7  7  Ante.  §  101.  ! 

7  8  Shaw  V.  United  States  (C.  C.  A. 
Ky.)  180  F.  348,  103  C.  C.  A.  494: 
Shufflin  V.  State,  184  S.  W.  454,  122 
Ark.  606 :  State  v.  Priest,  103  A.  359, 
117  Me.  223:  Anderson  v.  State,  220 
S.  W.  775,  87  Tex.  Cr.  R.  230. 

70  Ark.  Williams  v.  State,  39  S. 
W.  709.  63  Ark.  527. 

Mass.  Commonwealth  v.  Hudson, 
70  N.  E.  436,  185  Mass.  402. 

Mich.     People  v.  Maxfield,  108  N. 


217 


INSTRUCTIONS   TO   JURIES 


422 


quest, ^®   where    there    is    some    evidence    that   a   confession    intro- 


W.  10S7,  146  Mich.  103:  People  v. 
Clarke,  105  Mich.  169,  62  N.  W.  1117. 

Mo.  State  v.  Webb,  115  S.  W.  99S, 
216  Mo.  378,  20  L.  R.  A.  (X.  S.)  1142, 
129  Am.  St.  Rep.  518,  16  Ann.  Cas. 
518 ;  State  v.  Brennan,  65  S.  W.  325, 
164  Mo.  487. 

Neb.  Heddendorf  v.  State,  124  iS!. 
W.  150,  85  Neb.  747. 

Tex.  Follis  v.  State.  101  S.  W.  242, 
51  Tex.  Cr.  R.  186 ;  Johnson  v.  State, 
88  S.  W.  223,  48  Tex.  Cr.  R.  423. 

Instructions  sufficiently  comply- 
ing Witt  rule.  A  charge,  on  a  prose- 
cution for  robbery,  in  which  a  written 
confession  of  defendant  was  introduc- 
ed in  evidence,  that  a  confession,  when 
voluntarily  made,  is  evidence  against 
accused,  because  common  experience 
proves  that  a  man  will  not  confess 
facts  to  his  disadvantage  unless  they 
are  true;  that  such  confessions 
should  be  strengthened  by  facts  cor- 
roborative of  their  truth;  and  that 
if  the  jury  believed  that  defendant 
made  such  confession  to  the  officers 
having  him  in  custody,  freely  and 
voluntarily,  they  should  consider  it, 
but  that  it  defendant  did  not  have 
suflBcient  mind  or  memory  to  know 
what  he  was  saying,  whether  it  was 
the  result  of  intoxication  or  weakness 
of  mind,  or  both,  or  if  the  same  was 
made  by  inducements  holding  out  es- 
cape or^  an  inducement  amounting  to 
a  threat,  fear  or  promise,  and  that 
from  such  inducements  the  confession 
was  made,  the  jury  should  disregard 
it.  State  V.  Stibbens,  87  S.  W.  460 
188  Mo.  387.  An  instruction  that  a 
confession  must  be  freely  made  with- 
out being  induced  by  fear  of  injury 
or  hope  of  benefit,  and  must  be  scan- 
ned with  great  caution  and  must  be 
corroborated.  Davis  v.  State,  67  S. 
E.  839,  7  Ga.  App.  680.  Defendant 
has  the  full  benefit  of  his  claim  that 
his  confession  was  not  voluntary, 
where  the  court  instructs  that  the 
confession  must  be  disregarded  if  it 
was  obtained  while  he  was  in  custody 
by  throats  or  promises,  or  while  he 
was  intoxicated.  State  v.  Brooks,  119 
S.  W.  3.53.  220  Mo.  74.  Where,  on  a 
trial  for  homicide,  the  confession  of 
accused  was  admitted  in  evidence,  and 
the  sheriff,   to  whom   the  confession 


was  made,  testified  that  he  warned 
accused  before  he  confessed,  and  ac- 
cused stated  that  he  did  not  hear  the 
warning,  an  instruction  that  the  evi- 
dence must  show  that  the  warning 
was  given,  and  that,  if  the  evidence 
failed  to  show  that  the  warning  was 
given  and  that  accused  heard  it,  the 
confession  could  not  be  considered, 
sufficiently  charged  under  what  cir- 
cumstances the  confession  might  be 
considered.  Green  v.  State,  98  S.  W. 
1059,  49  Tex.  Cr.  R.  645.  Where  there 
was  evidence  that  confessions  of  de- 
fendant to  the  officers  were  induced 
by  threats  or  promises  of  assistance, 
an  instruction  that,  unless  the  state- 
ments were  made  voluntarily,  and  not 
induced  by  threats  or  promises,  the 
jury  could  not  consider  them  in  the 
case,  was  sufficient,  under  a  statute 
requiring  that  the  confessions  be  made 
freely  and  without  compulsion  in  or- 
der to  be  admissible  as  evidence. 
Cross  V.  State  (Tex.  Cr.  App.)  101  S. 
W.  213.  An  instruction  that,  In  or- 
der to  consider  certain  admissions  of 
defendant  which  were  in  evidence, 
the  jury  must  find,  beyond  a  reason- 
able doubt,  that  the  statement  was 
purely  voluntary,  and  "made  freely, 
of  the  respondent's  free  will,  without 
an3'  hope  of  favor  or  fear  of  the  con- 
sequences," and  that  tbe  burden  was 
on  the  people  to  show  that  the  state- 
ments were  voluntary,  was  as  favor- 
able to  defendant  as  the  law  permits. 
People  V.  Swetland,  77  Mich.  53,  43 
N.  W.  779.  In  a  pi'osecution  for 
arson,  in  which  a  confession  of  de- 
fendant was  admitted,  failure  to 
charge  as  to  the  specific  facts  set  out 
in  the  defendant's  statement  as  to 
the  reason  for  the  fear  causing  him  to 
make  the  confession  was  not  error, 
where  the  court  instructed  that  the 
jury  must  not  consider  any  confes- 
sion, unless  they  were  satisfied  that 
it  had  been  made  freely  and  volun- 

so  Bates  v.  State,  84  So.  373,  78 
Fla.  672;  Griner  v.  State,  49  S.  E. 
700,  121  Ga.  614;  Johnson  v.  State, 
42  So.  606,  89  Miss.  773;  State  v. 
Tliomas,  157  S.  W.  330,  250  Mo.  189; 
State  v.  Moore,  61  S.  W.  199,  160  Mo. 
443. 


423 


EFFECT   OF   PAUTICULAR  CLASSES   OF   EVIDENCE 


§217 


ducecl  in  evidence  was  obtained  by  improper  means,  or  the  evi- 
dejice  is  conflicting  upon  the  question  of  its  voluntary  character. 
In  some  jurisdictions,  however,  it  is  held  that,  since  the  court  de- 
termines the  admissibility  of  confessions,  it  may  properlv  decline 
to  instruct  that  the  jury  may  disregard  confessions  submitted  to 
them,  if  they  believe  from  all  the  evidence  that  the}'  were  not 
freely  and  voluntarily  made.*^  '  Where  it  appears,  after  confes- 
sions have  been  submitted  to  the  jury,  that  they  were  not  volun- 
tarily made,  the  court  should  withdraw  such  evidence  from  the 
jury  and  instruct  them  to  wholly  disregard  it.^^ 

Where  the  court  has  instructed  generally  as  to  reasonable  doubt, 
it  is  not  necessary  to  instruct  that  the  jury  must  be  satisfied  be- 
yond a  reasonable  doubt  that  the  defendant  made  a  confession  in 
evidence  voluntarily.*^  Where  the  trial  judge  attempts  to  define 
what  a  voluntary  confession  is,  he  should  explain  that  a  hope  of 
benefit,  as  well  as  the  fear  of  injury,  will  render  a  confession  in- 
duced by  it  involuntary.*** 

It  is  proper  to  refuse  instructions  with  respect  to  the  voluntary 


tarily,  and  that  they  were  not  eonclud- 
ed  by  the  fact  that  evidence  of  confes- 
sions had  been  admitted,  but  tliat,  if 
they  found  from  the  evidence  that  the 
confession  had  not  been  freely  and ' 
voluntarily  made,  they  should  disre- 
gard it.  "Mor.ffan  v.  State,  48  S.  E. 
238,  120  Ga.  499.  Where  it  appeared 
that  defendant,  who  bore  an  assumed 
name  when  arrested,  confessed  when 
the  sheriff  confronted  him  with  his 
true  name,  and  afterwards  told  the 
sheriff  that  he  should  plead  guilty, 
and  that  the  sheriff  replied  that  in 
that  case  he  would  speak  to  the  judge 
and  get  defendant  off  as  easy  as  pos- 
sible, it  was  held  that  a  charge  that 
confessions  must  be  made  voluntarily, 
and  that  if  defendant  made  them  un- 
der undue  influence  they  could  not  be 
considered,  was  sufficiently  favorable 
to  defendant.  People  v.  Warner,  104 
Mich.  337,  G2  N.  W.  405.  Where  the 
state  proved  that  accused  had  made  a 
confession,  an  instruction,  requiring 
the  jury  to  And,  before  they  could  con- 
sider any  statement  made  by  accused 
as  evidence  against  him,  that  he  was 
warned,  and  that  the  statement  made 
was  voluntai-y,  properly  called  the 
jury's  attention  to'  the  confession,  and 
left  the  consideration  thereof  with 
the  jury  as  they  should  And  the  facts. 


Thomas  v.  State,  95  S.  W.  1069,  49 
Tex.  Cr.  R.  633. 

Failure  to  include  \rords  "or 
other  improper  influences."     That 

the  court,  in  instructing  the  jun-  not 
to  consider  defendant's  confession  if 
they  believed  it  was  induced  by  du- 
ress, threats,  or  coercion,  failed  to 
add  "or  other  improper  influence,"  is 
not  error,  where  the  jury  had  pre- 
viously been  instructed  not  to  consider 
the  confession  unless  they  believed 
that  it  was  freely  and  voluntarily 
made.  Anderson  v.  State  (Tex.  Cr. 
App.)  54  S.  W.  581. 

81  Stone  V.  State,  105  Ala.  GO.  17  So. 
114 ;  Holland  v.  State,  22  So.  298,  39 
Fla.  178. 

82  Bonner  v.  State,  55  Ala.  242; 
Cain  V.  State,  18  Tex.  387. 

Confession  submitted  without 
objection.  Although  a  confession 
goes  to  the  jury  without  objection, 
and  no  motion  is  made  to  rule  it  out. 
the  counsel  may  still  request  the 
court,  in  wiuting,  to  charge  that,  un- 
less voluntarily  made,  the  confession 
cannot  warrant  a  conviction.  Earp  v. 
State,  55  Ga.  136. 

S3  XLx  v.  State,  97  Ga.  211,  22  S.  E. 
975. 

84  Parker  v.  State,  34  Ga.  262. 


218 


INSTRUCTIONS  TO  JURIES 


424 


character  of  a  confession  by  the  defendant,  where  there  is  no  evi- 
dence that  it  was  invohuitary.*^ 

§  218.     Instructioins  on  corroboration  of  confessions 

The  general  rule  is  that,  when  an  extrajudicial  confession  has 
been  admitted  in  evidence  and  there  is  some  doubt  whether  a 
crime  has  been  committed,  the  jury  should  be  told  that  a  confes- 
sion, uncorroborated  by  some  other  evidence  tending  to  show  the 
commission  of  a  crime,  will  not  warrant  a  conviction,^^  there  being 
statutes  in  some  jurisdictions  prohibiting  convictions  on  extra- 
judicial confessions  alone;*'  but,  where  the  corpus  delicti  is  abun- 
dantly established  by  evidence  independent  of  such  a  confession, 
it  is  not  error  for  the  court  to  refuse  such  a  charge,**  and  it  is  not 


8  5  Wilganowski  v.  State,  ISO  S.  W. 
692,  78  Tex.  Cr.  R.  328;  Ex  parte 
Martinez,  145  S.  W.  959,  66  Tex.  Cr. 
R.  1;  Pinckard  v.  State,  138  S.  W. 
601,  62  Tex.  Cr.  R.  602;  Bailey  v. 
State,  59  S.  W.  900,  42  Tex.  Cr.  R. 
289. 

8  6  People  V.  Frey,  131  P.  127,  165 
Cal.  140 :  Lucas  v.  State,  36  S.  E.  87, 
110  Ga.  756  ;  Clary  v.  Commonwealth, 
173  S.  W.  171,  163  Ky.  48;  Collins  v. 
Commonwealth  (Ky.)  25  S.  W.  743. 

Instructions  sufficient  to  satisfy 
rule.  A  charge  that  confessions  of 
guilt  should  be  received  with  great 
caution,  that  a  confession  alone,  un- 
corroborated by  other  evidence,  will 
not  justify  a  conviction,  and  that  con- 
fessions must  be  corroborated  by  some 
fact  or  circumstance  shown  in  the 
case  that  tend  to  connect  defendant 
with  the  offense  charged.  Walker  v. 
State  (Ga.  App.)  105  S.  E.  717.  Where 
the  judge  instructs  that  a  conviction 
cannot  be  had  on  a  confession  only, 
but  that  it  must  be  corroborated,  and 
that  proof  of  the  corpus  delicti  is  a 
sufficient  corroboration,  the  instruc- 
tion is  sufficient  where  it  is  added 
that  if  it  is  shown  that  the  crime  was 
committed  the  jury  could  consider  the 
confession.  Owen  v.  State,  40  S.  E. 
433, 119  Ga.  304.  In  a  prosecution  for 
arson,  in  which  evidence  of  a  con- 
fession of  defendant  had  been  admit- 
ted, a  charge  that  if  the  evidence  be 
clear  and  deci.sive,  satisfying  the 
minds  of  the  jury  beyond  a  reasonable 
doubt  that  the  building  was  malicious- 
ly and  willfully  burned,  and,  if  the 
jury  believed  that  the  defendant  free- 


ly and  voluntarily  confessed  that  he 
did  it,  then  such  a  confession,  thus 
corroborated,  might  serve  as  sufficient 
corroboration  to  authorize  the  con- 
viction, was  not  error.  Morgan  v. 
State,  48  S.  E.  238,  120  Ga.  499.  In 
the  absence  of  requested  special  in- 
structions on  the  law  of  corroborative 
proof,  the  instruction,  "No  person  can 
be  convicted  upon  his  own  confession 
unless  it  is  corroborated  by  other  evi- 
,  dence,  and  whether  there  is  such  evi- 
dence is  for  the  jury,"  is  sufficient. 
Attaway  v.  State,  35  Tex.  Cr.  R.  403, 
34  S.  W.  112. 

8  7  Davis  V.  State,  173  S.  W.  829, 
115  Ark.  566. 

Evidence  connecting  defendant 
TO^ith  offense  entirely  circumstan- 
tial aside  from  confession.  Where 
the  commonwealth  showed  beyond 
doubt  that  deceased  came  to  his  death 
from  a  blow  on  the  head  which  frac- 
tured his  skull,  but  the  evidence  to 
connect  the  prisoner  with  the  offense 
was  wholly  circumstantial,  aside 
from  certain  alleged  extrajudicial 
confessions,  and  the  theory  of  the  de- 
fense was  that  deceased  was  struck 
by  a  passing  railroad  train,  the  court 
should  have  charged  the  language  of 
the  statute,  that  a  confession  of  ac- 
cused, unless  made  in  open  court,  will 
not  warrant  a  conviction  unless  ac- 
companied with  other  proof  that  the 
offense  has  been  committed.  Higgins 
V.  Commonwealth,  134  S.  W.  1135,  142 
Ky.  647. 

8  8  Cal.     People  v.  Wagner,  155  P. 
649,  29  Cal.  App.  363. 
Ky.    Dunbar  v.  Commonwealth,  232 


425  EFFECT   OF   PARTICULAR   CLASSES   OF   EVIDENCE  §  219 

necessary  to  the  application  of  this  rule  that  the  corroborative  evi- 
dence should  tend  to  connect  the  accused  with  the  crime  charged.*^ 
However,  in  an  instruction  that  a  conviction  may  be  had  upon 
a  voluntary  confession  corroborated  onl}^  by  proof  of  the  corpus 
delicti,  the  court  should  not  use  language  from  which  the  jury  may 
infer  that  such  a  confession,  thus  corroborated,  will  require  a  con- 
viction, but  should  leave  them  free  to  pass  upon  the  question 
whether  or  not  the  corroborative  evidence,  together  with  that  re- 
lating to  the  confession,  is  sufificient  to  satisfy  them  beyond  a  rea- 
sonable doubt  of  the  guilt  of  the  accused.^"  An  instruction  with 
respect  to  the  corroboration  of  confessions  is  not  objectionable 
because  it  does  not  state  the  degree  of  proof  necessary  to  supple- 
ment them.^' 

§  219.     Silence  under  accusation 

In  some  jurisdictions,  where  there  is  evidence  tending  to  show 
that  statements  were  made  in  the  presence  of  the  defendant,  ex- 
pressly or  impliedly  accusing  him  of  the  crime  for  which  he  is 
being  prosecuted  to  which  he  made  no  reply,  it  is  proper  to  in- 
struct that,  if  defendant  heard  the  statements,  the  jury  may  con- 
sider whether  he  was  bound  to  answer,  and  how  far  any  inference 
is  to  be  drawn  against  him  because  of  his  silence.*^    In  other  juris- 

S.  VV^.  655 ;   Lee  v.  Commonwealth,  159  Proof   of   corpus   delicti   beyond 

S.  W.  648,  155  Ky.  62  ;    Green  v.  Com-  reasonable  donbt  not  required.     It 

monwealth,  S3  S.  W.  638,  26  Ky.  Law  is  not  error  to  refuse  to  instruct  the 

Rep.  1221 :   Gilbert  v.  Commonwealth,  jury  that,   before  they  can  consider 

111  Ky.  793,  64  S.  W.  846,  23  Ky.  Law  any  alleged  confessions  of  defendant, 

Rep.  1094  ;    Dugan  v.  Commonwealth,  they  must  be  satisfied  beyond  a  reason- 

43  S.  W.  418,  102  Ky.  241,  19  Ky.  Law  able  doubt,  from  other  evidence  in  the 

Rep.   1273:    Bush   v.    Commonwealth,  case,   of  the  existence  of  the  coi*pus 

17  S.  W.  330.  13  Ky.  Law  Rep.  425 ;  delicti.    The  confessions  of  a  defend- 

Ruberts   v.    Commonwealth,   7    S.    W.  ant.  when  admitted,  are  to  be  weighed 

401 ;    Patterson  v.  Commonwealth.  86  and  considered  by  the  jurv  with  all 

K.v.  313.  5  S.  W.  387 ;  Id.,  5  S.  W.  765,  the  other  evidence.    Holland  v.  State, 

99  Ky.  610.  22  So.  298,  39  Fla.  178. 

Mass.     Commonwealth  v.  McCann,  so  Sandefur  v.  Commonwealth,  137 

97  Mass.  580;   Commonwealth  v.  Tarr,  t^.   W.  504,  143  Ky.  655 ;    Frazier  v. 

4  Allen,  315.  Commonwealth  (Ky.)   124  S.  W.  797: 

Tex.     Gallegos  v.   State,  90  S.  W.  Chapman  v.  Commonwealth  (Ky.)  112 

492,    49   Tex.    Cr.    R.    115:     Ellington  S.    W.    567,    33    Ky.    Law  •  Rep.    965; 

V.  State.  87  S.  W.  153,  48  Tex.  Cr.  R.  Patterson  v.   Commonwealth.   86   Kv. 

160;    Murphy  v.  State,  67  S.  W.  108,  313,  5  S.  W.  387;    Id.,  5  S.  W.  765,  99 

43  Tex.  Cr.  R.  515;    Nelson  v.  State  Ky.  610. 

(Cr.   App.)    65    S.    W.   95;     Bailey    v.  "so  Wimberly  v.  State,  31  S.  E.  162, 

State,  59  S.  W.  900,  42  Tex.  Cr.  R.  105  Ga.  188. 

289;    Tidwell  v.  State,  47  S.  W.  466,  oi  State  v.  Caseday,  115  P.  287,  58 

40  Tex.  Cr.   R.  38,  rehearing  denied  Or.  429. 

48    S.    W.    184,   40   Tex.    Cr.    R.    38;  9  2  Commonwealth    v.    Brailey,    134 

Franks  v.  State  (Cr.  App.)  45  S.  W.  Mass.  527. 

1013.  Cbarge      that      silence      "tanta- 

See  State  v.  Turner,  19  Iowa,  144.  mount"  to  an  admission.     Where, 


§220 


INSTRUCTIONS  TO  JURIES 


426 


dictions  such  an  instruction  is  improper.^^  Where  the  state  seeks 
to  draw  inferences  against  the  defendant  because  of.  his  silence, 
when  accusing  statements  are  made  in  his  presence,  the  court 
may  ^*  and  should  instruct  that,  unless  the  jury  believe  that  the 
defendant  heard  such  statements,  they   must  disregard  them.^^ 

§  220.     Admissions    or   confessions   containing   statements   favor- 
able to  defendant 

Where  the  state  puts  in  evidence  a  confession  of  the  defendant 
containing  divergent  statements,  instructions  should  not  be  so 
framed  as  to  permit  the  jury  to  infer  that  they  are  not  to  take  into 
consideration  the  statements  most  favorable  to  the  accused.^^  In 
some  jurisdictions,  where  the  state  relies  for  conviction  upon  a 
confession  of  the  defendant,  which  contains  exculpatory  state- 
ments which  disprove  the  state's  case,  the  court  should  charge 
that  the  state  is  bound  by  such  statements  unless  they  are  shown 
by  the  evidence  to  be  untrue;^'  the  rule  being  otherwise  where 


at  the  trial  of  a  criminal  case,  the 
Judge  instructed  the  jury  that,  if  a 
statement  was  made  in  the  hearing 
and  presence  of  a  person  which  affect- 
ed his  rights  or  was  criminating  to 
him  and  he  remained  silent,  such 
silence  was  tantamount  to  an  admis- 
sion of  the  truth  of  the  facts  stated, 
provided  the  statement  was  heard 
and  understood  by  him  and  he  was 
not  in  custody  or  under  restraint,  but 
was  at  liberty  to  reply  or  explain,  and 
provided  the  statement  was  of  such 
a  nature  and  made  under  such  cii-- 
cumstances,  and  by  such  persons,  as 
naturally  to  call  for  a  reply,  it  was 
held  that  if,  instead  of  saying  that 
silence  was  "tantamount"  to  an  ad- 
mission, the  judge  had  said  that  it 
was  in  the  nature  of  an  admission, 
the  instructions  would  have  been 
strictly  accurate,  but  that  the  inae- 
curacj',  if  any,  was  eliminated  by  the 
jury  being  told  that,  if  they  found  the 
facts  as  contended  by  the  government, 
"they  would  give  to  the  circumstance 
such  weight  and  significance  as  they 
thought  it  entitled  to."  Common- 
Avealth  v.  McCabe.  163  Mass.  98,  39  N. 
B.  777. 

93Phelan  v.  State,  88  S.  W.  1040, 
114  Tenn.  483. 

94  state  v.  Guffey,  163  N.  W.  679,  39 
S.  D.  84. 

95  Rhea  V.  State,  148  S.  W.  578,  67 
Tex.  Cr,  R.  197, 


9  6  state  V.  Laliyer,  4  Minn,  368  (Gil, 
277). 

9T  Tex.  Mullins  v.  State  (Cr.  App.) 
225  S.  W.  164;  Coleman  v.  State,  199 
S,  W.  473,  82  Tex.  Cr.  R.  332;  Mcln- 
ish  V.  State,  198  S,  W,  780,  82  Tex. 
Cr,  R,  141 ;  Cline  v.  State,  178  S.  W. 
520,  77  Tex.  Cr,  R.  281;  Gibson  v. 
State,  110  S.  W.  41,  53  Tex.  Cr,  R. 
349 ;  Jones  v.  State,  29  Tex.  App.  20, 
13  S.  W.  990,  25  Am.  St.  Rep.  715, 

Instruction  rendered  unnecessa- 
ry by  other  instructions.  Where 
the  state  introduced  a  confession  or 
admission  of  defendant,  containing 
his  statement  that  deceased  had  his 
gun  up  and  cocked,  it  was  not  neces- 
sary to  charge  that  the  state  was 
bound  by  the  statement,  unless  shown 
to  be  false ;  it  being  necessary,  under 
the  charge  as  to  self-defense,  to  find 
deceased  did  not  so  have  his  gun,  be- 
fore there  could  be  a  conviction, 
Davis  v.  State,  163  S.  W,  442,  73  Tex, 
Cr.  R.  49, 

Rule  vrhere  confession  contains 
no  exculpatory"  statements.  Where 
a  written  confession,  which  was  in- 
troduced in  evidence,  contained  no  ex- 
culpatory statements,  it  was  not  nec- 
essary to  charge  the  jury  that  the 
confession  must  be  taken  as  a  whole 
and  that  the  state  must  disprove  the 
exculpatory  matters,  Anderson  v. 
State,  159  S,  W.  847,  71  Tex.  Cr,  R,  27. 


427  EFFECT   OF   PARTICULAR   CLASSES   OF   EVIDENCE  §  221 

the  State  does  not  rely  solely  upon  such  coniession,^^  or  where 
there  are  facts  other  than  the  confession  tending  strongly  to  con- 
nect the  defendant  with  the  crime  of  which  he  is  accusd,^**  or 
where  the  state  does  not  rely  upon  the  confession  as  an  entirety 
and  the  exculpatory  statements  are  proven  by  the  defendant.^  In 
another  jurisdiction,  where  the  state  relies  mainly  for  conviction 
upon  a  verbal  confession  of  the  defendant  containing  statements 
favorable  to  him,  the  court  should  instruct  on  request  that  the 
confession  must  be  taken  together,  and  if  the  part  favorable  to 
the  defendant  is  not  disproved,  and  is  not  improbable  when  con- 
sidered with  the  other  evidence,  then  that  part  is  entitled  to  as 
much  consideration  as  parts  of  the  confession  unfavorable  to  him.^ 
In  one  jurisdiction,  where  the  state  puts  in  evidence  confessions 
or  admissions  of  the  defendant  containing  statements  favorable 
to  him,  it  is  proper  for  the  court  to  instruct  that  any  statements 
made  by  the  defendant  against  himself  the  law  presumes  to  be 
true,  but  that  what  he  says  in  his  own  favor  the  jury  may  believe 
or  not,  according  as  they  find  the  fact  to  be,  after  considering 
such  statements  in  connection  with  all  the  other  evidence.^ 

§  221.     Necessity  or  sufficiency  of  evidence  as  predicate  for  in- 
instructions 

To  justify  or  require  an  instruction  on  the  subject  of  confes- 
sions, the  effect  to  be  given  to  them,  or  the  necessity  of  their  cor- 
roboration, there  must  be  some  evidence  that  the  defendant  has 
made  a  confession.'*     Proof  of  an  inculpatory  admission  will  not 

9  8  Cook  V.  State,  160  S.  W.  465,  71  ^  Mo.     State  v.   Chick.  221   S.  W. 

Tex.  Cr.  R.  532 :    McKiuuey  v.  State,  10.  282  Mo.  51 ;    State  v.  Wausong, 

SS  S.  W.  1012,  48  Tex.  Cr.  R.  402.  195  S.  W,  999,  271  Mo.  50 ;    State  v. 

Confession  of  principal  as  basis  Davis,   12,6   S.   W.  470,   226  Mo.  493; 

of    instruction   in   prosecution   of  State  V.  Wilson,  122  S.  W,  671,  223 

accomplice.     In    the  prosecution   of  Mo.  173;    State  v.  Merkel,  87  S.  W. 

accused  as  an  accomplice  to  a  homi-  1186,  189  Mo.  3lb ;    State  v.  Darragh, 

cide,  confession  of  the  principal  hav-  54  S.  W.  226,  152  Mo.  522;    State  v. 

ing  been  admitted  solely  to  show  that  McKenzie,  45  S.  W.  1117,  144  Mo.  40; 

he    killed    deceased,    such    confession  State  v.  Young,  119  Mo.  495,  24  S.  W. 

could   not   be  made   the   basis   of   a  1038;    State  v.  Richardson,  117  Mo. 

charge  that  the  state  was  bound  by  586,  23  S.  W.  769;    State  v.  Brown, 

it  in  other  matters,  unless  the  falsity  104  Mo.  365,  16  S.  W.  406 ;    State  v. 

thereof  was  proven.    Milluer  v.  State,  Brooks,  99  Mo.  137.  12  S.  W.  633. 
162  S.  W.  348,  72  Tex.  Cr.  R.  45.  4  Ala.     McCormick  v.  State,  37  So. 

9  9  Gibson   v.   State,  110  S.  W.   41,  377,  141  Ala.  75;    Burns  r.  State,  49 

53  Tex.  Cr.  R.  349.  Ala.  370. 

1  Belcher  v.  State,  161  S.  W.  459,  71  Ga.  Chislon  v.  State,  91  S.  E  893 
Tex.  Cr.  R.  646.  19  Ga.  App.  607;   Thomas  v.  State,  84 

2  Burnett  v.  People,  68  N.  E.  505,  S.  E.  587,  143  Ga.  268 ;  Cox  v.  State 
204  111.  208.  66  L.  R.  A.  304,  98  Am.  79  S.  E.  909,  13  Ga.  App.  687;  Owens 
St.  Rep.  206.  V.   State,  48  S.  E.  21,   120   Ga    296- 


§221 


INSTRUCTIONS  TO  JURIES 


428 


authorize  or  require  such  an  instruction,^  and  the  nearer  an  ad- 
mission approaches  the  completeness  of  a  full  confession  of  guilt 
without  attaining  thereto  the  more  likely  is  any  reference  in  the 
instructions  to  the  subject  of  confessions  to  confuse  the  jury  and 


Knight  V.  State,  39  S.  E.  928,  114 
Ga.  48,  88  Am.  St.  Rep.  17 ;  Jones  v. 
State,  65  Ga.  147. 

Ky.  Spicer  v.  Commonwealth.  51 
S.  W.  802,  21  Ky.  Law  Rep.  528 ;  Car- 
gill  V.  Commonwealth,  93  Ky.  578,  20 
S.  W.  782. 

Neb.  Marion  v.  State,  16  Neb.  349, 
20  N.  W.  289. 

Tex.  Johnson  v.  State,  124  S.  W. 
664,  57  Tex.  Cr.  R.  603;  Trevenio  v. 
State,  87  S.  W.  1162,  48  Tex.  Cr.  R. 
207;  Fox  V.  State  (Cr.  App.)  87  S.  W. 
157. 

Instruction.  that  confessions 
and  admissions  of  accused  should 
be  received  ivitb  great  caution. 
Where  a  defendant  charged  with  se- 
duction before  an  examining  magis- 
trate pleaded  guilty  to  the  charge, 
and  acknowledged  his  guilt  to  the 
father  of  the  prosecutrix  and  another, 
all  of  which  confessions  were  volun- 
tarily made,  without  qualification, 
but,  on  testifying  as  a  witness  in  his 
own  behalf,  stated  that  he  only  meant 
that  he  was  guilty  of  the  act  of  in- 
tercourse, and  not  of  the  seduction, 
an  instruction  that  the  confessions 
and  admissions  of  accused  should  be 
received  with  great  caution,  and,  if 
the  jury  helieved  from  the  evidence 
that  accused  meant  that  he'was  guilty 
of  the  intercourse  merely,  then  such 
admissions  could  only  be  considered 
as  coiToborating  evidence  of  the  in- 
tercourse alone,  and  not  to  corrobo- 
rate the  alleged  seduction,  was  prop- 
erly refused,  where  the  court  charged 
that  admissions  and  confessions  of  ac- 
cused were  admitted  with  caution, 
and  that  it  was  the  province  of  the 
jury  to  consider  all  the  circumstances 
under  which  the  admissions  were 
made,  and  determine  their  exact  na- 
ture, import,  and  meaning.  Flick  v. 
Commonwealth,  34  S.  E.  39,  97  Va. 
766. 

Instruction  that  a  free  and  vol- 
untary   confession   is    the   highest 


order  of  evidence.  Where,  on  a 
prosecution  for  assault  with  intent  to 
commit  rape,  there  was  evidence  that 
defendant  had  offered  one  witness  a 
bribe  to  testify  that  he  had  overheard 
a  conversation  between  defendant 
and  prosecutrix  nearly  contemporane- 
ous with  the  alleged  assault;  anoth- 
er, that  he  had  told  defendant  he 
heard  defendant  "had  a  little  fight 
with  the  girl,"  and  defendant  answer- 
ed, "Yes ;  she  kicked  and  fought  like 
a  wild  cat," — and  that  defendant  had 
offered  a  third  witness  money  to  testi- 
fy that  he  had  had  sexual  intercourse 
with  prosecutrix,  and  had  told  a 
fourth  that  he  intended  to  swear  that 
he  had  intercourse  with  prosecutrix 
twice  on  the  occasion  of  the  alleged 
assault,  it  was  held  that  an  instruc- 
tion that  a  free  and  voluntary  con- 
fession of  guilt  is  the  highest  order  of 
evidence  had  no  foundation  in  this 
testimonv.  Johnson  v.  People,  64  N. 
E.  286.  197  111.  48. 

Evidence  sufficient  to  authorize 
charge.  Evidence  that  a  person  un- 
der arrest  expressed  a  desire  out  of 
court  to  plead  guilty,  in  order  to  be- 
gin to  serve  his  sentence.  Abrams  v. 
State,  48  S.  E.  965.  121  Ga.  170. 
Where  there  was  testimony  that  de- 
fendants, accused  of  obstructing  a  rail- 
road track,  had  admitted  they  saw 
the  cross-tie  on  the  track,  shortly  be- 
fore it  was  struck  by  the  train,  and 
that  one  of  them,  when  asked  why  he 
did  not  remove  it,  said,  "It  was  near 
train  time,  and  didn't  have  time,"  a 
charge  as  to  the  law  relating  to  con- 
fessions and  admissions,  unattended 
by  any  intimation  of  the  judge  that 
defendants  had  made  any  confession 
or  admission  of  guilt,  was  not  error. 
State  V.  Taylor,  32  S.  E.  149,  54  S.  C. 
174. 

5  Ga.  Phillips  v.  State  (App.)  107 
S.  E.  343:  Easterling  v.  State,  100  S. 
E.  727,  24  Ga.  App.  424;  Reed  v. 
State,  83  S.  E.  674,  15  Ga.  App.  435; 
Porter  v.  State,  74  S.  E.  1099,  11  Ga. 


429 


EFFECT  OF   PARTICULAR  CLASSES   OF   EVIDENCE 


222 


be  of  harm  to  the  defendant.^  So,  in  order  to  entitle  a  defendant 
to  an  instruction  that  a  confession  cannot  be  considered,  if  it  was 
not  vohmtary  and  was  obtained  through  coercion  or  persuasion, 
there  must  be  evidence  on  whrch  to  base  such  instruction.' 


D.  Acts  and  Declarations  of  Co-conspirators 

§  222.     Propriety  and  sufficiency  of  instructions 

In  a  criminal  case  the  court  is  not  authorized  to  charge  on  the 
acts  and  declarations  of  co-conspirators  in  the  absence  of  the  de- 


App.  246;  Bridges  v.  State,  70  S.  B. 
968,  9  Ga.  App.  235;  Hutchinson  v. 
State,  63  S.  E.  597,  5  Ga.  App.  598; 
Riley  v.  State,  57  S.  E.  1031,  1  Ga. 
App.  651 ;  Davis  v.  State,  39  S.  E.  906, 
114  Ga.  104 :  Suddeth  v.  State,  37  S. 
E.  747.  112  Ga.  407;  Lee  v.  State,  29 
S.  E.  264,  102  Ga.  221. 

Ky.  Bates  v.  Common  wealth ,  174 
S.  W,  765,  164  Kv.  1 ;  Black  v.  Com- 
monwealth, 156  S.  W.  1043,  154  Ky. 
144;  Tipton  v.  Commonwealth,  78  S. 
W.  174,  25  Ky.  Law  Rep.  1547. 

Matters  not  authorizing  a 
charge  on  the  subject  of  confes- 
sions. On  a  trial  for  larceny  of  a 
jug  of  whisky,  evidence  that  a  wit- 
ness saw  accused  soon  after  he  was 
arrested,  and  that  he  told  him  he  had 
not  ordered  any  whisky,  and  that  no 
one  had  promised  to  send  him  any, 
and  stated  a  negro  told  liim  there  was 
a  jug  of  whisky  for  him  at  the  ex- 
press office,  and  he  went  and  called 
for  it,  and  got  it.  Cleveland  v.  State, 
39  S.  E.  941,  114  Ga.  110.  In  a  prose- 
cution for  larceny,  evidence  of  a 
statement  by  accused  that  he  got  a 
part  of  the  stolen  property  from  an- 
other man,  and  could  account  for  his 
possession.  State  v.  Smith.  106  N.  W. 
187,  129  Iowa,  709,  42  L.  R.  A.  (N.  S.) 
539,  6  Ann.  Cas.  1023. 

Matters  amounting  merely  to 
an  inculpatory  statement.  Where, 
on  a  prosecution  for  murder,  there 
was  evidence  that  defendant,  when 
infonned  that  he  would  be  arrested 
for  the  crime,  stated  that  if  deceased 
had  treated  his  informant  as  he  had 
treated  defendant,  informant  would 
have  wanted  to  kill  him,  it  was  preju- 
dicial error  to  instruct  that  confes- 
sions are  satisfactory   and   effectual 


proofs  of  guilt,  as  the  evidence  did 
not  show  a  confession,  but  merely  an 
inculpatory  statement.  Shelton  v. 
State,  42  So,  30,  144  Ala.  106. 

6  Ransom  v.  State,  59  S.  E.  101,  2 
Ga.  App.  826. 

7  Irby  V.  State,  95  Ga.  467,  20  S.  E. 
218 :  People  v.  Rogers,  85  N.  E.  135, 
192  N.  T.  331,  15  Ann.  Cas.  177;  Hern- 
don  V.  State,  99  S.  W.  558,  50  Tex.  Cr. 
R.  552. 

Evidence  insufficient  to  justify 
submission  of  issue.  The  fact  that 
an  officer,  who  was  present  at  the 
time  and  place  (fixed  by  another  offi- 
cer in  his  testimony)  that  defendant 
made  a  confession,  after  being  warn- 
ed, did  not  hear  the  warning  or  con- 
fession, does  not  justify  a  submission 
to  the  jury  of  an  issue  as  to  whether 
the  confession  was  made  freely  and 
A'oluntarily.  Sullivan  v.  State,  51  S. 
W.  375,  40  Tex.  Cr.  R.  633. 

Evidence  sufficient  to  require 
charge.  Where  defendant  testified 
in  his  own  behalf  that  a  warning  was 
not  given  and  hope  of  reward  offered 
when  his  written  confession  was 
made,  he  was  entitled  to  a  charge 
thfit  the  confession  could  not  be  con- 
sidered if  any  inducement  was  held 
out  or  hope  of  reward  offered. 
Knight  V.  State,  116  S.  W.  56,  55  Tex. 
Cr.  R.  243.  An  assurance  by  the  ar- 
resting officer  to  a  girl  14  years  old, 
that  she  shall  not  be  hurt,  holds  out 
to  her  a  hope  of  benefit  to  induce  her 
confession,  and  is  sufficient  evidence 
en  which  to  predicate  a  charge  that 
confessions  must  be  voluntary,  and 
made  without  hope  of  benefit  or  fear 
of  injury,  in  order  to  ground  a  convic- 
tion for  crime  thereon.  -  Earp  v.  State, 
55  Ga.  136. 


222 


INSTRUCTIONS  TO  JURIES 


430 


fendant,  unless  there  is  evidence  of  a  conspiracy,*  and  where  it  is 
alleged  that  a  crime  for  which  one  is  being  prosecuted  was  com- 
mitted as  the  result  of  a  conspirapy  between  the  defendant  and 
third  persons,  the  court  should  not  only  impress  upon  the  jury 
that,  before  they  can  consider  evidence  of  the  statements  and  acts 
of  such  third  persons  in  the  absence  of  the  defendant,  they  mu-^^t 
find  the  existence  of  such  conspiracy,^  but  that  they  must  believe 
bevond   a   reasonable  doubt   that   such   conspiracy   existed,^"   and 


8  Delaney  v.  State,  90  S.  W.  642,  48 
Tex.  Cr.  R.  594. 

9  Ky.  Stacey  v.  Commonwealth, 
225  S.  W.  37,  189  Ky.  402. 

Mo.  State  v.  Kennedy,  177  Mo.  98, 
75  S.  W.  979. 

Or.  State  V.  Moore,  48  P.  468,  32 
Or.  65. 

Tex.  Wilson  v.  State,  155  S.  W. 
242,  70  Tex.  Cr.  R.  3;  Nelson  v. 
State,  87  S.  W.  143,  48  Tex.  Cr.  R. 
274';  Chapman  v.  State,  76  S.  W.  477, 
45  Tex.  Cr.  R.  479;  Segrest  v.  State 
(Cr.  App.)  57  S.  W.  845;  Casner  v. 
State,  57  S.  W.  821,  42  Tex.  Cr.  R. 
118. 

Instructions  held  proper  Tvitliin 
rule.  An  instruction  that,  where 
two  or  more  persons  are  associated 
together  for  purpose  of  doing  an  un- 
lawful act,  the  act  or  declaration  of 
one  while  engaged  in  or  pursuant  to 
the  common  object  or  design  is  the 
act  or  declaration  of  all,  for  which  all 
are  liable,  does  not  permit  jury  to  use 
acts  and  declarations  of  one  against 
all  defendants  regardless  of  proof  of 
conspiracj'  or  whether  proof  of  con- 
spiracy existed  at  the  time  of  the  act 
or  declaration  and  does  not  permit 
proof  of  conspiracy  as  to  all  by  evi- 
dence of  acts  and  declarations  of 
one.  State  v.  Chong  Ben,  173  P.  1173, 
89  Or.  313,  denying  rehearing  173  P. 
258,  89  Or.  313.  In  a  prosecution  for 
murder,  where  there  is  evidence  of  a 
conspiracy  between  defendant  and 
others  to  commit  the  homicide,  and  of 
acts  and  declarations  of  an  alleged  co- 
conspirator, instructions  that,  where 
a  conspiracy  is  entered  into  between 
two  or  more,  the  acts  and  declarations 
of  each  in  regard  to  the  common  pur- 
pose are  the  acts  and  declarations  of 
all ;  and,  when  one  enters  into  a  con- 
i^piracy    already    formed,    every    act 


done  by  the  others,  before  his  entry 
or  afterwards,  in  pursuance  of  the 
common  design,  is  the  act  of  the  one 
so  entering;  and  that  if  H.  (a  co- 
defendant)  and  others  formed  a  com- 
mon purpose  to  kill  deceased,  and  de- 
fendant entered  into  a  conspiracy  at 
any  time  before  the  killing,  the  acts 
and  declarations  of  the  co-conspira- 
tors made  and  done  in  pursuance  of 
the  common  design  after  said  agree- 
ment was  made  by  H.,  and  others, 
and  before  the  killing,  are  admissible 
against  defendant,  but  if  defendant 
did  not  enter  into  such  conspiracy  the 
testimony  should  be  disregarded  in 
passing  on  his  guilt — are  not  objec- 
tionable. Harris  v.  State,  31  Tex.  Cr. 
R.  411,  20  S.  W.  916.  On  a  murder 
trial,  where  a  conspiracy  to  kill  de- 
ceased was  sought  to  be  shown,  it  was 
proper  to  charge  that,  if  the  jury  be- 
lieved that  defendant  had  entered  in- 
to a  conspiracy  to  kill  the  deceased, 
they  could  consider  as  evidence 
against  defendant  any  acts  or  decla- 
rations of  his  co-conspirators,  or  ei- 
ther of  them,  done  or  made  to  carry 
out  their  common  purpose  during  the 
pendency  of  such  conspiracy,  but 
should  disregard  Such  acts  and  decla- 
rations if  there  was  no  conspiracy,  or 
if  they  were  not  done  or  made  during 
the  pendencj'  thereof  to  carry  out  the 
design.  Luttrell  v.  State,  31  Tex.  Cr. 
R.  493,  21  S.  W.  248. 

10  Ky.  Day  v.  Commonwealth,  191 
S.  W.  105,  173  Ky.  269 ;  Hall  v.  Com- 
monwealth, 93  S.  W.  904,  29  Ky.  Law 
Rep.  485. 

Tex.  Steele  v.  State,  223  S.  W.  473, 
87  Tex.  Cr.  R.  588;  Wallace  v.  State, 
81  S.  W.  966.  46  Tex.  Cr.  R.  341; 
Chapman  v.  State,  76  S.  W.  477,  45 
Tex.  Cr.  R.  479;  Graham  v.  State 
(Cr.  App.)  61  S.  W.  714. 


431  EFFECT   OF   PARTICULAR   CLASSES   OF   EVIDENCE  §  223 

that  such  acts  or  words  of  the  alleged  co-conspirators  must  have 
been  done  or  uttered  in  furtherance  of  the  object  of  the  conspir- 
acy.^^ The  court  should  also  further  instruct  that  the  acts  and 
declarations  of  an  alleged  co-conspirator  in  the  absence  of  the  de- 
fendant are  inadmissible  to  establish  a  conspiracy.^-  Where  the 
admissibility  of  the  declarations  of  a  third  person  depends  on 
whether  they  were  spoken  by  a  co-conspirator,  and  there  is  evi- 
dence that  there  was  a  conspiracy  between  the  speaker  and  the 
defendant,  the  jury  should  be  instructed  to  find  whether  there  was  a 
conspiracy,  and  to  consider  or  disregard  the  declarations  accord- 
ingly.^^ 

§  223.  Declarations  of  alleged  co-conspirator  who  has  been  ac- 
quitted 
On  the  trial  of  one  of  two  persons  jointly  indicted  for  a  crime, 
it  is  proper  to  instruct  that  the  declarations  of  the  other  before 
the  crime  are  to  be  considered  if  the  alleged  conspiracy  is  proven, 
although  the  other  has  been  acquitted.^* 

11  State  V.  Moeller,  126  N.  W.  568,  is  State  v.  Kennedy.  75  S.  W.  979, 
20  N.  D.  114;  Dobbs  v.  State,  100  S.  177  Mo.  98;  Pan-  v.  State,  38  S.  W. 
W.  946,  51  Tex.  Cr.  R.  113.  ISO,  36  Tex.  Cr.  R.  493. 

12  Holland  v.  State,  206  S.  W.  88,  i*Mnsser  v.  State,  61  N.  E.  1,  157 
S4  Tex.  Cr.  R.  144 ;    Cooper  v.  State,  Ind.  423. 

89  S.  W.  816,  48  Tex.  Cr.  R.  608. 


§  224  INSTRUCTIONS  TO  JURIES  432 

CHAPTER  XV 
INSTRUCTIONS  ON  CIRCUMSTANTIAL  EVIDENCE 

A.     In  Civil  Cases 

§  224.     Right  of  party  to  instructions. 

225.  Propriety  and  sufficiency, 

B.     In  Ceiminai,  Cases 
1.  Duty  and  Right  of  Court  to  Instruct  on  Circumstantial  Evidence 

226.  General  rule. 

227.  Rule  where  evidence  is  not  entirely  circumstantial. 

228.*   Rule  where  a  confession  or  admission  of  defendant  is  introduced  In 

evidence  against  him. 
229.     Harmless  error  in  refusing  instruction. 
2is0.     Necessity  of  request  for  instructions. 

2.     Sufficiency  of  Instructions  and  Propriety  of  Particular  Instructions 

231.  General  principles. 

232.  Contrasting  direct  and  circumstantial  evidence. 

233.  Degree  of  certainty  required. 

234.  Requirement  that  circumstances  be  consistent  with  hypothesis  of  guilt 

and  inconsistent  with  that  of  innocence. 

235.  Proof  of  each  circumstance  or  each  essential  fact. 

A.     In  Civil  Cases 

§  224.     Right  of  party  to  instructions 

In  a  civil  action  one  relying  upon  circumstantial  evidence  is 
entitled  to  a  charge  that  it  may  be  considered  by  the  jury/  and  as 
to  its  force  and  effect,"  and  this  may  be  so,  although  there  is  some 
direct  evidence  in  the  case,^  and  it  may  be  necessary  for  the  court 
to  instruct  that  the  jury  may  deduce  certain  facts  from  the  facts 
and  circumstances  proved ;  *  but  if,  in  a  case  where  there  is  both 
circumstantial  and  direct  evidence,  the  case  of  the  party  request- 
ing such  an  instruction  rests  upon  the  direct  evidence  rather  than 
upon  the  circumstantial,  the  court  may  properly  refuse  such  re- 
quest.^ 

In  an  action  to  recover  for  death  by  wrongful  act,  in  which  the 
evidence  is  purely  circumstantial,  and  in  which  the  jury  can  de- 

1  State  v.  Hammond's  Ex'rs,  6  Gill  s  Rice  v.  Detroit  Fire  &  Marine  Ins. 

&  J.    (Md.)  157;    Rounds  v.  Coleman  Co.  of  Detroit,  Mich.  (Mo.  App.)   17G 

(Tex.  Civ.  App.)  214  S.  W.  49G;   Jones  S.  W.  1113. 
v.  Hess  (Tex.  Civ.  App.)  48  S.  W.  46.  4  Brown   v.    Rice's    Adm'r,   76   Va. 

2Culberlson   v.    Hill,    87   Mo.    553;  629. 
United  States  Exp.  Co.  v.  Jenkins,  64  s  Roberts  v.  Port  Blakely  Mill  Co., 

Wis.  542,  25  N.  W.  549.  70  P.  Ill,  30  Wash.  25. 


433  INSTRUCTIONS  ON   CIRCUMSTANTIAL  EVIDENCE  §   226 

duce  therefrom,  with  equal  reason,  the  concUisions  contended  for 
by  either  party,  the  defendant  is  entitled  to  an  instruction  that, 
unless  the  jury  find  that  the  circumstances  relied  upon  by  the 
plaintiff  as  sustaining  his  theory  are  wholly  inconsistent  with  any 
other  reasonable  hypothesis  as  to  the  manner  of  the  death  of  the 
plaintiff's  decedent,  he  has  not  met  the  burden  of  proof.« 

As  a  general  rule  in  the  absence  of  a  request  so  to  do,  the  court 
need  not  instruct  on  the  effect  of  circumstantial  evidence  m  a 
civil  case.' 

§  225.     Propriety  and  sufficiency 

An  instruction  on  circumstantial  evidence,  to  the  effect  that 
such  evidence  is  to  be  regarded  only  when  it  is  strong  and  satis- 
factory, is  erroneous,*  as  is,  of  course,  a  charge  which  precludes 
the  consideration  of  circumstantial  evidence.^  With  proper  quali- 
fications the  court  may  instruct  that  circumstantial  evidence  is  as 
competent  and  as  satisfactory  as  direct,^*  and  a  charge  that  cir- 
cumstantial evidence,  when  strong  and  convincing,  is  often  the 
most  satisfactory  from  which  to  draw  conclusions  as  to  the  exist- 
ence or  nonexistence  of  a  disputed  fact,  is  not  open  to  the  objec- 
tion that  it  places  a  higher  value  on  presumptions  or  inferences 
than  on  positive  or  direct  testimony.^!  ^he  sufficiency  of  a  charge 
as  to  circumstantial  evidence  cannot  be  questioned,  in  the  absence 
of  a  request  for  a  more  specific  instruction.^^ 

B.  Criminal  Cases 
1.     Duty  and  Right  of  Court  to  Instruct  on  Cincumstantial  Evidence 
Instructions  criticized  as  invading  province  of  jury,  see  ante,  §  53. 

§  226.     General  rule 

Instructions,  in  a  criminal  prosecution,  as  to  the  weight  to  be 
attached  to  circumstantial  evidence,  are  not  required,  where  all 
the  evidence  for  the  state  is  positive,  or  all  the  facts  bearing  upon 
the  commission  of  the  alleged  offense  are  testified  to  by  eyewit- 
nesses;^* but  where  the  state  relies,  for  the  conviction  of  the  de- 

c  Wells  V.  Chamberlain,  16S  N.  W.  lo  Van  Norman  v.  Modern  Brotlier- 

•>38    185  Iowa,  264.  ^ood  of  America,  121  N.  W.  lOSO,  143 

"  r'cowart   v.'  Strickland.  100   S.    E.  Iowa.  536.                               >,    o    of    r, 

447    149  Ga   39T,  7  A.  L.  R.  1110.  ^  Wheelan  v.  Chicago,  M.  &  St.  P. 

8'McKav    V     Seattle    Electric    Co.,  Ry.  Co.,  85  Iowa.  107,  52  N.  W.  lli>. 

136  V    134    76  Wash.  257.  12  Bamett    v.    Farmers'    Mut.    Fire 

9  Rea  V  'Missouri,  17  Wall.  532,  21  Ins.  Co.,  73  N.  W.  372.  115  Mich.  247. 

L    Ed.   707;    Glass  v.   Cook,  30  Ga.  13  Ala.     Miller  v.  State,  74  So  840, 

133  1^  ^^^-  ^PP-  ^■'  Cowart  v.  State,  65 
iNST.TO  Juries— 28 


226 


INSTRUCTIONS  TO  JURIES 


434 


fendant,  entirely  upon  circumstantial  evidence/*  or  where  the  evi- 
dence is  such  that  a  conviction  may  be  had  upon  circumstantial 


So.  666,  11  Ala.  App.  102;  Bailey  v. 
State,  53  So.  296,  390,  168  Ala.  4; 
Welch  V.  State,  27  So.  307,  124  Ala.  41. 

111.  People  V.  Zurek,  115  N.  E.  644, 
277  111.  621. 

Tex.  Gowans  v.  State,  145  S.  W. 
614,  64  Tex,  Cr.  R.  401;  Jones  v. 
State  (Cr.  App.)  77  S.  W.  802 ;  Camp- 
bell V.  State  (Cr.  App.)  38  S.  W.  171. 

W.  Va.  State  v.  Cook,  72  S.  E. 
1025,  69  W.  Va.  717. 

14  Ala.  Mitchell  v.  State,  30  So. 
.348,  129  Ala.  23 ;  Wilson  v.  State,  29 
So.  569,  128  Ala.  17 ;  Gilmore  v.  State, 
13  So.  536,  99  Ala.  1.54. 

Ga.  Kmcaid  v.  State,  79  S.  E.  770, 
13  Ga.  App.  683 ;  Allen  v.  State,  79  S. 
E.  769.  13  Ga.  App.  657;  Hays  v. 
State,  74  S.  E.  314,  10  Ga.  App.  823; 
Middleton  v.  State.  66  S.  E.  22.  7  Ga. 
App.  1 ;  Lewis  v.  State,  64  S.  E.  701, 
6  Ga.  App.  205 ;  Hart  v.  State,  23  S. 
E.  831,  97  Ga.  365. 

111.  People  V.  Ambach,  93  N.  E. 
310.  247  111.  451. 

Iowa.  State  v.  Blvdenburg,  112  N. 
W.  634,  135  Iowa,  2G4,  14  Ann.  Cas. 
443. 

Kan.  State  v.  Miller,  133  P.  878, 
90  Kan.  230.  Ann.  Cas.  1015B.  818. 

Mich.  Gablick  v.  People,  40  Mich. 
292. 

Mo.  State  v.  Fitzgerald.  201  S.  W. 
86:  State  v.  Smith.  190  S.  W.  288; 
State  V.  Woolev,  115  S.  W.  417,  215 
Mo.  620. 

N.  M.  State  v.  IVIcKnight,  153  P. 
76.  21  N.  M.  14;  Territory  v.  Lermo, 
46  P.  16,  8  N.  M,  566. 

Ohio.  Carter  v.  State,  4  Ohio  App. 
193. 

Okl.  Pierson  v.  State,  164  P.  1005, 
13  Okl.  Cr.  382;  Kirk  v.  State,  11 
Okl.  Cr.  203,  145  P.  307;  Price  v. 
State,  9  Okl.  Cr.  3.59,  131  P.  1102; 
Baldwin  v.  State,  11  Okl.  Cr.  228, 144 
P.  634. 

Tex.  Moore  v.  State,  214  S.  W. 
347,  85  Tex.  Cr.  R.  .573 ;  Anderson  v. 
State,  213  S.  W.  6.39,  85  Tex,  Cr.  R. 
411 ;  Bell  v.  State,  200  S.  W.  516,  84 
Tex.  Cr.  R.  197;  Tx)ve  v.  State,  199 
S.  W.  623,  82  Tex.  Cr.  R.  411 ;  Rcn- 
fro  V.  State,  198  S.  W.  957,  82  Tex. 


Cr,  R.  197;  Henderson  v.  State  (Cr. 
App.)  197  S.  W.  869 ;  Coulter  v.  State, 
162  S.  W.  885,  72  Tex.  Cr.  R.  602; 
Broadnax  v.  State,  150  S.  W.  1168,  68 
Tex.  Cr,  R,  177 ;  Veasly  v.  State  (Cr, 
App.)  85  S.  AV.  274 ;  Stewart  v.  State 
(Cr.  App.)  77  S.  W.  791;  Trejo  v. 
State,  74  S,  W,  546,  45  Tex,  Cr.  R, 
127;  Childers  v.  State,  37  Tex,  Cr. 
R,  392,  35  S,  W,  654;  Polanka  v. 
State,  33  Tex,  Cr,  R.  634,  28  S,  W. 
541 ;  Martin  v.  State,  32  Tex.  Cr.  R. 
441,  24  S.  W,  512 ;  Scott  v.  State  (Cr, 
App,)  23  S.  W.  685;  Montgomery  v. 
State  (Cr.  App.)  20  S.  W.  926 ;  Navar- 
row  V.  State  (App.)  17  S.  W.  545; 
Bennett  v.  State  (App.)  15  S.  W.  405 ; 
Daniels  v.  State  (App.)  14  S.  W.  395 ; 
Deaton  v.  State  (App.)  13  S.  W.  1009 ; 
Scott  V.  State  (App.)  12  S.  W.  504; 
Crowley  v.  State,  26  Tex,  App.  578, 
10  S.  W.  217;  Willard  v.  State,  2b 
Tex.  App.  126,  9  S.  W.  358;  Crowell 
V.  State,  24  Tex.  App,  404,  6  S.  W. 
318 ;  Jones  v.  State,  23  Tex.  App.  501, 
5  S.  W.  138;  Ramirez  v.  State,  20 
Tex.  App.  133;  Riley  v.  Same,  20 
Tex.  App.  100;  Counts  v.  State,  19 
Tex.  App.  450;  Wright  v.  State,  18 
Tex.  App.  358;  Allon  v.  State,  16 
Tex.  App.  237;  Bryant  v.  State,  Id., 
144 ;  Faulkner  v.  State,  15  Tex.  App. 
115;  Cook  V.  State,  14  Tex.  App.  96; 
Lee  V.  State,  Id.,  266;  Thomas  v. 
State.  13  Tex,  App.  493  ;  Ray  v.  State. 
13  Tex.  App.  51;  Smith  v.  State,  7 
Tex.  App.  382. 

Utah.  State  v,  Romeo,  128  P.  530, 
42  Utah,  46. 

"W.  Va.  State  v.  Lewis,  72  S.  E. 
475.  69  W.  Va.  472,  Ann.  Cas.  1913A, 
120.^. 

Illustrations  of  cases  of  circum- 
stantial evidence  requiring  the 
court  to  instruct  thereon.  Where, 
in  a  prosecution  for  burglary,  the 
stolen  property  was  found  in  the 
house  of  one  M..  who  testified  that 
he  obtained  it  from  defendant,  and 
defendant  testified  that  he  did  not 
enter  the  house  burglarized  and  had 
no  connection  with  the  theft  whatso- 
ever, but  that  at  night  M.  awakened 
him   and  paid  him   for  carrying  the 


435 


INSTRUCTIONS   ON   CIRCrMSTANTIAL   EVIDENCE 


22G 


alone/^  the  court  must  always,  upon   request,  instruct  upon 


the 


property  from  the  street  where  it  then 
was  toM.'s  store,  defendant  was  en- 
titled to  a  charpro  on  the  law  of  cir- 
curnstantial    evidence.      Gonzales    v. 
State  (Tex.  Cr.  App.)  105  S.  W.  196. 
AVhere.  in  a  prosecution  for  forgery 
in  raising  the  amount  of  a  check,  the 
prosecuting  witness  testifies  that  the 
cheek  called  for  §8.25  when  he  signed 
and  delivered  it,  and   that  when   it 
came  back  to  his  hands,  after  hav- 
ing been  cashed,  it  called  for  S1S.25, 
defendant   is   entitled  to  an  instruc- 
tion  on  circumstantial   evidence,   his 
connection  with  the  alteration  of  the 
instrument  being  merely  circumstan- 
tial.    Dvsart  v.  State.  79  S.  W.  534, 
46  Tex.'Cr.   R-  52.     Where  the  only 
evidence  of  defendant's  forgery  was 
that  he  presented  a  forged  order  for 
money,  which  he  said  was  given  him 
bv  the  person  by  whom  it  purported 
to  be  signed,  the  act  of  forgery  was 
only  established  inferentially,   and  a 
failure  to  charge  on  the  law  of  cir- 
cumstantial  evidence   was   reversible 
error.    Hanks  v.  State  (Tex.  Cr.  App.1 
56  S.  "W.  922.     Where,  on  a  trial  for 
murder  of  an  illegitimate  child,  the 
mother  of  the  child  testified  that  de- 
fendant was  its  father:    that,  when 
the  child  was  bom,  witness  and  de- 
fendant   were    alone    In    the    house; 
that  defendant  took  the  child,  which 
had  cried,  into  another  room,  and  wit- 
ness heard  him  pouring  water  ;    that 
he  came  back  and  .said  the  child  was 
out  tliere  in  the  water ;   that  he  made 
a  fire,  and  went  out  and  soon  return- 
ed with  the  child  and  placed  it  on  the 
fire  where   it   burned   a   long  while; 
and   that   the    child   made   no    noise 
after    being    taken    from    the    room, 
and   witness   did   not   state    whether 
the   child  was  alive  when  placed  on 
the    fire,   it   was   held    that,    whether 
death     resulted     from     drowning     or 
burning,  the  case  was  one  of  circum- 
stantial   evidence,   and    a    refusal   to 
iu'^ruct  as  to  such  evidence  was  er- 
ror.    Puryear  v.  State.  28  Tex.  App. 
73,  11  S.  W.  929.     Where  the  indict- 
ment   charged,    first,    the    killing    by 
shooting,     and,    second,    by    striking 
with  an  iron,  and  an  eyewitness  testi- 
fied  that   before  the  shot   was   fired 


defendant   struck   deceased  with   the 
iron,  but  it  appeared  that  death  re- 
sulted from  the  shot  alone,  and  wit- 
nesses heard  a  shot  about  20  minutes 
after  deceased   was  struck  with   the 
iron,  but  deceased's  body  was  found 
nearly  a  mile  from  the  witnesses,  and 
there"  ■svere  others  who  heard  a  shot 
at  about  the  same  time  in  the  vicin- 
ity of  the  place  where  the  body  was 
found,  and  deceased  had  but  one  bul- 
let wound,  it  was  held  that  it  was  re- 
versible error  not  to  instruct  as  to 
circumstantial  evidence  as  to  defend- 
ant  shooting  deceased.     Leftwich   v. 
State,  34  Tex.  Cr.  R.  4S9,  31  S.  W. 
385.       In     prosecution     for    murder, 
where  there  was  no  evidence  that  de- 
fendant actually  took  part  in  the  hom- 
icide, and  where  the  evidence,  if  any, 
that  he  aided  or  abetted  the  person 
■  committing  homicide  was  wholly  cir- 
cumstantial,  the  law  of  circumstan- 
tial   evidence    should    be    submitted. 
Pizana   v.    State.    193   S.   W.    671.   81 
Tex.  Cr.  R.  81.    Where  there  had  been 
no  difficulty   between  defendant  and 
deceased,  and  defendant  in  a  general 
fisrht  struck  deceased,  but  it  was  not 
shown   who   the   others  in    the   fight 
were  or  what  kind  of  an  instrument 
made  the  wound,  a  failure  to  charge 
on  circumstantial  evidence  was  error, 
n.uddleston  v.  State.  1.56  S.  W.  1168, 
70  Tex.  Cr.  R.  260.    Where  there  was 
no  positive  testimony  of  a  sale  in  vio- 
lation   of    the    prohibition    law,    and 
there  was  positive  testimony  of  a  gift 
and  the  state  sought  to  overcome  it 
by  circumstantial  evidence,  the  court 
niust.  on  request,  charge  on  circimi- 
<?tantial  evidence.     Ely  v.  State.  158 
S  W.  806.  71  Tex.  Cr.  R.  211.    In  pros- 
ecution for  cattle  theft,  where  only 
defendant's    connection     with     cattle 
after  they  were  taken  was  proved  by 
direct    evidence,    and    his    possession 
was    explained,    court    should    have 
charged   on   circumstantial   evidence. 
Rollins   V.   State,   203    S.  W.  355,   83 
Tex.  Cr.  R.  345.     Where  there  is  no 
confession  by  defendant,  nor  positive 
proof  of  the  gist  of  theft  (that  is,  the 

15  state   V.   Truskett,   118  P.   104?, 
85    Kan.    804. 


§  226 


INSTRUCTIONS  TO  JURIES 


436 


nature  of  such  evidence  and  its  probative  force  and  efifect.  Thus 
where,  in  a  prosecution  for  larceny,  the  state  relies  for  conviction 
upon  evidence  of  the  possession  by  the  defendant  of  the  stolen 
property,  a  charge  upon  circumstantial  evidence  is  required.^*'     So 


fj-audnleut  taking),  the  case  rests  on 
circnmstautial  evidence,  and  a  charge 
thereon  is  necessary.     Pace  v.  State, 
53  S.  W.  GS9,  41  Tex.  Cr.  R.  203,  re- 
versing judgment  51    S.   W.   953,   41 
Tex.  Cr.  R.  203,  on  rehearing.     On  a 
prosecution  for  the  theft  of  hogs,  de- 
fendant's presence,  about  half  a  mile 
distant  from  the  scene  of  the  theft, 
with  others  who  stole  them,  and  his 
flight  with  them  when  discovered  in 
possession  of  the  hogs,  are  not  such 
positive  evidence  of  a  taking  by  de- 
fendant as  will  justify  the  court  in 
oinitting   to  instruct   the  jury   as   to 
the   law    of   circumstantial   evidence. 
Montgomery  v.  State  (Tex.  Cr.  App.) 
20  S.  W.  926.    Though,  on  a  trial  for 
the  theft  of  a  cow,  there  are  strong 
circumstances  to  show  that  the  stol- 
en animal  was  the  one  which  witness 
saw    defendant    drive    into    his    field 
within  a  week  before  the  stolen  cow 
was   missed   and   its    beef   and    hide 
found   at  defendant's  house,    yet,   as 
the  witness  did  not  see  and  indenti- 
fy  the  hide  as  of  the  cow  he  had  seen 
defendant  drive  into  his  field,  a  fail- 
ure to  instruct  on  the  law  of  circum- 
stantial evidence  is  error.     Smith  v. 
State    (Tex.     App.)     12     S.    W.    869. 
Where  there  is  no  positive  proof  that 
accused  was  nearer  than  30  miles  to 
the   place  from   where   a   horse    was 
stolen,  a  charge  on  circumstantial  ev- 
idence should  have  been  given.    Green 
V.  State  (Tex.  Cr.  App.)  34  S.  W.  283. 
Where  defendant  was  hired  to  deliver 
28  head  of  cattle,  which  he  had  never 
seen,  to  a  person  in  another  county, 
defendant  and  a  negro  who  assisted 
him    having    trouble    in    getting   the 
cattle    across    a    certain    creek,    and 
some  getting  scattered  in  the  timber, 
and  the  negro  testified  that  some  loose 
cattle  ran  through  the  highway  at  a 
place  near  where  the  stolen  cow  was 
kept,    and    the   owner   of   the   house 
where  defendant  stO])ped  for  dinner  • 
testified  that  defendant  only  had  27 
head  of  cattle,   but  he   delivered   28 
head,   including  the  stolen  cow,   and 


defendant  claimed  that  he  did  not 
know  he  had  the  stolen  cow  until  aft- 
er the  cattle  were  delivered,  it  w^^^ 
held  that  it  was  error  to  fail  to  sub- 
mit the  issue  of  circumstantial  evi- 
dence in  a  prosecution  for  theft. 
York  V.  State,  61  S.  W.  128,  42  Tex. 
Cr.  R.  528.  Where,  on  a  trial  for 
the  larceny  of  money,  the  evidence 
showed  that  the  prosecutor  had  the 
money  in  a  drawer  in  an  office,  which 
was  locked,  that  accused  asked  for 
the  key  to  the  oQice  to  procure  cloth- 
ing therein,  that  prosecutor  gave  him 
a  bunch  of  keys  containing  the  key 
to  the  office  and  to  the  drawer,  that 
accused  left  on  the  next  train  after 
going  into  the  office,  that  prosecutor 
on  going  into  the  office  missed  the 
money,  a  ragged  $5  bill,  that  he  wired 
the  conductor  of  the  train  on  which 
the  accused  was  riding,  and  that  the 
conductor  secured  a  ragged  $5  bill 
from  accused,  identified  by  prosecutor, 
a  charge  on  circumstantial  evidence 
was  warranted.  Suggs  v.  State.  143 
S.  W.  186,  65  Tex.  Cr.  R.  67.  In  a 
prosecution  for  theft  of  a  hog,  testi- 
mony that  a  witness,  hearing  shots, 
walked  half  a  mile,  and  came  in  sight 
of  accused  hanging  a  hog  in  a  tree, 
that  he  had  a  .gun,  and  that  the  hog 
was  shot,  requires  a  charge  on  cir- 
cumstantial evidence.  Guerrero  v. 
State,  80  S.  W.  1001,  46  Tex.  Cr.  R. 
445.  A  statement  by  defendant  that 
he  had  branded  the  horse  which  he 
Avas  charged  to  have  stolen  did  not 
make  the  case  one  of  direct  evidence, 
since  the  statement  did  not  show  that 
the  branding  and  the  taking  were  con- 
temporaneous, but  was  only  a  fact 
from  which  the  unlawful  taking  might 
be  inferred ;  hence  it  was  error  to 
refuse  to  instruct  on  circumstantial 
evidence.  Gentry  v.  State,  56  S.  W, 
68,  41  Tex.  Cr.  R.  497. 

16  Miller  v.  State,  225  S.  W.  382; 
Miller  v.  State  fCr.  App.)  225  S.  W. 
379,  12  A.  L.  R.  597;  Coleman  v. 
State,  199  S.  W.  473,  82  Tex.  Cr.  R. 
332 ;   Pierson  v.  State,  180  S.  W.  10S(^, 


437 


INSTRUCTIONS  ON  CIRCUMSTANTIAL   EVIDENCE 


§227 


such  rule  applies  in  a  prosecution  for  forgery,  or  for  passing  a 
forged  instrument,  where  the  evidence  of  the  state  is  circum- 
stantial.^' As  a  general  rule  the  court  need  not  instruct  as  to  any 
particular  circumstance,^*  but  the  case  may  be  such  as  to  make 
it  error  to  refuse  to  charge  that  a  particular  circumstance  consti- 
tutes no  evidence  against  the  defendant.^*  An  omission  to  charge 
on  circumstantial  evidence  is  not  cured  by  the  ordinary  instruc- 
tion on  reasonable  doubt.^"  . 

§  227.     Rule  where  evidence  is  not  entirely  circumstantial 

The  general  rule  is  that  where,  in  addition  to  circumstantial 
evidence,  there  is  direct  and  positive  evidence  of  the  guilt  of  the 
defendant,^^  or  respecting  the  corpus  delicti,''"  the  omission  of  the 


78  Tex.  Cr.  R.  275 ;  Burdett  v.  State, 
101  S.  W.  988,  51  Tex.  Cr.  R.  ?Ao :  Ann- 
stead  V.  State,  87  S.  W.  824,  48  Tex. 
Cr.  R.  304  ;  Cortez  v.  State  (Cr.  App.) 
74  S.  W.  907;  Davis  v.  State.  74  S. 
W.  544,  45  Tex.  Cr.  R.  132;  WallaeT 
V.  State  (Cr.  App.)  66  S.  W.  1102; 
Hodge  V.  State,  53  S.  W.  862,  41  Tex. 
Cr.  R.  229;  Poston  v.  State  (Cr.  App.) 
35  S.  W.  656;  Alderman  v.  State 
(Cr.  App.)  23  S.  W.  685;  Hyden  v. 
State,  31  Tex.  Cr.  R.  401,  20  S.  W. 
764 :  Taylor  v.  State,  27  Tex.  App. 
463,  11  S.  W.  462 ;  Guajardo  v.  State, 
24  Tex.  App.  603,  7  S.  W.  331 ;  Fuller 
V.  State.  24  Tex.  App.  596,  7  S.  W. 
830;  Sullivan  v.  State,  18  Tex.  App. 
623. 

17  Carrell  v.  State,  184  S.  W.  100, 

79  Tex.  Cr.  R.  231 ;  Lasister  v.  StatP. 
94  S.  W.  2.33,  49  Tex.  Cr.  R.  532; 
Nichols  V.  State,  44  S.  W.  1091,  39 
Tex.  Cr.  R.  80. 

18  Smotherman  v.  State,  83  S.  W. 
838,  47  Tex.  Cr.  R.  309. 

19  State  V.  Austin.  40  S.  E.  4,  129 
N.  C.  534. 

2  0  Struckman  v.  State,  7  Tex.  App. 
581 ;  Wallace  v.  State,  Id.  570 ;  Hunt 
V.  State,  Id.  212. 

21  TJ.  S.  Blanton  v.  United  States, 
(C.  C.  A.  Mo.)  213  F.  320.  130  C.  C. 
A.  22,  Ann.  Cas.  1914D,  1238. 

Ala.  McCoy  v.  State,  54  So.  428, 
170  Ala.  10;  Cowan  v.  State,  34  So. 
193,  136  Ala.  101;  Hall  v.  State,  30 
So.  422,  130  Ala.  45. 

Ark.  Jordan  v.  State.  217  S.  W. 
788,  141  Ark.  504;  Griffin  v.  State, 
216  S.  W.  34,  141  Ark.  43;    Bartlett 


V.  State,  216  S.  W.  33,  140  Ark.  553 ; 
Brown  v.  State,  203  S.  W.  1031,  134 
Ark.  597 ;  McCain  v.  State,  201  S.  W. 
840,  132  Ark.  497 ;  Vaughan  v.  State, 
57  Ark.  1,  20  S.  W.  588;  Cohen  v. 
State.  32  Ark.  226. 

Cal.  People  v.  Lapara,  183  P.  545, 
181  Cal.  66;  People  v.  Gorman,  161 
P.  757,  31  Cal.  App.  762;  People  v. 
Raber,  143  P.  317,  168  Cal.  316 ;  Peo- 
ple V.  Holden,  109  P.  495,  13  Cal.  App. 
354. 

Fla.  Thomas  v.  State,  68  So.  944, 
69  Fla.  692;  Minor  v.  State,  46  So. 
297,  55  Fla.  77. 

Ga.  Walker  v.  State,  101  S.  B.  776, 
24  Ga.  App.  656;  Ingram  v.  State, 
300  S.  E.  773.  24  Ga.  App.  332;  Scar- 
lioro  V.  State,  99  S.  E.  637,  24  Ga. 
App.  27;  Jones  v.  State,  94  S.  E. 
248,  147  Ga.  356 ;  Lockett  v.  State,  92 
S.  E.  948,  20  Ga.  App.  ISO;  Vincent 
V.  State,  91  S.  E.  690,  146  Ga.  619: 
Ponder  v.  State,  90  S.  E.  365,  18  Ga. 
App.  703 ;  Holllngsworth  v.  State,  8S 
S.  E.  213,  17  Ga.  App.  725;  Jackson 
v.  State,  86  S.  E.  459,  17  Ga.  App. 
269;  Cooner  v.  State,  85  S.  E.  688, 
16  Ga.  App.  539;  Butler  v.  State,  85 
S.  E.  340,  143  Ga.  484;    Brannon  v. 

2  2  State  v.  Holbrook,  188  P.  ^7,  98 
Or.  43. 

In  a   prosecution  for  homicide, 

an  instruction  on  circumstantial  evi- 
dence is  not  necessary,  where  the  only 
resort  to  such  evidence  is  for  the  pur- 
pose of  showing  the  manner  in  which 
the  homicide  took  place.  State  v. 
Balrd  (Mo.)  231  S.  W.  625. 


227 


INSTRUCTIONS   TO  JURIES 


438 


court  to  charge  the  law  applicable  to  cases  of  circumstantial  evi- 
dence onlv  will  not  constitute  error.     Thus,  where  the  only  issue 


State,  SO  S.  E.  7,  140  Ga.  787 ;  Banks 
V.  State.  78  S.  E.  1014.  13  Ga.  App. 
182;  Brooks  v.  State.  78  S.  E.  143, 
12  Ga.  App.  693 ;  Hai'per  v.  State,  77 
S.  E.  915,  12  Ga.  App.  651 ;  Heg^vood 
V.  State,  75  S.  E.  138,  138  Ga»  274 ; 
Toliver  v.  State,  74  S.  E.  1000,  138 
Ga.  138:  Wilson  v.  State,  72  S.  E. 
605,  10  Ga.  App.  67 ;  Benton  v.  State, 
71  S.  E.  498.  9  Ga.  App.  422;  Ben- 
ton V.  State,  71  S.  E.  8,  9  Ga.  App. 
291;  Bailev  v.  State,  68  S.  E.  457, 
8  Ga.  App.  32;  Holt  v.  State,  66  S. 
E.  279,  7  Ga.  App.  77;  Day  v.  State, 
66  S.  E.  250,  133  Ga.  434:  Middleton 
V.  State,  66  S.  E.  22,  7  Ga.  App.  1; 
Cliett  V.  State,  63  S.  E.  626.  132  Ga. 
36;  Bivinp  v.  State,  63  S.  E.  523,  5 
Ga.  App.  434 :  Nobles  v.  State,  56  S. 
E.  125,  127  Ga.  212:  Rosenthal  v. 
State,  55  S.  E.  497.  126  Ga.  .558 ;  Per- 
due V.  State,  .54  S.  E.  820,  126  Ga. 
112;  Moore  v.  State,  25  S.  E.  362, 
97  Ga.  759. 

111.  People  V.  Dougherty,  107  N. 
E.  695,  266  111.  420. 

Iowa.  State  v.  Mitchell,  116  N.  W. 
808.   139  Iowa,   455. 

Kan.  State  v.  Kennedy,  184  P. 
7.34,  105  Kan.  347;  State  v.  Link, 
125  P.  70,  87  Kan.  738. 

Ky.  Smith  v.  Commonwealth,  131 
S.  W.  499.  140  Ky.  599. 

La.  State  v.  Gordon,  39  So.  625, 
115  La.  571. 

Miss.  Funis  V.  State,  14  So.  268, 
71  ISIiss.  706. 

Mo.  State  v.  Jackson,  186  S.  W. 
990;  State  v.  Steinkraus,  148  S.  W. 
877.  244  Mo.  152 ;  State  v.  Davis,  140 
g  "W  902.  2.37  Mo.  2.37;  State  v.  Mc- 
Cord,  140  S.  W.  885.  2.37  Mo.  242; 
State  V.  Hubbard,  122  S.  W.  694.  223 
Mo.  80;  State  v.  Xerzinger,  119  S. 
W.  379,  220  Mo.  36 :  State  v.  Salmon, 
115  S.  W.  1106,  216  Mo.  466;  State 
V.  Woolev,  115  S.  W.  417,  215  Mo. 
620;  State  v.  Bobbitt,  114  S.  W. 
511,  215  IMo.  10;  State  v.  Crone,  108 
S.  W.  .555,  209  Mo.  316. 

N.  M.  State  V.  McKnight,  153  P. 
76,  21  X.  M.  14. 

N.  C.  State  v.  Xeville,  72  S.  E. 
798,  157  X.  C.  591. 


N.  D.     State  v.  Foster,  105  N.  W. 
938,  14  N.  D.  561. 

Okl.     Hendrix    v.    United    States, 
101  P.  125,  2  Okl.  Cr.  240. 

S.   D.     State  V.   Cline,   132  N.   W. 
100.  27  S.  D.  573. 

Tex.  Wilson  v.  State.  204  S.  W. 
321,  S3  Tex.  Cr.  593 ;  Soders  v.  State, 
195  S.  W.  1146,  81  Tex.  Cr.  R.  506; 
Marion  v.  State,  190  S.  W.  499,  SO 
Tex.  Cr.  R.  478 ;  Wilson  v.  State,  182 
S.  W.  891,  79  Tex.  Cr.  R.  7 ;  Davis  v. 
State,  180  S.  W.  1085,  78  Tex.  Cr. 
R.  352:  Egbert  v.  State,  176  S.  W. 
560.  76  Tex.  Cr.  R.  663;  Scott  v. 
State,  175  S.  W.  1054,  76  Tex.  Cr.  R. 
410 :  Terrell  v.  State,  174  S.  W.  1088, 
76  Tex.  Cr.  R.  428;  Vandeveer  v. 
State,  173  S.  W.  1197,  76  Tex.  Cr.  R. 
308 :  Guerrero  v.  State,  171  S.  W.  731, 
75  Tex.  Cr.  R.  558;  Cook  v.  State, 
171  S.  W.  227,  75  Tex.  Cr.  R.  350: 
Her  rem  v.  State,  170  S.  W.  719,  75 
Tex.  Cr.  R.  120;  Womack  v.  State, 
170  S.  W.  139.  74  Tex.  Cr.  R.  040: 
Thompson  v.  State,  167  S.  W.  34.-5,  74 
Tex.  Cr.  R.  145;  Forward  v.  State, 
166  S.  W.  725.  73  Tex.  Cr.  R.  561; 
Hendricks  v.  State,  160  S.  W.  1190, 
72  Tex.  Cr.  R.  75;  Barrow  v.  State. 
160  S.  W.  4.58,  71  Tex.  Cr.  R.  549; 
Law  V.  State,  160  S.  W.  9S,  71  Tex. 
Cr.  R.  179;  Ballard  v.  State,  160  S. 
W.  92.  71  Tex.  Cr.  R.  168 ;  Haynes  v. 
State.  159  S.  W.  1059,  71  Tex.  Cr.  R. 
31 ;  Anderson  v.  State,  159  S.  W.  847. 
71  Tex.  Cr.  R.  27;  Nobles  v.  State, 
1.58  S.  W.  1133.  71  Tex.  Cr.  R.  121; 
Ely  v.  State:  158  S.  W.  806.  71  Te.\. 
Cr.  R.  211;  PuUen  v.  State,  156  S.  W. 
935.  70  Tex.  Cr.  R.  156:  Perry  v. 
State,  155  S.  W.  263,  69  Tex.  Cr.  R. 
644:  I^aird  v.  State.  155  S.  W.  260, 
69  Tex.  Cr.  R.  553 ;  INIeadows  v.  State 
(Cr.  App.)  154  S.  W.  546;  Ferrell  v. 
State.  152  S.  W.  901,  68  Tex.  Cr.  R. 
487 ;  Whorton  v.  State,  151  S.  W.  .300, 
68  Tex.  Cr.  R.  187;  Clary  v.  State, 
1.50  S.  W.  919,  68  Tex.  Cr.  R.  290 ;  Syl- 
vas  V.  State,  150  S.  W.  906,  68  Tex. 
Cr.  R.  117;  Willcox  v.  State,  1.50  S. 
W.  898,  68  Tex.  Cr.  R.  1.38;  Wesley 
V.  State,  150  S.  W.  197,  67  Tex.  Cr. 
R.  507;    Moray  v.   State,   145   S.  W. 


439 


INSTRUCTIONS  ON   CIRCUMSTANTIAL   EVIDENCE 


227 


in  a   prosecution  for  larceny'  is  whether  the   stolen   property  be- 


927,  65  Tex.  Cr.  R.  504;  Robinson 
V.  State,  145  S.  W.  345,  66  Tex.  Cr. 
K.  188;  Mitchell  v.  State,  144  S.  W. 
1006,  65  Tex.  Ci'.  R.  545;  Foote  v. 
State,  144  S.  W.  275,  65  Tex.  Cr. 
R.  308,  Ann.  Cas.  1916A,  1184;  WU- 
Maiiis  V.  State,  143  S.  W.  634,  65 
Tex.  Cr.  R.  82;  Wriglit  v.  State. 
141  S.  W.  228,  63  Tex.  Cr.  R.  'o64 : 
Ellincrton  v.  State,  140  S.  W.  1]()2, 
63  Tex.  Cr.  R.  420;  Brogdon  v. 
State,  140  S.  W.  352,  63  Tex.  Cr.  R. 
475;  Taylor  v.  State,  138  S.  W.  615, 
62  Tex.  Cr.  R.  611 ;  Bass  v.  State,  127 
S.  W.  1020,  59  Tex.  Cr.  R.  ISO ;  Cab- 
rera V.  State,  lis  S.  AV.  1054,  56  Tex. 
Cr.  R.  141 ;  Potts  v.  State,  118  S.  W. 
535,  56  Tex.  Cr.  R.  .39;  Knuckles  v. 
State,  114  S.  W.  825,  55  Tex.  Cr.  R.  6; 
Tinsley  v.  State,  106  S.  W.  347,  52 
Tex.  Cr.  R.  91 ;  McCue  v.  State  (Cr. 
App.)  103  S.  W.  883;  Richardson  v. 
State,  103  S.  W.  852;  Smith  v.  State, 
102  S.  W.  406.  51  Tex.  Cr.  R.  427; 
Glascow  V.  State,  100  S.  W.  933,  50 
Tex.  Cr.  R.  635 ;  Hemdon  v.  State,  99 
S.  W.  558,  50  Tex.  Cr.  R.  552;  Ma- 
honey  V.  State  (Cr.  App.)  98  S.  W. 
8.'i4:  Yancy  v.  Same,  87  S.  W.  693, 
48  Tex.  Cr.  R.  166;  Aladin  v.  State. 
86  S.  W.  327,  48  Tex.  Cr.  R.  1,  122 
Am.  St.  Rep.  730;  Usher  v.  State, 
81  S.  W.  712,  47  Tex.  Cr.  R.  98; 
Cruse  V.  State  (Cr.  App.)  77  S.  W. 
818;  Leftwich  v.  State  (Cr.  App.)  55 
S.  W.  571;  Nite  v.  State,  54  S.  W. 
763,  41  Tex.  Cr.  R.  340 ;  Wolf  v.  State 
(Cr.  App.)  53  S.  W.  lOS;  Glover  v. 
State,  46  S.  W.  824  ;  Williams  v.  State 
(Cr.  App.)  45  S.  W.  494;  Taylor  v. 
State  (Cr.  App.)  42  S.  W.  285 ;  Colter 
V.  State,  39  S.  W.  576,  37  Tex.  Cr.  R. 
284 ;  Upchurch  v.  State  (Cr.  App.)  39 
S.  W.  371 ;  Rogers  v.  State,  38  S.  W. 
184,  36  Tex.  Cr.  R.  563;  Granado  v. 
State,  37  Tex.  Cr.  R.  426,  35  S.  W. 
1069 ;  Adams  v.  State,  34  Tex.  Cr.  R. 
470,  31  S.  W.  372;  Hayes  v.  State, 
30  Tex.  App.  404,  17  S.  W.  940. 

W.  Va.  State  v.  Wilson,  83  S.  E. 
44,  74  W.  Va.  772. 

Wis.  Anderson  v.  State,  114  N.  W. 
112,  133  Wis.  601. 

Illustrations  of  cases  of  direct 
evidence  making  it  unnecessary  to 
charge      on      circumstantial      evi- 


dence. In  a  prosecution  for  burgla- 
ry, a  showing  that  defendant  was 
seen  to  enter  the  house,  was  found 
in  the  room  alleged  to  have  been 
burglarized,  the  door  of  which  was 
previously  closed,  and  that  she  was 
seen  running  out  of  the  room,  made 
a  case  of  direct  evidence,  and  it 
was  not  necessary  to  charge  on  cir- 
cumstantial evidence.  Smith  v.  State 
(Tex.  Cr.  App.)  90  S.  W.  638.  Where 
defendant  obtained  money  by  repre- 
senting directly  to  a  bank  that  he  had 
a  deposit  in  another  bank,  drawing 
his  check  for  the  amount  against  such 
deposit,  this  representation  being 
shown  to  be  false  by  the  testimony 
of  the  latter  bank's  clerk,  and  de- 
fendant testified  that  he  believed  at 
the  time  that  he  had  the  amount 
claimed  on  deposit,  it  w-as  held  that 
a  special  charge  on  circumstantial  ev- 
idence was  unnecessary.  Brown  v. 
State  (Tex.  Cr.  App.)  43  S.  W.  986. 
Where,  in  a  prosecution  for  fraudu- 
lently converting  a  horse  belonging  to 
another,  there  was  direct  evidence 
that  defendant  hired  the  horse  from 
the  owner,  and  that  defendant  after- 
w^ards  sold  the  horse,  the  mere  fact 
that  the  owmer  sent  the  horse  to  de- 
fendant by  a  servant,  and  could  not 
positively  testify  that  the  servant  de- 
livered the  horse  to  defendant,  did 
not  require  a  charge  on  circumstan- 
tial evidence.  Lewallen  v.  State,  87 
S.  W.  1159,  48  Tex.  Cr.  R.  283.  The 
fact  that  witnes.ses  who  testified  to 
seeing  the  petitioning  defendant  raise 
his  arm  and  shoot  were  so  far  from 
the  scene  of  the  shooting  that  they 
could  hear  none  of  the  conversation 
between  the  parties  does  not  make 
their  testimony  circumstantial,  so  as 
to  entitle  that  defendant  to  an  in- 
struction as  to  conviction  on  purely 
circumstantial  evidence.  State  v. 
Holbrook,  193  P.  434,  98  Or.  43. 
Where  a  defendant,  arrested  for  the 
homicide  of  a  child,  states  that  the 
mother  killed  the  child,  that  he  saw 
the  killing,  after  which  the  mother 
told  him  to  bury  the  child, .  that  he 
buried  it,  and  the  mother  gave  him 
money  with  which  to  leave  the  coun- 
try, and  the  mother  testifies  that  he 


227 


INSTRUCTIONS   TO  JURIES 


440 


longs  to  the  prosecuting  witness,  who  testifies  that  it  belongs  to 


took  the  child  out  alive,  and  after- 
wards returned,  stating  that  he  had 
))uried  it  under  a  certain  tree,  and 
subsequently  the  body  was  found  un- 
der said  tree,  it  is  not  error  to  refuse 
instructions  on  circumstantial  evi- 
dence. Red  V.  State  (Tex.  Cr.  App.) 
53  S.  W.  618.  Where  defendant  was 
accused  of  being  an  accomplice  to  a 
homicide,  and  the  alleged  principal 
testified  that  defendant  advised  him 
to  kill  deceased,  and  gave  him  a  gun 
for  that  purpose,  there  was  sufficient 
direct  evidence,  so  that  the  case  was 
not  wholly  based  on  circumstantial 
evidence,  and  the  refusal  to  charge 
the  law  applicable  to  circumstantial 
evidence  was  not  error.  Thomas  v. 
State,  62  S.  W.  919,  43  Tex.  Cr.  R. 
20,  96  Am.  St.  Rep.  834.  Where  a 
witness  testifies  that  he  saw  defend- 
ant, who  was  one  of  an  armed  mob, 
shoot  deceased,  and  saw  deceased  fall- 
ing, there  is  no  call  for  a  charge  on 
circumstantial  evidence,  though  oth- 
ers of  the  party  also  shot  deceased, 
and  he  was  found  a  Little  distance 
from  where  he  fell.  Augustine  v. 
State,  52  S.  W.  77,  41  Tex.  Cr.  R. 
59,  96  Am.  St.  Rep.  765.  A  charge, 
in  a  prosecution  for  murder,  that, 
when  the  prosecution  relies  on  cir- 
cumstantial evidence  alone,  proof,  by 
a  preponderance  of  evidence,  of  a 
single  fact  inconsistent  with  defend- 
ant's guilt,  calls  for  his  acquittal,  is 
properly  refused  where  there  is  posi- 
tive testimony  that  defendant  com- 
mitted the  killing,  and  no  fact  incon- 
sistent with  his  guilt  is  shown.  Rains 
V.  State,  88  Ala.  91,  7  So.  315.  In- 
structions defining  the  law  of  circum- 
stantial evidence  need  not  be  given  in 
a  homicide  case,  where  any  circum- 
stances in  evidence  were  as  to  de- 
fendant's relations  with  another  man 
than  deceased,  her  husband,  and  were 
introduced  only  to  show  motive.  Law- 
son  V.  State,  84  N.  E.  974,  171  Ind. 
431.  Where  evidence  of  the  killing  is 
given  by  an  accomplice,  who  was 
present  at  the  time,  the  fact  that  it 
was  dark,  and  that  he  was  some  dis- 
tance from  the  parties  when  it  oc- 
curred, does  not  require  a  charge  on 
circumstantial  evidence.     Kidwell  v. 


State,  35  Tex.  Cr.  R.  264,  33  S.  W. 
342.  Where,  in  a  prosecution  for 
grand  larceny,  charged  to  have  been 
committed  by  defendant  stealing  cer- 
tain money  from  the  prosecutor's  per- 
son, the  only  circumstantial  evidence 
introduced  was  corroborative  of  the 
direct  testimony  of  the  prosecuting 
witness,  it  was  not  error  for  the  court 
to  refuse  requested  instructions  which 
assumed  that  the  case  was  one  of  cir- 
cumstantial evidence.  People  v.  Lon- 
nen,  73  P.  586,  139  Cal.  634.  ^Vhere 
two  witnesses  testified  to  seeing  ac- 
cused in  the  act  of  removing  a  ring^ 
from  the  cravat  of  a  sleeping  person, 
though  they  could  not  see  the  ring  on 
account  of  accused's  hand  being  in 
the  way,  but  had  seen  it  on  the  cravat 
and  noticed  aftenvards  that  it  was 
gone,  it  cannot  be  said  that  the  prose- 
cution relied  entirely  or  mainly  on 
circumstantial  evidence ;  and  instruc- 
tions based  on  such  an  assumption 
were  properly  refused.  •  People  v. 
Burns,  53  P.  1096,  121  Cal.  529. 
Where  defendant  was  indicted  for 
sending  a  threatening  letter,  and  the 
postmaster  testified  he  saw  defendant 
place  the  letter  in  the  mail  box,  and 
that  he  immediately  afterwards  found 
the  letter  in  the  mail  box,  which  was 
previously  empty,  the  evidence  as  to 
defendant's  mailing  the  letter  was  di- 
rect, so  that  a  failure  to  charge  the 
law  of  circumstantial  evidence  was 
not  error.  Dunn  v.  State,  63  S.  W. 
571,  43  Tex.  Cr.  R.  25.  Where  one  on 
trial  for  stealing  hogs  testified  that  he 
got  possession  of  them  with  the  con- 
sent of  prosecutor,  of  whom  he  pur- 
chased them,  and  the  defense  of  pur- 
chase was  sutilciently  submitted,  he 
was  not  entitled  to  a  charge  on  cir- 
cumstantial evidence.  Reed  v.  State, 
(Tex.  Cr.  App.)  46  S.  W.  931. 

Implied  admission.  Where  a  bur- 
glary is  proved  and  defendant  is 
shown  to  have  been  in  recent  posses- 
sion of  goods  stolen  from  the  house  at 
the  time  of  the  alleged  burglary,  and 
there  is  evidence  of  an  implied  admis- 
sion by  accused  of  his  guilt,  and  the 
jury  are  instructed  as  to  the  weight 
to  be  given  to  his  explanation  of  re- 
cent possession  of  the  stolen  goods- 


441  INSTRUCTIONS   ON   CIRCUMSTANTIAL   EVIDENCE  §  227 

him,^^  or  where  the  accused  in  a  prosecution  for  larceny  relies  on 
a  claim  of  ownership,"*  or  where  in  a  prosecution  for  burglary  the 
evidence  as  to  defendant's  entry  of  the  house  in  question  is  posi- 
tive,^^  or  where  the  only  issue  is  as  to  the  sanity  of  the  defendant, 
and  the  evidence  in  regard  thereto  is  open,  direct,  and  oral,^®  or 
where,  in  a  prosecution  for  adultery,  the  paramour  of  the  defend- 
ant testifies  positively  against  him,*^'  a  charge  on  circumstantial 
evidence  is  not  required.  So,  where  the  state  relies  on  direct 
evidence  of  the  offense  charged,  and  circumstantial  evidence  is 
introduced  only  for  the  purposes  of  corroboration,  it  is  not  error 
to  refuse  to  instruct  as  to  what  would  be  necessary  to  warrant  a 
conviction  on  circumstantial  evidence.'^*  So  instructions  on  cir- 
cumstantial evidence  are  not  required,  where  the  defendant  is 
positively  identified  as  the  guilty  party  by  a  witness,  or  by  state- 
ments made  as  a  part  of  the  res  gestae  or  as  dying  declarations ;  ~® 
nor  are  they  required  in  a  prosecution  for  rape,  where  the  prose- 
cutrix testifies  fully  to  the  whole  transaction  and  all  the  attending 
circumstances,^®  and  want  of  exact  certainty  in  the  identification 
by  a  witness  of  the  defendant  as  the  one  committing  the  crime 
charged  does  not  call  for  such  instructions.^^ 

The  mere  fact  that  the  intent  with  which  an  alleged  criminal 
act  was  done  is  a  matter  of  circumstantial  evidence  does  not  re- 
quire a  charge  on  such  evidence,^"  as  where,  in  a  prosecution  for 

and  as  to  reasonable  doubt,  a   new  27  Moore  v.  State,  125  S.  W.  34,  58 

trial  will  not  be  granted  for  failure  to  Tex.  Cr.  R.  183. 

charge  as  to  what  weight  the  law  at-  28  state  v.  Shives,  165  P.  272,  100 

taches  to  evidence  of  a  purely  circum-  Kan.  5S8;   State  v.  Gereke,  86  P.  160, 

stantial  nature,    McElroy  v.  State,  53  74  Kan.  196,  judgment  reversed  on  re- 

S.  E.  759,  125  Ga.  37.  hearing  Same  v.  Gerike,  87  P.  759,  74 

Matters  nof  constituting  direct  Kan.  196 ;    State  V.  Calder,  59  P.  903, 

evidence  witliin  rule.     In  a  prose-  23  Mont.  504. 

cution  for  assault  with  intent  to  mur-  29  Thompson    v     State    187    S    W 

der    a   statement  by  the  person  as-  204,  79  Tex.  Cr.  k  478;'  Gradington 

saulted  that,  after  the  gun  was  fired  v.  State,  155  S.  W.  210,  69  Tex.  Cr.  R. 

and  he  had  been  shot,  he  turned,  look-  595 .    jgnkins  v.  State,  93  S.  W.  726. 

ed,  and  recognized  defendant's  face  49  Tex.  Cr.  R.  457,  122  Am.  St.  Rep. 

by  the  flash  of  the  gun,  was  insuffi-  §12;    Hernandez  v.   State,  81   S.  W. 

cient  to  take  the  case  out  of  the  rule  2210  47  Tex  Cr  R  "^O 
of  circumstantial  evidence,  and  hence  ,„',,  *    c,,'  ,  "  "^.i  e.    tv-    o-^-    ,^ 

defendant  was  entitled  to  an  instruc-  ^  '"  ^^^^^^  \  S''*^-^,^  ^-  ^J  ^-''  ^^ 

tion  thereon.     Henry  v.  State,  221  S.  J^^^.^i.^Ao^^^^    ^'''^%  ''000^''*'''  ^' 

W.  1083,  87  Tex.  Cr.  R.  392.  ®-  ^-  ^^^'  ^S  Tex.  Cr.  R.  229. 

23  Gann  v.  State  (Tex.  Cr.  App.)  59  ^^  ^^^nk  v.  State,  44  S.  W.  1101. 
S,  W.  896.                                                            3  2  s.  D.     State  v.  Harbour,  129  N. 

24  Smith  V.  State,  136  S.  W.  481,  62  W.  565,  27  S.  D.  42. 

Tex.  Cr.  R.  124.  Tex.     Egbert  v.   State,   176  S.   W. 

20  Camarillo    v.     State    (Tex.    Or.  560,  76  Tex.  Cr.  R.  663 ;   Williams  v. 

App.)  68  S.  W.  795.  State,  124  S.  W.  954,  58  Tex.  Cr.  R. 

2  6  State  V.   Soper,   49   S.   W.   1007,  82;   Alexander  v.  State,  49  S.  W.  229, 

148  Mo.  217.  50   S.   W.   716,   40  Tex.   Cr.   R.   395; 


§   227  INSTRUCTIONS   TO  JURIES  442 

larceny,  the  taking  is  proven  by  direct  evidence,  and  the  intent 
with  which  such  act  was  committed  is  sought  to  be  established 
by  circumstantial  evidence. ^^  The  fact  that  the  direct  evidence 
in  a  case  consists  of  the  testimony  of  an  accomplice  does  not  take 
it  out  of  the  operation  of  the  above  rule,  dispensing  with  the  ne- 
cessity of  a  charge  on  circumstantial  evidence.^* 

In  some  jurisdictions  an  instruction  on  circumstantial  evidence 
should  never  be  given  unless  the  evidence  on  behalf  of  the  state 
is  wholly  circumstantial.^"  In  other  jurisdictions,  however,  an 
admixture  of  direct  evidence  will  not  make  it  improper  for  the 
court  to  charge,  or  justify  its  refusal  to  charge,  on  circumstantial 
evidence,  if  the  evidence  is  largely  of  the  latter  character,^^  and  in 
one  jurisdiction  the  giving  of  a  brief  correct  instruction  on  cir- 
cumstantial evidence  is  proper,  although  the  principal  evidence 
for  the  state  is  that  of  an  eyewitness.^' 

§  228.     Rule  where  a  confession  or  admission  of  defendant  is  in- 
troduced in  evidence  against  him 

A  confession  or  admission  by  the  defendant  of  actual  participa- 
tion in  the  act  charged  against  him  as  a  criminal  offense  consti- 
tutes direct  evidence  of  guilt.^*  In  accordance  Vv'ith  the  rule  stated 
above,  therefore,  where  there  is  evidence  of  such  a  confession  or 
admission,  the  court  will  not  be  required  to  charge  on  circiim- 
stantial  evidence.^*    This  rule  applies  where  the  testimony  to  the 

Russell  V.  State,  44  S.  W.  159,  38  Tex.  Ga.  App.  115 ;  Rountree  v.  State  (Tex. 

Cr.  it.  590.  Cr.  App.)  58  S.  W.  106 ;    Howard  v. 

Vt.     State  V.  Lapoint,  88  A.  523,  87  State,  8  Tex,  App.  612. 

Vt.  115,  47  L.  R.  A.  (N.  S.)  717,  Ann.  3  7  state  v.  Kampert,  165  N.  W,  972, 

Cas.  1916C,  318.  139  Minn.  132. 

3  3  Burton  v.  State,  146  S.  W.  186,  3  8  Ga.     Perry    v.    State,    36    S.    E. 

65  Tex.  Cr.  R.  578;    Nixon  v.  State,  781,  110  Ga.  234. 

(Tex.  Ct.  App.)  93  S.  W.  555 ;   Roberts  Kan.    State  v.  Kornstett,  61  P.  805, 

V.  State,  70  S.  W.  423,  44  Tex.  Cr.  R.  62  Kau.  221. 

267 ;    Houston  v.  State,  47  S.  W.  468.  Mo.     State  v.   Gartrell,   71   S.   W. 

3  4  Tune  V.  Stiite,  94  S.  W.  231,  49  1045,  171  Mo.  489. 

Tex.  Cr.  R.  445 ;    Rios  v.  State,  48  S.  Tex.     Borrer  v.   State,  204  S.   W. 

W.  505;    Id.,  47  S.  W.  987,  39  Tex.  1003,  83  Tex.  Cr.  R.  198;    Sullenger 

Cr.  R.  675.  v.  State,  182  S.  W.  1140,  79  Tex.  Cr. 

3  5  Mo.     State  V.  Wlllard,  192  S.  W.  R.  98;  Paul  v.  State,  45  S.  W.  725. 

437;    State  v.  Dipley,  147  S.  W.  Ill,  3  9  u.  S.     (C.  C.  A.  111.)  Ossendorf 

242  Mo.  461 ;    State  v.  Nerziuger,  119  v.  United  States,  272  F.  257. 

S.  W.  379,  220  Mo.  36;   State  v.  Clow,  Ala.     Green  v.   State,  12   So.  416, 

110  S.  W.  632,  131  Mo.  App.  548.  97  Ala.  59. 

Okl.     Star  v.  State,  131  P.  542,  9  Ga.     Horton  v.  State,  93  S.  E.  1012, 

Okl.  Cr.  210 ;    Foster  v.  State,  126  P.  21  Ga.  App.  120 ;    Smith  v.  State,  54 

835,  8  Okl.  Cr.  139.  S.    E.    127,    125   Ga.   296;     Griner  v. 

Or.     State  V.  Holbrook,  188  P.  947,  State,  49  S.  E.  700,  121  Ga.  614. 

98  Or.  43.  111.     Langdon  v.  People,  24  N,   E. 

"'•■  Allen  V.  State,  80  S.  E.  215,  14  874,  133  111.  382. 


443 


INSTRUCTIONS   ON   CIRCUMSTANTIAL   EVIDENCE 


228 


confession  comes  from  an  accomplice/"  and  although  the  cor- 
roboration of  the  accomplice  giving  such  testimony  be  by  cir- 
cumstantial evidence.^^  So  such  rule  applies,  although  the  con- 
fession contains  statements  exculpating  the  defendant,*^  or  al- 
though it  is  alleged  to  have  been  obtained  by  coercion,'*^  and,  in 
the  absence  of  a  request  for  such  an  instruction,  the  omission  of 
the  court  to  charge  the  law  of  circumstantial  evidence,  to  be  ap- 
plied if  the  jury  do  not  believe  that  an  alleged  confession  was 
made,  is  not  error.'** 


Mo.  State  v.  Mills,  199  S.  W.  131, 
272  Mo.  526;  State  v.  Robinson,  23 
S.  W.  1066,  117  Mo.  649. 

N.  C.  State  v.  West,  68  S.  E.  14, 
1 T^  X   C   832 

Tex.  Miller  v.  State  (Cr.  App.)  225 
S.  W.  262;  Tillman  v.  State  (Cr. 
App.)  225  S.  W.  165;  Johnson  v. 
State,  197  S.  W.  995,  82  Tex.  Cr.  R. 
82 ;  Yillareal  v.  State,  189  S.  W.  156, 
80  Tex.  Cr.  R.  133;  Strickland  v. 
State,  161  S.  W.  110,  71  Tex.  Cr.  R. 
582;  Hargrove  v.  State,  140  S.  W. 
234,  63  Tex.  Cr.  R.  143;  High  v. 
State,  112  S.  W.  939,  54  Tex.  Cr.  R. 
333 ;  Burk  v.  State,  95  S.  W.  1064,  50 
Tex.  Cr.  R.  185;  Keith  v.  State,  94 
S.  W.  1044,  50  Tex.  Cr.  R.  63 ;  White- 
head V.  State,  90  S.  W.  876,  49  Tex. 
Cr.  R.  123 ;  Landreth  v.  State,  70  S. 
W.  758,  44  Tex.  Cr.  R.  239 ;  Carmoua 
V.  State,  65  S.  W.  928 ;  Ricks  v.  State, 
56  S.  W.  928,  41  Tex.  Cr.  R.  676; 
Matthews  v.  State,  51  S.  W.  915,  41 
Tex.  Cr.  R.  98;  Hedrick  v.  State,  51 
S.  W  252,  40  Tex.  Cr.  R.  532 ;  White 
V.  State,  50  S.  W.  705,  40  Tex.  Cr.  R. 
366;  Fi-anks  v.  State  (Cr.  App.)  45  S. 
W.  1013;  Doucette  v.  State  (Cr.  App.) 
45  S.  W.  800;  Holmes  v.  State  (Cr. 
App.)  42  S.  W.  979 ;  Alhritton  v.  State 
(Cr.  App.)  26  S.  W.  39a ;  White  v. 
State,  32  Tex.  Cr.  R.  625,  25  S.  W. 
784;  Wilson  v.  State  (Cr.  App.)  21 
S.  W.  361;  Self  v.  State,  28  Tex. 
App.  398,  13  S.  W.  602;  Johnson  v. 
State,  28  Tex.  App.  17,  11  S.  W.  667; 
€arr  v.  State,  24  Tex.  App.  562,  7 
S.  W.  328,  5  Am.  St.  Rep.  905 ;  Heard 
V.  State,  24  Tex.  App.  103,  5  S.  W. 
846. 

Illustrations  of  cases  in  which 
instructions  not  required  within 
rule.     Where    the    state    introduced 


confessions  admitting  the  killing,  and 
defendant,  while  testifying,  admitted 
the  killing,  a  charge  on  circumstantial 
evidence  was  not  required,  notwith- 
standing defendant  denied  making 
the  confessions.  Gantt  v.  State  (Tex. 
Cr.  App.)  105  S.  W.  799.  Where,  in 
a  prosecution  for  mule  theft,  defend- 
ant had  confessed  to  obtaining  posses- 
sion of  the  mules  by  taking  them  from 
the  pasture  in  which  prosecutor  was 
keeping  them,  and  had  also  made  con- 
flicting statements  as  to  how  he  ob- 
tained them,  the  court  was  not  bound 
to  give  a  charge  on  circumstantial 
evidence,  though  the  state  relied  on 
the  circumstance  of  possession  subse- 
quent to  the  alleged  taking.  Welch 
V.  State,  95  S.  W.  1035,  50  Tex.  Cr.  R. 
28.  Where  the  corpus  delicti  was 
clearly  established,  and  defendant's 
confession,  if  believed,  would  require 
a  conviction,  and  circumstances  ad- 
duced were  additional  proofs  of  guilt, 
it  was  not  error  to  exclude  instruc- 
tions on  circumstantial  evidence. 
Dennis  v.  State,  23  So.  1002,  118  Ala. 
72.  Where,  on  a  prosecution  for  the 
forgery  of  a  note,  defendant  admitted 
making  the  note,  but  claimed  that  he 
had  authority  to  do  so,  the  court  was 
not  required  to  give  a  cliarge  on  cir- 
cumstantial evidence.  Usher  v.  State, 
81  S.  W.  309,  47  Tex.  Cr.  R.  93. 

4  0  Wampler  v.  State,  28  Tex.  App. 
352,  13  S.  W.  144. 

41  Tvler  V.  State.  180  S.  W.  687,  78 
Tex.  Cr.  R.  279. 

4  2  Barnes  v.  State,  111  S.  W.  943, 
53  Tex.  Cr.  R.  628. 

4  3  Jackson  v.  State  (Tex.  Cr.  App.) 
62  S.  W.  914. 

44  Smith  V.  State,  54  S.  E.  127,  125 
Ga.  296. 


§  228  INSTRUCTIONS  TO  JURIES  444 

Confessions,  however,  may  be  circumstantial  as  well  as  direct 
evidence.  If  the  fact  or  tacts  confessed  are  only  matters  from 
which  ?.n  inference  of  participation  in  the  alleged  crime  arises,  the 
confession  is  circumstantial  evidence.^''  It  follows  that  such  a 
confession  will  not  relieve  the  court  from  the  obligation  to  charge 
the  law  of  circumstantial  evidence.*®  Thus,  in  a  prosecution  for 
burglary,  a  charge  as  to  circumstantial  evidence  should  be  given 
when  all  the  evidence  in  relation  to  the  breaking  and  entering  is 
circumstantial,  although  a  plea  of  guilty  by  the  defendant  to  a 
charge  of  theft  of  property  stolen  during  the  burglary  is  in  evi- 
dence.*' 

§  229.     Harmless  error  in  refusing  instruction 

Although  the  state  relies  entirely  upon  circumstantial  evidence, 
if  it  is  full  and  satisfactory,  without  serious  conflict,  and  clearly 
shows  the  guilt  of  the  accused,  a  failure  to  charge  on  circum- 
stantial evidence  will  not  require  the  granting  of  a  new  trial.*** 

§  230.     Necessity  of  request  for  instructions 

As  a  general  rule  it  will  not  be  error  to  fail  to  give  an  instruc- 
tion on  circumstantial  evidence,  in  the  absence  of  a  request  there- 
for.*^ This  is  particularly  true  where  the  state  does  not  rely  en- 
tirely on  circumstantial  evidence.^"    Thus,  where  there  is  evidence 

45  Hart  V.  State,  82  S.  E.  164,  14  S.  D.     State  v.  Millard,  138  N.  W. 

Ga  App  714.  366,  30  S.  D.  169 ;   State  v.  Colvin,  124 

4  0  Winn  v.  State,  198  S.  W.  965,  82  N.  W.  749,  24  S.  D.  567. 

Tex.  Cr.  R.  316;    Bloch  v.  State,  193  Tex.     Bennett  v.   State  (Cr.  App.) 

S.  W.  303,  81  Tex.  Cr.  R.  1 ;    Early  50  S.  W.  945. 

V.    State,   97    S.    W.  82,   .50  Tex.    Cr.  bou.  S.     (C.  O.  A.  Tex.)  Bloch  v. 

App.  344;    Willard  v.  State,  26  Tex.  U.   S.,  261   F.  321,  certiorari  denied 

App.  126,  9  S.  W.  358.  40  S.  Ct.  481,  253  U.  S.  484,  64  L.  Ed. 

47  Be'ason  v.  State,  67  S.  W.  96,  43  1025. 

Tex.  Cr.  R.  442,  69  L.  R.  A.  193.  Ga.     Mitchell  v.  State  (App.)  103  S. 

48Toler  V.  State,  33  S.  E.  629,  107  E.  ISO;    Long  v.  State  (App.)  102  S. 

Ga.  682;    Richards  v.  State,  27  S.  E.  E.  359;    Huckeba  v.  State,  100  S.  E. 

726,  102  Ga.  569.  757,  24  Ga.  App.  333 ;    Etter  v.  State,. 

4  9  U.  S.     (C.  C.  A.  Minn.)  Robinson  100  S.  E.  4§3,  24  Ga.  App.  275;    Gold- 

V.  United  States,  172  F.  105,  96  C.  C.  en  v.  State,  99  S.  E.  470,  23  Ga.  App. 

A.  307 ;     (C.   C.   A.   Tex.)    Hughes  v.  788 ;   Coppedge  v.  State,  96  S.  E.  1046. 

United  States,  231  F.  50,  145  C.  C.  A.  22  Ga.  App.  631 ;   Garrett  v.  State,  95 

238.  S.  E.  301,  21  Ga.  App.  801;   Chislon  v. 

Cal.     People    V.    Balkwell,    76    P.  State,  91  S.  E.  893,  19  Ga.  App.  607; 

3017,  143  Cal.  259;    People  v.  Hiltel,  Bargeman  v.  State,  88  S.  E.  591,  17 

63  P.  919.  131  Cal.  577.  Ga.  App.  807 ;   Teal  v.  State,  87  S.  E. 

Colo.     Reagan    v.   People,   112  P.  830,  17  Ga.  App.  556 ;   Wells  v.  State, 
785,  49  Colo.  316.  86  S.  E.  650,  17  Ga.  App.  301 ;    Jack- 
Iowa.     State  V.   Hart,   118   N.   W.  son  v.  State,  86  S.  E.  459,  17  Ga.  App. 
784,  140  Iowa,  456;   State  v.  Bartlett,  269;    Braxley  v.  State,  86  S.  E.  425, 
105  N.  W.  59,  128  Iowa,  518.  17  Ga.  App.  196 ;   Everett  v.  State,  S3 

Kan.     State  v.  Ingram,  16  Kan.  14.  S.  E.  428,  15  Ga.  App.  390 ;    Clark  v. 


445 


IXSTRUCTIOXS  ON   CIRCUMSTANTIAL  EVIDENCE 


231 


of  a  confession  of  the  defendant,^^  or  of  incriminatory  admissions 
by  him,^^  or  where  the  only  circumstantial  evidence  relates  to 
the  intent  of  the  defendant,^=*  a  request  is  necessary  to  put  the 
court  in  error  in  failing  to  charge  on  circumstantial  evidence. 

However,  in  some  jurisdictions,  even  where  the  evidence  is  in 
part  direct,  it  is  not  considered  good  practice  to  fail  to  give  an 
instruction  on  circumstantial  evidence,  though  no  request  is  made 
therefor,  since  the  jury  may  not  credit  the  direct  evidence,^  and 
where  the  evidence  produced  by  the  state  is  entirely  circumstantial 
it  is  the  duty  of  the  court  to  instruct  thereon,  whether  a  request 
is  made  or  not,^^  and  although  it  is  said  in  one  jurisdiction  that  the 
performance  of  such  duty  is  waived  by  the  failure  of  the  defend- 
ant to  request  an  instruction,^*'  in  other  juripdictions  it  is  reversible 
error  for  the  court  not  to  instruct  of  its  own  motion  on  circum- 
stantial evidence,  where  the  state  relies  exclusively  on  such  evi- 
dence.^' 


2.  Sufficiency  of  Instructions  and  Propriety  of  Particular  Instructions 

§  231.     General  principles 

It  has  been  said  that  there  is  no  prescribed  formula  for  an  in- 
struction on  the  force  and  cogency  of  circumstantial  evidence,^* 


State,  S3  S.  E.  223,  142  Ga.  601;  Bar- 
ron v.  State,  77  S.  E.  214,  12  Ga. 
App.  342;  Smith  v.  State,  74  S.  E. 
711,  11  Ga.  App.  89 ;  Jordan  v.  State, 
71  S.  E.  875,  9  Ga.  App.  578;  Smith 
V.  State,  54  S.  E.  127,  125  Ga.  296. 

Kan.  State  v.  Davis,  188  P.  231, 
106  Kan.  527 ;  State  v.  Kennedy,  184 
P.  734,  105  Kan.  347. 

51  Bloodworth  v.  State,  95  S.  E. 
532,  22  Ga.  App.  132;  Thomas  v.  State, 
88  S.  E.  917,  18  Ga.  App.  101 ;  Sutton 
V.  State,  88  S.  E.  122.  587,  17  Ga. 
App.  713 ;  Weatherby  v.  State,  78  S. 
E.  1014.  13  Ga.  App.  170. 

5  2Wolfork  V.  State  (Ga.  App.)  103 
S.  E.  718. 

5  3  Reddicli  V.  State,  74  S.  E.  901,  11 
Ga.  App.  150;  Love  v.  State,  72  S.  E. 
433,  9  Ga.  App.  874. 

54Middleton  v.  State,  66  S.  E.  22, 
7  Ga.  App,  1. 

5  5  Ga.  Amason  v.  State,  99  S.  E. 
631,  23  Ga.  App.  784;  Reynolds  v. 
State,  98  S.  E.  246,  23  Ga.  App.  3G9; 
Leonard  v.  State,  86  S.  E.  463.  17  Ga. 
App.   267;    Allen  v.   State,  80   S.   E. 


215,  14  Ga.  App.  115 ;  Harden  v.  State, 
78  S.  E.  681,  13  Ga.  App.  34 ;  Young 
V  State,  76  S.  E.  753,  12  Ga.  App.  86; 
Bailey  v.  State,  74  S.  E.  285,  10  Ga. 
App.  829;  Tyus  v.  State,  72  S.  E. 
509,  10  Ga.  App.  23 ;  Twilley  v.  State, 
71   S.  E.  587,  9  Ga.  App.  435. 

Wyo.    Gardner  v.  State,  196  P.  750. 

5  6  State  V.  Woods,  185  P.  21,  105 
Kan.  554. 

5  7  Ga.  Kelley  v.  State,  93  S.  E. 
497,  20  Ga.  App.  821;  Kinard  v.  State, 
91  S.  E.  941,  19  Ga.  App.  624;  Harris 
V.  State,  90  S.  E.  370,  18  Ga.  App.  710; 
Gantz  v.  State,  88  S.  E.  993,  18  Ga. 
App.  154;  Coney  v.  State,  88  S.  E. 
918.  18  Ga.  App.  112 ;  Butler  v.  State. 
88  S.  E.  593,  17  Ga.  App.  769:  An- 
drews V.  State,  88  S.  E.  194.  145  Ga. 
14;  Martin  v.  State,  87  S.  E.  715.  17 
Ga.  App.  516 ;  Harvey  v.  State,  70  S. 
E.  141,  8  Ga.  App.  660;  Weaver  v. 
State.  69  S.  E.  488,  135  Ga.  317 ;  White 
v.  State,  60  S.  E.  803,  4  Ga.  App.  72. 

Tenn.  Webb  v.  State,  203  S.  W. 
955,  140  Tenn.  205. 

5  8  Davis  V.  State,  100  S.  E.  50,  24 
Ga.  App.  35;    Amason  v.  State,  99  S. 


§  231 


INSTRUCTIONS   TO  JURIES 


446 


and  in  some  jurisdictions  a  charge  specifically  upon  circumstantial 
evidence  may  not  be  necessary,  in  view  of  other  instructions 
given  covering  every  material  element  in  the  case.^^  Thus  an  in- 
struction presenting  to  the  jury  in  concrete  form  all  possible  hy- 
potheses that  are  favorable  to  the  defendant,  and  telling  them 
that  if  they  believe  any  one  of  them  he  should  be  acquitted,  is  a 
sufficient  charge  on  circumstantial   evidence.^® 

An  instruction  on  circumstantial  evidence  is  not  erroneous 
merely  because  it  does  not  follow  approved  forms.®^  Unques- 
tionably, however,  it  is  the  safer  and  better  practice,  where  the 
trial  court  undertakes  to  declare  the  law  on  circumstantial  evi- 
dence, to  follow  forms  which  have  been  frequently  approved  by 
the  court  of  last  resort.**^ 

It  is  an  unnecessary  and  dangerous  thing  for  courts,  in  charg- 
ing upon  the  law  of  circumstantial  evidence,  to  give  lengthy  and 
prolix  instructions  attempting  to  explain  the  law  applicable  to 
this  character  of  evidence.®^  A  charge  which  follows  the  language 
of  the  statute  will  ordinarily  be  sufficient.^*  Where  the  court 
gives  the  usual  stereotyped  charge  on  circumstantial  evidence, 
it  is  not  essential  for  it  to  inform  the  jury  that  the  state  relies  on 
such  evidence ;  *^  but,  where  all  the  evidence  is  circumstantial, 
it  is  error  to  instruct  in  such  a  way  as  to  convey  the  impression 
that  there  is  direct  evidence  against  the  defendant.®^  Where  the 
court  correctly  instructs  the  jury  with  respect  to  the  force  and 
efifcct  of  circumstantial  evidence,  it  is  clearly  not  required  to  en- 


E.  631,  23  Ga.  App.  784;  Coffman  v. 
State,  165  S.  W.  939,  73  Tex.  Cr.  R. 
295 ;   Rye  v.  State.  8  Tex.  App.  153. 

5  9  State  V.  Neville,  72  S.  E.  798,  157 
N.  C.  591;  Brown  v.  State,  126  P. 
263.  7  Okl.  Cr.  678 ;  State  v.  Overson, 
83  P.  5.57.  30  Utah.  22,  8  Aun.  Cas.  794. 

60  Griffin  V.  State,  101  S.  E.  767,  24 
Ga.  App.  656 ;  Davis  v.  State,  100  S. 
E.  50.  24  Ga.  App.  35;  Revnolds  v. 
State.  9S  S.  E.  246,  23  Ga.  App.  369. 

61  Galloway  v.  State,  70  S.  W.  211, 
44  Tex.  Cr.  R.  230. 

62  State  V.  Salmon,  115  S.  W.  1106, 
216  Mo.  466;  IMcIver  v.  State  (Tex 
Cr.  App.)  60  S.  W.  .50. 

63  Harris  v.  State,  137  P.  365,  10 
Okl.  Cr.  417. 

64  McDonald  v.  State,  94  S.  E.  262, 
21  Ga.  App.  125. 

0  5  Flags?  v.  State.  1.53  S.  W.  852,  69 
Tex.  Cr.  R.  107;    Henderson  v.  State, 


96  S.  W.  37,  50  Tex.  Cr.  R.  266 ;  Pen- 
nington v.  State  (Tex.  Cr.  App.)  48  S. 
W.  507. 

Compare  Anderson  v.  State,  213  S. 
W.  6.^9.  85  Tex.  Cr.  R.  411. 

Rule  Tvliere  usual  charge  on  cir- 
cumstantial evidence  refused. 
Where  the  evidence  in  a  prosecution 
for  violating  the  local  option  law  was 
of  a  circumstantial  nature,  a  charge 
by  the  court  beginning  that  "the  state 
relies  to  a  certain  extent  upon  circum- 
stantial evidence"  where  the  usual 
charge  on  this  phase  of  the  law  was 
asked  by  defendant  and  refused,  is  an 
improper  limitation,  and  does  not  ex- 
plain  how  or  how  far  the  state  relies 
on  circumstantial  evidence.  Trinkle 
v.  State,  105  S.  W.  201,  52  Tex.  Cr.  R. 
42. 

6  6  Martin  v.  State,  74  S.  E.  306,  10 
Ga.  App.  798. 


447 


INSTRUCTIONS   OX   CIRCUMSTANTIAL   EVIDENCE 


§232 


join   caution   upon  the  jury   in   the   matter  of  applying  such   evi- 
dence.^' 

§  232.     Contrasting  direct  and  circumstantial  evidence 

Subject  to  the  rule  against  invading  the  province  of  the  jury, 
which  in  some  jurisdictions  may  render  such  an  instruction  er- 
roneous,^^  it  is  proper,  where  the  evidence  is  both  direct  and  cir- 
cumstantial, to  define  each  class  of  evidence  and  explain  the  dif- 
ference between  them,«»  and  the  court  may  properly  instruct,  when 
accompanied  bv  appropriate  explanations,  that  there  is  nothmg  m 
the  nature  of  "circumstantial  evidence  that  renders  it  any  less 
reliable  than  other  classes  of  evidence,'"  that  there  is  no  practical 


6  7  People  V.  Shiiler,  '28  Cal.  490; 
Minniard  v.  Commonwealth,  164  S.  W. 
804  loS  Ky.  210  :  Brady  v.  Common- 
wealth, 11  Bush  (Ky.)  282;  State  v. 
Le  Blanc,  41  So.  105,  116  La.  822. 

0  8  Horton  v.  State  (Tex.  App.)  19 
S  W.  899;  Alonzo  v.  State,  15  Tex. 
App.  378,  49  Am.  Rep.  207. 

Harmless  error.  The  error,  if 
any.  in  a  charge  that  a  conviction 
may  be  had  on  circumstantial  as  well 
as  direct  evidence,  on  the  ground  that 
it  is  on  the  weight  of  the  evidence, 
does  not  require  a  reversal,  where  the 
charge  is  followed,  and  in  direct  con- 
nection therewith,  by  the  statement 
that,  to  justify  a  conviction  on  cir- 
cumstantial evidence,  each  fact  neces- 
sary to  establish  guilt  must  be  proved 
beyond  a  reasonable  doubt,  and  that 
all"  the  facts  must  be  considered  with 
each  other  and  lead  on  the  whole  to  a 
conclusion  of  guilt.  Roberts  v.  State, 
129  S.  W.  611,  60  Tex.  Cr.  R.  20. 

6  9  Joiner  v.  State,  31  S.  E.  556,  105 
Ga.  646. 

7  0  People  V.  Urquidas,  96  Cal.  239, 
31  P.  52 ;  People  v.  Morrow,  60  Cal. 
142. 

,  Instructions  held  proper  within 
rule.  On  prosecution  for  the  larceny 
of  a  watch,  on  evidence  that  defend- 
ant was  in  a  position  to  take  the 
watch,  and  that  no  other  person  was 
in  that  position,  the  following  charge 
is  not  erroneous:  "Circumstantial 
evidence  cannot  very  well  lie.  It  is 
quite  as  safe  for  a  jury  to  convict  on 
circumstantial  evidence,  when  a  prop- 
er case  is  given,  as  it  is  on  direct, 
positive  proof.  The  direct,  positive 
proof  may  be  false;  the  circumstances 


cannot  be  false."  People  v.  Davis,  64 
Hun,  636,  19  N.  Y.  S.  781.  On  a  trial 
for  murder,  an  instruction  that 
"strong  circumstantial  evidence  is 
often  the  most  satisfactory  of  any 
from  which  to  draw  the  conclusion  of 
guilt,"  followed  with  the  explanation 
that  witnesses  who  testify  to  a  direct 
fact  may  be  guilty  of  perjury,  while 
"circumstances  will  not  lie,"  is  not  ob- 
jectionable, in  telling  the  jury  that 
circumstantial  evidence  is  better  than 
any  other.  State  v.  Moelchen,  58 
Iowa,  310,  5  N.  W.  186.  Where  the 
evidence  was  such  as  to  require  in- 
structions on  circumstantial  evidence, 
it  was  not  error  for  the  court  to  state 
that  great  jurists  have  pronounced  it 
"of  a  nature  equally  satisfactory  with 
positive  evidence,  and  less  liable  to 
proceed  from  perjury."  State  v. 
Ward,  61  Vt.  153,  17  A.  483. 

Telling  jury  that  as  many  wrong- 
ful verdicts  have  been  based  on 
direct  evidence  as  on  circumstan- 
tial evidence.  It  is  not  error  for 
the  court  to  instruct  the  jury  that 
certain  cases  read  to  them  by  defend- 
ant's counsel,  in  which  innoc-ent  per- 
sons had  been  convicted  on  circum- 
stantial evidence,  "are  extreme  cases, 
and  probably  very  seldom  occur,"  and 
that,  "if  much  search  be  made,  it 
might  be  found  that  a  greater  number 
of  cases  could  be  cited  wherein  im- 
proper convictions  have  been  had  from 
direct,  positive  evidence,  through  in- 
attention or  perjury  of  witnesses." 
State  V.  McKiernan,  17  Xev.  224.  30  P. 
831.  Where  on  a  trial  for  murder,  in 
which  the  evidence  was  all  circum- 
stantial, tlie  jury  were  instructed  that 


§  232 


INSTRUCTIONS  TO  JURIES 


448 


difference  between  circumstantial  and  direct  evidence,'*  that  no 
greater  degree  of  mental  conviction  is  required  to  find  a  verdict 
on  circumstantial  evidence  than  in  the  case  of  direct  evidence/* 
and  that,  if  circumstantial  evidence  is  of  such  a  character  as  to 
exclude  every  reasonable  hypothesis  other  than  that  of  the  de- 
fendant's guilt,  it  is  entitled  to  the  same  weight  as  direct  evi- 
dence.'^    It  is  accordingly  proper  to  charge  that  the  guilt  of  an 


defendant  could  not  be  convicted  If 
there  was  any  reasonable  doubt  of  his 
guilt ;  that  circumstantial  evidence 
must  be  absolutely  inconsistent  with 
liis  innocence ;  that  they  were  to  de- 
termine the  weight  and  character  of 
the  evidence,  and  must  not  suppose 
that  the  court  had  any  opinion  on  the 
subject ;  that  the  responsibility  for 
the  verdict  was  theirs,  and  that  they 
were  not  to  be  governed  by  anything 
said  by  the  court  except  as  to  the 
rules  of  law  applicable  to  the  case,  it 
was  held  that  it  was  not  error  for  the 
court  to  say,  in  giving  the  case  to  the 
jury,  that  circumstantial  evidence  was 
just  as  good  as  any  other  if  it  satis- 
fied the  jury  beyond  a  reasonable 
doubt  of  the  guilt  of  accused ;  that 
just  as  many  cases  of  wrongful  ver- 
dicts, and.  according  to  the  books, 
more,  resulted  from  direct  than  from 
circumstantial  evidence ;  and  that  in 
his  practice  of  40  years  in  the  crimi- 
nal courts  he  found  that  most  of  those 
cases  of  circumstantial  evidence  are 
found  in  romances  and  dramas,  in 
which  the  writer  weaves  a  set  of  cir- 
cumstances around  the  hero,  having 
an  explanation  in  mind,  and,  either 
just  before  he  is  condemned,  or  just 
after,  the  explanation  arrives,  and  the 
hero  goes  off  the  stage  in  a  blaze  of 
glory — since  the  charge  was  full,  fair, 
clear,  and  correctly  stated  the  law. 
People  V.  Neufeld,  58  N.  E.  786,  165 
N.  Y.  43. 

71  State  V.  Rome,  64  Conn.  329,  30 
A.  57 ;  Territory  v.  Egan,  3  Dak.  119, 
13  N.  W.  568. 

Necessary  qualification.  A  charge 
that  "the  law  makes  no  distinction 
between  circumstantial  and  positive 
evidence,"  without  any  qualifying  in- 
struction as  to  the  care  to  be  used  in 
considering  circumstantial  evidence,  is 
erroneous  because  misleading.  Burt 
V.  State,  72  Miss.  408,  16  So.  342,  48 
Am.  St.  Rep.  563. 


7  2  Cargile  v.  State,  70  S.  E.  873,  138 
Ga.  55. 

73  Reynolds  v.  State,  46  N.  E.  31, 
147  Ind.  3  :  Longlev  v.  Commonwealth, 
37  S.  E.  339,  99  Va.  807. 

Instruction  to  give  same  iveiglit 
to  circumstantial  evidence  as  to 
direct.  An  instruction  defining  both 
direct  and  circumstantial  evidence, 
and  stating  that  the  circumstantial 
evidence  which  had  been  received  was 
competent,  and  that  "if  it  is  of  such 
a  character  as  to  exclude  every  rea- 
sonable supposition,  other  than  that 
of  defendant's  guilt,  then  and  in  that 
event  it  should  be  given  the  same 
weight  as  direct  evidence,"  was  not 
an  unconditional  direction  to  the  jury 
to  give  the  same  weight  to  circum- 
stantial evidence  as  to  direct  evidence. 
Davis  V.  State,  70  N.  W.  984,  51  Neb. 
301. 

Illustrations  of  proper  instruc- 
tions as  to  relative  value  of  cir- 
cumstantial and  direct  evidence. 
An  instruction  that  "where  the  evi- 
dence is  entirely  circumstantial,  yet  is 
not  only  consistent  with  the  guilt  of 
the  defendant,  but  inconsistent  with 
any  other  rational  conclusion,  the  law 
makes  it  the  duty  of  the  jury  to  con- 
vict, notwithstanding  such  evidence 
may  not  be  as  satisfactory  to  their 
minds  as  the  direct  testimony  of  credi- 
ble eye-witnesses  would  have  been,"  is 
correct.  People  v.  Daniels,  34  P.  233, 
4  Cal.  Unrep.  248,  following  Same  v. 
Cronin,  34  Cal.  191.  In  a  criminal 
case,  an  instruction :  "Evidence  is  of 
two  Ivinds.  direct  and  circumstantial. 
'Direct  evidence'  is  where  a  witness 
testifies  of  his  own  personal  knowl- 
edge of  the  main  fact,  or  facts,  to  be 
proven.  'Circumstantial  evidence'  la 
proof  of  certain  facts  and  circum- 
stances in  a  certain  case,  from  which 
the  jury  may  infer  other  and  connect 
ed  facts,  which  usually  and  reason- 
ably follow  according  to  the  common 


449  INSTRUCTIONS  ON  CIRCUMSTANTIAL  EVIDENCE  §  233 

accused  may  be  established  by  circumstantial  evidence  alone,^* 
Tnd  the  accused  is  not  entitled  to  a  charge  wh.ch  takes  as  a  s  and- 
ard  for  weighing  the  effect  of  circumstantial  evidence  the  testi. 
mony  of  credible  eyewitnesses  -  nor  to  a  charge  that  a  conviction 
Thould  not  be  had  on  circumstantial  evidence  when  direct  evidence 

"An'tstr^tion  that,  in  order  to  warrant  a  verdict  of  guilty  on 
circumstantial  evidence  alone,  it  must  be  such  as  to  produce 
''nearly"  the  same  degree  of  certainty  as  direct  -idence  has  been 
held  not  improper  in  some  jurisdictions,"^  or  at  least  not  re 
versible  error,'«  but  in  other  jurisdictions  it  is  considered  erro- 
neous.'® 

S  233.     Degree  of  certainty  required  ,  ,   ^  ^       .,       a 

An  instruction  on  circumstantial  evidence  should  define  it  and 
state  the  rule  governing  its  effect,««  and  should  include  a  state- 
ment that,  in  o?der  to  Warrant  a  conviction  of  the  defendant  the 
jury  must  be  satisfied  of  his  guilt  beyond  a  reasonable  doubt  to 


experience  of  mankind.     Crime  may 
be  proven  by  circumstantial  evidence, 
a'^  well  as  by  direct  testimony  of  eye- 
witnesses, but  the  facts  and  circum- 
stances   in    evidence    should    be    con- 
'^istent  with  each  other  and  with  the 
suilt  of  the  defendants,  and  inconsist- 
ent   with    any    reasonable   theory    of 
their    innocence"— sufficiently    charg- 
ed on  circumstantial  evidence.     State 
V.  Hillman,   127   S.  W.  102,  142  Mo. 
App.  510.    An  instruction  that  circum- 
stantial evidence  should  be  regarded 
in  all  cases,  and  was  many  times  quite 
as  conclusive  as  direct  evidence,  and 
when  it  was  strong  and  satisfactory 
the  jury   should  give  it  fair  weight, 
and,  if  it  convinces  the  guarded  judg- 
ment, the  jury  should  base  a  convic- 
tion thereon,  but  that  the  jury  should 
make  its  reasonable  inferences  from 
circumstances  proved,  and,  if  they  had 
a  reasonable  doubt  as  to  defendant's 
guilt,  should  acquit,  was  not  prejudi- 
ciallv  misleading.     State  v.  Sloan,  89 
P.  829,  35  Mont.  367.     On  a  trial  for 
homicide,    an    instruction   as    to    the 
relative  value  of  circumstantial  and 
positive  evidence,  stating  that  it  de- 
pends on  facts  and  circumstances  in 
one  instance  and  on  the  relial)ility  of 
the  witness  in  the  other,  was  not  er- 
Inst.to  Juries— 29 


roneous,  as  leading  tlie  jury  to  con- 
clude that  in  considering  circumstan- 
tial evidence  the  reliability  of  the 
witness  who  testifies  to  the  facts  and 
circumstances  from  which  the  fact  in 
issue  is  to  be  inferred  is  not  to  be  con- 
sidered of  so  much  importance  as 
when  he  gives  direct  and  positive  evi- 
dence of  the  fact  in  issue.  State  v. 
Tedder,  65  S.  E.  449,  83  S.  C.  437. 

7  4Beeler  v.  People,  146  P.  762,  58 
Colo  451:  Williams  v.  State,  75  So. 
785  73  Fla.  1198;  People  v.  Cotton, 
95  N  E.  283,  250  111.  338;  People  v. 
Darr  •  179  111.  App.  130,  judgment  af- 
firmed 104  N.  E.  389.  262  111.  202 ; 
Epps  v.  State,  1  N.  E.  491,  102  Ind. 

539. 

75  State  V.  Carson,  115  N.  C.  743. 
''O  S  E  384;  State  v.  Allen.  103  N.  C. 
433,  9  S.  E.  020 ;  Rea  v.  State,  8  Lea 
(Tenn.)  356. 

7  0  Webb  V.  State,  65  So.  845,  11  Ala. 
App.  123. 

7  7  People  V.  Cronin,  34  Cal.  191. 

7  8  People  V.  Eckman,  72  Cal.  582,  14 
P.  359. 

7  9  state  V.  Dotson,  67  P.  938,  26 
Mont.  305. 

80  State  V.  Brady  (Iowa)  91  N.  W. 
801. 


§  233 


INSTRUCTIONS   TO   JURIES 


450 


the  exclusion  of  every  other  reasonable  hypothesis.*^     Such  an  in- 
struction should  not  permit  the  jury  to  act  upon  probabilities.*^ 

The  essential  elements  of  such  an  instruction  are  comprised  in 
a  charge  to  the  effect  that,  to  justify  a  conviction  on  circumstan- 
tial evidence,  each  fact  necessary  to  the  conclusion  of  guilt  must 
be  proven  by  competent  evidence  beyond  a  reasonable  doubt,  that 
all  the  facts  so  necessary  must  be  consistent  with  each  other  and 
with  the  main  fact,  that  the  circumstances  taken  together  must  be 
of  a  conclusive  nature,  producing  a  reasonable  and  moral  certainty 
that  the  accused  and  no  other  person  committed  the  offense 
charged,  that  no  other  conclusion  but  that  of  the  guilt  of  the  ac- 
cused must  fairly  and  reasonabl}^  grow  out  of  the  evidence,  and 
that  the  facts  must  be  absolutely  incompatible  with  his  innocence, 
and  incapable  of  any  other  explanation  on  any  other  reasonable 
hypothesis  than  that  of  guilt.*^  The  omission  from  the  above 
charge  on  circumstantial   evidence   of  the   phrase   "and   no   other 


51  Ga.  Hill  V.  State,  66  S.  E.  802, 
7  Ga.  App.  336 ;  Holt  v.  State,  62  S. 
E.  992.  5  Ga.  App.  184 ;  Lett  v.  State, 
59  S.  E.  85.  2  Ga.  App.  829;  Glaze  v. 
State,  58  S.  E.  1126,  2  Ga.  App.  704 ; 

-Baker  v.  State,  58  S.  E.  1114,  2  Ga. 
App.  662;  Harwell  v.  State,  58  S.  E. 
nil.  2  Ga.  App.  613. 

Mont.  State  v.  Allen,  87  P.  177,  34 
Mont.  403. 

Okl.  Matthews  v.  State,  130  P. 
125.  8  Okl.  Cr.  676. 

Tex.  Reynolds  v.  State,  217  S.  W. 
151.  86  Tex.  Cr.  R.  4.53. 

52  People  V.  O'Brien.  62  P.  297,  130 
Cal.  1 ;  People  v.  Dilwood,  94  Cal.  89, 
29  P.  420. 

8  3  Kan.  State  v.  Ward,  192  P.  836, 
107  Kan.  498. 

Tex.  McGee  v.  State,  155  S.  W. 
246,  69  Tex.  Cr.  R.  580 ;  Reeseman  v. 
State,  128  S.  W.  1126.  59  Tex.  Cr.  R. 
430;  Porch  v.  State.  99  S.  W.  102,  50 
Tex.  Cr.  R.  335;  Crow  v.  State,  39 
S.  W.  574.  37  Tex.  Cr.  R.  295 :  Book- 
ser  V.  State,  26  Tex.  App.  593,  10  S. 
W.  219. 

Wis.  Colbert  v.  State,  104  X.  W. 
(!1,  125  Wis.  423. 

Circumstances  to  be  consistent 
witli  each  other.  In  a  prosecution 
for  nnu-der.  based  wholly  on  circum- 
stantial evidence,  it  is  error  to  refuse 
a  charge  that  jruilt  must  be  proved 
by  facts  and  circumstances,  all  of 
wliich  are  consistent  with  each  other 


and  with  the  guilt  of  the  accused,  and 
absolutely  inconsistent  with  any  rea- 
sonable theorv  of  innocence.  State  v. 
Moxley.  102  Mo.  374,  14  S.  W.  969,  15 
S.  W.  556. 

Other  illustrations  of  sufficient 
instructions.  Where  the  prosecu- 
tion relies  for  conviction  on  evidence 
partly  direct  and  partly  circumstan- 
tial, an  instruction  on  circumstantial 
evidence  which  defines  its  nature  and 
points  out  the  degree  of  certainty  re- 
quired as  compared  with  direct  evi- 
dence, and  charges  that  it  is  legal  and 
competent,  and  justifies  conviction  if 
incompatible  with  innocence  and  in- 
capable of  explanation  on  any  other 
hypothesis  than  that  of  guilt,  is  suffi- 
cient. Stockbridge  v.  Territory,  79 
P.  753,  15  Okl.  167.  A  charge  on  cii'- 
cumstantial  evidence  is  sufficient 
where,  besides  giving  a  general  defini- 
tion of  such  evidence,  the  jury  are 
told  that,  if  they  entertain  a  reason- 
able doubt  as  to  any  fact  or  element 
necessary  to  constitute  the  offense, 
they  must  acquit ;  and  that,  to  author- 
ize conviction  on  such  evidence,  each 
circumstance  should  not  be  only  con- 
sistent with  guilt,  but  inconsistent 
Avith  any  other-  rational  conclusion  op 
reasonable  hypothesis,  and  such  as  to 
leave  no  rea.sonable  doubt  of  guilt. 
State  v.  Asbell.  46  P.  770,  57  Kan. 
398.  On  a  prosecution  for  adultery, 
the     jury     are     sufficiently     warned 


451 


INSTRUCTIONS   ON   CIllCUMSTANTIAL   EVIDENCE 


§233 


person"  will  not  render  it  erroneous,^*  nor  will  the  omission  of  the 
clause,  requiring  that  facts  relied  on  to  justify  a. conviction  on  cir- 
cumstantial evidence  must  be  consistent  with  each  other,  be  cause 
for  reversal,  in  the  absence  of  a  request  to  so  instruct.*** 

Since  it  is  not  necessary,  in  order  to  convict,  that  the  guilt  of 
the  accused  should  be  established  beyond  all  possible  doubt,**** 
the  words  "absolutely  incompatible"  used  in  the  above  instruction 
are  the  subject  of  criticism  in  some  jurisdictions,  and  when  con- 
tained in  a  requested  instruction  will  be  ground  for  refusing  it.*' 


ag;ainst  being  misled  by  a  train  of  cir- 
cumstantial evidence  wlien  tbe  court 
charges  that  the  circumstances  offer- 
ed by  the  state  must  be  such  as  neces- 
sarily lead  the  mind  of  a  reasonable, 
just,  and  prudent  man  to  the  conclu- 
sion of  guilt,  and  that  they  must  ex- 
clude all  reasonable  doubt,  and  he 
further  narrates  the  facts  relied  on  by 
the  state,  which  facts,  if  true,  could 
leave  no  reasonable  doubt  of  guilt, 
and  then  leaves  to  the  jury  the  ques- 
tion of  fact.  State  v.  Hart,  94  Iowa, 
749.  64  N.  W.  278. 

8  4  Bosley  v.  State,  153  S.  W.  S78,  69 
Tex.  Cr.  R.  100 ;  Moseley  v.  State,  127 
S.  W.  178,  59  Tex.  Cr.  R.  90 ;  Ramirez 
v.  State.  66  S.  W.  1101,  4.3  Tex.  Cr.  R. 
455;  Bennett  v.  State,  48  S.  W.  61,  39 
Tex.  Cr.  R.  639. 

Instructions  not  improper  ^ivitli- 
in  rule.  An  instruction  on  circum- 
stantial evidence  was  not  erroneous 
liecnuse  it  did  not  tell  the  jury  that,  in 
ovder  to  convict,  they  must  Hnd  that 
defendant  "alone"  committed  the 
crime.  Bell  v.  State  (Tex.  Cr.  App.) 
71  S.  W.  24.  Where,  in  a  prosecution 
for  bvirglary,  the  court  charged  that 
the  circumstances,  taken  together, 
must  be  of  a  conclusive  nature,  lead- 
ing to  a  satisfactory  conclusion,  and 
producing  in  effect  a  reasonable  and 
moral  certainty  that  accused,  or  ac- 
cused acting  with  some  other  person, 
committed  the  offense  charged,  the 
fact  that  the  charge  on  circumstantial 
evidence  did  not  require  the  jury  to 
find  that  the  accused,  and  no  other 
person,  committed  the  crime,  was  im- 
material, it  being  proven  that  accused 
and  his  codefendant  were  acting  to- 
gether as  principals  in  the  commission 
of  the  offense.  Boersh  v.  State  (Tex. 
Cr.  App.)  62  S.  W.  1060. 

85  State  V.  Wolfley,  93  P.  337,  75 


Kan.  406,  11  L.  R.  A.  (N.  S.)  87,  12 
Ann.  Cas.  412,  denying  rehearing  89 
P.  1046,  75  Kan.  406,  11  L.  R.  A.  (N. 
S.)   87,    12   Ann.    Cas.   412. 

SG  Lawsou  v.  State,  76  So.  411,  16 
Ala.  App.  174;  People  v.  Riley,  3  N. 
Y.  Cr.  R.  374. 

Absolute  certainty  not  required. 
On  a  trial  for  murder,  an  instruction 
that  absolute  certainty  is  never  re- 
quired In  the  trial  of  criminal  cases, 
and  though  in  the  application  of  cii*- 
cumstantial  evidence  the  utmost  cau- 
tion should  be  used,  yet  it  may  rise  so 
high  in  the  scale  of  belief  as  to  gene- 
rate full  conviction,  and  produce  "the 
highest  degree  of  moral  certainty," 
and  when,  after  due  caution,  this  re- 
sult is  reached,  the  jury  are  authoriz- 
ed to  act  on  it  and,  if  satisfied  "to 
the  exclusion  of  every  reasonable 
doubt"  of  defendant's  guilt,  they  might 
so  find,  is  not  open  to  objection.  Gib- 
son V.  State,  23  So.  582.  76  Miss.  136. 

8  7  State  V.  Rover,  13  Nev.  17:  Horn 
V.  State,  73  P.  705.  12  Wyo.  SO. 

Illustrations  of  instructions  held 
to  require  greater  degree  of  cer- 
tainty than  the  law^  demands.  A 
charge  that,  "to  justify  the  inference 
of  legal  guilt  from  circumstantial  evi- 
dence, the  existence  of  inculpatory 
facts  must  be  established  al)solutely 
and  to  a  demonstration  incompatible 
with  the  innocence  of  the  accused." 
People  V.  Bellamy,  109  Ci\l.  610.  42  P. 
236.  An  instruction  that  "the  hy- 
pothesis contended  for  must  be  estab- 
lished to  an  absolute  moral  certainty, 
to  the  entire  exclusion  of  any  other 
hypothesis  being  true,  or  the  jury 
must  find  the  defendant  not  guilty." 
State  V.  Glass,  5  Or.  73.  An  instruc- 
tion tliat,  to  obtain  a  conviction  on 
circumstantial  evidence  alone,  the  peo- 
ple   must    show    facts    and    circum- 


234 


INSTRUCTIONS  TO  JURIES 


452 


It  is  proper  to  refuse  a  charge  that  each  and  every  circumstance 
must  be  consistent  with  the  other  and  with  the  whole  chain  of 
circumstances,  and  each  and  all  must  point  to  defendant  exclu- 
sively as  the  guilty  agent,  since  the  circumstances  may  point  to 
two  persons  as  the  guilty  parties,  defendant  being  one,  or  one 
or  more  circumstances  may  have  no  reference  whatever  to  the 
defendant  or  the  crime  charged,  in  which  case  the  jury  will  be 
justified  in  not  considering  it.** 

§  234.  Requirement  that  circumstances  be  consistent  with  hy- 
pothesis of  guilt  and  inconsistent  with  that  of  innocence 
Where  the  evidence  is  circumstantial,  it  is  proper  to  instruct 
that  to  warrant  a  conviction  of  the  defendant  the  evidence  must 
not  only  be  consistent  with  the  hypothesis  of  his  guilt,  but  incon- 
sistent with  every  other  rational  hypothesis,*^  and  the  general  rule 
is  that  such  an  instruction  should  be  given  on  request.''**    Instruc- 


stances  absolutely  inconsistent,  on  any- 
reasonable  hypothesis,  with  tlie  inno- 
cence of  the  accused,  and  incapable  of 
explanation  on  any  other  theory  than 
that  of  his  guilt.  Carlton  v.  People, 
150  111.  181,  37  N.  E.  244,  41  Am.  St. 
Rep.  346.  An  instruction,  in  a  prose- 
cution for  murder,  that,  to  convict  for 
a  criminal  offense  on  circumstantial 
evidence,  the  state  must  show  such 
facts  and  circumstances  as  are  abso- 
lutely incompatible  upon  any  reason- 
able hypothesis  with  defendant's  in- 
nocence, and  incompatible  of  explana- 
tion except  by  defendant's  guilt. 
State  V.  Caseday,  115  P.  287,  58  Or. 
429.  An  instruction  that,  "in  cases 
of  alleged  murder  proved  alone  by 
circumstances,  if  those  circumstances 
are  not  conclusive  as  to  tlie  guilt  of 
the  defendant,  there  ought  to  be  a 
motive,  and  that  a  strong  one,  proved, 
which  might  have  impelled  the  de- 
fendant to  commit  the  act,  and,  if 
such  proof  is  not  made,  the  jury  ought 
to  acquit  the  defendant,"  is  properly 
refused,  since  the  jury  might  under- 
stand that,  if  the  evidence  did  not 
show  the  defendant's  guilt  with  abso- 
lute certainty,  thoy  must  acquit  him 
in  absence  of  proof  of  a  motive. 
Sumner  v.  State,  5  Blackf.  (Ind.)  579, 
36  Am.  Dec.  561. 

An  instruction  that  the  evidence 
xaust  point  unerringly  to  the  guilt 
of  defoiHJant  and  must  be  irreconcil- 
able with  innocence  is  properly  refus- 


ed   as    requiring    absolute   certainty. 
Gardner  v.   State  (Wyo.)  196  P.  750. 
8  8  Timmerman  v.  Territory,  3  Wash. 
T.  445,  17  P.  624. 

8  9  Ala.  Riley  v.  State,  88  Ala.  188, 
7  So.  104 ;    Id.,  88  Ala.  193,  7  So.  149. 

Cal.  People  v.  Muhly,  114  P.  1017, 
15  Cal.  App.  416. 

Ga.  Callaway  v.  State  (Sup.)  106 
S.  E.  577. 

Tex.  Gaines  v.  State  (Cr.  App.)  77 
S.  W.  10. 

Wis.  Spick  V.  State,  121  N.  W.  664, 
140  Wis.  104. 

9  0  u.  S.  (C.  C.  A.  Va.)  Garst  v. 
United  States,  ISO  F.  339,  103  C.  C. 
A.  469. 

Ala.  Bowen  v.  State,  37  So.  233, 
140  Ala.  65 ;  Brown  v.  State,  108  Ala. 
18,  18  So.  811. 

Ga.  Bush  V.  State,  97  S.  E.  554,  23 
Ga.  App.  126;  Harris  v.  State,  90  S. 
E.  370,  18  Ga.  App.  710;  Leonard  v. 
State,  86  S.  E.  463,  17  Ga.  App.  267 : 
Harvey  v.  State,  70  S.  E.  141,  8  Ga. 
App.  660. 

Ind.  Robinson  v.  State,  124  N.  E. 
489,  188  Ind.  467:  Wantland  v.  State, 
145  Ind.  38,  43  N.  E.  931. 

Iowa.  State  v.  Brazzell,  150  N,  W. 
683,  168  Iowa,  480. 

Kan.  State  v.  Andrews,  61  P.  808, 
62  Kan.  207;  Home  v.  State,  1  Kan. 
42,  81  Am.  Dee.  499. 

Miss.  Simmons  v.  State,  64  So. 
721,  106  Miss.  732,  suggestion  of  er- 
ror overruled  65  So.  511,  107  Miss. 


453 


INSTRUCTIONS  ON  CIRCUMSTANTIAL  EVIDENCE 


§234 


tions  should  not  be  so  framed  as  to  make  it  possible  for  the  jury  to 
infer  that  they  are  only  authorized  to  acquit  in  the  event  that  the 


46.3;  Smith  v.  State,  57  So.  913,  101 
Miss.  283,  reversing  judgment  on  sug- 
gestion of  error  57  So.  368 ;  Irving  v. 
State,  56  So.  377.  100  Miss.  208;  Pope 
V.  State,  56  Miss.  190. 

Mo.  State  v.  David,  33  S.  W.  28, 
131  Mo.  380;  State  v.  Woolard,  111 
Mo,  248,  20  S.  W.  27 ;  State  v.  Mox- 
ley,  102  Mo.  374,  14  S.  W.  969,  15  S. 
W,  556 ;  State  v.  Sasseen,  75  Mo. 
App.  197. 

S.  C.  State  V.  Hudson,  44  S.  E. 
968,  66  S.  C.  394,  97  Am.  St.  Rep.  768. 

Tenn.  Turner  v.  State,  4  Lea,  206; 
Lawless  v.  State,  4  Lea,  173. 

Tex.  Smitli  v.  State.  35  Tex.  Cr. 
R.  618,  33  S.  W.  339,  34  S.  W.  960; 
Harris  v.  State,  34  Tex.  Cr.  R.  494, 
31  S.  W.  388 ;  Jones  v.  State,  34  Tex. 
Cr.  R.  490,  30  S.  W.  1059,  31  S.  W. 
664  ;  Smith  v.  State,  8  Tex.  App.  141 ; 
Walker  v.  State,  6  Tex.  App.  576; 
Black  V,  State,  1  Tex.  App.  368. 

Instructions  held  insufficient 
■within  rule.  Where  the  only  proof 
of  guilt  is  circumstantial,  it  is  error 
to  submit  the  case  with  no  further  in- 
struction as  to  the  quantum  of  evi- 
dence necessai'y  than  that  "the  proof 
of  guilt  must  be  inconsistent  with  any 
other  rational  supposition."  State  v. 
Brady,  97  N.  W.  62,  121  Iowa,  561,  12 
L.  R.  A.  (N.  S.)  199.  An  instruction 
that  circumstantial  evidence  has  been 
received  in  eyery  age  of  the  common 
law,  and  when  it  arises  so  high  in  the 
scale  of  belief  as  to  generate  in  the 
minds  of  the  jury  full  conviction  of 
defendant's  guilt  beyond  a  reasonable 
doubt,  then  they  are  authorized  to 
convict.  Permenter  v.  State,  54  So. 
949,  99  Miss.  453,  Ann.  Cas.  1913E, 
426.  An  instruction  that,  "before  you 
can  convict  on  circumstantial  evi- 
dence, it  must  be  of  such  character 
and  weight  as  to  exclude  all  reason- 
able hypothesis  of  defendant's  inno- 
cence," is  too  meager,  and  fails  to 
state  the  rule  in  such  a  way  as  to 
make  it  a  safe  guide  for  the  jurv. 
State  V.  Tavlor,  111  Mo.  538,  20  S.  W. 
239. 

Instructions  held  improperly- 
refused.     Where    the    evidence    was 


circumstantial,  an  instruction  that,  to 
convict,  the  circumstances  should  be 
of  a  conclusive  nature,  producing  a 
reasonable  and  moral  certainty  that 
the  accused,  and  no  one  else,  commit- 
ted the  offense  charged ;  and  that,  to 
warrant  a  conviction  upon  circum- 
stantial evidence  alone,  such  circum- 
stances must  be  shown  as  are  consist- 
ent with  the  guilt  of  the  party  charg- 
ed, and  cannot,  upon  any  reasonable 
theory,  be  true,  and  the  party  charged 
be  innocent ;  and,  if  all  the  facts  re- 
lied on  to  secure  a  conviction  can  be 
reasonably  accounted  for  consistently 
with  the  innocence  of  the  defendant, 
then  the  jury  should  acquit — was  im- 
properly refused  where  other  instruc- 
tions given  did  not  define  the  nature 
of  the  circumstances  relied  on  to 
show  guilt  with  as  much  particulari- 
ty. Marzeu  v.  People,  50  N.  E.  249, 
173  111.  43. 

Instructions  held  sufficient 
within  rule.  A  charge  on  circum- 
stantial evidence,  in  a  prosecution  for 
perjury,  that  "the  facts  and  circum- 
stances proved,  if  any,  should  not 
onlj'  be  consistent  with  the  falsity  of 
said  alleged  false  statement,  but  in- 
consistent with  any  other  reasonable 
hypothesis  or  conclusion  than  that  of 
its  falsity,"  states  the  legal  requisites 
of  such  evidence  the  same  as  though 
it  required  the  evidence  to  exclude 
"every  reasonable  hypothesis  consist- 
ent with  the  innocence  of  defendant." 
McCoy  V.  State  (Tex.  Cr.  App.)  73  S- 
W.  1057.  A  charge  that,  to  warrant 
conviction  on  circumstantial  evidence 
the  proved  facts  must  not  only  be 
consistent  with  the  hypotliesis  of 
guilt,  but  must  exclude  every  other 
reasonable  hypothesis  save  that  of 
accused's  guilt,  and  that  in  weighing 
such  testimony  it  must  be  consistent 
with  accused's  guilt,  must  exclude 
every  other  reasonable  hypothesis 
save  that  of  his  guilt  and,  if  it  is  con- 
sistent with  accused's  guilt,  a  convic- 
tion cannot  be  had  if  there  be  any 
other  reasonable  hypothesis  upon 
which  the  testimony  can  be  reconciled 
and  explained,  was  not  erroneous  as 


§   234  INSTRUCTIONS  TO  JURIES  454 

proved  essential  facts  and  circumstances  are  equally  as  consistent 


failing  to  charge  the  hypothesis  of  in- 
nocence,  and   to   charge  that   if  the 
proved  facts  were  consistent  with  in- 
nocence accused  would  be  entitled  to 
an  acquittal.     Cargile  v.  State,  70  S. 
E.  873,  136  Ga.  55.     Where  the  hy- 
pothesis arising  from  circumstantial 
evidence    consistent    with    innocence 
was  fully  and  fairly  stated,  and  the 
jury  instructed  that  if  satisfied  that 
the  hypothesis  was  true,  or  if  they 
had  a  reasonable  doubt  as  to  its  truth, 
defendant  should  be  acquitted,  there 
was   a    substantial    compliance    with 
rule  relating  to  instruction  or  circum- 
stantial evidence.     Mangum  v.  State, 
63  S.  E.  543,  5  Ga.  App.  445.    An  in- 
struction that  it  is  a  I'ule  of  evidence 
that,  to  warrant  a  conviction  on  cir- 
cumstantial evidence,  the  facts  must 
not  only  be  consistent  with  guilt,  but 
exclude   every   other   reasonable  hy- 
pothesis, is  not  erroneous  because  the 
court    did    not    also    charge    that,    if 
there  was  any  other  inference  of  in- 
nocence,    the     jury     should     acquit. 
Toomer  v.  State.  60  S.  E.  198,  130  Ga. 
63.     An  instruction  that,  if  the  jury 
believe  that  the  evidence  is  consistent 
with  the  guilt  of  defendant  and  in- 
consistent with  his  innocence,  and  es- 
tablishes his  guilt  to  the  exclusion  of 
every  other  reasonable  hypothesis,  he 
should    be    found    guilty.     Elliot    v. 
State,  74  S.  E.  691,  138  Ga.  23.     A 
charge  that  to  warrant  conviction  on 
circumstantial    evidence    the    proved 
facts  must  not  only  be  consistent  with 
the  hypothesis  of  guilt,  but  must  ex- 
clude everj-  other  reasonable  hypothe- 
sis, and  that  each  separate  fact  or 
link  from  which  deduction  of  guilt  is 
drawn   must  be  clearly  proved,   and 
that  the  jury  should  then  determine 
whether      remaining      circumstances 
clearly    proved    are    consistent    with 
guilt  and  inconsistent  with  any  other 
reasonable   hypothesis    than    that    of 
guilt,  and  that  all  facts  and  circum- 
stances necessary  to  show  commission 
of   crime   and   to    connect   defendant 
therewith  must  be  proved.    Gravett  v. 
State,  102  S.  E.  426,  150  Ga.  74.     An 
instruction  that,  in  order  to  warrant 
a    conviction    on    circumstantial   evi- 
dence,  each    fact   necessary    for   the 


conclusion   sought  to   be   established 
must  be  proved  by  competent  evidence 
beyond  a  reasonable  doubt  and  that 
all'  the  facts  necessary  to  the  conclu- 
sion of  guilt  must  be  consistent  with 
each  other  and   with  the  main   fact 
sought  to  be  proved,  and  the  circum- 
stances, taken  together,  must  be  of  a 
conclusive    nature,    leading    on    the 
whole    to    a    satisfactory    conclusion, 
and  producing  in  effect  a  reasonable 
and  moral  certainty  that  the  accused 
and  "no  other  person  committed  the 
offense  charged,"  was  not  erroneous 
for  failure  to  directly  charge  that  the 
testimony  must  exclude  every  reason- 
able   hypothesis   consistent    with   de- 
fendant's   innocence.      Henderson    v. 
State,  96  S.  W.  37,  50  Tex.  Cr.  R.  266. 
An  instruction  that  in  order  to  con- 
vict  on   circumstantial   evidence    the 
circumstances    should    all    concur    to 
show  that  defendant  committed   the 
crime,  and  be  inconsistent  with  any 
other  rational  conclusion,  necessarily 
includes  the  thought  that  the  cii'cum- 
stances    to    warrant    his    conviction 
must  be  inconsistent  with  commission 
of   the  crime  by  another.     State  v. 
Whitbeck,  123  N.  W.  982,  145  Iowa.  29. 
An  instruction  that  it  was  not  safe' 
to  convict  on  circumstantial  evidence 
if  the  jury  could  draw  from  the  cir- 
cumstances any  other  conclusion  than 
the  guilt  of  the  accused,  was  not  er- 
roneous on  the  ground  that  the  court 
should   have   charged   tlkat  the   jury 
must  acquit  in  svich  event.     State  v. 
Langford,  55  S.  E.  120,  74  S.  C.  460. 
It  is  not  error  to  charge  that  circum- 
stantial evidence  is  legal,  and  that  the 
jury   may   convict  on   such   evidence 
alone,  but  that  to  do  so  the  circum- 
stances must  not  only  be  consistent 
with  defendant's  guilt,  but  inconsist- 
ent with  every  other  reasonable  hy- 
pothesis,   and    then    to    modify    this 
statement  by   the  further  statement 
that  this  rule  applies  only  when  the 
conviction  depends  entirely  on  circum- 
stantial evidence,  so  that,  if  there  is 
anv  direct  evidence,  the  rule  does  not 
applv.    State  v.  Allen,  56  So.  655,  129 
La.   733,  Ann.   Gas.   1913B,  454.     An 
instruction    that    circumstantial    evi- 
dence, if  it  convinces  the  mind  of  the 


455 


INSTRUCTIONS   ON   CIRCUMSTANTIAL  EVIDENCE 


§234 


with  the  innocence  as  with  the  guilt  of  the  defendant.*'*^  This  rule 
applies,  although  there  is  direct  as  well  as  circumstantial  evidence  in 
the  case,  since,  where  the  court  undertakes  to  charge  on  circumstan- 
tial evidence,  it  must  do  so  fully  and  correctly.""'  It  has  been 
held  error  to  refuse  to  charge  that  if  the  facts,  no  matter  how 
strongly  they  may  seem  to  show  the  guilt  of  the  defendant,  can 
be  reconciled  with  the  theory  that  another  may  have  committed 
the  crime  alleged,  he  should  be  acquitted. ^-^  An  instruction  suffi- 
ciently complies  with  the  above  rule  which  tells  the  jury  that,  be- 
fore they  can  convict  on  circumstantial  evidence  alone,  the  facts 
and  circumstances  must  all  form  a  complete  chain  and  all  point 
to  guilt  and  be  irreconcilable  with  any  reasonable  theory  of  inno- 
cence."*    So  a  charge  is  sufficient  which  states  that  circumstantial 


f^uilt  of  defendant  beyond  a  reasona- 
ble doubt,  is  jnst  as  satisfactory  evi- 
dence as  any  other  evidence,  and  that, 
when  one  seeks  to  convict  on  circum- 
stantial evidence,  the  .iury  must  be 
satisfied  of  defendant's  guilt  beyond  a 
reasonable  doulit,  and  the  circum- 
stances must  point  to  his  guilt  to  the 
exclusion  of  any  other  reasonable  hy- 
pothesis, is  not  error.  State  v.  Jack- 
son, 46  S.  E.  538,  68  S.  C.  53.  Where, 
on  a  trial  for  murder,  the  court  charg- 
ed that,  to  warrant  a  conviction  on 
circumstantial  evidence,  the  facts 
proved  must  not  only  be  consistent 
with  the  hypothesis  of  guilt,  but  must 
exclude  every  other  reasonable  hy- 
pothesis, and  that  if  the  theory  of 
guilt  and  the  theory  of  innocence 
were  both  consistent  with  the  facts 
proven,  the  benefit  of  the  doubt 
should  be  given  to  the  defendant,  and 
he  should  be  acquitted,  it  was  held 
that  the  charge  was  not  erroneous  as 
stating  that  accused  was  entitled  to 
the  benefit  of  the  doubt  only  in  ca.se 
the  theory  of  guilt  and  that  of  inno- 
cence were  equally  consistent  with 
the  facts  proven,  nor  as  stating  that, 
to  warrant  an  acquittal,  the  evidence 
must  be  consistent  with  innocence, 
while  the  burden  was  on  the  state  to 
establish  guilt  to  the  exclusion  of  ev- 
ery other  reasonable  hypothesis.  Mc- 
Naughtou  V.  State,  71  S.  E.  10.38,  136 
Ga.  600,  writ  of  error  dismissed  32 
S.  Ct.  532;  223  U.  S.  744,  56  L.  Ed. 
639. 

Use    of    Tvord    "conclusion,''    in- 
stead   of    "hypothesis."     Where    a 


judge  charged  a  jury  that  the  guilt  of 
the  accused  must  be  proved  beyond  all 
reasonable  doubt,  to  the  exclusion  of 
every  other  conclusion,  it  was  held 
that  there  was  no  error  in  using  the 
word  "conclusion"  for  "hypothesis"; 
that  there  was  no  legal  difference  be- 
tween the  two  words.  State  v.  Wil- 
lingham,  33  La.  Ann.  537. 

^'Reasonable  supposition."  A 
charge  in  reference  to  circumstantial 
evidence  "that  the  testimony  must 
not  only  be  consistent  with  the  guilt 
of  the  person  charged,  but  inconsist- 
ent with  any  other  reasonable  suppo- 
.sition,"  though  a  slight  departure 
from  the  words  generally  used,  is  not 
error  of  law.  State  v.  Davenport,  38 
S.  C.  348,  17  S.  E.  37. 

91  Garst  v.  United  States  (U.  S.  C. 
C.  A.  Ya.)  180  F.  339,  103  C.  C.  A. 
400. 

"2  State  v.  Gray,  147  S.  W.  510,  laS 
Mo.  App.  696. 

83  Gilmore  v.  State,  99  Ala.  154,  13 
So.  536. 

Contra,  see  People  v.  Folev,  64 
Mich.  148,  31  N.  W.  94. 

04  Mo.  State  v.  Maggard,  157  S. 
W.  354,  250  Mo.  .335 ;  State  v.  Kobler, 
128  S.  W.  721,  228  Mo.  367 ;  State  v. 
Sharpless,  111  S.  W.  69,  212  Mo.  176. 

Okl.  Star  V.  State,  131  P.  542,  9 
Okl.  Cr.  210. 

Tenn.  Lancaster  v.  State,  91  Tenn. 
267,  IS  S.  W.  777. 

Tex.  Hampton  v.  State,  1  Tex. 
Ai)p.  652. 

"Ought"  to  be  inconsistent  ivith 
any  rational  theory  of  innocence. 


§  234  INSTRUCTIONS  TO  JURIES  456 

evidence  is  legal  and  competent  in  criminal  cases,  and  if  it  is  of 
such  a  character  as  to  exclude  every  reasonable  hypothesis  other 
than  that  the  defendant  is  guilty  it  is  sufficient  to  warrant  a  con- 
viction.^^ Under  the  above  rule  it  is  proper  to  refuse  an  instruc- 
tion which  requires  that  the  jury  be  convinced,  in  order  to  bring 
in  a  verdict  of  guilty,  that  there  is  no  other  possible  hypothesis 
except  that  of  the  guilt  of  the  defendant,^^  since  the  hypothesis 
other  than  that  of  guilt,  which  the  evidence  must  exclude  to  war- 
rant a  conviction,  must  be  a  reasonable  one.^' 

Under  the  rule  that,  where  an  instruction  is  correct  as  given, 
although  not  as  explicit  as  desired,  error  cannot  be  predicated 
thereon,  in  absence  of  a  request  for  further  instructions,  the  rule 
IS,  in  some  jurisdictions,  that  where  the  court  has  charged  that 
the  burden  is  on  the  state  to  prove  to  the  satisfaction  of  the  jury 
beyond  a  reasonable  doubt  every  material  allegation  of  the  indict- 
ment, it  need  not  instruct,  of  its  own  motion,  that  the  jury  cannot 
convict  unless  the  circumstances  exclude  every  reasonable  hypoth- 
esis of  innocence,^*  and  in  some  jurisdictions  it  need  not  in  such 
a  case,  so  instruct,  even  on  request.^^ 

§  235.     Proof  of  each  circumstance  or  each  essential  fact 

Where  the  evidence  is  purely  circumstantial,  the  rule  in  most 
jurisdictions  is  that  the  court  in  a  criminal  case  should  instruct 
that  every  material  and  necessary  fact  upon  which  a  conviction 
depends  must  be  proven  by  competent  evidence  beyond  a  reason- 
able doubt,  and  that,  if  any  of  the  facts  or  circumstances  estab- 
lished be  absolutely  inconsistent  with  the  hypothesis  of  guilt,  that 

An  instruction  that,  when  a  criminal  v.  State,  86  Ala.  595,  6  So.  96 ;    Mose 

charge  is  to  be  proved  on  circumstan-  v.  State,  36  Ala.  211. 

tial  evidence,  the  proof  ouglit  to  be  Cal.     People  v.  Strong,  30  Cal.  151. 

not  only  consistent  with  the  prison-  Mo.     State  v.  Schoenwald,  31  Mo. 

er's  guilt,  but  inconsistent  with  any  147. 

other  rational   conclusion,  is  not  er-  07  Ala.     Baldwin  v.  State,  111  Ala. 

roneous  in  failing  to  make  that  con-  11,  20  So.  528;  Horn  v.  State,  102  Ala. 

dition  mandatory;    the  word  "ought"  144,  15  So.  278;    Little  v.  State,  89 

meaning  to  be  bound  in  duty  or  by  Ala.  99,  8  So.  82. 

moral  obligation,  to  be  necessary  or  Ark.     Griffin  v.   State,  216  S.  W. 

becoming,  and  to  be  synonymous  with  34,  141  Ark.  43 ;   Bost  v.  State,  215  S. 

■"should."    State  v.  Blaine,  124  P.  516,  W.  615,  140  Ark.  254. 

45  Mont.  482.  Miss.     Kendrick  v.  State,  55  Miss. 

05  Cunningham  v.  State,  77  X.  W.  436. 

60,  50  Neb.  691.  os  state  v.  House,  78  N.  W.  859,  108 

»c  Ala.     Strickland  v.  State,  44  So.  Iowa,  68;    Tatum  v.  State,  85  N.  W. 

SO,  151  Ala.  31 ;    Garrett  v.  State,  97  40,  61  Neb.  229. 

Ala.  18,  14  So.  327;    Culver  v.  State,  9  9  Jones  v.  State,  61  Ark.  SS,  32  S. 

09  Ala.  193,  13  So.  527;    Blackburn  W.  81. 


457 


INSTRUCTIONS   ON    CIRCUMSTANTIAL   EVIDENCE 


§  235> 


hypothesis  cannot  be  true/  the  omission  to  so  charge  not  being 
supplied  by  the  ordinary  instruction  on  the  doctrine  of  reasonable 
doubt,"  and  an  instruction  which  authorizes  a  conviction,  althoug^h 
a  fact  essential  to  guilt  is  not  proven  beyond  a  reasonable  doubt, 
is  erroneous.'* 


1  U.  S.  (C.  C.  La.)  United  States 
V.  Wright,  16  F,  112. 

Ala.  .Toues  v.  State,  107  Ala.  93, 
IS  So.  237. 

Iowa.  State  v.  Harmann,  112  N. 
W.  632,  13.")  Iowa,  167. 

Ky.  Holioway  v.  Commonwealth, 
11  Bu.<;h,  344. 

Mich.  People  v.  McArron,  79  N. 
W.  944.  121  Mich.  1 ;  People  v.  Stew- 
art, 42  N.  W.  662,  75  Mich.  21;  People 
V.  Aiken.  66  Mich.  460,  33  N.  W.  821, 
11  Am.  St.  Rep.  512. 

Wis.  Kollock  V.  State,  SS  Wis. 
663,  60  N.  W.  817. 

Instructions  held  insufficient 
•vpithin  rule.  Where,  on  a  prosecu- 
tion for  murder  the  evidence  is  cir- 
cumstantial, the  refusal  of  an  instruc- 
tion to  the  effect  that  if  any  one  fact 
necessary  to  a  conclusion  of  guilt  is 
wholly  inconsistent  with  the  hypothe- 
sis of  guilt,  it  breaks  the  chain  of 
circumstantial  evidence  upon  which 
the  inference  of  guilt  depends,  and 
that,  however  plausililo  or  apparently 
conclusive  all  other  circumstances 
may  be,  the  charge  must  fail,  is  not 
excused  by  the  giving  of  instructions 
declaring  that,  to  justify  a  conviction 
upon  circumstantial  evidence,  the  cir- 
cum.stances  "must  all  be  in  harmony 
with  the  guilt  of  the  accused";  that 
in  such  a  case  the  jury  must  "be  sat- 
isfied that  all  the  circumstances  prov- 
ed are  consistent  with  the  defendant 
having  committed  the  act,"  and  "must 
also  be  satisfied  that  the  facts  are 
such  as  to  he  inconsistent  with  any 
other  rational  conclusion  than  that 
defendant  is  the  guilty  person." 
Dunn  V.  State,  78  N.  E.  198,  166  Ind. 
694. 

Instructions  held  sufficient 
'Within  rule.  Refusal  of  cliarge 
that,  when  circumstantial  evidence  is 
relied  on,  "every  link  in  the  cliain  of 
evidence  must  be  proved  beyond  a 
reasonable  doubt,"  was  not  ground  for 
reversing    a    conviction,    wliere    the 


court  charged  that  the  state  relied 
"upon  both  direct  and  circumstantial 
evidence,  and,  before  the  state  can 
rely  upon  circumstantial  evidence,  it 
is  necessary  for  the  state  to  establish 
every  circumstantial  fact  upon  which 
it  relies  beyond  a  reasonable  doubt." 
State  V.  Fleming,  41  S.  E.  549,  130' 
N.  C.  688. 

Effect  of  other  instructions.  It 
was  unnecessary  to  give  a  requested 
instruction  that  each  fact  in  the  chaia 
must  be  established  beyond  reasona- 
ble doubt,  where  the  court  had  al- 
ready charged  that  the  juiy  should 
acquit,  if  there  was  doubt  as  to  one 
of  the  facts  essential  to  establish 
guilt,  and  that  to  convict  circumstan- 
tial evidence  must  he  Inconsistent 
with  any  other  rational  conclusion 
except  guilt.  People  v.  Hamilton 
(Cal.  App.)  192  P.  407. 

State  not  required  to  establish 
each  necessary  fact  beyond  all 
doubt.  Un  a  ]n-osecution  for  murder, 
where  the  evidence  relied  on  by  the 
state  was  circumstantial,  it  was  prop- 
er to  refuse  to  instruct  that  each  link 
in  the  chain  of  circumstances  should 
be  established  to  the  "entire  satisfac- 
tion" of  the  jury.  State  v.  Blyden- 
burgh  (Iowa)  104  N.  W.  1015. 

2  People  V.  Eckert,  19  Cal.  603; 
Hunt  V.  State,  7  Tex.  App.  212 ;  Wal- 
lace V.  State,  7  Tex.  App.  570 :  Struck- 
man  v.  State,  7  Tex.  App.  581 ;  My- 
ers V.  State,  7  Tex.  App.  040. 

3  Ark.  Gill  V.  State,  59  Ark.  422, 
27  S.  W.  598. 

Colo.  Graves  v.  People,  18  Colo. 
170,  32  P.  63 ;  Clare  v.  People,  9  Colo. 
122,  10  P.  799. 

Iowa.  State  V.  Cohen,  78  N.  W, 
857,  108  Iowa,  208,  75  Am.  St.  Rep. 
213. 

Kan.  State  v.  Furney,  21  P.  213, 
41  Kan.  115.  13  Am.  St.  Rep.  262. 

Mont.  State  v.  Gleim.  17  Mont. 
17.  41  P.  998.  31  L.  R.  A.  294,  52  Am. 
St.  Rep.  655. 


235 


INSTRUCTIOXS   TO  JURIES 


458 


An  instruction,  however,  should  not  authorize  the  jury  to  con- 
sider each  essential  fact  separately  in  determining  whether  it  has 
been  proven  beyond  a  reasonable  doubt,*  and  in  some  jurisdic- 
tions there  are  decisions  to  the  effect  that  the  defendant  in  a  crim< 
inal  case  is  only  entitled  to  an  instruction  as  to  the  effect  of  a  rea- 
sonable doubt  after  a  consideration  of  all  the  evidence  in  the  case.^ 
In  Illinois  it  is  proper  to  charge  that,  in  order  to  convict,  the  jury 
need  not  be  satisfied  beyond  a  reasonable  doubt  of  the  existence  of 
each  link  in  the  chain  of  circumstances  relied  on  by  the  state,  but 
it  is  sufiicient  if,  taking  the  evidence  altogether,  the  jury  are  satis- 
fied beyond  a  reasonable  doubt  that  the  defendant  is  guilty ;  ®  this 


N.  D.  State  v.  Johnson,  103  N.  W. 
565.  14  N.  D.  2S8:  State  v.  Young,  82 
N.  W.  420,  9  N.  D.  165. 

Ohio.  Adams  v.  State,  31  Ohio  St. 
462. 

Okl.  Do.'^sett  V.  United  States,  3 
Old.  591,  41  P.  608. 

■Wash.  Leonard  v.  Territory,  7  P. 
872,  2  Wash.  T.  .'jSl. 

Instructions  not  improper  with- 
in mle.  In  a  prosecution  for  homi- 
cide, an  instruction  tliat  it  was  imma- 
terial that  the  evidence  against  de- 
fendant was  circumstantial,  or  made 
up  of  facts  and  circumstances  sur- 
rounding the  death  and  defendant's 
relation  to  deceased,  provided  onl.v 
that  the  jury  believed  such  facts  and 
circumstances  to  be  proved  by  the 
evidence  beyond  all  reasonable  doubt, 
and  to  he  inconsistent  with  any  other 
hypothesis  than  the  guilt  of  defend- 
ant, was  not  erroneous  for  failure  to 
require  every  "essential"  fact  to  be 
proved  beyond  a  reasonable  doubt. 
State  V.  Lucas,  97  N.  W.  1003,  122 
Iowa,  141.  Where  the  court  cliarged 
the  jury  that  "circumstantial  evi- 
dence is  the  proof  of  certain  facts 
and  circumstances  in  a  given  case 
from  which  the  jury  may  infer  other 
connected  facts,  which  usually  and 
reasonably  follow,  according  to  the 
common  experience  of  mankind.  *  *  * 
If,  therefore,  j^ou  believe  from  the 
evidence  that  such  facts  and  circum- 
stances have  been  proven  as  to  satis- 
fy you,  beyond  a  reasonable  doubt, 
that  the  defendant  *  *  *  did  will- 
fully *  *  *  kill  M.,  you  are  war- 
ranted in  finding  him  guilty,"  it  was 
lield  that  the  charge  was  not  subject 


to  the  objection  that  it  does  not  re- 
a.uire  the  circumstances  from  which 
the  jury  may  infer  other  connected 
facts  to  be  establislied  beyond  a  rea- 
sonable doubt.  State  v.  Avery,  113 
Mo.  475,  21  S.  W.  193. 

Rule  -where  evidence  not  entire- 
ly circumstantial.  Where,  in  a 
prosecution  for  homicide,  tlie  evi- 
dence was  not  entirely  circumstantial, 
but  the  fact  of  death,  together  with 
defendant's  immediate  relations  with 
deceased  and  the  circumstances  sur- 
rounding decedent's  death  were  prov- 
en by  positive  testimony,  an  insti'uc- 
tion  on  circumstantial  evidence  that 
it  was  not  necessary  that  the  jury 
should  he  satisfied  beyond  a  reasona- 
ble doubt  of  each  link  in  the  chain  of 
circumstances  relied  on  to  establish 
defendant's  guilt,  but  that  it  was  suf- 
ficient if,  taking  the  evidence  all  to- 
gether, the  jury  was  satisfied  beyond 
all  reasonable  doubt  that  defendant 
was  guilty,  was  not  prejudicial,  as 
misleading  in  the  use  of  the  word 
"link"  in  the  chain  of  circumstances, 
etc.  State  v.  Lucas,  97  N.  W.  1003, 
122  Iowa,  141. 

4  State  V.  Cohen,  78  N.  W.  857,  108 
Iowa,  208,  75  Am.  St.  Rep.  213. 

5  Carr  v.  State,  99  S.  W.  831,  81 
Ark.  589;  Wise  v.  State,  2  Kan.  419, 
85  Am.  Dec.  595;  State  v.  Wells,  111 
Mo.  53:',,  20  S.  W.  232 ;  State  v.  Chris- 
tian, 66  Mo.  138;  State  v.  Schoen- 
waUl,  31  Mo.  147. 

c  Gott  V.  People,  58  N.  E.  293,  187 
111.  249;  Keating  v.  People,  160  III. 
480,  43  N.  E.  724;  Siebert  v.  People, 
143  111.  571,  32  N.  E.  431;  Davis  v. 
I'eople,    114    111.    86,    29    N.    E.    192; 


459 


INSTRUCTIONS   ON   CIRCUMSTANTIAL   EVIDENCE 


§235 


not  being-  considered  as  likely  to  mislead  the  jury  into  the  belief 
that  every  material  fact  necessary  to  constitute  the  crime  charged 
is  not  required  to  be  proven  beyond  a  reasonable  doubt.'  In 
Texas  the  decisions  are  not  harmonious,  it  being  held  in  some  of 
the  cases  that  as  a  general  rule  the  ordinary  charge  upon  the  effect 
of  a  reasonable  doubt  upon  the  whole  case  will  be  sufficient;* 
but  in  a  number  of  cases  in  this  jurisdiction  it  has  been  held  that 
a  charge  is  not  open  to  objection  which  is  to  the  effect  that  in 
order  to  warrant  a  conviction  on  circumstantial  evidence  each 
fact  necessary  to  establish  the  guilt  of  the  accused  must  be  proven 
by  competent  evidence  beyond  a  reasonable  doubt,  and  the  facts 
and  circumstances  proved  should  not  only  be  consistent  with  the 
guilt  of  the  defendant,  but  inconsistent  with  any  other  reasonable 
hypothesis  than  that  of  his  guilt,  and  should  produce  in  the  minds 
of  the  jury  a  reasonable  certainty  that  the  accused  committed  the 
offense  charged." 

As  to  mere  matters  of  subsidiary  evidence,  adduced  to  establish 
the  facts  essential  to  a  conviction  of  one  accused  of  crime,  the 
doctrine  of  reasonable  doubt  has  no  application,i<>  and  it  is  proper 


Weaver  v.  People,  24  N.  E.  571,  132 
111.  536. 

7  Weaver  v.  People,  132  111.  536,  24 
N.  E.  571.  See  People  v.  Grove,  120 
N.  E.  277,  284  111.  429. 

8  Carson  v.  State,  34  Tex.  Cr.  R. 
342,  30  S.  W.  71)9;  Gallalier  v.  State, 
28  Tex.  App.  247,  12  S.  W.  1087 ;  Thur- 
mond v.  State,  27  Tex.  App.  347,  11 
S.  W.  451. 

sBaldez  v.  State,  37  Tex.  Cr.  R. 
413,  '35  S.  W.  664 ;  Chitister  v.  State, 
33  Tex,  Cr.  R.  635,  28  S.  W.  683; 
Crow  V.  State,  33  Tex.  Cr.  R.  264,  26 
S.  W.  209 ;  Brookiu  v.  State,  26  Tex. 
App.  121,  9  S.  W.  735;  Johnson  v. 
State,  18  Tex.  App.  385. 

10  111.  Jamison  v.  People,  145  111. 
357.  34  N.  E.  486. 

Ind.  State  v.  Flsk,  83  N.  Z.  995, 
170  Ind.  166;  Wade  v.  Stat  71  Ind. 
535. 

Iowa,  State  v.  Cohen,  78  N.  W. 
857,  108  Iowa,  208,  75  Am.  St.  Rep. 
213. 

kan.  Stale  v.  Phillips,  186  P.  743, 
106  Kan.  192. 

N.  Y.  People  V.  Kerr  (O.  &  T.)  6 
N.  Y.  S.  674. 

N.  C.  State  v.  Crane,  110  N.  C. 
530,  15  S.  E.  231 ;  State  v.  Frank,  50 
N.  C.  384. 


See  Hinshaw  v.  State,  47  N.  E.  157, 
147  Ind.  334. 

Instructions  lield  not  mislead- 
ing under  rule.  A  charge  in  a  pros- 
ecution, wherein  the  state  relied  on 
circumstantial  evidence,  that  all  the 
links  in  the  chain  of  evidence  must 
be  shown  beyond  a  reasonable  doubt, 
but  that  every  particular  fact  mak- 
ing up  a  link  in  the  chain  of  evidence 
must  be  shown,  so  as  to  satisfy  the 
jury  from  the  whole  evidence  as  to 
the  truth  of  several  link.'?  in  the  chain 
of  evidence,  was  proper.  State  v. 
Pack,  186  P.  742,  106  Kan.  188. 
Where,  in  a  prosecution  for  murder, 
the  court  charged,  with  reference  to 
circumstantial  evidence,  that  it  was 
not  necessary  that  each  and  every  cir- 
cumstance should  be  proved  ueyond  a 
reasonable  doubt,  but  that  some  facts 
might  be  proved  with  more  and  some 
with  less  assurance  of  certainty,  it 
was  held  that  the  instruction  should 
not  be  construed  to  mean  that  every 
circumstance  constituting  a  link  in 
the  chain  of  circumstances  necessary 
to  establish  the  fact  of  killing  by  the 
defendant  need  not  be  proved  beyond 
a  reasonable  doubt,  but  that  every  in- 
cidental circumstance,  such  as  those 
bearing   upon   the   prebabilities   that 


§  235  INSTRUCTIONS  TO  JURIES  460 

to  refuse  instructions  having  a  tendency  to  lead  the  jury  to  think 
that  each  and  every  subsidiary  fact  must  be  proved  beyond  a 
reasonable  doubt.^^  For  this  reason  instructions  which  make  use 
of  the  metaphor  of  the  chain  and  its  links  to  illustrate  the  nature 
of  circumstantial  evidence,  and  tell  the  jury  that  each  link  must 
be  shown  beyond  a  reasonable  doubt,  are  objectionable,  as  the 
word  "link"  may  be  construed  by  the  jury  as  referring,  not  only 
to  an  essential  fact,  but  to  any  circumstance  brought  forward  to 
establish  an  essential  fact.^^  It  is  better  in  any  case  to  avoid  the 
use  of  such  rhetorical  phrases.  If  any  such  allusion  is  to  be  made, 
a  more  accurate  description  would  be  to  liken  circumstantial  evi- 
dence to  the  strands  of  a  rope.^^  In  some  jurisdictions,  where  the 
■only  circumstantial  evidence  in  the  case  is  corroborative,  it  is  not 
error  to  charge  that  it  is  not  necessary  that  every  fact  and  circum- 
stance and  every  link  in  the  chain  must  be  proven  beyond  a  rea- 
sonable doubt,  but  that  all  the  evidence  in  the  case,  when  consid- 
ered as  a  whole,  must  satisfy  the  jury  beyond  a  reasonable  doubt 
that  the  defendant  is  guilty.^* 

fhe   main    circumstances    were   true,  Ind.     Dunn  v.  State,  78  N.  E.  198, 

need  not  be  so  proved,  and  was  not  166  Ind.  694. 

therefore  misleading.    People  v.  Wol-  Neb.     Marion  v.  State,  16  Neb.  349, 

ter,  97  N.  E.  30,  203  N.  Y.  484.  20  N.  W.  289. 

11  Davidson  v.  State,  135  Ind.  254,  .^^'J^'  ftote  v.  Trull,  85  S.  E.  133, 
34  N.  E.  972;  Smith  v.  State,  85  N.  W.  ^^^^-  ^^-^63. 

49   61  Neb  296  ^^^'     Hams  v.  State,  137  P.  365, 

■'     .,       'Z     '      .           ci^  ^     OK  c  10  Okl.  Cr.  417,  judgment  affirmed  on 

12  Ala.  Spraggins  V.  State,  35  So.  rehearing  139  P.  846,  10  Okl.  Cr.  417. 
1000,  139  Ala.  93;  Harvey  v.  State,  gg^  Pope  v.  State,  53  So.  292,  168 
27  So.  763,  12o  Ala.  47;  Grant  v.  ^j^.  33;  Wolf  v.  People,  102  P.  20, 
State,  97  Ala.  35,  11  So.  915 ;  Whar-  45  Colo  532  p  ,  v  .  u, 
ton  V.  State,  73  Ala.  366;  Tompkins  13  Rayburn  v.  State,  63  S.  W.'  356, 
V.  State,  32  Ala.  569.  gg  ^j-jj    jyj^ 

111.     People  V.  See,  101  N.  E.  257,  1*  People  v.  Rich,  94  N.  W.  375,  133 

258  111.  152.  Mich.  14. 


461 


CHARACTER  OF  ACCUSED 


§  2af> 


CHAPTER  XVI 

INSTRUCTIONS  ON  CHARACTER  OF  DEFENDANT  IN  CRIMINAL 

PROSECUTION 

A.     Good  Chabactee 

§  236.     Presumption  of  good  character. 

237.  Necessity  and  propriety  of  instructions  on  effect  of  evidence  of  good 

character. 

238.  Sufficiency  of  instructions  as  to  effect  of  good  character. 

239.  Confining  consideration  of  good  character  to  doubtful  cases. 

240.  Effect  of  good  character  as  in  itself  generating  a  reasonable  doubt. 

241.  Effect  01  good  character  where  evidence  entirely  circumstantial. 

242.  Worthlessuess  of  good  character  where  guilt  clearly  established  from 

all  the  evidence. 

B.     Bad  Chabactee 

243.  Effect  of  bad  character. 

244.  Instructions  on  inability  of  state  to  show  bad  character. 

A.  Good  Character 

Instructions  criticized  as  invading  pi-ovince  of  jury,  see  ante,  §  54. 

§  236.     Presumption  of  good  character 

In  the  federal  courts  there  is  authority  to  the  effect  that,  in  the 
absence  of  any  evidence  of  the  character  of  the  defendant  in  a  crim- 
inal case,  a  presumption  that  he  is  of  good  character  exists  and 
that  the  court  should  so  instruct  on  request.^  The  later  decisions 
of  these  courts,  however,  deny  the  right  of  the  defendant  to  such 
an  instruction,^  and  the  general  rule  in  the  state  courts  is  that, 
where  the  defendant  does  not  pitt  his  character  in  issue  or  fails  to 
introduce  any  evidence  concerning  it,  he  is  not  entitled  to  an  in- 
struction that  his  character  is  presumed  to  be  good,^  and  where  the 


1  Mullen  V.  United  States  (C.  C.  A. 
Ky.)  106  F.  892,  46  C.  C.  A.  22. 

2  Greer  v.  United  States  (C.  C.  A. 
Okl.)  240  F.  320,  153  C.  C.  A.  246; 
United  States  v.  Smith  (D.  C.  Pa.) 
217  F.  839. 

See  Chambliss  v.  United  States  (C. 

C.  A.  Okl.)  218  F.  154.  132  C.  C.  A. 
112 ;   Fields  v.  United  States,  27  App. 

D.  C.  433,  certiorari  denied  and  writ 
of  error  dismissed  27  S.  Ct.  543,  205 
U.  S.  292,  51  L.  Ed.  807. 

3  Ala.  Dryman  v.  State,  102  Ala. 
130,  15  So.  433. 

Cal.     People  V.  Hopper  (App.)  183 


P.  836;  People  v.  Fleshman,  148  P. 
805,  26  Cal.  App.  788 ;  People  v.  Cruse, 
141  P.  936,  24  Cal.  App.  497;  People 
V.  Conte,  122  P.  4.50,  17  Cal.  App.  771. 
rehearing  denied    in    Supreme    Court 

122  P.  457,  17  Cal.  App.  771. 

Fla.     McDuffee    v.    State,    46    So. 
721,    55    Fla.    125. 

Ga.     Mixon  v.  State.  51  S.  E.  580, 

123  Ga.  581.  107  Am.  St.  Rep.  149. 
Idaho.     State  v.  Gruber,  115  P.  1, 

19  Idaho.  692. 

Ind.     Knight  v.  State,  70  Ind.  375. 

Kan.     State  V.  Gaunt,  157  P.  447, 
98  Kan.  186. 


§  237 


INSTRUCTIONS   TO  JURIES 


462 


only  issue  is  whether  the  defendant  was  insane  at  the  time  of  the 
alleged  crime  it  is  proper  to  refuse  such  an  instruction.*  It  fol- 
lows that  an  accused  is  not  entitled  to  an  instruction  that  the  pre- 
sumption of  good  character  can  be  treated  as  a  basis  of  inference 
for  adding  weight  to  the  presumption  of  innocence  or  its  logical 
resultant— a  reasonable  doubt.^ 

§  237.  Necessity  and  propriety  of  instructions  on  effect  of  evi- 
dence of  good  character 
Except  in  jurisdictions  where  such  an  instruction  is  held  to  in- 
vade the  province  of  the  jury,''  the  general  rule  is  that,  v/here 
there  is  evidence  of  the  good  character  of  the  defendant  in  a  crim- 
inal prosecution,  he  is  entitled,  on  request,  to  have  the  jury  in- 
structed to  consider  it,  and  as  to  the  proper  function  and  possible 
eitect  of  such  evidence,'''  and  in  some  jurisdictions  mandatory  stat- 
utes require  such  an  instruction  in  such  a  case.*    The  fact  that  the 


Ky.  Howard  v.  Commonwealth, 
70  S.  W.  1055.  114  Ky.  372,  24  Ky. 
Law  Rep.  1225. 

Micli.  People  v.  Kemmis,  116  N. 
W.    554,   153   Mich.   117. 

N.  Y.  People  v.  Lingley,  101  N.  E. 
170,  207  N.  Y.  306,  40  L.  R.  A.  (X.  S.) 
342,  Ann  Cas.  1913D.  403.  rearsument 
denied  102  X.  E.  1109,  20S  N.  Y.  597 ; 
People  V.  Brasch,  85  X.  E.  809,  193 
X.  Y.  46:  People  v.  Pekarz,  78  X.  E. 
294,  183  XL  Y.  470 ;  People  v.  Langley, 
100  X.  Y.  S.  123.  114  App.  Div.  427. 

N.  C.  State  v.  Knotts.  S3  S.  E.  972, 
168  X.  C.  173. 

Va.  Robinson  v.  Commonwealth, 
87  S.  E.  553,  118  Ya.  785. 

Compare  People  v.  "Woods,  172  X. 
AY.  384.  206  Mioh.  11. 

4  People  V.  Griffith.  80  P.  68,  146 
Cal.  339. 

5  Durham  v.  State,  163  S.  W.  447, 
128  Tenn.  636,  51  L.  R.  A.  (X.  S.) 
180. 

Rule  that  presumption  of  good 
character  contained  in  presump- 
tion of  innocence.  Where  the  char- 
acter of  defendant,  in  a  criminal 
case,  has  not  been  attacked,  no  spe- 
cial instructions  as  to  presumption  of 
good  character  can  bo  demanded  be- 
yond the  general  instruction  of  the 
presumption  of  innocence;  in  the  ab- 
sence of  evidence  of  guilt.  People  v. 
Johnson,  61  Cal.  142.  In  homicide. 
a  charge  that  defendant  is  yiresumed 


to  be  a  man  of  good  character,  and 
that  such  presumption,  coming  in  aid 
of  the  general  presumption  of  inno- 
cence, is  not  to  be  left  unconsidered 
by  the  jury,  but  is  a  fact  in  the  case 
tending  to  establish  defendant's  inno- 
cence, was  properly  refused.  People 
V.  Lee.  81  P.  969.  1  Cal.  App.  169. 

c  Pharr  v.  State.  9  Tex.  App.  129 ; 
Heard  v.  State.  9  Tex.  App.  1. 

7  Ala.  Ducett  v.  State,  65  So.  351, 
186  Ala.  34. 

Mich.  People  v.  McKeighan,  171 
X.   W.   500.   205  INIich.  367. 

Neb.  McDougal  v.  State,  181  X. 
W.  519. 

N.  Y.  People  v.  Brasch,  85  X.  E. 
809.  193  X\  Y.  46. 

Ohio.  Burns  v.  State,  79  X.  E. 
929.  75  Ohio  St.  407. 

Okl.  Morris  v.  Territory,  99  P. 
760,  1  Okl.  Cr.  617,  rehearing  denied 
101  P.  Ill,  1  Okl.  Cr.  617. 

In  Arkansas  it  is  not  prejudicial 
error  to  refuse  to  expressly  tell  the 
jury  tliat  they  may  consider  evidence 
of  good  character  with  all  the  otlier 
evidence  in  arriving  at  a  verdict. 
Price  V.  State,  170  S.  W.  235,  114  Ark. 
398. 

s  State  V.  Anslinger,  71  S.  W.  1941, 
171  Mo.  600. 

Requirement  of  instructions 
"wrhenever  necessary."  In  ^lis- 
souri,  under  a  statute  requiring  tlie 
trial  court  to  instruct  on  good  char- 


403  CHARACTER   OF  ACCUSED  §  237 

witnesses  of  the  defendant  as  to  his  good  character  are  contra- 
dicted does  not  deprive  him  of  the  right  to  such  an  instruction,* 
and  evidence  in  the  case  of  the  good  conduct  of  the  accused,  al- 
though not  offered  to  prove  good  character,  is  sufficient  to  sustain 
an  instruction  thereon.^®  There  must  be  some  evidence,  however, 
of  the  good  character  of  the  defendant  to  make  it  error  for  the 
court  to  refuse  an  instruction  thereon. ^^  Evidence  of  character  to 
warrant  or  demand  such  an  instruction  should  bear  on  the  trait  of 
character  involved  in  the  charge  against  the  defendant,^'  and  evi- 
dence of  the  moral  character  of  the  defendant  furnishes  no  basis 
^or  an  instruction  as  to  his  character  for  peace  and  quietude. ^^ 
It  is  held  that  it  is  not  reversible  error  to  give  an  instruction  on 
the  character  of  the  defendant,  although  no  evidence  is  ofifered  to 
support  or  impeach  it.^* 

Where  the  facts  are  such  that  evidence  of  good  character  could 
be  of  no  benefit  to  the  defendant,  it  will  not  be  error  to  refuse  an 
instruction  on  the  effect  thereof,^'*  and  a  statute  requiring  an  in- 
struction as  to  the  good  character  of  the  defendant,  where  there  is 
evidence  in  support  of  it,  does  not  apply  where  his  reputation  is  on- 
ly put  in  issue  as  affecting  his  credibility  as  a  witness. ^^  In  the  ab- 
sence of  a  request  to  charge  on  the  subject, 't  will  usually  not  be 
reversible  error  to  fail  specifically  to  instruct  as  to  the  effect  and 
weight  of  proof  of  good  character.^' 

acter  "whenever  necessary,"  it  1s  held  N.  Y,     People  v.  Wriccht.  117  N.  Y. 

that  the  defendant  is  entitled  to  such  S.  441.  133  App.  Div.  1.33. 

an  instruction,  not  only  when  he  him-  12  State  v.  Anslinser,  71  S.  W.  1041, 

self  has  offered  evidence  of  his  .sood  171  I\Io.  000;    Flick  v.  Commonwealth, 

character,  but  in  any  case  where  his  34  S.  E.  .39.  97  Va.  766. 

character  is  put  in  issue  and  there  is  i3  State  v.   Priest,   114   S.   W.  949, 

sufficient  evidence  to  warrant  a  find-  215  Mo.  1. 

ing  bv  the  .jury  that  his  character  is  i*  Hays  v.  Territory  (OKI.  Sup.)  52 

sood."     State   v.    Baird    (Mo.)    231    S.  P.  950.  reversed  .54  P.  300.  7  Old.  15. 

AV.  625.  15  Holmes   v.    State,  119   P.   430,   6 

9  People  V.  Duzan,   112  N.   E.  315,  Old.  Cr.  541. 

272  111.   478.  16  State  v.  Kimmell,  137  S.  W.  329. 

10  State  V.  Turner,  152  S.  W.  313,      156  Mo.  App.  461. 

246  Mo.  59S,  Ann.  Cas.  1914B.  451.  ''  ^^'     Scarhoro  v.  State.  99  S.  E. 

11  Ga.  Amerson  v.  State,  SS  S.  B.  ^fe"!  '^'o^^'^?l'r?'^\  ^^'^^^J'  ^J'^^f; 
998,  IS  Ga.  App.  176.  ^^  J;  ^-  ^3  1.   Oa    App    116;    Scott 

xii      XTT■^^■  T>       1       .n  XT    T-.  ^'-  State.  73  S.  E.  57o.  137  Oa.  .337; 

111.     Williams-  v.  People,  46  N.  E.  vm^^^  „    cfotr.   '?'>  a    tt'   o-.-,    10-  r^' 

-in    ipf»  Til    -iQo  Ivllison  V.  ^^tate.  i,,  S.  li..  2;jo,  13 <  Ga. 

ii.}.  ibb  111.  id-.  ;,Q3.    fjagood  v.  State,  62   S.  E.  641. 

Miss.     Lewis  v.  State,  47  So.  467,  5  Qa.  App.  80. 
9,\Miss.  697.  Iowa.     State  v.  Poder,  132  N.  W. 

Mo.     State  V.  Byrd,  213  S.  W.  35.  062,  jud!,'ment  reversed  on  rehearing 

278  Mo.  426 ;    State  v.  Vinton,  119  S.  state  v.    Podor.   135   N.   W.   421,   154 

\V.  370,  220  Mo.  90;    State  v.  Gart-  lowa.  686;     State  v.   Brandenherger, 

rell,  71  S.  W.  1045,  171  Mo.  489.      ^  130   N.   W.   1065,   151   Iowa,   197. 

Mont.     State  v.  Peuna,  90  P.  787,  Mich.     People  v.  Luce,  178  N.  W. 

35  Mont.  535.  54,  210  Mich.  621. 


238 


INSTRUCTIONS   TO  JURIES 


464 


§  238.     Sufficiency  of  instructions  as  to  effect  of  good  character 

A  defendant  is  entitled  to  have  evidence  of  his  good  character 
considered  the  same  as  any  other  established  fact  bearing  upon 
the  question  of  his  guilt/*  and  to  have  such  evidence  submitted  to 
the  jury  without  any  disparagement  by  the  court/^  and  instruc- 
tions calculated  to  diminish  the  force  of  the  evidence  of  good  char- 
acter, or  to  withdraw  it  altogether  from  the  consideration  of  the 
jury,  are  erroneous,-"  and  it  is  error  to  instruct  that  such  evidence 


Mo.     State  V.  Kimmell,  137  S.  W. 

329,  156  Mo.  App.  461 ;    State  v.  FisL- 
er,  62  S.  W.  690,  162  Mo.  169. 

Utah.  State  v.  MacMillau,  145  P. 
S33.  46  Utah,  19. 

18  State  y.  McXally,  87  Mo.  644; 
State  V.  Van  Kuran,  69  P.  60,  25 
Utah,  S. 

Consideration  on  question  of  al- 
ibi. In  a  criminal  trial,  the  defense 
being  an  alibi,  \yhere  there  is  positive 
evidence  pro  and  con  as  to  wliether 
defendant  was  present  when  the  crime 
■was  committed,  and  there  is  evidence 
of  defendant's  good  character,  it  is 
error  to  charge  that  the  jury,  in  de- 
termining whether  defendant  was 
present,  may  exclude  the  evidence, as 
to  his  character.  People  v.  Laird,  lO'J 
Mich.  135,  60  N.  W.  457. 

Use  of  word  "mnst."  Wliere  the 
court  charged  the  .iury  to  consider  all 
the  evidence,  and  particularly  that  of- 
fered to  show  previous  good  charac- 
ter, it  was  not  necessary  to  further 
specifically  say  to  the  jury  that  they 
"must"  consider  the  evidence  of  good 
character.     State  v.  Ames,  96  N,  W. 

330,  90   Minn.    1S3. 

19  People  V.  Woods,  172  N.  W.  384, 
206  INIich.  11:  Latimer  v.  State,  76 
N.  W.  207,  55  Neb.  609,  70  Am.  St. 
Rep.  403  ;  People  v.  Dom  Pedro  ^Sup.) 
43  N.  Y.  S.  44.  19  Misc.  Rep.  300. 

Instructions  improper  fvitliin 
rule.  An  instruction  that  the  re- 
spondent had  the  right  to  put  his 
good  reputation  before  the  jury  for 
their  consideration,  "as  a  kind  of 
malceweight  in  his  favor,  if  there's  a 
pinch  in  the  case."  State  v.  Daley, 
53  Vt.  442.  38  Am.  Rep.  694. 

Instructions  not  erroneous  as 
minimizing  the  efPect  of  good 
character.  A  charge  that  evidence 
of  good  character  or  reputation  for 


peace  and  quiet  was  admitted  to  in- 
duce the  jury  to  believe  that  he  was 
not  likely  to  commit  the  crime  charg- 
ed, that  in  a  case  depending  entirely 
on  circumstantial  evidence,  where  in 
addition  the  testimony  is  conflicting, 
evidence  of  good  character,  though  it 
does  not  constitute  a  defense,  is  en- 
titled to  all  consideration  the  jury 
thinly  proper  to  give  it,  but  it  is  of  no 
significance  in  the  face  of  satisfacto- 
ry evidence  of  guilt,  and  that,  if  the 
juiy  believe  beyond  a  reasonable 
doubt  that  accused  committed  the  of- 
fense, they  should  convict  though  they 
believe  his  prior  character  and  repu- 
tation were  inconsistent  therewith, 
but.  if  they  can  reconcile  th^  eviden'"e 
on  any  reasonable  hypothesis  consist- 
ent v.'ith  defendant's  innocence,  the 
jury  should  acquit.  Hedger  v.  State, 
128  N.  W.  SO.  144  Wis.  279.  A  charge 
as  follows:  "Of  course,  all  persons 
have  at  some  time  been  persons  of 
good  character,  and  many  defendants 
in  courts  of  justice,  up  to  the  time  of 
the  commission  of  the  offense  of 
which  tliey  are  convicted,  had  a  good 
character,  and  you  will  take  this  in- 
to consideration  when  you  come  to 
determine  upon  the  weight  and  ap- 
plicability of  the  testimony  as  to  the 
good  character  of  the  defendant." 
Commonwealth  v.  Griffin,  42  Pa.  Su- 
per. Ct.  .597. 

2  0  Johnson  v.  State,  58  S.  E.  684,  2 
Ga.  App.  405 ;  People  v.  Hancock,  7 
Utah,   170.   25   P.   1093. 

Instructions  held  not  objection- 
able under  rule.  A  charge  on  the 
subject  of  character,  that  it  was  con- 
tended that  evidence  had  been  intro- 
duced showing  defendant  to  be  of 
good  character,  that  evidence  of  good 
character  might  be  taken  into  consid- 
eration  not   only   in  passing  on   de- 


465 


CHARACTER   OF  ACCUSED 


§238 


should  be  accorded  very  little  weight,  where  the  evidence  against 
the  defendant  is  strong,-^  or  where  the  question  is  one  of  great  and 
atrocious  criminality. ^~ 

Where,  although  evidence  of  good  character  is  practically  all  a 
defendant  has  to  rely  upon  in  answer  to  a  charge  of  crime,  the 
court  instructs  only  in  the  most  general  terms  on  the  subject  of 
character,  and  there  is  reason  to  think  that,  because  of  the  fact 
that  such  evidence  was  not  presented  to  the  jury  at  the  proper  time 
and  in  the  proper  connection,  the  jury  may  not  have  given  the  evi- 
dence tending  to  show  the  good  character  of  the  accused  the  full 
weight  and  consideration  it  was  entitled  to  receive,  a  conviction 
based  upon  weak  and  unsatisfactory  evidence  will  be  reversed,  al- 
though, in  a  strict  and  legal  sense,  no  error  was  committed.'^ 

The  general  rule  is  that  it  is  not  sufficient  to  instruct  that  the 
good  character  of  the  defendant  is  a  circumstance  for  the  consid- 
eration of  the  jury,  since  this  is  only  equivalent  to  the  admission 
of  the  testimony  as  to  character."*    In  some  jurisdictions,  however, 


fendant's  guilt,  but  also  as  to  wheth- 
er such  character  might  of  itself  gen- 
erate a  doubt  of  defendant's  guilt. 
Jordan  v.  State.  GO  S.  E.  106.3,  130 
Ga.  406.  Where  defendant  testified 
in  his  own  behalf,  and  evidence  of 
his  character  and  the  character  of 
other  witnesses  was  received  on  both 
sides,  a  general  instruction  that  sncli 
testimony  should  be  considered  on  the 
question  of  the  credibility  of  wit- 
nesses was  not  erroneous  as  limiting 
the  effect  of  the  evidence  of  defend- 
ant's character  to  his  credibility,  and 
excluding  it  on  the  issue  of  his  guilt. 
State  V.  Olds,  76  N.  W.  644,  106  Iowa, 
110. 

21  Johnson  v.  State,  34  Neb.  257, 
51  N.  W.  835 ;  Long  v.  State,  23  Neb. 
33,  36  N.  W.  310. 

2  2  Cancc-nii  v.  People,  16  N.  Y.  501. 

2  3  Seymour  v.  State,  30  S.  E.  263, 
102  Ga.  S03. 

2  4  People  V.  Bell.  49  Cal.  4S.5. 

Illustrations  of  proper  or  suffi- 
cient instructions.  An  instruction 
tliat  the  jury  could  consider  evidence 
as  to  good  character  of  the  accused, 
and  if  it  be  such  as  to  create  a  doubt 
in  the  minds  of  the  jury,  and  lead 
them  to  believe  in  view  of  the  im- 
probability that  a  person  of  such 
character  would  not  be  guilty  of  the 
offense,  that  the  testimony  of  the 
In  ST.  TO  Juries— 30 


state  is  false  or  such  as  to  create  a 
reasonable  doubt  of  guilt,  the  jury 
should  acquit  was  proper.  Howell  v. 
State,  .52  S.  E.  649,  124  Ga.  698.  In 
a  prosecution  for  peculation,  an  In- 
struction that  evidence  of  defendant's 
good  character  is  pertinent  on  the 
question  of  his  guilt,  and  should  be 
duly  weighed,  that  it  might  be  as- 
sumed that  a  person  possessed  of  good 
character  would  not  connnit  the  of- 
fense imputed  to  defendant,  that 
good  character  is  not  a  controlling 
item  of  evidence,  but  is  to  be  consid- 
ered with  all  the  proof,  and  should 
have  greater  weight  when  the  evi- 
dence against  defendant  is  circum- 
stantial than  when  it  is  direct  and  pos- 
itive, and  that  it  is  for  the  jury  to 
determine  how  much  reliance  should 
be  placed  on  the  same,  in  the  face  of 
all  the  evidence,  is  proper.  People  v. 
Lyon.  1  N.  Y.  Cr.  R.  400.  It  is  prop- 
er to  charge  the  jury  that  they  can 
consider  the  character  of  defendant 
as  bearing  on  his  guilt  or  innocenc(>, 
and  whether  a  person  with  a  good 
character  would  be  less  liable  to  be 
guilty  of  crime  than  a  person  of  bad 
habits  and  character.  People  v.  Har- 
rison, 93  Mich.  594,  53  N.  W.  725. 
An  instruction,  on  a  trial  for  murder, 
that  "the  defendant  has  introduced 
evidence    tending    to   show    his   good 


239 


INSTRUCTIONS   TO  JURIES 


466 


it  is  held  that  if  the  jury  are  told  that  they  may  consider  evidence 
of  the  good  character  of  the  defendant,  and  give  it  such  weight 
as  they  see  proper  under  all  *the  evidence  in  the  case,  in  connec- 
tion with  the  law  of  reasonable  doubt,  there  is  a  sufficient  instruc- 
tion on  such  issue. ~" 

§  239.     Confining    consideration    of    good    character   \to    doubtful 
cases 

Evidence  of  the  good  character  of  the  defendant  is  to  be  con- 
sidered without  reference  to  the  apparently  conclusive  or  incon- 
clusive quality  of  the  other  evidence,'^  and  the  defendant  is  enti- 
tled to  an  instruction  so  declaring.-'  Instructions  which  are  not 
in  harmony  with  this  rule,  or  which  are  calculated  to  lead  the 
jury  to  think  that  such  evidence  is  only  of  value  in  a  doubtful  case, 
or  when  the  other  evidence  raises  a  doubt  as  to  the  guilt  of  the 
defendant,  are  erroneous. ~* 


character  as  a  mau  of  peace  and  qui- 
et, and  for  honesty  and  integrity," 
and  that,  "if  *  *  *  ^]^q  good 
character  of  the  defendant  for  these 
qualities  is  pi-oven  to  your  satisfac- 
tion, then  such  fact  is  to  be  Ivept  in 
view  by  you  in  all  your  deliberations, 
and  it  is  to  be  considered  by  you  in 
connection  with  the  other  facts  in  the 
case ;  and  if,  after  a  consideration  of 
all  the  evidence  in  the  case,  including 
that  bearing  upon  the  good  character 
of  the  defendant,  the  jury  entertain 
any  reasonable  doubt  of  the  defend- 
ant's guilt,  then  it  is  your  duty  to  ac- 
quit him" — contains  all  that  defend- 
ant is  entitled  to  have  on  the  point. 
People  v.  Bowman,  81  Cal.  566,  22  P. 
917.  There  is  a  substantially  correct 
statement  of  the  law  where  tlie  court 
charges  that  evidence  that  defendant 
v/as  of  good  general  reputation  for 
peace  and  good  order  is  positive  evi- 
dence, which  may  worK  a  doubt  for 
his  acquittal,  but  is  not  to  weigh 
against  positive  facts  which  should 
convince  the  jury  he  did  the  deed  he 
was  charged  with ;  and  that,  where 
the  circumstances  are  such  as  to  leave 
no  room  for  doubt,  this  evidence 
would  not  work  an  acquittal,  but  is 
to  be  considered  the  same  as  any  oth- 
er evidence;  and  this  being  follow- 
ed by  defendant's  point  that  "evidence 
of  good  character  is  not  a  mere  make- 
weight,   thrown    in    to   assist    in    the 


production  of  a  result  that  would  hap- 
pen at  all  events,  but  is  positive  evi- 
dence, and  may  of  itself,  by  the  cre- 
ation of  a  reasonable  doubt,  produce 
an  acquittal,"  as  to  which  the  court 
states  that  it  has  so  indicated  in 
what  had  been  said  before,  and  that 
the  proposition  is  affirmed.  Common- 
wealth v.  Harmon.  49  A.  217,  199  Pa. 
521,  So  Am.  St.  Rep.  799. 

2  0  Linn  v.  United  States  (C.  C.  A. 
N.  Y.)  251  F.  476,  163  C.  C.  A.  470  r 
Pickrell  v.  State,  111  P.  656,  4  Okl. 
Cr.  14;  Morris  v.  Territory,  99  P. 
760,  1  Okl.  Cr.  617,  rehearing  denied 
101  P.  Ill,  1  Okl.  Cr.  617;  Common- 
wealth V.  Corsino,  104  A.  739,  261  Pa. 
593. 

See  State  v.  Long,  108  A.  36,  7  feoyce 
(Del.)  397. 

2  6  State  V.  Birkby,  97  N.  W.  980, 
122  Iowa,  102. 

2  T  People  V.  Billick.  183  N.  T.  S. 
685,  193  App.  Div.  914. 

2sU.  S.  (Sup.)  Edgington  v. 
United  States,  17  S.  Ct.  72,  164  U.  S. 
361,  41  L.  Ed.  467;  (C.  C.  A.  Ark.) 
Rowe  V.  United  States,  97  F.  779,  38 
C.  C.  A.  496 ;  (C.  C.  A.  N.  Y.)  Oppen- 
heim  v.  United  States,  241  F.  625,  154 
C.  C.  A.  383,  reversing  judgment 
United  States  v.  Oppenheim  (D.  C.) 
228  P.  220. 

Cal.     People  v.  Ashe,  44  Cal.  288. 

D.  C.  United  States  v.  Gunnell,  5 
Mackey,  196. 


467 


CHARACTER   OF   ACCUSED 


239 


]n  determining  the  question  of  the  guilt  of  the  defendant,  the 
jury  are  to  consider  the  evidence  as  a  whole,  and  are  not  to  weigh 


Ind.     Kistler  v.  State,  5-t  Ind.  400. 

Kan.  State  v.  Jewell,  127  P.  COS, 
S8  Kan.  130. 

Mass.  Commonwealth  v.  Leonard, 
140  Mass.  473,  4  N.  E.  06,  54  Am.  Rep. 
485. 

Mich.  People  V.  Van  Dam,  107 
Mich.  425,  65  N.  W.  277. 

Minn.  State  v.  Sauer,  38  Minn. 
438,   38   N.   W.  355. 

Miss.  Powers  v.  State,  21  So.  657, 
74  Miss.  777;  Coleman  v.  State,  59 
Miss.  484. 

N.  Y.  People  v.  Weiss,  114  N.  Y. 
S.  236,  129  App.  Div.  671 ;  People  v. 
Pollock,  51  Hun,  613,  4  N.  Y.  S.  297; 
People  V.  Clements,  5  N.  Y.  Cr.  R.  282  ; 
People  V.  De  Gralf,  6  N.  Y.  St.  Rep. 
412. 

N.  C.     State  v.  Henry,  50  N.  C.  65. 

Ohio.  Stewart  v.  State,  22  Ohio 
St.  477. 

Pa.  Commonwealth  v.  Tenhroeck, 
lOS  A.  635,  265  Pa.  251;  Common- 
wealth V.  Ronello,  96  A.  826,  251  Pa. 
329;  Commonwealth  v.  House,  72  A. 
804,  223  Pa.  487;  Commonwealth  v. 
Sayars,  21  Pa.  Super.  Ct.   75. 

S.  C.  State  V.  Earth,  25  S.  C.  175, 
60  Am.  Rep.  496. 

Instructions  improper  within 
rule.  A  charge  as  follows:  "That 
[evidence  of  good  character]  is  a  legiti- 
mate subject  for  you  to  take  into  con- 
sideration, but  it  goes  only  to  this 
extent:  If  an  act  which  the  law- 
makes  an  offense  has  been  actually 
committed,  if  you  are  satisfied  beyond 
a  reasonable  doubt  that  the  prohibited 
act  was  committed,  it  makes  no  dif- 
ference what  the  character  of  the 
man  is.  It  is  not  the  subject  of  your 
investigation ;  but  if  the  evidence 
should  leave  your  minds  in  such  a 
state  that  you  cannot  say  that  you  are 
satisfied  beyond  a  reasonable  doubt, 
and  if  you  find  that  the  defendant 
has  borne  hitherto  an  unblemished 
character,  such  a  character  as  makes 
the  act  inconsistent  with  his  history 
and  standing,  that  circumstance 
should  turn  the  scale  in  his  favor.  At 
such  a  time  the  influence  of  a  good 
character  ought  to  weigh  very  strong- 
ly in  behalf  of  a  person  accused." 
State  v.  Holmes,  65  Minn.  230,  68  N. 


W.  11.  An  instruction,  on  trial  for 
murder,  that  "where  the  evidence,  out- 
side of  the  presumption  of  good  char- 
acter, is  clear  and  explicit,  on  which 
no  doubt  can  be  cast,  good  character 
will  only  cause  the  jury  to  hesitate 
and  think  about  the  matter."  People 
V.  Hancock,  7  Utah,  170,  25  P.  1093. 
Where  sevei'al  witnesses  testified  to 
previous  good  character  of  accused, 
and  they  were  not  contradicted,  an  in- 
struction that  the  jury  were  limited  in 
the  consideration  of  previous  good 
character  to  cases  where  the  questions 
of  fact  were  closely  balanced,  and 
tbat  good  character  should  not  create 
a  reasonable  doubt  as  to  guilt  un- 
less otherwise  the  evidence  was  near- 
ly balanced,  and  in  refusing  to  charge 
that,  in  the  exercise  of  sound  judg- 
ment, the  jury  might  give  accused 
the  benefit  of  the  presumption  of 
innocence  •  arising  from  good  char- 
acter, no  matter  how  conclusive  the 
other  testimony  appeared  to  be,  was 
reversible  eri'or.  People  v.  Conrow, 
93  N.  E.  943,  200  N.  Y.  356.  On  the 
trial  of  a  qriminal  indictment,  where 
the  defense  is  an  alibi,  and  evidence 
of  good  reputation  has  been  submit- 
ted, it  is  reversible  error  for  the  court 
to  charge  as  follows :  "A  man  may 
have  a  good  reputation  and  yet  com- 
mit a  crime.  Evidence  of  good  repu- 
tation would  not  amount  to  much,  if 
you  were  satisfied,  beyond  a  reason- 
able doubt  from  the  evidence,  apart 
from  that,  that  this  is  the  man  who 
committed  the  assault.  Evidence  of 
good  reputation  may  have  very  great 
weight  with  you,  if  evidence  of  the 
facts  are  not  as  clear  as  you  might 
like  to  have  them."  Commonwealth  v. 
Mandela,  48  Pa.  Super.  Ct.  56. 

Instimctions  not  objectionable 
within  rule.  An  instruction  that 
the  law  permits  evidence  of  good 
character  to  be  submitted  to  the  jury 
for  their  consideration  in  every  case 
of  homicide,  no  matter  what  may  be 
the  other  testimony  in  the  cause,  and 
that,  when  a  doubt  ari.ses  as  to  the 
guilt  of  the  accused,  such  evidence  is 
conclusive  in  his  favor.  Kilpatrick  v. 
Commonwealth,  3  Phila.  (Pa.)  237.  A 
charge:     "Defendant  has  a  right   to 


§  240  INSTRUCTIONS  TO  JURIES  468 

each  fact,  separate  and  detached  from  every  other  fact,  and  an  in- 
struction from  which  the  jury  may  infer  that  the  other  evidence 
in  the  case  is  first  to  be  examined  w^ithout  the  aid  of  the  evidence 
of  ihe  defendant's  good  character,  and  if  such  examination  satisfies 
them  of  the  guilt  of  the  defendant  they  are  to  go  no  further,  is  er- 
roneous.-® Accordingly  it  is  error  to  charge  that,  if  the  jury  find, 
independent  of  the  evidence  of  the  good  character  of  the  defendarit, 
that  there  is  a  reasonable  doubt  of  his  guilt,  they  must  acquit,^* 
and  it  is  proper  to  instruct  that  such  evidence,  if  believed,  may  be 
sufficient  under  sgme  circumstances  to  raise  a  doubt  of  the  guilt 
of  the  defendant,  even  as  against  positive  evidence  thereof.^^ 

§  240.  Effect  of  good  character  as  in  itself  generating  a  reason- 
able doubt 
A  defendant  in  a  criminal  case  is  entitled  to  a  charge  that  evi- 
dence of  his  good  character  may  be  sufficient  to  create  a  reasonable 
doubt  of  his  guilt.^~  Merely  to  tell  the  jury  that  they  should  con- 
sider the  evidence  of  good  character  in  connection  with  all  the 
other  evidence  in  the  case  is  not  sufficients^  The  proper  instruc- 
tion in  such  case  in  some  jurisdictions  is  that  the  evidence  of  good 
character  must  be  considered  in  connection  with  all  the  other  evi- 
dence, and  if  the  evidence,  when  viewed  as  a  whole,  raises  a  rea- 

show  bis  previous  good  character  as  is  erroneous,  especially  where  the  evi- 

a  circumstance  tending  to  show  the  dence  as  to  defendant's  guilt  is  not 

improbability  of  his  guilt.     If,  how-  conclusive.     State  v.  Lindley,  51  Iowa, 

ever,  you  believe  from  the  evidence,  343,  1  N.  W.  484,  33  Am.  Rep.  139. 

beyond  a  reasonable  doubt,  that  the  32  Fields  v.   State.  47  Ala.  603,  11 

defendant    committed    the    ci-ime    in  Am.    Rep.    771;     People   v.    Doggett, 

question  as  charged  in  the  indictment,  62  Cal.  27. 

then  it  would  be  your  duty  to  find  lustructions  sufficient  within 
the  defendant  guilty,  even  though  the  rule.  An  instruction  that  good  char- 
evidence  satisfied  your  mind  that  de-  acter  was  a  substantive  fact  to  be 
fendant,  previous  to  the  commission  considered  with  other  facts,  and  that, 
of  the  alleged  crime,  had  sustained  a  even  if  the  other  facts  might  not 
good  reputation  as  a  peaceable  and  leave  a  reasonable  doubt,  still,  if  the 
law-abiding  citizen."  State  v.  Porter,  good  character  that  might  be  estab- 
49  P.  964,  32  Or.  135.  lished  had  the  effect  to  raise  such 
20  People  V.  Wileman,  44  Hun  (N.  doubt,  it  would  be  the  duty  of  the  juiy 
Y.)  187.  to  acquit.    Phillips  v.  State  (Ga.  App.) 

30  Holland  v.   State,   131   Ind.  568,  105  S.  E.  823. 

31  N.  E.  359 ;    Remsen  v.  People,  43  "Any  doubt."     It  was  proper  to 

N.   Y.  6 ;    Commonwealth  v.    Cleary,  refuse   to   charge  that,  if  defendant 

135  Pa.  64,  19  A.  1017,  26  Wkly.  Notes  has    proved    a    good    character,    the 

Cas.  137,  8  L.  R.  A.  301.  jury  will  give  him  the  benefit  of  "any 

31  People  v.  McArron,  79  N.  W.  944.  doubt"  it  may  create,  since  defend- 
121  Mich.  1;  People  v.  Ilughson,  47  ant  is  entitled  only  to  any  "reason- 
N.  E.  1092,  154  N.  Y.  153.  able"    doubt    which    it    may    create. 

Instruction  to  the  contrary  er-  McSwean  v.  State,  21  So.  211,  113  Ala. 

roneous.      An    instruction    that    evi-  661. 

donee   of  good   character   should   not  3. t  state  v.    Brown,   115  P.  994,   39 

prevail  against  facts  strongly  proven  Utah,  140,  Ann.  Cas.  1913E,  1. 


469 


CHARACTER  OF  ACCUSED 


§240 


sonable  doubt  of  the  guilt  of  the  defendant,  he  should  be  acquit- 
ted,=^*  although  without  such  evidence  of  good  character  the  jury 
would  be  convinced  of  the  guilt  of  the  defendant  beyond  a  reason- 
able doubt,^^  and  such  an  instruction  should  not  be  refused.^''  In 
jurisdictions  where  this  rule  prevails,  an  instruction  is  not  in  prop- 
er form  which  fails  to  tell  the  jury  that  evidence  of  good  character, 
in  order  to  raise  a  reasonable  doubt,  must  be  considered  in  con- 
nection with  all  the  other  evidence.^*^ 

As  a  corollary,  therefore,  of  the  above  rule,  the  defendant  has 
no  right  in  such  jurisdictions  to  have  the  jury  instructed,  in  effect, 
that  evidence  of  good  character  may  be,  in  itself,  dissociated  from 
the  rest  of  the  evidence,  sufficient  to  raise  a  reasonable  doubt.^* 


34McCall  V.  State,  46  So.  321,  55 
Fla.  108:  Olds  v.  State,  33  So.  296, 
44  Fla.  452. 

35  Taylor  v.  State,  42  So.  996,  149 
Ala.  32;  Bryant  v.  State,  23  So.  40, 
116  Ala.  445;  State  v.  Randall  (N. 
J.)  113  A.  231 ;  State  v.  Harris  (Utah) 
199  P.  145. 

Instructions  held  objectionable 
a.s  too  restricted.  An  instruction 
that  the  jury  .should  consider  evi- 
dence of  good  character  with  all  the 
other  evidence  in  the  case,  and  if  it 
raised  a  reasonable  doubt  as  to  ac- 
cused's guilt,  defendant  was  entitled 
to  the  benefit  of  it,  and  should  be  ac- 
quitted, but  that  his  good  character 
should  be  considered  in  connection 
with  all  the  other  evidence  in  the 
case.  People  v.  Parker,  131  N.  W. 
1120,  166  Mich.  587. 

30  Watts  v.  State,  59  So.  270,  177 
Ala.  24. 

3  7  Miller  v.  State,  107  Ala.  40,  19 
So.  37. 

3  s  Ala.  Pinson  v.  State,  78  So. 
876.  201  Ala.  522  ;  Henderson  v.  State, 
72  So.  590,  15  Ala.  App.  1 ;  Watson  v. 
State,  72  So.  569,  15  Ala.  App.  39; 
Allen  V.  State,  62  So.  971,  8  Ala.  App. 
228  ;  Davis  v.  State,  44  So.  561, 152  Ala. 
25 ;  Bell  v.  State,  37  So.  281,  140  Ala. 
57;  Crawford  v.  State,  21  So.  214, 
112  Ala.  1;  Grant  v.  State,  97  Ala. 
35,  11  So.  915. 

Fla.  Olds  V.  State,  33  So.  296,  44 
Fla.  452. 

Ga.  Hill  V.  State,  89  S.  E.  351,  IS 
Ga.  App.  259,  conforming  to  answer 
to  certified  questions.  Deal  v.  Same. 
88  S.  E.  578,  145  Ga.  33  ;  Maddox  v. 
State,  71  S.   E.  498,  9  Ga.  App.  448; 


Brazil  V.  State,  43  S.  E.  460,  117  Ga. 
32. 

111.     Spalding  v.  People,  49  N.  E. 
993,  172  111.  40. 

Miss.     Hammond  v.   State,  21  So. 
149.  74  Miss.  214. 

Va.     Briggs  v.  Commonwealth,  82 
Va.  554. 

Wash.    State  v.  Gushing,  50  P.  512, 
17  Wash.  544. 

Wis.    Niezoi-awski  v.  State,  111  N. 
W.  250,  131  Wis.  166. 

Instructions  held  properly  re- 
fused within  rule.  A  charge,  in  a 
prosecution  for  assault  with  intent  to 
murder,  that,  if  the  defendant  had 
established  a  good  reputation  as  being 
a  peaceable  and  quiet  citizen,  it  was 
the  duty  of  the  jury  to  consider  the 
same,  and  give  him  the  benefit  of  any 
reasonable  doubt  which  might  be 
created  by  such  proof,  and  that  every 
man  on  trial  for  ci-ime  is  permitted  to 
introduce  evidence  of  his  general  good 
character,  and  this  evidence  may 
alone  be  sufficient  to  generate  a  rea- 
sonable doubt  of  his  guilt,  and  that 
the  jury  ought  to  consider  such  evi- 
dence in  arriving  at  their  verdict. 
Bohlman  v.  State,  33  So.  44,  135  Ala. 
45.  An  instruction  in  a  prosecution 
for  homicide  that,  if  the  prisoner  had 
proved  a  good  character  as  a  man  of 
peace,  the  law  says  that  such  good 
character  may  be  sufficient  to  create 
and  generate  a  reasonable  doubt  of 
his  guilt,  though  no  such  doubt  would 
have  existed  but  for  such  good  char- 
acter. Jarvis  v.  State,  34  So.  1025, 
138  Ala.  17.  Charges  that  good  char- 
acter of  accused,  tak.'ii  together  with 
other  evidence  in  the  case,  is  sufficient 


§  240 


INSTRUCTIONS  TO  JURIES 


470 


In  Georgia  a  late  case  has  held  ^^  that  the  jury  should  be  told  that 
good  character  may  be  sufficient  alone  and  of  itself  to  raise  a  rea- 
sonable doubt  of  the  guilt  of  the  defendant,  so  as  to  authorize  his 
acquittal,  and  that  it  is  error  to  instruct  that  evidence  touching 
the  good  character  of  the  accused  can  warrant  an  acquittal  only 
in  connection  with  the  other  evidence ;  but  still  later  cases  have  re- 
stored the  former  rule.*" 

In  New  York,  however,  the  defendant  is  entitled  without  quali- 
fication to  an  instruction  that  the  jury  may,  in  the  exercise  of  a 
sound  discretion,  give  him  the  benefit  of  a  previous  good  charac- 
ter, no  matter  how  conclusively  the  other  evidence  may  appear  to 
establish  his  guilt.*^  A  similar  doctrine  has  been  enunciated  in 
other  jurisdictions.*^  In  one  jurisdiction  it  has  been  said  that  a 
mere  charge  to  consider  the  good  character  of  the  defendant  in 
connection  with  all  the  other  evidence,  and  if,  on  a  consideration 
of  all  of  it,  including  good  character,  the  jury  have  a  reasonable 


to  generate  a  reasonable  doubt,  and 
that  proof  of  good  character  may 
generate  a  reasonable  doubt  of  accus- 
ed's guilt.  Phillips  V.  State,  49  So. 
794,  161  Ala.  60.  A  charge  that  proof 
of  good  character  "alone,"  when  tak- 
en in  connection  with  other  evidence, 
may  be  sufficient  ground  on  which  to 
base  a  reasonable  doubt  of  defend- 
ant's guilt  and  justify  his  discharge. 
Caldwell  v.  State,  49  So.  679.  160  Ala. 
96.  An  instruction  that  evidence  of 
good  character  of  accused  may  alone 
create  a  reasonable  doubt  as  to  his 
guilt,  and  if  the  evidence  is  conflicting 
may  be  looked  to.  and  accused  may 
l)e  acquitted  on  the  strength  thereof 
when  taken  in  conjunction  with  all 
the  other  evidence.  Robinson  v.  State, 
58  So.  121,  4  Ala.  App.  1.  A  charge 
that,  if  the  jury  find  defendant  is  a 
man  of  good  character,  they  may  con- 
sider that  character  in  connection 
with  the  other  evidence  in  determin- 
ing his  guilt,  and  it  may  generate  a 
reasonable  doubt  of  his  guilt,  is  erro- 
neous; "it"  referring  to  the  good  char- 
acter alone.  Scott  v.  State,  32  So. 
62.3,  133  Ala.  112. 

3  9  Taylor  v.  State,  79  S.  E.  924,  13 
Ga.  App.  715. 

4  0  (iroce  V.  State,  97  S.  E.  525,  148 
Ga.  520;  Hill  v.  State,  89  S.  E.  351, 
18  Ga.  App.  259. 

*i  People  V.  Bonier,  179  N.  Y.  315, 
72  N.  E.  226,  103  Am.   St.  Rep.  880; 


People  V.  Elliott,  57  N.  E.  103,  163  N. 
Y.  11,  reversing  judgment  60  N.  Y.  S. 
1145,  43  App.  Div.  621 ;  People  v.  Bil- 
lick,  1S3  N.  Y.  S.  685,  193  App.  Div. 
914 ;  People  v.  Koppman,  143  N.  Y.  S. 
919,  158  App.  Div.  660;  People  v.  Buc- 
cuf  urri,  143  N.  Y.  S.  62,  158  App.  Div. 
186. 

An  instruction  tliat  evidence  of 
good  character  is  sufficient  to  raise 
a  question  of  reasonable  doubt  is  not, 
however,  properly'  framed  under  this 
rule,  since  it  is  not  predicated  on  the 
belief  of  the  jury  in  such  evidence. 
People  v.  Trimarchi,  131  N.  E.  910, 
231  N.  Y.  263. 

4  2  Suitkin  v.  U.  S.  (C.  C.  A.  lud.) 
265  F.  489. 

In  Pennsylvania,  instructions 
which  would  have  a  tendency  to  lead 
the  jury  to  disregard  evidence  of  good 
character  altogether,  if,  from  all  the 
other  evidence  they  reach  the  conclu- 
sion that  the  defendant  is  guilty,  are 
erroneous.  Commonwealth  v.  House, 
72  A.  804,  223  Pa.  487;  Common- 
wealth V.  Cate,  69  A.  322,  220  Pa.  138. 
Although,  in  the  absence  of  a  request 
so  to  charge,  it  will  not  necessarily 
be  error  for  the  court  to  fail  to  in- 
struct that  evidence  of  good  char- 
acter, in  itself,  by  the  creation  of  a 
reasonable  doubt,  may  work  the  ac- 
quittal of  the  defendant.  Common- 
wealth V.  Beingo,  66  A.  153,  217  Pa. 
60. 


471 


CHARACTER  OF  ACCUSED 


242 


doubt  of  his  guilt,  to  acquit  him,  is  not  charging  the  rules  appli- 
cable to  evidence  of  good  character."** 

§  241.     Effect  of  good  character  where  evidence  entirely  circum- 
stantial 

It  is  proper  to  refuse  an  instruction,  in  a  case  in  which  the  evi- 
dence adduced  against  the  defendant  is  purely  circumstantial,  that 
evidence  of  good  character  is  of  itself  sufficient  to  create  a  rea- 
sonable doubt,  since  such  an  instruction  is  equivalent  to  charging 
that  no  person  of  good  character  can  be  convicted  of  crime  by 
circumstantial  evidence,  however  strong  it  may  be."** 

§  242.  Worthlessness  of  good  character  where  guilt  clearly  es- 
tablished from  all  the  evidence 
It  is  proper  to  refuse  an  instruction  which  authorizes  an  acquit- 
tal because  of  the  previous  good  reputation  of  the  defendant,  al- 
though the  jury  believe  him  to  be  guilty,*^  and  in  most  jurisdic- 
tions after  the  court  has  correctly  instructed  the  jury  in  accord- 
ance with  the  rules  above  set  forth  it  is  proper  to  instruct  that 
evidence  of  good  character  cannot  avail  the  defendant  or  justify 
his  acquittal  if  the  jury  are  satisfied  from  all  the  evidence  beyond 
a  reasonable  doubt  of  his  guilt.'*^    Such  an  instruction  does  not  pre- 


4  3  state  V.  Brown,  115  P.  994,  39 
Utah,  140,  Ann.  Cas.  1913E,  1. 

This  statement,  however,  does 
not  seem  to  have  been  concurred  in 
by  the  majority  of  the  court,  who, 
after  reviewing  the  New  York  deci- 
sions, prescribe  a  form  of  instruction 
to  the  effect  that  the  jury  should  con- 
sider all  of  the  evidence  in  the  case, 
including  the  evidence  of  good  char- 
acter and  if,  upon  a  consideration  of 
all  the  evidence,  they  entertain  a  rea- 
sonable doubt,  or  if  the  evidence  of 
good  character  alone,  when  consider- 
ed in  connection  with  the  other  evi- 
dence as  aforesaid,  produces  or  cre- 
ates a  reasonable  doubt  of  the  guilt 
of  the  accused,  the  defendant  is  entitl- 
ed to  the  benefit  of  such  doul)t  and 
should  be  acquitted.  State  v.  Brown 
(Utah)  115  P.  994. 

44  Browne  v.  United  States  (C.  C. 
A.  N.  Y.)  145  F.  1,  76  C.  C.  A.  31,  af- 
firming judgments  United  States  v. 
Rosenthal  (C.  C.  N.  Y.)  126  F.  766; 
United  States  v.  Cohn  (C.  C.  N.  Y.) 
128    F.    615. 

45  State  v.  Stentz,  74  P.  588,  33 
Wash.  444. 


4c  Ala. 

173. 

Cal.  People  v 
129  Cal.  584. 

Ga.  Thomas  v 
E.  859  ;    Taylor  v 


Armor    v.    State,    63    Ala. 


Mitchell,  62  P.  187, 


State.  62  Ind.  46. 
Douglass  (Sup.)  24 


State  (App.)  103  S. 
State,  88  S.  E.  696, 
17  Ga.  App.  787  ;  McCullough  v.  State, 
76  S.  E.  393,  11  Ga.  App.  612  ;  Nelms 
V.  State,  51  S.  E.  588,  123  Ga.  575. 

ni.  People  v.  Anderson,  87  N.  E. 
917,  239  111.  168. 

Ind.    PoUins  v. 

Kan.     State  v. 
Pac.  Ills. 

La.  State  v.  Simon,  59  So.  975,  131 
La.  520;  State  v.  Spooner,  41  La.  Ann. 
780,  6  So.  879 ;  State  v.  Kiculti,  35  La. 
Ann.   770. 

Mich.  People  v.  Mead,  50  Mich. 
228,  15  N.  W.  95. 

Mo.  State  V.  Wertz,  90  S.  W.  838, 
191  Mo.  569 ;  State  v.  Darragh,  54  S. 
W.  226,  152  Mo.  522 ;  State  v.  Bryant, 
134  Mo.  246,  35  S.  W.  597. 

Mont.  State  v.  Jones,  80  P.  1095, 
32   Mont.  442. 

N.  Y.  People  V.  Dippold,  51  N.  Y. 
S.  859,  30  App.  Div.  62. 


242 


INSTRUCTIONS   TO  JURIES 


472 


elude  the  consideration  of  such   evidence  upon  the  issue  of  tJie 


Ohio.    Watha  v.  State,  34  Ohio  Cir. 
Ct.  R.  60. 

Wasli.     State  V.  Stentz,  74  P.  588, 
33  Wash.  444. 

Instructions  lield  proper  virithin 
rule.     A  charge  that  proof  of  good 
character  was  not  admitted  for  the 
purpose    of    shielding    the    defendant 
from  the  consequences  of  his  conduct, 
but  simply  as  a  circumstance  to  be 
considered  by  the  jury  with  the  other 
evidence,    and    if,    from    all    the   evi- 
dence, they  believed  him  to  be  guilty 
beyond     a     reasonable     doubt,     they 
should   say    so   by    their   verdict,    as 
firmly  against  a  man  of  good  char- 
acter  as   of    bad.      "Good    character 
does  not  shield  a  man  from  the  conse- 
quences of  a  criminal  act,  proved  to 
the  satisfaction  of  a  jury  beyond  a 
reasonable  doubt,  though  it  may  raise 
a  reasonable  doubt  of  the  act  having 
been    done   with    a    criminal   intent." 
Hussey  v.  State,  87  Ala.  121,  6  South. 
420.     A  charge  that,  "when  the  guilt 
of  the  accused  is  made  to  appear  by 
proof  to  the  satisfaction  of  the  jury 
beyond  a  reasonable  doubt,  the  jury 
are  authorized  to  convict,  regardless 
of  the  good  character  of  the  accus- 
ed" ;    the  court  having  also  charged 
in  the  same  connection  that  "the  jury 
has   the   right  to  consider  the   good 
character  of  the  accused,"  not  merely 
where  his  guilt  is  doubtful,  under  the 
other  testimony  in  the  case,  but  where 
such  testimony  of  good  character  may 
of  itself  generate  such  doubts.    Thorn- 
ton V.  State,  33  S.  E.  673,  107  Ga.  683. 
An    instruction    in    a   homicide    case 
that    "previous    good    character    and 
reputation   is  not  a   defense  against 
any  criminal  charge,  but  evidence  on 
the  subject  is  admitted  for  the  pur- 
pose  of   strengthening   the   presump- 
tion of  innocence;     *     *     *     that,  if 
the  evidence  on  the  whole  case  con- 
vinces you  beyond  a  reasonable  doubt 
that  the  defendant  is  guilty,  you  must 
return    a   verdict   of   guilty,   without 
reference  to  his  previous  good  char- 
acter and  reputation."     State  v.  Mc- 
Grath,    57    P.    321,    35    Or.    109.      A 
charge,  in  a  prosecution  for  perjury, 
that,  if  the  defendant's  reputation  in 
the  community  in  which  he  lived  for 
tiTjth  and  veracity  was  good,  the  jury 


might  consider  that  fact  in  determin- 
ing his  guilt,  but,  if  on  a  considera- 
tion of  all  the  evidence  the  jury  be- 
lieved beyond  a  reasonable  doubt  that 
he  was  guilty,  his  previous  good  repu- 
tation would  neither  justify  nor  ex- 
cuse  the   offense,    the  court  refusing 
to  charge  that  the  defendant  has  a 
right  to  have  testimony  showing  his 
previous    good    character    considered 
in    determining    whether    reasonable 
doubt  exists  as  to  his  guilt,  and,   if 
from   all    the   other   evidence   in   the 
case  the  jury   would  be  satisfied  of 
the    guilt    of    defendant,    they    must 
still  determine  whether  the  previous 
good   character  when    weighed   with 
all.    the     other     facts     and     circum- 
stances   raises    a    reasonable    doubt, 
and,  if  such  reasonable  doubt  remains 
in  the  minds  of  the  jurors  they  must 
acquit.    Coleman  v.  State,  118  P.  594, 
6  Okl.  Cr.  252.    A  charge  that  the  pre- 
vious good  character  of  defendant,  if 
proved  to  the  reasonable  satisfaction 
of  the  jury,  ought  to  be  considered  in 
passing  on  the  guilt  of  defendant,  but 
that,  if  all  the  evidence  in  the  case, 
including  that  which  had  been  given 
touching  the  previous  good  character 
of  the  defendant,   showed  him  to  be 
guilty  of  the  charge,  then  his  previous 
good  character  could  not  justify,  ex- 
cuse, palliate,  or  mitigate  the  offense. 
State  V.  Maupin,  93  S.  W.  379.  196  Mo. 
164.     An  instruction  that  evidence  of 
defendant's  good  reputation  for  hon- 
esty and  integrity  should  be  consider- 
ed with  all  the  other  evidence  in  the 
case,  but  that  if,  from  all  the  evidence, 
the  jury  was  satisfied  of  his  guilt  be- 
yond a  reasonable  doubt,  it  was  imma- 
terial what  his  reputation  had  previ- 
ously been  as  to  honesty  and  integrity. 
State  V.  Dunn,  102  N.  W.  935,  125  Wis. 
181.     W^here  the   jury   has   been   in- 
structed to  consider  the  evidence  of 
defendant's    good    character    in    de- 
termining  his    guilt   or   innocence,    a 
further  charge  that,  if  the  jury  believe 
from  the  evidence  beyond  a  reason- 
able doubt  that  defendant  killed  de- 
ceased as  charged,  then  his  good  char- 
acter    alone     and     of     itself    cannot 
justify,   excuse,   palliate,   or   mitigate 
the  offense,  is  not  erroneous,   as  e.x- 
cluding    defendant's    good    character 


473  CHARACTER  OF  ACCUSED  §  243 

guilt  or  innocence  of  the  defendant,*'  and  instructions  affirming 
the  opposite  rule,  that  in  such  case  evidence  of  good  character  can 
generate  a  reasonable  doubt,  are  of  course  erroneous,  as  they  are 
self-contradictory.**  In  one  jurisdiction,  however,  it  is  held  to  be 
reversible  error  to  charge  that,  where  the  jury  are  satisfied  under 
all  the  evidence  of  the  guilt  of  the  defendant  beyond  a  reasonable 
doubt,  evidence  of  his  previous  good  character  cannot  raise  such 
a  doubt ;  the  view  being  taken  that  such  an  instruction  may  lead 
the  jury  to  disregard  such  evidence,  if  from  all  the  other  evidence 
they  conclude  he  is  guilty.*® 


B.  Bad  Character 

§  243.     Effect  of  bad  character 

To  justify  the  admission  against  the  accused  of  evidence  of  bad 
character,  it  is  necessary  that  he  shall  have  already  clearly  and 
expressly  put  his  character  in  issue,  and  if  the  accused  introduces 
no  evidence  of  good  character  it  is  error  to  charge  that  character 
is  always  in  issue  in  a  trial  for  a  criminal  offense.^"  On  the  other 
hand,  if  no  issue  is  made  •as  to  the  past  life  or  reputation  of  the 
defendant,  he  is  not  entitled  to  an  instruction  that,  if  the  jyry  find 
that  he  has  been  leading  a  wild  or  vicious  life,  such  fact  should  not 

from   the  consideration  of  the  jury,  the  satisfaction  of  the  jury  beyond  a 

State  V.  Kilgore,  70  Mo.  546.     An  in-  reasonable  doubt,  they  are  autliorized 

struetion,    "if   the   crime   cliarged   in  to    convict,    regardless    of    the    good 

the  indictment  has  been  conclusively  moral  character  of  accused,  is  not  er- 

proven  to  the  satisfaction  of  the  jury  roneous,  as  too  narrovply  restricting 

beyond   a   reasonable  doubt,   that   in  the  use  of  evidence  in  relation  to  good 

that  case  any  good  character  of  the  character.     Henderson  v.  State,  48  S. 

defense  does  not  avail  him,"  does  not  E.  107,  120  Ga.  504. 

withdraw  from  the  jury  evidence  as  4  7  state  v.  Alderman.  78  A.  331,  83 

to  defendant's  good  character,  where  Conn.  597 ;   Dorsey  v.  State,  100  N.  E. 

the    court    had    previously     charged  sno,  179  Ind.  531  {  Eacock  v.  State,  82 

that,  in  case  of  reasonable  doubt  as  N.  E.   10.39,  169  Ind.  488;    People  v. 

to  defendant's  guilt,   which  must  be  Gilbert.  92  N.  E.  85,  199  N.  Y.  10,  20 

determined   on   all   the  evidence,   de-  Ann.  Cas.  769;    State  v.  Meyers,  117 

fendant  was  entitled  to  an  acquittal,  P.  818,  59  Or.  537. 

and    that    evidence    as    to    the    good  48  Paul  v.   State,  100  Ala.   136,  14 

character  of  defendant  should  be  con-  So.  634. 

sidered  in  determining  the  question  of  4o  Commonwealth  v.  Ronello,  96  A. 

reasonable  doubt.    People  v.  Sweeney,  826,  251  Pa.  329 ;    Commonwealth  v. 

59   Hun.  619,  13  N.  Y.   S.  25.     In  a  House,  72  A.  804,  223  Pa.  487,  revers- 

prosecution  for  murder,  a  charge  that  ing  judgment  36  Pa.  Super.  Ct.  363 ; 

the  good  character  of  one  on  trial  for  Commonwealth  v.  Gate,  69  A.  322.  220 

crime,   if   satisfactorily   proved,   may  Pa.  138,  123  Am.  St.  Kep.  683;    Com- 

of  itself,  in  a  case  where  guilt  is  not  monwealth  v.  Howe,  38  Pa.  Super.  Ct. 
plainly    established,    be    sufficient    to  '   208. 

generate     a     reasonable    doubt,     but  co  People  v.  Slauson,  83  N.  Y.  S.  107, 

where  the  guilt  is  made  to  appear  to  85  App.  Div.  166. 


§  244  INSTRUCTIONS   TO  JURIES  474 

be  considered  in  determining  his  guilt,^^  and  in  the  absence  of  any 
evidence  of  the  bad  character  of  the  defendant  a  failure  to  charge 
that  evidence  of  his  bad  character  goes  only  to  his  credibility  as 
a  witness  and  is  not  evidence  of  his  guilt  is  not  error/'*''  Where 
evidence  of  the  character  of  a  defendant  in  a  criminal  prosecution 
has  been  admitted  to  impeach  him,  it  is  proper  to  refuse  to  instruct 
that  the  jury  are  not  to  take  into  account  his  good  or  bad  charac- 
ter.^^ It  is  not  improper  to  charge,  where  the  evidence  justifies 
such  an  instruction,  that  persons  of  bad  character  are  entitled  to 
defend  themselves  on  the  same  principles,  and  to  have  the  same 
rules  of  law  applied  to  them,  as  persons  of  good  character.^ 

§  244.    'Instructions  on  inability  of  state  to  show  bad  character 

In  some  jurisdictions  it  is  error  to  instruct  in  a  criminal  case, 
where  the  defendant  has  not  put  his  reputation  in  issue  by  claim- 
ing to  be  of  good  character,  that  in  view  of  such  failure  of  the 
defendant  to  raise  such  issue  the  state  is  not  authorized  to  intro- 
duce any  evidence  to  impeach  his  character,^^  since  such  an  in- 
struction is  susceptible  of  the  inference  that  the  people,  had  they 
been  permitted,  might  have  shown  that  the  character  of  the  de- 
fendant was  bad.^  In  one  jurisdictios,  however,  it  is  held  not 
error  tq  so  charge,  if  it  is  not  intimated  that  the  jury  should  draw 
inferences  prejudicial  to  the  defendant  on  account  of  the  omission 
of  testimony  to  his  good  character.^' 

51  People  V.  Wangli,  158  P.  336,  30  Ga.   343;    People  v.    Davis,   64   Hun, 

Cal.  App.  402.  636.  19  N.  Y.  S.  781. 

C2  State  V.  Furgerson,  63  S.  W.  101,  sd  Brown  v.  State,  32  Obio  Cir.  Ct. 

162  Mo.  668.  R.   93. 

53  Jones   V.   State,  96  Ala.   102,   11  56  People  v.  Gleason,  55  P.  123,  122 

So.    399.  Cal.  370. 

0  4  Green  v.  State,  52  S.  E.  431,  124  57  state  v.  Tozier,  49  Me.  404. 


475  INSTUUCTIONS  ON   DEGREE  OF   rUOOF 

CHAPTER  XVII 
INSTRUCTIONS  ON  DEGREE  OF  PROOF, 

A.     Prkpoxdkran'Ce  of  Evidence 

§  245.  Necessity  and  propriety  of  instructions. 

246.  Sutlicieucy  of  instructions. 

247.  Insti-uctions  requiring  too  high  a  degree  of  proof. 

248.  Correctness  t)f  use  of  words  "satisfy,"  "to  the  satisfaction,"  etc. 

249.  Instructions   not   objectionable    as   requiring   too   high    a    degree   of 

proof. 

250.  Requirement  that  each  of  the  jurors  be  reasonably  satisfied. 

251.  "Clear"  or  "fair"  preponderance. 
2.52.     Slight  preponderance. 

253.  Evidence  evenly  balanced. 

254.  Instructions  objectionable  or  criticized  as  requiring  less  than  a  pre- 

ponderance of  the  evidence  or  as  permitting  jury  to  speculate  upon 
probabilities. 

255.  Number  of  witnesses  as  element  in  determining  preponderance  of  evi- 

dence. 

2.56.  Effect  of  error  in  defining  preponderance  of  evidence. 

B.     Doctrine  of  Reasonable  Doubt  in  Criminal  Cases 

1.  Necessity  of  Instructions  Requiring  Proof  Beyond  a  Reasonable  DouJit 

2.57.  General  rule. 

258.     Qualifications  of  rule. 

2.  Sufficiency  of  Instructions  on  Neccs.<iitu  of  Proof  Beyond  a  Reasonable 

Doubt 

2.50.  General  principles. 

260.  Necessity  of  defining  reasonable  doubt. 

261.  Sufllcieucy  of  definitions  of  reasonable  doubt. 

262.  Doubt  arising  out  of  the  evidence  or  want  of  evidence. 

263.  Defining  reas-onable  doubt  as  one  for  which  reason  can  be  given. 

264.  Actual,  real,  strong,  substantial,  or  well-founded  doubt. 

265.  Possibility  of  innocence  of  accused. 

266.  Opportunity  of  choice  between   two  opposing  theories. 

267.  Probability  or  supposition  of  innocence. 

268.  Probability  of  guilt. 

269.  Doubt  which  would  influence,  or  cau.se  one  to  hesitate,  in  his  private 

affairs. 

270.  Moral  or  mathematical  certainty. 

271.  Abiding  conviction  to  a  moral  certainty. 

272.  Conscientious  belief. 

273.  Effect  of  doubt  upon  any  particular  fact. 

274.  Neces.sity  of  convincing  each  juror  beyond  a  reasonable  doubt  in  order 

to  convict  or  to  prevent  an  acquittal. 

275.  Belief  or  doubt  as  men. 

276.  Doubt  as  to  grade  or  degree  of  offense  charged. 

277.  Giving  benefit  of  doubt  to  state. 

278.  Repetition  of  instructions. 


§  245  INSTRUCTIONS  TO  JURIES  476 

A.  Preponderaxce  of  Evidence 
Instructions  criticized  as  invading  province  of  jury,  see  ante,  §  64. 

§  245.     Necessity  and  propriety  of  instructions 

The  question  as  to  the  preponderance  of  the  evidence  arises^ 
and  only  arises,  when,  the  party  on  whom  rests  the  burden  of  proof 
having  produced  sufficient  evidence  to  support  a  conclusion  in  his 
favor,  his  adversary  introduces  opposing  evidence.  In  view  of 
such  opposing  evidence,  the  situation  may  then  be  such  that  the 
jury  is  in  doubt,  and  not  at  all  satisfied  or  convinced,  in  which 
case  the  decision  must  be  based  upon  the  preponderance  rule.  If 
in  the  opinion  of  the  jury  the  evidence  preponderates  in  favor  of 
the  one  on  whom  the  burden  of  proof  does  not  lie,  or  is  equally 
balanced,  the  decision  must  be  in  his  favor,  and  if  it  preponderates 
ever  so  slightly  in  favor  of  the  other  party  the  latter  is  entitled  to 
a  verdict.^  Accordingly,  in  civil  cases,  the  general  rule  is  that,  on 
conflicting  evidence,  an  instruction  to  find  according  to  the  pre- 
ponderance of  the  evidence,  or  that  the  party  on  whom  the  bur- 
den of  proof  rests,  whether  it  be  the  plaintiff  or  the  defendant, 
must  prove  his  case  by  a  preponderance  of  the  evidence,  is  proper,* 
and  such  an  instruction  should  generally  be  given  on  request.^ 

An  instruction  which  minimizes  the  importance  of  the  rule  re- 

1  Lawrence  v.  Goodwill  (Cal.  App.)  cent  view  prevailing  in  this  jurisdic- 
186  P.  781.  tion,  however,  is  that,  while  a  charge 

2  Ga.  Parker  v.  Georgia  Pac.  Ry.  that  the  evidence  must  preponderate 
Co..  S3  Ga.  539,  10  S.  E.  233.  in  plaintiff's  favor,  to  entitle  him  to 

ill.    Young  V.  Copple,  52  111.  App.  recover,  may  be  refused,  it  is  not  er- 

547.  ror    to   give   it.      Green    v.    Southern 

Imd.     De  Hart  v.  Johnson  County  States  Lumber  Co.,  50  So.  917,   163 

Com'rs.  143  Ind.  363,  41  N.  E.  825.  Ala.  511. 

Iowa.     .Jamison  v.  Jamison,  84  N.  s  m,     Illinois  Cent.  R.  Co.  v.  War- 

W.  705.  113  Iowa,  720.  riner,  82  N.  E.  246,  229  111.  91,  affirm- 

S.  C.     Fowler  v.  Harrison,  42  S.  E.  ing  .iudgment  132  111.  App.  301 ;    Kidd 

1.59.  64  S.  C.  311.  V.  White,  138  111.  App.  107;    Illinois 

Tex.     Birkman  v.  Fahrenthold,  114  Cent.  R.  Co.  v.  Becker,  119  111.  App. 

S.  W.  428.  52  Tex.  Civ.  App.  335.  221 ;  Tedens  v.  Schumers,  112  111.  263. 

In  Alabama  it  has  been  held,  in  Md.     Ohlendorf  v.  Kanne,  66  Md. 

opposition  to  the  rule  of  the  text,  that  495.  8  Atl.  351. 

in  the  absence  of  any  applicable  le-  Or.  Hagermann  v.  Chapman  Tim- 
gal  presumption  it  is  for  the  jury  ber  Co..  l.';3  P.  342,  65  Or.  588. 
alone  to  determine  upon  the  amount  In  Missouri  it  is  not  error  to  re- 
ef evidence  required  to  sustain  the  fuse  to  instruct  that  the  party  having 
contentions  of  the  party  having  the  the  burden  of  proof  must  satisfy  the 
burden  of  proof,  and  that  the  court  jury  "by  a  preponderance  of  evi- 
should  not  instruct  that  the  jury  are  donee";  it  being  held  that  such  an  in- 
bound to  find  according  to  the  pre-  struction  is  couched  in  tecluiicat 
ponderjince  of  the  evidence.  Mays  v.  terms.  Anclinr  Milling  Co.  v,  Walsh, 
Williams,  27  Ala.  267.     The  more  re-  37  :Mo.  App.  567. 


477 


INSTRUCTIONS  ON   DEGREE  OF   PROOF 


§  246 


quiring  a  party  to  prove  his  case  by  a  preponderance  of  the  evi- 
dence should  not  be  given.*  On  the  other  hand,  an  instruction  is 
proper  which  in  effect  tells  the  jury  that  if  they  find  that  the 
plaintiff  has  proved  his  case,  as  stated  in  his  declaration,  by  a  pre- 
ponderance of  the  evidence,  he  is  entitled  to  recover  •>  Where  de- 
fendant puts  in  no  evidence,  an  instruction  as  to  the  preponder- 
ance of  the  evidence  is  improper,  as  the  jury  in  such  case  consider 
the  case  on  the   evidence   of  plaintiff.® 

On  conflicting  evidence,  an  instruction  on  the  mode  of  determin- 
ino-  the  preponderance  of  the  evidence  should  be  given  on  re- 
qu^^st.'  Ordinarily,  in  the  absence  of  a  request,  it  is  not  error  to 
faii  to  charge  on  the  general  doctrine  as  to  the  preponderance  of 
the  evidence,  or  to  fail  to  explain  to  the  jury  the  meaning  of  the 
phrase  "preponderance  of  the  evidence."  » 

8  246.     Sufficiency  of  instructions 

Where  the  court  undertakes  to  charge  on  the  preponderance 
of  the  evidence  the  jury  should  be  told  that,  unless  the  evidence 
nreronde  ates ';  f avor  "^f  the  plaintiff,  they  should  find  for  the 
d  Ldant;  an  instruction  to  make  up  their  verdict  from  a  pre^ 
ponderance   of   the   evidence   not  being   sufficiently    definite.^     A 


4  Button  V.  :Metcalf,  80  Wis.  193,  49 
N.  W.  809. 

5  City  of  INTacon  v.  Smith,  82  fe.  Hj. 
162.  14  Ga.  Apr.  TO.",;  Ford  v.  Coai 
Belt  By.  Co.,  143  111.  App.  431; 
Sprinsfield  Consol.  By.  Co.  v.  John- 
son, 120  111.  App.  100. 

6  Cohen  v.  City  of  Chicago,  197  111. 

App.  377. 

Where  there  is  no  contlict  in 
the  testimony,  the  failure  of  the 
court  to  instruct  the  jury  that  plain- 
tiff must  establish  the  necessary 
facts  by  a  preponderance  of  testimo- 
ny is  not  error.  Schlensoner  v.  Chi- 
cago M.  &  St.  P.  By.  Co.,  61  Iowa, 
235.   16   N.   W.    103. 

No  evidence  to  rebut  statutory 
presumption.  Whore  plaintiff  had 
shown  an  injury  inflicted  by  defend- 
ant's railway  train,  thus  making  a 
prima  facie  case  of  negligence  under 
the  statute  which  defendant  failed  to 
explain,  instruction  that  plaintiff 
must  prove  by  preponderance  of  tes- 
timony that  decedent  was  injured  by 
defendant's  negligence  was  errone- 
ous Ilainel  v.  Southern  By.  Co.  in 
Mississippi,  74  So.  276,  113  Miss.  344. 


T  Louisville  &  N.  R.  Co.  v.  Ward 
(C.  C.  A.  111.)  61  F.  927,  10  C.  C.  A. 

166.  .  H  r.  I     n 

8  Cal.  Ilardv  v.  Schirmer,  124  P. 
993.   163   Cal.  272. 

Ga.  Tallulah  Falls  By.  Co.  v.  Tay- 
lor 93  S.  E.  .'i33,  20  Ga.  App.  786: 
Jamerson  v.  Thaxton,  66  S.  E.  984.  7 
Oa  App.  395;  Georgia.  F.  &  A.  By. 
Co  V.  Lasseter,  51  S.  E.  15,  122  Ga. 
679 ;  Gunn  v.  Harris,  88  Ga.  439,  14 
S.  E.  .593. 

Mo.  Zackwik  v.  Hanover  Fire  Ins. 
Co.   (App.)  225  S.  W.  135. 

Wis.  ]\TcHatton  v.  McDonnells 
Estate,  165  N.  W.  468,  166  Wis.  323. 

0  Southwestern  Telegi'aph  &  Tele- 
phone Co.  v.  Newman  (Tex.  Civ.  App.) 
34  S.  W.  661. 

Illustrations  of  instructions 
held  proper  or  sufficient.  An  in- 
struction that  the  test  of  preponder- 
ance and  weight  of  the  testimony  is 
where  the  jury  believe  truth  to  be 
after  hearing  all  the  evidence,  was 
correct.  .Tohnston  v.  Delano,  154  X. 
W.  1013,  175  Iowa,  498.  An  instruc- 
tion, on  the  preponderance  of  evi- 
dence, that  plaintifE  was  required  to 


246 


INSTRUCTIONS   TO  JURIES 


478 


charge  with  respect  to  the  degree  of  proof  essential  to  enable  a 
party  to  recover  is  not  necessarily  erroneous,  because  it  does  not 
expressly  require  him  to  prove  his  case  by  a  preponderance  of  the 
evidence ;  ^"  but  siich  an  instruction  may  be  properly  refused. ^^ 

It  is  not  error  to  accompany  an  instruction  on  the  necessity  of 
establishing  a  claim  by  a  preponderance  of  the  evidence  by  the 
statement  that  a  conviction  bevond  a  reasonable  doubt  is  not  re- 


establish his  case  by  a  preponderance 
of  the  evidence,  that  if  the  evidence 
was  evenly  balanced,  and  the  jury 
were  in  doubt  as  to  its  preponderance, 
or  if  it  favored  the  defendant,  their 
verdict  should  be  for  the  defendant, 
sufficientlv  covered  the  subject.  Han- 
dlan  v.  Miller,  122  S.  W.  751,  143 
Mo.  App.  101.  An  instruction,  defin- 
ing "prenonderance  of  the  evidence" 
as  not  the  greater  number  of  witness- 
es, but  that  evidence  which  was  more 
satisfying  and  convincing  to  the 
minds  of  the  jury,  without  adding  "in 
respect  to  its  credibility,"  was  not 
eiToneous.  Zackwik  v.  Hanover  Fire 
Ins.  Co.  (Mo.  App.)  225  S.  W.  135. 
A  charge  that  by  "preponderance 
of  evidence  is  meant  that  superior 
weight  of  evidence  on  the  issues, 
which,  while  it  may  not  convince  the 
mind  beyond  a  reasonable  doubt,  is 
yet  sufEcient  to  incline  an  impartial 
mind  to  one  side  of  the  issue  rather 
than  the  other,"  is  a  substantial  defi- 
nition of  "preponderance  of  evi- 
dence." Scott  v.  Brown.  56  S.  E.  130, 
127  Ga.  SS.  An  instruction  that  the 
preponderance  of  evidence  was  not 
alone  determined  by  the  number  of 
witnesses,  that  in  determining  the 
preponderance  the  jury  should  take 
into  consideration  the  opportunity  of 
the  witnesses  for  seeing  or  knowing 
the  things  about  which  they  testified, 
their  conduct  while  testifying,  their 
interest  or  lack  thereof  in  the  result, 
and  the  probability  or  improbability 
of  the  truth  of  their  statements  in 
view  of  all  the  other  evidence,  was 
suflicient  unon  that  point.  Hoskovoc 
v.  Omaha  St.  Ry.  Co.,  123  X.  W.  .305, 
85  Nell.  295.  An  instruction  tliat  the 
preponderance  of  evidence  in  a  case 
is  not  alone  determined  by  the  num- 
ber of  witnesses  testifying  to'  a  par- 
ticular fact,  and  that,  in  determining 


upon  which  side  the  preponderance  of 
evidence  is,  the  jury  may  consider 
the  opportunities  of  tlie  several  wit- 
nesses as  to  the  matters  about  which 
they  testify,  their  conduct  while  tes- 
tifying, their  interest  in  the  result, 
the  probability  of  the  truth  of  their 
several  statements,  and  that  from  all 
such  circumstances  the  jury  may  de- 
termine upon  which  side  is  the 
weight  of  the  evidence,  was  not  er- 
roneous. Hersberger  v.  Pacific  Lum- 
ber Co..  88  P.  587.  4  Cal.  App.  4tju, 
rehearing  denied,  88  P.  591,  4  Cal. 
App.  460. 

1 0  Hueni  v.  Freehill,  125  111.  App. 
345;  Kerr  v.  Quincy,  O.  &  K.  C.  R. 
Co.,  87  S.  W.  596,  113  Mo.  App.  1. 

Every  instruction  need  not  tell 
the  jury  that  they  must  find  the  facts 
from  a  preponderance  of  the  evi- 
dence. It  is  sufficient  if  from  the  en- 
tire charge  it  appears  that  the  jury 
were  clearly  directed  to  predicate 
their  findings  of  fact  upon  the  evi- 
dence adduced.  Chicago  &  E.  I.  R. 
Co.  V.  Pittman,  135  111.  App.  481, 
judgment  aflirmed  Pittman  v.  Chica- 
go &  E.  I.  R.  Co.,  S3  N.  E.  431,  231 
111.  581. 

Instruction  setting  out  facts  to 
be  found  from  the  evidence. 
Where  an  instruction  directed  that, 
if  the  jury  found  from  the  evidence 
the  facts  therein  stated,  they  sliould 
find  defendant  guilty,  and  the  facts 
stated  were  all  the  facts  neces.sary 
to  constitute  a  cause  of  action  and 
require  such  verdict,  the  instruction 
was  not  objectionable  for  failure  to 
require  that  the  finding  of  the  facts 
must  be  from  a  preponderance  of  the 
evidence.  Illinois  Cent.  R.  Co.  v. 
AYarriner,  S2  N.  E.  246.  229  111.  91, 
affirming  judgment  132  111.  App.  301. 

11  Richardson  v.  Dybedahl,  98  N. 
W.  164,  17  S.  D.  629. 


479  INSTRUCTIONS   ON   DEGUEK   OP   PROOF  §  247 

quired ;  *~  but  the  trial  court,  having  laid  down  the  proper  rule  as 
to  the  amount  of  evidence  required  to  prove  certain  facts  in  is- 
sue, has  discretion  to  refuse  to  make  such  additional  statement." 
An  instruction  which  enumerates  various  elements  to  be  con- 
sidered in  determining  the  preponderance  of  the  evidence,  but 
which  does  not  leave  the  jury  free  to  consider  all  the  facts  and 
circumstances  in  evidence  in  deciding  where  such  preponderance 
lies  is  erroneous,  and  is  properly  refused.^'*  The  court  should  not 
single  out  a  part  of  the  evidence,  and  require  the  jury  to  determine 
the  weight  of  the  evidence  from  such  part,^^  and  an  instruction 
which  prevents  a  party  from  relying  on  the  proof  of  his  adversary 
in  making  out  a  preponderance  of  the  evidence  is  error.*^  The  re- 
quirements of  the  rule  as  to  the  preponderance  of  the  evidence 
should  be  limited  to  those  issues  essential  to  the  maintenance  of 
the  action,^'^  and  should  not  be  extended  to  material  allegations  of 
the  complaint  which  are  admitted.**  An  instruction  that  the  plain- 
tift  must  make  out  his  case,  so  far  as  he  has  the  affirmative,  by  a 
preponderance  of  testimony,  without  telling  the  jury  in  what  re- 
spect he  has  the  affirmative,  is  improper,*^  as  is  an  instruction 
that  the  defendant  has  the  burden  of  proving  a  counterclaim  by 
the  preponderance  of  all  the  evidence  in  the  cause,  he  being  only 
required  to  prove  it  by  a  preponderance  of  the  evidence  relevant  to 
that  particular  issue.-" 

§  247.     Instructions  requiring  too  high  a  degree  of  proof 

In  civil  actions  the  party  upon  whom  the  burden  of  proof  rests 
is  not  required  to  prove  his  case  or  his  defense  by  more  than  a 
preponderance  of  the  evidence,  and  instructions  which  exact  more, 

12  Kuonster  v.  Woodhouso,  77  N.  W.  to    tlio  effoet    that    "every    item    and 

1G5,  101  Wis.  216.  element    of   damage    claimed   by    the 

isWnnderlieh  v.  Palatine  Ins.  Co.,  plaintiff  must  by  shown  by  a  prepon- 

92  N.  W.  2G4,  115  Wis.  HOO.  derance  of  the  evidence  in  the  case." 

14  Parker  v.  Chicago  Kys.  Co.,  200  Richardson  v.  Chicago  City  Ry.  Co., 

111.   App.   0 ;    Larson  v.   Ward   Corby  170  111.  App.  SoG. 

Co.,  19S  111.  App.  100  ;   Smith  v.  James,  An  instruction  to  decide  all  tile 

IG.*!    111.   App.    nOl ;     Eddy    v.    Ix)wry  issues    by    a    preponderance    of    the 

(Tex.  Civ.  App.)  24  S.  W.  107G.  evidence    is  not.    however,    objoftlon- 

isPris'ch  v.  Chicago  City  Ry.  Co.,  able    as    indefinite    and     misleading. 

17G  111.  App.  o41.  where  tlie  issues  submitted  embrai  ed 

iG  Pbiladelphia,  B.  &  W.  R.  Co.  v.  the  material  allegations  of  plaintiff's 

Hand.  Gl  A.  285.  101  Md.  2.33.  petition.      Texas    &    P.    Ry.    Co.    v. 

17  Nelson  v.  Chicago  City  Ry.  Co..  Wliiteley,  90  S.  W.  109,  43  Tex.  Civ. 

163   111.   App.   98;     Freeman    Wire  &  App.  346. 

Iron  Co.  V.  Collins,  53  111.  App.  29;  ixO'Donnell  v.  Chicago,  R.  I.  &  P. 

Collins  V.  Clark,  72  S.  W.  97,  30  Tex.  R.  Co..  91  X.  W.  5G6.  65  Neb.  612. 

Civ.  Apr).  341.  lo  Gilbert  v.  P.one.  79  111.  341. 

Proof    of    elements    of    damage.  20  Cohen    v.    Reidnnan,    102    N.    E. 

An  instruction  is  too  broad  which  is  284,  55  Ind.  App.  164. 


§247 


INSTRUCTIONS  TO  JURIES 


480 


or  which  tend  to  lead  the  jury  to  think  that  more  is  demanded,  are 
erroneous,  and  should  be  refused.^i  Under  this  rule,  instructions 
which  require  the  jury  to  have  no  doubt,  or  not  to  entertain  any 
uncertainty,  in  order  to  find  for  the  party  having  the  burden  of 


21  Ala.  Monte  v.  Narramore,  77 
So.  726,  201  Ala.  200;  United  States 
Fidelity  &  Guaranty  Co.  v.  Charles, 
31  So.  558,  131  Ala.  658,  57  L.  R,  A. 
212;  Phoenix  Ins.  Co.  v.  Moog,  81 
Ala.  .335,  1  So.  IDS. 

Cal.  Ellis  V.  Central  California 
Traction  Co.,  174  P.  407,  37  Cal.  App. 
390. 

Conn.  Beach  v.  Clark,  51  Conn. 
200. 

111.  Brady  v.  Mangle,  109  111.  App. 
172. 

Ind.  Hartman  &  Fehrenbach 
Brewing  Co.  v.  Clark,  51  A.  291,  94 
Md.  520. 

Mich.  Van  Slyke  v.  Rooks,  147 
N.  W.  579,  181  Mich.  88. 

Miss.  Mardis  v.  Yazoo  &  M.  V. 
R.  Co.,  76  So.  640,  115  Miss.  734 ;  Gen- 
try V.  Gulf  &  S.  I.  R.  Co.,  67  So.  849, 
109  Miss.  66. 

Mo.  State  ex  rel.  Detroit  Fire  & 
^Marine  Ins.  Co.  v.  Ellison,  187  S.  W. 
23,  268  Mo.  239,  quashing  record 
(App.)  Rice  V.  Detroit  Fire  &  Marine 
Ins.  Co.  of  Detroit,  Mich.,  176  S.  W. 
1113. 

N.  Y.  Kennealy  v.  Westchester 
Electric  Ry.  Co..  S3  N.  T.  S.  823,  86 
App.  Div.  293,  affirmed  74  N.  E.  1119, 
181  X.  Y.  582. 

Tex.  Gilmore  v.  Brown,  150  S.  W. 
964. 

Instructions  improper  ivithin 
rule.  An  instruction  that,  if  upon 
any  hypothesis  a  fact  can  be  account- 
ed for  on  any  other  theory  than  a 
di.shonest  one,  the  .inry  should  so 
find.  Nebraska  Mercantile  Mut.  Ins. 
Co.  V.  IVfyers,  107  N.  W.  747,  76  Neb. 
460.  An  instruction  that  plaintiffs 
must  establish  their  case  "to  the  full 
satisfaction  of  the  jury,  by  clear  and 
convincing  proof."*  Gage  v.  Louis- 
ville. N.  O.  &  T.  R.  Co.,  88  Tenn.  724, 
14  S.  W.  73.  A  charge  that,  if  the 
jury  cannot  say  who  has  told  the 
truth,  tbcy  must  find  the  facts,  so 
far  as  there  is  conflict,  not  proven. 
Kan.sas-  City,  M.  &  B.  R.  Co.  v.  Crock- 


er, 95  Ala.  412,  11   So.  262.     An  in- 
struction that,  if  the  evidence  show- 
ed "conclusively"  that  defendant  vio- 
lated the  contract  as  charged,  plain- 
tiff  would   be  entitled  to   recover  a 
sufficient   amount   to   cover  his   loss. 
Works  V.  Hill,  107  S.  W.  581,  48  Tex. 
Civ.   App.   631.     An   instruction   '-n-\r 
a  party  alleging  fraud  must  produce 
stronger   proof  than   would   be  suffi- 
cient to  establish  a  mere  debt,  and 
that  the  burden  is  on  a  party  alleging 
fraud  to  overcome  the  presumption  of 
honesty.    D.  S.  Giles  &  Son  v.  Hom- 
er, 149  N.  W.  333,  97  Neb.  162.     An 
instruction,    in    an   action    against    a 
railroad    for    damages    to    plaintiff's 
pastiire  by  fire,  that,  if  the  jury  was 
in  doubt  as  to  the  origin  of  the  fire, 
and    could    not    say    of    a    certainty 
which  fire  caused   the  damage,  they 
should  find  for  defendant.     Stevenson 
v.  Yazoo  &  M.  V.  R.  Co.,  74  So.  1.32, 
112  ISIiss.  899.     In  an  action  of  claim 
and  delivery,  an  instruction  defining 
preponderance   of   the    evidence,    and 
adding  that  if,  after  a  comparison  and 
consideration  of  all  the  evidence,  the 
evidence  for  and  against  any  material 
allegations  of  the  complaint  is  evenly 
balanced,   the  plaintiff  has  failed   to 
prove  her  case,  and  verdict  should  be 
for  the  defendant,  was  properly  refus- 
ed as  stating  that,  if  plaintiff  failed 
to    prove    any   allegation,    the   entire 
cause  of  action  would  fail.     Webster 
v.  Sherman,  84  P.  878,  33  Mont.  448. 
Proof  to  justify  equitable  relief. 
The  rule  that  in'  a  particular  case  the 
evidence  must  be  clear  and  convincing 
to  justify  equitable  relief  by  reforma- 
tion of  an  instrument  should  not  be 
given  in  the  charge  to  the  jury.     West- 
ern   Assur.    Co.    V.    Hillver-Deutsch- 
Jarratt  Co,    (Tex.  Civ.  App.)   167  S. 
W.  816. 

Proof  tliat  absolute  deed  Tiras  in- 
tended as  mortgage.  Tliough,  to 
authorize  a  finding  that  an  absolute 
deed  was  intended  as  a  mortgage, 
such  intention  must  be  shown  by  tlie 


481 


INSTRUCTIONS  ON  DEGREE  OF   PROOF 


§247 


proof,  are  erroneous.^'  So  an  instruction  that  requires  the  jury  to 
find  against  the  party  having  the  burden  of  proof,  if  there  is  an 
element  of  uncertainty  in  the  evidence  which  they  cannot  solve, 
is  erroneous.'^ 

So  instructions  are  erroneous  which  require  that,  before  the 
jury  can  find  the  existence  of  certain  facts,  the  evidence  must  be 
clear  and  strong,  and  leave  no  doul)t  in  the  minds  of  the  jury.--* 
or  which  require  that  such  facts  be  established  with  certainty,  or 
clearness  and  certainty,'^^  or  which  require  them  to  be  i>roved 
wilh    reasonable    certainty j'^'^   or   to   a    reasonable   and    moral    cer- 


cvidence  with  flearness  and  certain- 
ty, it  is  improper  to  so  instruct  the 
jury.  Palm  v.  Chernowsln-.  G7  S.  W. 
'-\gH.    2S   Tex.    Civ.    App.   40.5. 

■-;^  Ala.  Brown  v.  Master,  104  Ala. 
451,  10  So.  44.3:  Alabama  G.  S.  R. 
Co.  v.  Hill.  0.3  Ala.  514,  9  So.  722,  30 
Am.  St.  Rep.  17;  Harris  v.  Russell, 
93  Ala.  59,  9  So.  541 :  Rowe  v.  Baber. 
93  Ala.  422.  8  So.  865. 

Ark.  A.  I/.  Clark  Lumber  Co.  v. 
Bolin.  1.33  S.  W.  IIIG,  97  Ark.  343; 
Miller  v.  Hammock,  124  S.  W.  769, 
93  Ark.  312. 

111.  Reynolds  v.  Wray,  135  111. 
App.  527. 

Miss.  Brown  v.  Walker,  11  So. 
724. 

N.  C.  Willis  v.  Atlantic  &  D.  R. 
Co..  29  S.  E.  941.  122  X.  C.  905. 

R.  I.  Hobin  v.  Hoblu.  SO  A.  595, 
S3  R.  I.  249. 

Tex.  Lewter  v.  Lindley,  121  S.  W. 
17S. 

Instrnctioii  improper  'within 
rule.  A  charge  in  an  action  on  a 
note,  which  there  was  testimony  to 
show  was  jriven  to  be  returned,  or 
for  the  true  amount  to  be  fixed  in 
the  future,  that  if  the  returning, 
standing  by  itself,  was  proved  to 
their  entire  satisfaction,  plaintiff 
could  not  use  the  note  against  de- 
fendant, but  that  defendant  must  sat- 
isfy them  by  the  weight  of  evidence, 
by  testimony  in  which  they  had  im- 
plicit confidence.  Ott  v.  Oyer's  Ex'x, 
106  Pa.  0. 

2Tx)uisville  &  N.  R.  Co.  v.  Bouch- 
ard, 67  So.  265,  190  Ala.  1.57;  Louis- 
ville &  N.  R.  Co.  v.  Mason.  64  So. 
154,  10  Ala.  App.  263;  Birminirham 
Ry..  Light  &  Power  Co.  v.  .Tackson, 
63  So.  782,  9  Ala.  App.  588;  Mon- 
iNST.To  Juries— 31 


arch  Livery  Co.  v.  Luck.  63  So.  656. 
184  Ala.  518;  Ix>uisville  &  N.  R.  Co. 
v.  Penick.  62  So.  965.  8  Ala.  App.  55S ; 
Alabama  Gi-eat  Southern  R.  Co.  v. 
Robinson.  62  So.  813.  183  Ala.  265: 
Jesse  French  Piano  &  Organ  Co.  v. 
Forbes.  32  So.  678,  134  Ala.  302,  92 
Am.  St.  Rep.  31. 

Minds  of  jury  in  confusion.  A 
charge  that  if,  after  fair  considera- 
tion of  all  the  evidence,  the  minds  of 
the  .inry  were  in  confusion  whether 
plaintiff  should  recover,  they  should 
find  foi-  defendant,  may  properly  lie 
refused.  O'Brien  v.  Birmingham  Ry., 
Light  &  Power  Co.,  72  So.  343,  197 
Ala.  97. 

2  4  rx)ng  V.  Martin,  54  S.  W.  473,  152 
Mo.  668. 

2  5  First  iXat.  Bank  v.  INIyer,  56  S. 
W.  213,  23  Tex.  Civ.  App.  .302 ;  INIixon 
V.  Fan-is.  48  S.  W.  741.  20  Tex.  Civ. 
Apj).  253 ;  Howard  v.  Zimpelman,  14 
S.  W.  .59. 

Reasonable  degree  of  certainty. 
A  phrase  in  a  charge  that  "the  minds 
of  the  jury  should  be  satisfied  to  a 
n^asonable  degree  of  certainty"  does 
not  present  reversible  error.  Liver- 
pool &  London  &  Globe  Ins.  Co.  v. 
Farnsworth  Lumber  Co.,  72  Miss.  555. 
17  So.  445. 

2c  American  Liimher  &  Exiwrt  Co. 
V.  Tx)ve,  84  So.  559,  17  Ala.  App.  251: 
Smiley  v.  Hooper.  41  So.  6()0,  147  Ala. 
646;  Anniston  IMfg.  Co.  v.  Southern 
Ry.  Co.,  40  So.  965.  145  Ala.  351: 
Ix'ggett  v.  Illinois  Cent.  R.  Co..  72 
111.  App.  577. 

In  civil  cases  reasonable  satisfac- 
tion, not  satisfactiim  beyond  a  rea- 
sonable doubt,  is  all  tliat  is  re(iuired. 
Lowery  v.  Rowland,  104  Ala.  420,  10 
So.  88. 


§  247 


INSTRUCTIONS   TO  JURIES 


482 


tainty,-'  or  which  require  them  to  be  conclusively  proved,'^  or  to 
be  absolutely  shown,-^  or  to  be  proven  beyond  a  rational  doubt,^® 
or  which  require  that  no  other  rational  conclusion  can  be  drawn,^i 
or  which  require  such  facts  to  be  proven  beyond  a  reasonable 
doubt.^^ 

So  instructions  are  erroneous,  as  demanding  too  high  a  degree 
of  proof,  which  require  that  the  jury  be  reasonably  persuaded  of 
the  existence  of  essential  facts,^^  or  which  require  that  the  proof 
of  such  facts  be  sufficient  to  convince  the  minds  of  the  jury,^* 
or  which  require  the- consciences  of  the  jury  to  be  satisfied,^^  or 
that  necessary  facts  must  be  established  to  the  minds  and  con- 


-'7  Galloway  v.  United  Railroads  of 
San  Francisco  (Cal.  App.)  197  P.  6G3 ; 
Whatlev  v.  Long,  93  S.  E.  8S7,  147 
Ga.   323. 

2  8  Greathouse  v.  Moore  (Tex.  Civ. 
App.)  23  S.  W.  226. 

2  9  Bolen-Damall  Coal  Co.  v.  Wil- 
liams (C.  C.  A.  Ind.  T.)  161  F.  66.5,  90 
C.  C.  A.  4S1.  reversing  judgmpnt  101 
R.  W.  S67.  7  Ind.  T.  648;  Mann  v. 
Darden.  60  So.  4.54,  6  Ala.  App.  555. 

3  0  Neal  V.  Fesperman,  46  N.  C.  446. 
Contra.     Yarbrough  v.  Arnold,  20 

Ark.  592. 

31  Pelky  V.  Palmer,  109  Mich.  561, 
67  N.  W.  561. 

3  2  Ala.  Decatur  Car  Wheel  & 
Mfg.  Co.  V.  Mehaffey,  29  So.  646,  12S 
Ala.  242. 

Ga.    Seymour  v.  Bailey,  76  Ga.  .338. 

Kan.  Stille  v.  McDowell.  2  Kan. 
874.  85  Am.  Dec.  590. 

Ky.  .31]tna  Ins.  Co.  v.  Johnson,  (11 
Bush)  587.  21  Am.   Rep.  223. 

Md.  Slioop  V.  Fidelity  &  Deposit 
Co.  of  ^Maryland.  91  A.  753,  124  Md. 
130.  Ann.  Cas.  1916D.  954. 

Mo.  Brooks  v.  Roberts,  220  S.  W. 
11.  281  Mo.  551. 

N.  Y.  Yablonka  v.  Knickerbor-ker 
Tee  Co.  (Sup.)  161  X.  Y.  S.  257 :  Bel- 
zer  V.  Daub  Storage  AVarehouse  &  Van 
Co.  (Sup.)  1.30  X.  Y.  S.  153. 

Pa.  Catasauqua  Mfg.  Co.  v.  Hop- 
kins. 141  Pa.  .30,  21  A.  638,  28  Wkly. 
XotPs  Cas.  146. 

W.  Va.     .Jones  v.  Riverside  Bridge 

o.,  73  S.  E.  942,  70  W.  Va.  374. 


Ji. 


.Instructions 


urithin 


^^^^uavxuvLAuua     improper 

^jjjle.     Where  the  court  properly  in- 
j.j,,ucted  that  the  burden  was  on  the 


party  alleging  fraud  to  establish  it 
by  clear  and  satisfactory  evidence,  a 
further  statement  that  it  "might  be 
established  by  proving  circumstances 
from  the  existence  of  which  fraud  is 
the  natural  and  irresistible  infer- 
ence," and  that,  "if  the  case  made  out 
is  consistent  with  fair  dealing  and 
honesty,  the  charge  of  fraud  fails," 
was  erroneous ;  since  the  jury  might 
infer  that  fraud  must  be  established 
beyond  a  reasonable  doubt.  F.  Doh- 
men  Co.  v.  X'^iagara  Fire  Ins.  Co.  of 
Citv  of  New  York,  71  N.  W.  69,  98 
Wis.  38. 

"Where  it  is  doubtful  Tvhetlier 
under  an  instruction  in  a  civil  ac- 
tion, the  jury  are  to  find  according 
to  preponderance  of  evidence,  or 
must  be  satisfied  beyond  a  reasonable- 
doubt,  it  should  be  refused.  Hocum 
V.    Weitherick,   22   Minn.    152. 

Proper  form  of  instruction. 
An  instruction  that  "the  plaintiff  is 
not  bound  to  prove  his  case  beyond  a 
reasonable  doubt,  but  is  merely  bound 
to  prove  it  by  a  preponderance  of  the 
evidence"  is  correct.  Crouse  v.  Bar- 
ber Asphalt  Paving  Co.,  162  111.  App. 
271;  Rifirdan  v.  Chicago  City  Ry. 
Co..  178  111.  App.  323. 

3  3  White  V.  Farris,  27  So.  259,  124 
Ala.   461. 

3  4  Southern  Ry.  Co.  v.  Hobbs,  43 
So.  844,  151  Ala.  335;  Newman  v. 
Xewman.  208  111.  App.  97 ;  Merchants' 
Loan  &  Trust  Co.  v.  Lamson.  90  111. 
App.  18. 

3  0  Birmingham  Ry.  Light  &  Power 
Co.  v.  IMartin.  42  So.  618,  148  Ala.  8; 
Birmingham  Ry..  Light  &  Power  Co. 
V.  Hiiiton,  37  So.  635,  141  Ala.  606. 


483 


INSTRUCTIONS   ON   DEGREE  OF   PROOF 


248 


sciences  of  the  jury  by  a  preponderance  of  the  evidence, ^^  or 
which  call  for  clear  and  positive  proof,^'  or  for  satisfactory  aftirnia- 
tive  proof,^*  or  which  demand  that  facts  be  clearly,  or  clearly  and 
fairly,  proven,^*  or  w'hich  require  abundant  proof,"*"  or  an  abiding 
conviction,'*^  or  that  the  jury  be  clearly  convinced,^'  or  that  the 
evidence  shall  be  clear  and  unequivocal,"*^  or  that  it  be  clear, 
cogent  and  convincing,"*"*  or  that  it  must  be  clear,  convincing,  and 
conclusive,*^  or  that  essential  facts  be  clearly  and  distinctly  prov- 
en,''** or  requiring  such  proof  as  clearly  outweighs  the  evidence  of 
the  other  side.*' 

An  instruction  requiring  a  party  to  establish  his  case  or  cer- 
tain necessary  facts  has  been  held  to  require  too  high  a  degree 
of  proof ;  '**  but  there  are  decisions  the  other  way."*^ 

§  248.     Correctness   of  use   of  wards   "satisfy,"  "to  the   satisfac- 

faction,"  etc. 

Taking  the  view  that  the  burden  of  proof  on  a  party  is  sustained 

by  evidence  sufficient  reasonably  to  satisfy  the  jury,  it  is  held  in 

some  jurisdictions  that  a  charge  that  the  jury  must  be  satisfied 


3  6  McKay  v.  Seattle  Electric  Co., 
136  P.  134,' 76  Wash.  257. 

3  7  Simpson  Bank  v.  Smith.  114  S. 
W.  445,  52  Tex.  Civ.  App.  349. 

ssFrick  V.  Kahaker,  90  N.  W.  49S. 
116  Iowa,  494. 

30  jrcLeod  V.  Sharp.  53  111.  App. 
406:  ITall  v.  Wolff.  61  Iowa,  559,  16 
N.  W.  710.  followinc  West  v.  Druff, 
55  Iowa,  335,  7  N.  W.  636. 

40  Swinney  v.  Booth,  28  Tex.  113. 

41  Battles  V.  Tallmau,  96  Ala.  403. 
11  So.  247. 

■12  w^ilkiuson  v.  Searcy,  76  Ala.  176; 
Wilcox  V.  Henderson,  64  Ala.  535 ; 
Silverstone  v.  London  Assur.  Corpora- 
tion, 142  N.  W.  776,  176  Mich.  525. 

In  an  equity  suit,  in  which  the 
findings  of  the  juiy  are  merely  ad- 
visory, such  an  instruction  is  i)roi> 
er.  Sweetser  v.  Dobbins  (Cal.)  3  P. 
116. 

4  3  McCord-Brady  Co.  v.  Moneyhan, 
81  N.   W.   60S.  59  Neb.  593. 

44  Dovich  V.  Chief  Consolidated 
Mining  Co.,  174  P.  627,  53  Ttah.  522. 

4  r,  Eoberge  v.  Bonner,  77  N.  E. 
1023,  1S5  N.  y.  265,  affirming  judg- 
ment SS  N.  Y.  S.  91,  94  App.  Div.  342. 

4  6  Gehlert  v.  Qninn,  90  P.  16S,  35 
Mont.  451.  119  Am.  St.  Rep.  S64. 

47  Callisou  V.  Smith,  20  Kan.  2S. 


4  8  McMasters  v.  Grand  Trunk  By. 
Co.,  155  111.  App.  648:  Van  Geem  v. 
Cisr-o  Oil  Mill,  152  S.  W.  1108 ;  Inter- 
natioual  &  G.  X.  R.  Co.  v.  Duncan, 
121  S.  W.  362,  55  Tex.  Civ.  App.  440. 

4  0  Gamble  v.  Martin  (Tex.  Civ. 
App.)  151  S.  W.  327;  Houston  &  T. 
C.  R.  Co.  V.  Swancey  (Tex.  Civ.  App.) 
128  S.  W.  677. 

"Use  of  "establish"  in  the  sense 
of  "prove."  An  instruction  that 
the  burden  of  proof  was  on  iilaintitT. 
and  that  before  he  could  recover  he 
must  establish  all  the  facts  necessa- 
ry to  his  recovery  by  a  preponderance 
of  the  evidence,  the  Inirdeu  resting  on 
defendant  "to  establish  his  plea  ot 
self-defense,"  was  not  erroneous  in 
the  u.se  of  the  word  "establish."  as 
requiring  too  high  a  degree  of  proof, 
it  being  used  in  the  sense  of  "prove" ; 
the  court  having  also  charged  that 
the  jury  should  find  for  plaintiff,  if 
they  believed  from  a  prei)onderance 
of  the  evidence  that  defendant  made 
an  unlawful  as-sault  on  plainti'^f,  and 
to  find  for  defendant,  if  they  believ- 
ed from  a  preponderance  of  the  evi- 
dence that  plaintiff  was  about  to  make 
an  attack,  real  or  apparent,  on  de- 
fendant. Sumner  v.  Kinney  (.Tex. 
Civ.  App.)  136  S.   W.  1192. 


248 


INSTRUCTIONS   TO   JURIES 


484 


by  a  preponderance  of  the  evidence  of  the  existence  of  essential 
facts,  or  that  a  fact  must  be  shown  to  the  satisfaction  of  the  jury, 
exacts  too  high  a  degree  of  proof,  and  is  erroneous,^®  and  such  in- 
structions are  properly  refused.^^  In  other  jurisdictions,  however, 
a  requirement  of  proof  which  "satisfies"  the  jury,  or  "to  the  satis- 


50  Ala.  Gillespie  v.  Hester,  49  So. 
5S0.  160  Ala.  444 ;  Hackney  v.  Perry, 
44  So.  1029.  152  Ala.  626;  McEntyre 
V.  Hairstou.  44  So.  417,  152  Ala.  251 ; 
Loveruan  v.  Birmingham  Ry..  L.  &  P. 
Co.,  43  So.  411,  149  Ala.  515:  T^aw- 
rence  v.  Doe.  41  So.  612.  144  Ala. 
524 ;  F>irmin2:ham  Ry.,  Light  &  Pow- 
er Co.  V.  Lindsey,  37  So.  289,  140 
Ala.  812;  :\Ioore  v.  Heineke,  24  So. 
374.  119  Ala.  627. 

Ark.  Arkansas  M.  R.  Co.  v.  Can- 
man,  .52  Ark.  517,  13  S.  W.  280. 

Cal.  Lawrence  v.  Goodwill  (App.) 
186  P.  781. 

111.  Ruff  V.  Jarrett,  94  111.  475; 
Protection  Life  Ins.  Co.  v.  Dill.  91  111. 
174;  Thomas  v.  Ohio  Coal  Co..  199 
111.  App.  50;  Briggs  v.  Kohl,  132  111. 
App.  484 ;  Hutchinson  Xat.  Bank  v. 
Crow,  56  111.  App.  558 ;  Wollf  v.  Van 
Housen,  55  111.  App.  295 ;  Connelly 
V.  Sullivan.  50  111.  App.  627;  Gooch 
V.  Tobias,  29  111.  App.  26S;  Ottawa, 
O.  &  F.  R.  V.  R.  Co.  V.  McMath,  4  111. 
App.    356. 

Iowa.  Rosenhaum  Bros.  v.  Levitt, 
80  N.  W.  .393,  109  Iowa,  292. 

Ohio.  Cincinnati,  H.  &  D.  Rv.  Co. 
V.  Frye,  88  N.  E.  642,  80  Ohio  St.  289. 
331  Am.  St.  Rep.  709;  Buttermiller 
V.  Schmid,  4  Ohio  App.  100. 

Tex.  Brewer  v.  Doose  (Civ.  App.) 
140  S.  W.  323;  Terrell  Wholesale 
Grocery  Co.  v.  Christian  Peper  Tobac- 
co Co.  (Civ.  App.)  120  S.  W.  .565; 
Cantine  v.  Dennis  (Civ.  App.)  37  !S. 
AV.  184;  Finks  v.  Cox  (Civ.  App.) 
30  S.  W.  512;  McBride  v.  Banguss, 
65  Tox.  174. 

Instructions  held  improper 
within  rule.  An  instruction  that 
"if  the  claim  made  by  cither  party 
is  unusual,  unreasonable,  and  un- 
natural, out  of  the  ordinary  course 
of  affairs,  you  are  not  required  to 
take  the  same  for  granted  upon 
slight  evidence,  nor  should  you  so  find 
except  upon  proof  of  a  reasonable 
character    and    which    satisfies    the 


mind."  Gardner  v.  Ben  Steele  Weigh- 
er Mfg.  Co.,  142  111.  App.  348.  In  an 
action  for  breach  of  contract,  the  ex- 
istence of  the  contract  alone  being  in 
issue,  an  instruction  on  the  part  of 
defendant  that,  "if  the  evidence  fails 
to  satisfy  you,  you  will  find  for  de- 
fendant." San  Antonio  &  A.  P.  Ry. 
Co.  V.  Graves  &  Paterson  (Tex.  Civ. 
App.)  131  S.  W.  613.  In  a  suit  to 
restrain  the  operation  of  a  cotton  giu 
as  a  nuisance,  an  instruction  to  find 
for  defendant  unless  the  jury  should 
.  "find  and  be  satisfied"  that  the  evils 
complained  of  are  imminent  and  cer- 
tain to  occur.  Moore  v.  Coleman 
(Tex.  Civ.  App.)  195  S.  W.  212. 

"Thoronghly  satisfied."  An  in- 
struction, on  the  trial  of  a  civil  case, 
that  the  lury  must  be  "thoroughly  sat- 
isfied" of  a  fact  in  dispute,  is  errone- 
ous. O'Donohue  v.  Simmons,  58  Hun, 
467.  12  X.  Y.  S.  843. 

Satisfying  mind  of  truth.  A 
preponderance,  or  "fair  preponder- 
ance." of  evidence  means  merely  the 
greater  weight  of  evidence,  and  it  is 
error  to  insti'uet  that  it  signifies  "tes- 
timony of  such  siiperior  weight  and 
convincing  force  as  satisfies  the  mind 
of  its  truth."  Brvan  v.  Chicago.  R. 
I.  &  P.  Ry.  Co.,  63  Iowa,  464.  19  N. 
W.  295. 

To  require  proof  of  a  fact  by 
"full  and  satisfactory"  evidence  is 
equivalent  to  asking  for  proof  beyond 
a  reasonable  doubt.  Carleton-Fergu- 
son  Dry  Goods  Co.  v.  McFarland 
(Tex.   Civ.  App.)   230  S.   W.  208. 

SI  Ala.  Du  Bose  v.  Conner,  55  So. 
4.32.  1  Ala.  App.  4.56;  Alabama  City, 
G.  &  A.  Ry.  Co.  V.  Sampley.  .53  So.  142, 
169  Ala.  372;  Southern  Ry.  Co.  v. 
Hobbs,  43  So.  844,  151  Ala.  335. 

111.  Dombrowski  v.  Metropolitan 
Life  Ins-.  Co.,  192  111.  App.  16 ;  Swig- 
art  y.  Savely,  176  111.  App.  369 ;  Les- 
lie V.  Joliet  Bridge  &  Iron  Co.,  149 
111.  App.  210. 

Tex.     Fraser-Johnson  Brick  Co.  v. 


485 


INSTRUCTIONS   ON   DEGREE  OF   PROOF 


§  248 


faction  of  the  jury,"  is  not  improper,"-  it  being'  held  that  such 
phrases  merely  inform  the  jury  that  they  are  the  judges  as  to 
where  the  preponderance  of  evidence  lies,^^  and  it  can  safely  be 
affirmed  that  the  use  of  such  phrases  will  not  be  error  in  any  ju- 
risdiction where  the  charge  as  a  whole  clearly  shows  that  the 
court  does  not  intend  to  require  more  than  a  preponderance  of  the 
evidence.^* 

In  Wisconsin  it  has  been  held  by  Judge  Marshall  that  the  jury 
should  be  told  that  they  should  find  according  as  they  shall  be 
satisfied  of  the  truth  of  the  matter  in  controversy  by  a  prepon- 
derance of  the  evidence,  and  that  if  it  is  thought  best  to  give 
greater  definiteness  to  the  word  "satisfied,"  or,  if  requested,  the 
court  should  instruct  that  the  jury,  before  finding  in  favor  of  the 


Baird,  128  S.  W.  460,  60  Tex.  Civ. 
App.  5P>S ;  Selicniann  v.  L.  Greif  & 
Bro.  (Civ.  App.)  109  S.  W.  214 ;  West- 
ern Cottage  Piano  <&  Organ  Co.  v. 
Anderson,  101  S.  W.  1061,  45  Tex.  Civ. 
App.  513 ;  Fordvce  v.  Chancey,  2 
Tex.  riv.  App.  24,  21   S.  W.  ISl. 

Undisputed  facts.  Where,  in  an 
instruction  that,  before  plaintiffs 
conld  recover,  the  jury  must  be  "sat- 
isfied" that  certain  facts  exist,  which 
it  was  incumbent  on  plaintiffs  to 
show,  the  word  "satisfied"  is  used 
with  reference  to  a  fact  about  which 
there  is  no  dispute,  error  cannot  be 
predicated  thereon.  Martin  v.  Mis- 
souri Pac.  Ry.  Co.,  3  Tex.  Civ.  App. 
133,  22  S.  W.  195. 

52  Tnd.  Terre  ITaute  Traction  & 
Light  Co.  v.  Payne,  S9  N.  E.  413,  45 
Ind.  App.  132. 

Micli.  Kaaro  v.  Ahmeek  ISIining 
Co.,  140  N.  W.  149,  178  Mich.  661. 

Mo.  Anderson  v.  Voeltz,  206  S.  W. 
584;  Norris  v.  St.  Louis,  I.  M.  &  S. 
Ry.  Co.,  144  S.  W.  783,  239  Jilo.  605  ; 
McIMahon  v.  Supreme  Tent,  Knights 
of  the  Maccabees  of  the  World,  52  S. 
W.  384,  151  Mo.  522. 

N.  C.  Sigmon  v.  Shell,  81  S.  E. 
739,  165  N.  C.  582. 

■Wis.  McKone  v.  Metropolitan 
Life  Ins.  Co.,  110  N.  W.  472,  131  Wis. 
243. 

A  charge  that  the  burden  of 
proof  is  on  plaintiff  to  "estab- 
lish" the  facts  essential  to  hi.s-  cause 
of  action  by  a  preponderance,  or  great- 
er weight,  of  evidence,  sufficiently  in- 


forms the  jury  that  Ihey  must  be 
"sattsfied  by  a  preponderance  of  the 
evidence"  in  order  to  find  fi)r  idaiii- 
tiff.  Jones  v.  Monson,  119  X.  W.  179, 
137  Wis.  478,  129  Am.   St.  Rep.  1082. 

sy  Surber  v.  Mayfield,  60  N.  E.  7, 
156  Ind.  375. 

■'■i  St.  Louis,  I.  &  ^r.  S.  Ry.  Co.  v. 
Sparlcs,  99  S.  W.  73,  81  Ark.  187. 

Use  of  word  "satisfy"  in  the 
sense  of  "find"  or  "believe." 
When^  it  is  conceded  that  the  court 
used  the  word  "satisfy"  as  meaning 
to  ]n'oduce  a  belief,  an  instruction 
that  the  burden  was  on  defendants  to 
"satisfy"  the  jury  by  a  preponderance 
of  testimony  as  to  certain  proposi- 
tions was  not  misleading.  Sams  Au- 
tomatic Car-Coupler  Co.  v.  I^eague, 
54  P.  642,  25  Colo.  129.  An  instruc- 
tion, given  as  to  an  alleged  failure 
to  deliver  a  bank  bill  of  a  certain 
denomination  in  exchange  for  a  like 
amount  ih  bills  of  smaller  denomina- 
tions given  to  defendant,  declaring 
that  a  prima  facie  case  as  to  nonde- 
livery must  lie  made  by  plaintift"  to  the 
"satisfaction"  of  the  jury,  is  not  ob- 
jectionable in  requiring  a  greater  de- 
gree of  evidence  than  a  preixinder- 
ance,  when  followed  by  an  instruction 
declaring  the  burden  then  shifted  to 
deft^ndant,  under  a  plea  of  delivery, 
to  establish  the  said  delivery,  ana 
that,  if  from  a  "preponderance"  the 
jury  are  satisfied  of  the  nondelivery, 
they  nuist  find  for  plaintiff;  other- 
wise for  defendant.  Callan  v.  Han- 
son, 86  Iowa,  420,  53  N.  W.  282. 


§    249  INSTRUCTIONS   TO   JURIES  486 

party  on  whom  the  burden  of  proof  rests  to  establish  any  fact, 
should  be  satisfied  of  the  existence  thereof  to  a  reasonable  cer- 
tainty, and  that  if  it  is  thought  desirable  to  define  preponderance 
of  evidence  or  if  so  requested  the  court  should  define  it  as  out- 
weighing in  convincing  force  and  not  merely  as  that  evidence 
which  convinces  the  minds  and  judgments  of  the  jury.^^  Accord- 
ingly, in  this  jurisdiction,  a  charge  that  the  jury  must  be  satis- 
fied by  the  preponderance  of  the  evidence,  to  a  reasonable  cer- 
tainty, that  a  fact  exists  before  they  can  find  such  fact,  is  not  er- ' 
roneous,^  and  it  is  misleading  to  instruct  the  jury  to  find  for 
plaintiff  if  he  "has  proven  his  case  by  a  fair  preponderance  of 
evidence,  if  his  evidence  weighs  enough  more  than  that  of  the 
defendant  to  turn  the  scale  on  plaintiff's  side,  even  if  it  be  but 
little,  if  that  little  be  perceptible,"  etc.,  instead  of  charging  that 
they  must  be  "satisfied,"  by  a  preponderance  of  evidence,  of  the 
existence  of  all  facts  essential  to  his  right  of  recovery,^'  although 
an  instruction  that  the  case  is  to  be  decided  on  the  preponderance 
of  the  evidence,  and  that  that  evidence  preponderates  which  weighs 
most,  is  not  objectionable,  where  the  court  charges,  in  immediate 
connection  therewith,  that  the  jury  must  be  "satisfied"  by  a  pre- 
ponderance of  the  evidence.*^* 

§  249.     Instructions   not   objectionable    as    requiring   too    high    a 
degree  of  proof 

An  instruction,  requiring  the  jury  to  find  the  necessary  facts  to 
their  reasonable  satisfaction  does  not,  as  already  indicated,  de- 
mand too  high  a  degree  of  proof.^^     Instructions  do  not  require 

ssGrotjan  v.  Rice,  102  N.  W.  551,  ably  "convinced"  that  she  has  borne 

124  Wis.  253.  the   bnrrten,   the   verdict   will  be   for 

5  6  Pelitier  v.  Chicago,  St.  P.,  M.  &  plaintiiS,  is  not  erroneous  because  of 

O.  Ry.  Co.,  88  Wis.  021,  60  N.  W.  250.  the  use  of  the  word  "convinced"  in- 

Aii    instruction    to    tlie    jury    to  stead    of    "satisfied."      Meyrovitz    v. 

find    according    to    tlieir    "convic-  Levy,   63    So.   963,   184   Ala.    293. 
tion"  as  to  what  is  true,  and  to  find  Necessity  of  using  phrase  "fair 

for  plaintiff  if  they  "believe"  that  the  preponderance."       A     charge     that 

evidence  preponderates  in  his  favor,  plaintiff  is  entitled  to  a  verdict,  if  the 

is  proper.     Curran   v.   A.  H.    Stange  .im-y    are   "reasonably    satisfied    from 

Co.,  74  N.  W.  377,  98  Wis.  598.  all  the  evidence  that  the  allegations 

57  Guinard  v.  Knapp,  Stout  &  Co.,  of  the  complaint  are  true,"  is  not  er- 

70  N.  W.  671,  95  Wis.  482.  roneous  because  it  fails  to  state  that 

''«  Knopke  v.  Germantown  Farmers'  the   jury   must   be   satisfied   from    a 

Mut.  Ins.  Co.,  74  N.  W.  795,  99  Wis.  "fair  preponderance"  of  the  evidence. 

289.  Louisville  &  N.  R.  Co.  v.  White    (C. 

'59  O'Neill  v.  Blase,  68  S.  W.  764,  94  C.  A.  Ala.l  100  F.  239.  40  O.  C.  A.  .352. 
Mo.   App.  (;48.  In  Texas,  however,  it  is  held  that 

Reasonably     convinced.     An     in-  an  instruction  that  the  burden  is  on 

Ptruction  that  defendant  has  the  bur-  plaintiff    to    establish    to    the    jury's 

den    of   proving   a  fact   alleged,    and  reasonable  satisfaction  by  a  prei^on- 

(bat  unless  the  jurs'  shall  be  reason-  derance  of  the  evidence  the   allega- 


187  IXSTRUCTIONS  ON   DEGREE   OF   PROOF  §  251 

too  high  a  degree  of  proof  which  demand  that  essential  facts  be 
established  by  a  preponderance  of  the  evidence  satisfactory  to 
the  minds  of  the  jurors,^"  or  which  say  that  the  jury  should  be 
sure  that  such  facts  have  been  proven,®^  or  which  require  facts 
to  be  established  by  the  fair  weight  of  all  the  evidence,*^  and  it 
is  proper  to  define  preponderance  of  evidence  as  meaning  the 
greater  weight  of  evidence,*^  or  that  greater  and  superior  weight 
of  the  evidence  as  "reasonably  satisfies"  the  minds  of  the  jury." 

§  250.     Requirement  that  each  of  the  jurors  be  reasonably  satisfied 

As  a  general  rule  it  is  proper  to  charge,  and  error  to  refuse  to 
charge,  that  if  any  one  of  the  jurors  is  not  reasonably  satisfied 
from  the  evidence  that  the  plaintiff  is  entitled  to  recover  the  jurv 
cannot  find  for  him.^^  Such  a  charge  is  properly  refused,  however, 
vvhere  the  main  question  litigated  is  as  to  the  kind  and  amount  of 
damages  rather  than  the  right  to  recover  at  all,^^  and  it  is  proper 
to  refuse  to  charge  that  the  verdict  should  be  for  the  defendant 
in  case  of  the  failure  of  the  plaintiff'  to  reasonably  satisf}^  anv  one 
of  the  jurors,  since  a  mistrial  would  be  the  result  of  such  failure.^' 

§  251.     "Clear"  or  "fair"  preponderance 

An  instruction  that  the  jury  are  to  decide  the  contested  issues 
of  fact  on  the  "clear"  or  "fair"  preponderance  of  the  evidence,  or 
that  a  fact  in  issue  must  be  established  by  a  fair  preponderance  of 
the  evidence,^^  is  held  in  some  jurisdictions  not  to  be  error,  or  at 

tions  in  his  petition  is  erroneous,  be-  cs  Birmingham  Stove  &  Range  Co. 

cause  imposing  on  plaintiff  a  greater  v.   Lawler,  G6  So.  807,  11  Ala.  App. 

burden  than  the  establishment  of  his  534 :    Travis  v.  Louisville  &  X.  R.  Co., 

cause  by  a  preponderance  of  the  evi-  62  So.  Sol,  1S3  Ala.  415 ;   Birmingham 

dence.     Green  v.   Kegans,  118  S.  W.  Ry..  Light  &  Power  Co.  v.  Moore,  42 

173,  54  Tex.  Civ.  App.  237.  So.  1024,  148  Ala.  115. 

GO  Carl  V.  Settegast  (Tex.  Civ.  App.)  ^^  Birmingham  Ry.,  Light  &  Power 

211  S.  W.  .506 ;   Carstens  v.  Earles,  67  Co.  v.  Goldstein,  61  So.  2S1,  181  Ala. 

P.  404,  26  Wash.  676.  517. 

Gi  Bodie  V.  Charleston  &  TV.  C.  Rv.  «"  McLaughlin  v.  Beyer,  61  So.  62, 

Co.,  39  S.  E.  715,  61  S.  C.  468.  181  Ala.  427. 

62  McKeon  v.  Chicago,  M.  &  St.  P.  "s  Ind.  Zenker  v.  Cowan.  84  Ind. 
Ry.  Co.,  69  N.  W.  175,  94  Wis.  477,  395. 

35  L.  R.  A.  252.  59  Am.  St.  Rep.  910.  Iowa.     Bryan  v.  Chicago.  R.   I.  & 

In     Wisconsin     by     the     phrase  P.   Ry.   Co.,   63  Iowa,  464,   19   X.   W. 

"weight   of   evidence"   is  meant   the  295. 

convincing    power    of    the    evidence.  Mich.     Tyler  v.  Wright,  155  X.  W. 

Guinard  v.  Knapp.  Stout  &  Co..  70  X.  353,  188  Mich.  561:    Evans  v.  Mout- 

W.  671,  95  Wis.  482.  gomery,  95  Mich.  497,  55  X.  W.  362. 

63  Western  Union  Tel.  Co.  v.  James,  Minn.  Schmeis.-;er  y.  Albiuson,  138 
73  S.  W.  79,  31  Tex.  Civ.  App.  503.  X.  W.  775,  119  ^liiin.  428. 

64  Ball  v.  Marquis.  98  X.  W.  496,  Miss.  Chambers  v.  Meaut,  66  Miss. 
122    Iowa,    665,    withdrawing   on    re-  625.  (i  So.  465. 

hearing  opinion  in  92  X.  W.  691.  Neb.     Altschuler     v.     Coburn,     38 


§  252 


INSTRUCTIONS   TO   JURIES 


488 


least  not  to  be  reversible  error,  because  of  the  use  of  the  words 
"clear"  or  "fair,"^^  while  in  other  jurisdictions  the  use  of  such 
words  constitutes  error.''® 

§  252.     Slight  preponderance 

As  a  general  rule  an  instruction  that  the  plaintifif  satisfies  the 
rule  requiring  him  to  prove  his  case  by  a  preponderance  of  the 
evidence,  if  he  shows  even  a  slight  preponderance,  or  if  the  evi- 
dence preponderates  in  his  favor  although  but  slightly,  is  not  im- 


Neb.  881,  57  N.  W.  836;  Dunbar  v. 
Briggs,.  18  Neb.  94,  24  N.  W.  449. 

Requirement  tliat  certain  facts 
clearly  appear.  An  instruction  that 
defendant  has  the  burden  to  prove 
the  plea  of  settlement  by  a  prepond- 
•erauce  of  the  evidence,  and  that  to 
sustain  the  plea  it  must  "clearly  ap- 
pear" that  a  definite  and  distinct 
proposition  was  made  and  accepted, 
will  not  be  held  to  have  placed  too 
great  a  burden  on  defendant,  the 
meaning  of  "preponderance  of  the  evi- 
dence" having  been  properly  defined 
bv  another  instruction.  Indianapolis 
St.  Ry.  Co.  v.  Haverstiek,  74  N.  E.  34, 
35  Ind.  App.  281,  111  Am.  St.  Rep. 
163. 

6  9  Kirchner  v.  Collins,  53  S.  W. 
1081,  152  Mo.  394;  Choate  v.  Pierce 
(Miss.)  88  So.  627 ;  Carstens  v.  Earles, 
67  P.  404,  26  Wash.  676. 

In  Missouri  it  is  held  that  the  rule 
that  a  Jury  should  find  in  favor  of  the 
preponderance  of  the  evidence  is  a 
very  old  one,  and  the  addition  of  the 
words  in  qualification,  such  as 
"clear,"  "satisfactory,"  and  "fair," 
should  be  avoided,  lest  they  be  con- 
.strued  by  the  jury  as  requiring  a 
higher  degree  of  proof  than  is  furnish- 
ed bv  the  preponderance  alone. 
Kirchnin-  v.  Collins,  152  Mo.  394,  53 
S.  W.  1081. 

In  Wisconsin  the  use  of  the  word 
"fair"  in  the  phrase  "the  burden  of 
proof  is  upon  plaintiff  to  satisfy  you 
by  a  fair  preponderance  of  the  evi- 
dence" has  been  held  not  to  render 
the  charge  misleading.  Parker  v. 
Fairbanks-Morse  Mfg.  Co.,  110  N.  W. 
409,  130  Wis.  525.  But  in  an  action 
for  injuries  to  a  servant,  a  i-equested 
instruction  that  disputed  questions  of 


fact  could  not  be  determined  on  mere 
conjecture,  but  that  there  must  be 
some  direct  evidence  of  the  fact  or 
evidence  tending  to  establish  circum- 
stances from  which  the  jury  could 
reasonably  say  that  the  inferences 
therefrom  clearly  preponderated  in 
favor  of  the  existence  of  the  fact,  was 
held  to  be  inaccurate,  in  that  it  re- 
quired a  clear  preponderance  of  the 
evidence  to  justify  a  finding.  Ode- 
gard  V.  North  Wisconsin  -^umber  Co., 
110  N.  W.  809,  130  Wis.  659. 

In  Washington  an  instruction 
that  the  jury  "should  be  satisfied  by 
a  clear  preponderance  of  proof"  is  not 
erroneous  when  given  with  one  that 
"this  is  a  civil  action,  and  it  is  not 
required  in  a  civil  action  to  establish 
the  facts  beyond  a  reasonable  doubt, 
*  *  *  but  a  fair  preponderance  of 
proof  is  all  that  is  required."  Hart 
V.  Niagara  Fire  Ins.  Co.  of  State  of 
New  York,  9  Wash.  620,  38  P.  213,  27 
L.  R.  A.  86. 

7  0  111.  Nelson  v.  Fehd,  67  N.  B. 
828,  203  111.  120,  affirming  judgment 
104  111.  App.  114 ;  Bitter  v.  Saathoff, 
98  111.  266;  Draper  v.  Petrea,  147  111. 
App.  104;  Schofield  v.  Baldwin,  102 
111.  App.  560 ;  Chicago  &  E.  I.  R.  Co. 
V.  Storment,  90  111.  App.  505,  judg- 
ment aftirmed  60  N.  E.  104,  190  111.  42; 
Dow  V.  Higgins.  72  111.  App.  302; 
Mitchell  V.  Hindman.  47  111.  App.  431. 

Neb.  Search  v.  Miller,  1  N."  W. 
975,  9  Neb.  26. 

Tex.  Wyatt  v.  Chambers  (Civ. 
App.)  182  S.  W.  16;  Cowans  v.  Ft. 
Worth  &  D.  C.  Ry.  Co.,  109  S.  W.  403, 
49  Tex.  Civ.  App.  463;  B.  Lantry 
Sons  V.  Lowrie  (Civ.  App.)  58  S.  W. 
837;  Atkinson  v.  Reed  (Civ.  App.)  49 
S.  W.  260;  Cabell  v.  Menczer  (Civ. 
App.)  35  S.  W.  206. 


489 


INSTRUCTIONS  ON   DEGREE  OF   TROOP 


253 


proper. '1  In  one  jurisdiction  it  is  held  that  it  is  not  error  to  m- 
struct  that  the  slightest  difference  in  the  weight  of  the  evidence  is 
a  preponderance  sufficient  to  justify  a  verdict  in  favor  of  the  party 
in  whose  favor  such  preponderance  exists,  for  all  that  the  law  re- 
quires is  that  the  party  having  the  burden  of  proof  shall  have  a 
preponderance  of  the  evidence,  and  this  means  only  that  the  evi- 
dence shall  be  in  some  degree  more  convincing  to  sustain  his  con- 
tention than  that  of  his  adversary,  and  the  term  fair  preponder- 
ance of  the  evidence,"  often  used  in  instructions,  is  really  mean- 

in'^less  •  .  •  • 

Such  an  instruction,  however,  has  been  held  subject  to  cnti- 
cism,'«  and  where  the  issue  is  one  of  fraud  it  is  error  to  give  it 
in   some   jurisdictions.'* 

8  253.     Evidence  evenly  balanced 

It  is,  of  course,  error  to  give  an  instruction  which  would  pre- 
vent the  defendant  from  recovering  if  the  evidence  is  evenly  bab 
Inced'«     Thus  an  instruction  that  if  the  plaintiff   fails  to  proxe 


71  111.  Hancheft  v.  Haas,  76  N.  E. 
845  219  111.  546;  Chicago  City  Ry.  Co. 
V.  Bundy,  71  N.  E.  28.  210  111.  39  af- 
firming judgment  109  111.  App.  6o<; 
Chicago  Citv  Ry.  Co.  v.  Fenniraore,  64 
N  E  985,  199  111.  9,  affirming  .judg- 
ment"  99  111.  App.  174 ;  Comorouski  v. 
.Spring  Valley  Coal  Co.,  203  111.  App. 
G17;  Meers  v.  Daley,  203  111.  App. 
.515  •  Glascock  v.  Gerold,  199  111.  App. 
134;  Yonng  v.  City  of  Fairfield,  173 
111  App.  311;  La  Belle  v.  Grand  Cen- 
tral Market  Co.,  172  111.  App.  582; 
Ryan  v.  City  of  Chicago,  162  111.  App. 
■>,5''-  Hamiiton  v.  Kankakee*  Electric 
Rv.'Co.,  158  111.  App.  422:  Devine  v. 
Rvan,  115  111.  App.  498;  Chicago 
Union  Traction  Co.  v.  Lawrence,  113 
111,  App.  269,  judgment  affirmed  71  N. 
e'i024,  211  111.  378;  Chicago  &  E. 
I  R  Co.  V.  Driscoll.  107  III.  App.  615, 
judgment  affirmed  69  N.  E.  620.  207 
111  9;  Donley  v.  Dougherty,  75  111. 
App.  379,  affirmed  51  N.  E.  714,  174 
111.  582. 

Tenn.     Chapman    v.    McAdams,    1 

Lea,  500. 

Instructions  lield  proper  within 
rule.  In  an  action  against  a  city  for 
damages  occasioned  hy  requiring  the 
elevation  of  a  railroad  track,  an  in- 
struction that  if  the  jury,  after  hav- 
ing considered  all  the  facts,  including 


the  numbers  of  witnesses  and  circum- 
stances appearing  on  the  trial,  feel 
that  from  the  testimony  it  is  more 
probable  that  any  fact  is  true  or  not, 
then  such  fact  is  proven  by  the  pre- 
ponderance of  the  testimony,  however 
slight  the  preponderance  may  be.  is 
not  ground  for  reversal.  City  of  Chi- 
cago v.  Webb,  102  111.  App.  232. 

"However  sligit."  The  use  in 
an  instruction  of  the  words  "however 
slight,"  in  speaking  of  the  preponder- 
ance of  the  evidence,  does  not  war- 
rant a  criticism  of  the  instruction, 
where  the  party  objecting  thereto  ad- 
mits that  the  use  of  the  words,  "if 
the  evidence  pi-eiwnderated  but  slight- 
ly," in  the  instruction  would  have 
been  good  ;  there  being  no  material 
difference  between  the  expressions. 
Smiley  v.  Barnes,  196  111.  App.  .530. 

T2  Hammond.  W.  &  E.  C.  Electric 
Ry.  Co.  V.  Antonia,  83  N.  E.  766.  41 
.Ind.  App.  3.35; 

7  3  Chicago  City  Ry.  Co.  v.  Nelson, 
116  111.  App.  609:  O'Donnell  v.  Ar- 
mour Curled  Ilair  Works,  111  111. 
App.  516. 

7  4  St.  Louis  &  S.  F.  R.  Co.  v.  Brun- 
cr,  156  P.  649.  .56  Okl.  682. 

7  5  Wall  V.  Hill's  Heirs,  1  B.  Mon. 
290,  36  Am.  Dec.  578. 


§    253  INSTRUCTIONS   TO   JURIES  490 

his  case  by  a  preponderance  of  the  evidence  the  verdict  should  be 
for  the  defendant  is  erroneous,  as  requiring-  the  defendant  to  es- 
tablish his  case  by  such  a  preponderance/**  In  a  proper  case  it 
will  not  be  error  to  instruct  that  if  the  evidence  is  evenly  balanced 
upon  the  whole  case,  or  upon  any  material  allegation  of  the  com- 
plaint, the  verdict  must  be  against  the  party  having  the  burden  of 
proof  or  for  the  defendant,'^'^  and  it  will  be  error  to  refuse  such  an 
instruction  ''*  unless  the  issues  include  affirmative  defenses  raised 
by  the  defendant,  as  well  as  those  set  out  in  the  complaint,  in 
which  case  an  instruction  that,  if  the  evidence  is  equ^illy  balanced 
on  any  point  necessary  to  a  recovery  by  the  plaintiit,  the  verdict 
must  be  for  the  defendant,  is  incorrect,  and  is  properly  refused."^ 

Such  an  instruction  may  also  be  properly  refused,  where  other 
instructions  have  been  given  at  defendant's  request,  requiring  the 
plaintifif  to  prove  his  cause  by  a  preponderance  of  the  evidence  in 
order  to  recover.*'^  Such  an  instruction  requires  the  plaintifif  to 
prove  each  paragraph  of  his  complaint  by  a  preponderance  of  the 
evidence. 

An  instruction  on  the  burden  of  proof  that,  if  the  evidence  as 
to  either  paragraph  of  the  complaint  is  equally  balanced  so  that 
it  does  not  preponderate  on  either  side,  they  should  find  for  de- 
fendant is  properly  refused,*^  and  an  instruction  that  a  prepon- 
derance of  evidence  is  sufificient  to  authorize  a  verdict,  and  if  the 
evidence  is  nearly  equally  balanced  the  jury  may  determine  where 
the  preponderance  is  from  the  credibility  of  the  witnesses  whose 
testimony  is  in  conflict,  is  not  objectionable  on  the  ground  that  it 

TBHillvard  v.  Bair,  155  P.  449,  47  so  Porter  v.   St.  Joseph  Stockyards 

Utah,  o6i.  Co..    Ill    S.    W.    11.36,    21.3    Mo.   372 ; 

7  7  Dixon  V.  Great  Falls  &  O.  D.  Ry.  Blitt  v.  Heinrich.   33  Mo.   App.  243; 

Co.,  43  App.  D.  C.  206 ;    Roval  Trust  Hamel  v.  Brooklyn  Heights  E.  Co.,  69 

Co.  V.  Overstrom.  120  111.  App.  479:  X.  Y.  S.  166,  59  App.  Div.  135;    In- 

Jones  V.  Angell.  95  Ind.  376 ;    Renard  ternatioual  &  G.  N.  Ry.  Co.  v.  Davis 

V.  Grande,  64  N.  E.  644,  29  Ind.  App.  (Tex.  Civ.  App.)  S4  S,  W,  669;    luter- 

579.                      '  national  &  G.  N.  R.  Co.  v.  Yillareal, 

7  8  Brodie    v.    Connecticut    Co.,    87  82  S.  W.  1063,  36  Tex.  Civ.  App.  532. 

A.  798,  87  Conn.  363 ;    City  of  Streat-  Where    the    court    has    charged 

or  V.  Lieliendorfer.  71  111.  App.  625;  that    the    burden    of    proof    is    on 

Drena  v.  Travelers'  Ins.  Co.,  183  N.  Y.  plaintiff,  it  is  proper  to  refuse  a  fur- 

S.  4.39,  192  App.  Div.  703;    Schaefer  ther   instruction    that    "if,    upon    the 

V.  Metropolitan  St.  Ry.  Co.,  69  X.  Y.'  whole  evidence,  your  minds  are  equal- 

S.  980,  34  Misc.  Rep.  554;    Brockman  ly  halanced,   and  you  are  unable  to 

V.  Metropolitan  St.  Ry.  Co.,  66  X.  Y.  say  that  the  preponderance  of  the  evi- 

S.  339,  32  Misc.  Rep.  728.  dence  is  in  favor  of  plaintiff,  then  you 

7  9  Richelieu   Hotel   Co.    v.  Interaa-  will  find  for  defendant."     Gulf,  C.  & 

tional  Military  Encampment  Co.,  140  S.  F.  Rv.  Co.  v.  Locker,  78  Tex.  279, 

111.  248,  29  X.  E.  1044,  .33  Am.  St.  Rep.  14  S.  W.  611. 

2.34;    Ilickey  v.  Rio  Grande  Western  si  Mortimer  v.  Daub,  98  X.  E.  845, 

Ry.  Co.,  82  P.  29,  29  Utah,  392.  52  Ind.  30. 


491 


INSTRUCTIONS   ON   DEGREE   OF   PROOF 


g   204 


tells  the  jury  that  if  the  evidence  is  equally  balanced  they  may  find 
for  the  plaintiff.»3 

§  254.  Instructions  objectionable  or  criticized  as  requiring  less 
than  a  preponderance  of  the  evidence  or  as  permitting 
jury  to  speculate  upon  probabilities 
Instructions  which  require  less  than  a  preponderance  of  the 
evidence  to  sustain  the  burden  of  proof  of  the  essential  facts  in 
the  case,  or  which  have  a  tendency  to  lead  the  jury  to  think  that 
less  is  required,  are  equally  erroneous  with  instructions  which  de- 
mand more  than  such  a  preponderance.*^*  Thus  an  instruction  in 
efitect  that,  although  the  jury  must  be  satisfied,  it  may  be  done  by 
less  than  a  preponderance  of  the  evidence,  is  erroneous,**  and  an 
instruction  that  one  is  entitled  to  a  verdict  if  his  plea  is  sustained 
by  the  "weight"  of  evidence  is  incorrect;  the  word  "weight"'  not 
being-  synonymous  with  "preponderance."  *^  An  instruction  which 
permits  the  jury  to  speculate  upon  probabilities,  or  to  balance  one 
probability  against  another,  in  arriving  at  a  verdict,  instead  of 
telling  them  to  find  the  facts  from  a  preponderance  of  the  evi- 
dence, is  improper.*^ 


8  2  Johnson  v.  People,  140  111.  350, 
29  N.  E.  895. 

83  Rathbun  v.  T\Tiite.  107  P.  309.  157 
Cal.  248;  Grant  v.  Rowe,  83  Mo. 
App.  560. 

Mere  belief.  It  is  improper  to  in- 
struct that,  if  the  jury  "believe  from 
the  evidence"  certain  facts,  certain 
consequences  will  follow,  as  a  mere 
belief  is  not  sufficient  on  which  to 
found  a  verdict.  Sossamon  v.  Cruse, 
45  S.  E.  757,  133  X.  C.  470. 

Instrnctions    not     objectionable 
as    autborizing    recovery    ^urithout 
regard  to   the  weigbt   of  the   evi- 
dence.    An  instruction  that  "prepon- 
derance of  proof"  means  that  the  jury 
are   persuaded   of   the   soundness   of 
the  claim  more  satisfactorily  than  the 
contrary  was  not  objectionable  in  not 
employing  the  word  "weigh,"  nor  as 
implying  that  the  jury  might  be  per- 
suaded by  argument  rather  than  the 
facts,  as  the  jury  could  understand 
the  term  "persuaded"  only  to  mean 
that  the  proof  miist  be  more  persua- 
sive and  convincing.     Toledo.   St.  L. 
&  W.  R.  Co.  V.  Kouutz  .(C.  C.  A.  Ohio) 
168  F.  832,  94  C.  C.  A.  244.     In  an 
action  for  slander,  an  instruction  that 
the  plaintiff   must  prove  by   a   pre- 


ponderance of  the  evidence  that  the 
defendant  spoke  the  words  alleged, 
and  when  plaintiff  proves  "to  the  sat- 
isfaction of  the  jury  that  defendant 
falsely  spoke  the  words,"  etc.,  is  not 
erroneous,  in  that  the  quoted  words 
authorized  a  i-ecovery  without  regard 
to  the  weight  of  the  evidence,  where 
in  other  instructions  the  jury  were 
also  told  that  they  must  base  their 
findings  of  the  facts  and  their  ver- 
dict on  the  evidence.  Childs  v. 
Childs.  94  P.  660,  49  Wash.  27. 

SI  P.lue  Ridge  Land  Co.  v.  Flovd,  SS 
S.  E.  802,  171  N.  C.  543. 

s-"'  Street  v.  Sinclair,  71  Ala.  110 ; 
Shinn  v.  Tucker,  37  Ark.  580. 

so  Ala.  Going  v.  Alabama  Steel  & 
Wire  Co.,  37  So.  784,  141  Ala.  537. 

Ga.  Parker  v.  Johnson,  25  Ga. 
576. 

111.  Warner  v.  Crandall,  65  111. 
395;  Boon  v.  Bliss'  Estate,  98  111.  App. 
341. 

Iowa.  Butler  v.  Chicago  &  N.  W. 
Ry.  Co.,  71  Iowa,  206,  32  N.  W.  262. 

Mass.  llaskius  v.  Haskins,  9 
Gray,  390. 

Duty  to  tell  jury*  that  evidence 
must  satisfy  them.  \Vhere  the 
probabilities  either  way,  in  an  issue 


255 


INSTRUCTIONS  TO  JURIES 


492 


§  255.  Number  of  witnesses  as  element  in  determining  prepon- 
ponderance  of  evidence 

In  most  jurisdictions  an  instruction  that  the  jury,  in  determin- 
ing the  preponderance  of  the  evidence,  may  take  into  consideration 
the  numerical  preponderance  of  the  testimony  on  one  side  or  the 
other,  is  not  improper,^^  and  in  a  proper  case  it  will  be  error 
to  refuse  such  an  instruction.^*  Ordinarily,  however,  in  the  ab- 
sence of  any  request  so  to  instruct,*^  or  where  the  conflict  between 
the  greater  number  of  witnesses  and  the  lesser  is  not  of  a  positive 
or  decided  character,^''  it  will  not  be  error  for  the  court  to  fail  to 
call  attention  to  the  numerical  inequality  of  the  witnesses. 

Instructions  having  a  tendency  to  lead  the  jury  to  think  that 
the  value  of  testimony  or  the  preponderance  of  the  evidence  is 
to  be  determined  by  a  count  of  the  witnesses  are  erroneous.''^  Such 
an  instruction  is  not  rendered  proper  by  the  assumption  that  the 
witnesses  are  of  equal  credibility,^^  since  credibility  refers  only  to 
the  integrity  of  the  witness,  and  does  not  imply  that  he  has  in- 
telligence or  knowledge,  or  opportunity  for  knowledge,  of  the 
particular  facts  in  the  case ;  ®^  and  in  some  jurisdictions  such  an 


of  facts  before  the  jury,  are  weak,  it 
is  error  to  direct  the  jury  to  find  the 
fact  by  the  greater  probability,  with- 
out an  instruction  that  the  evidence 
must  satisfj"  tliem  that  the  fact  ex- 
ists, Dunbar  v.  McGill,  64  Mich.  676, 
31  N.  W.  57S. 

8  7  Osberg  v.  Cudaliy  Packing  Co., 
1.98  111.  App.  551. 

ss  Johnson  v.  Chicago  City  Ry.  Co., 
166  111.  App.  79 ;  Harvey  v.  McQuirk, 
158  111.  App.  50 ;  Waskiewicz  v.  Pub- 
lic Service  Ry.  Corporation,  78  A.  159, 
SO  N.  J.  Law,  694. 

In  Pennsylvania  it  is  lield  that, 
where  the  numerical  preponderance 
of  medical  testimony  favors  the  con- 
tention of  one  of  the  parties,  this 
should  be  pointed  .out  to  the  jury, 
leaving  to  them  the  credibility  of  the 
witnesses  and  the  final  determina- 
tion of  the  question  whether  the 
weight  of  the  evidence  is  on  one  side 
or  the  other.  Frysinger  v.  Philadel- 
phia Rapid  Transit  Co.,  95  A.  257,  249 
Pa,  555;  Benson  v.  Altoona  &  L.  V.  E. 
Ry.  Co.,  77  A.  492,  228  Pa.  290. 

8  9  Mills  v.  Pope,  93  S.  E.  559,  20 
Ga.  App.  820 ;  Mcintosh  v.  Mcintosh, 
79  Mich.  198,  44  N.  W.  592, 

00  Eastman  v,  Washington  &  C.  Ry. 
Co.,  37  Pa.  Super,  Ct,  287. 


91  Fengar  v.  Brown,  57  Conn.  60,  17 
A.  321;  Phenix  v,  Castner,  108  111. 
207;  Fritzinger  v.  State,  67  N.  E. 
1006,  31  Ind.  App.  350;  Hoskovec  v, 
Omaha  St.  Ry.  Co.,  115  N.  W.  312, 
SO  Neb.  784;  O'Brien  v.  State,  42  A. 
S41,  63  N.  J.  Law,  49. 

Instructions  improper  ivitliin 
rule.  Where  six  witnesses  testified 
in  favor  of  one  party,  and  three  in 
favor  of  the  adverse  party,  an  in- 
struction defining  a  preponderance  of 
the  evidence  as  the  greater  weight 
thereof,  "and  necessarily  the  greater 
number  of  witnesses,"  was  mislead- 
ing. Heald  v.  Vvestern  Union  Tele- 
,u...l.h  Co.,  105  N.  W.  588,  129  Iowa, 
326. 

Instructions  not  improper  •with- 
in rule.  Instruction  that  the  jury 
was  to  bear  in  mind  the  number  of 
witnesses  in  determining  the  prepon- 
derance of  proof,  and  that  by  prepon- 
derance was  not  necessarily  meant 
the  greater  number  of  witnesses. 
Ilanton  v.  Pacific  Electric  Ry,  Co., 
174  P.  61,  178  Cal,  616. 

0  2  Bierbach  v.  Goodyear  Rubber 
Co.,  .54  Wis.  208,  11  N.  W.  514,  41 
Am.  Rep.  19. 

o-i  Madden  v,  Saylor  Coal  Co..  Ill 
N.  W.  57,  133  Iowa,  699;    Scbmitt  v. 


493 


INSTRUCTIONS   ON   DEGREE   OF   PROOF 


§2: 


instruction  is  not  redeemed  by  the  fact  that  it  is  based  on  the  hy- 
pothesis that  all  other  things  are  equal,"*  or  that  the  witnesses  are 
of  equal  candor,  fairness,  intelligence,  and  credibility,  with  equal 
knowledge  and  opportunities  for  knowledge,""  as  the  jury  are 
thereby  prevented  from  considering  all  the  corroborating  circum- 
stances,"** 

Conversely  it  is  proper  to  tell  the  jury  that  the  preponderance 
of  the  evidence  is  not  determined  solely  or  necessarily  by  the 
number  of  witnesses  testifying  on  either  side,"'  the  jury  being  at 
the  same  time  told  the  various  elements  entering  into  such  pre- 
ponderance, including  the  number  of  witnesses,"*  and  it  is  gen- 
erally held  that  an  instruction  to  the  effect  that  the  jury  should  be 
governed  by  the  quality  of  the  testimony  rather  than  by  the  num- 
ber of  the  witnesses  is  not  improper."" 


Milwaukee  St.  Ry.  Co.,  89  Wis.  195,  Gl 
N.  W.  S34. 

9*  Hai-man  v.  Appalachian  Power 
Co.,  86  S.  E.  917,  11  ...  Va.  48. 

95  Indianapolis  Abattoir  Co.  v. 
Neidllnger,  92  N.  E.  169,  174  Ind.  400 ; 
Warren  Lonst.  Co.  v.  Powell,  89  N.  E. 
S57,  173  Ind.  207. 

9  6  Indianapolis  &  E.  Rv.  Co.  v.  Ben- 
nett, 79  N.  E.  389,  39  Ind.  App.  141. 

9  7  Xewlionse  Mill  &  Liimher  Co.  v. 
Keller,  146  S.  W.  855,  103  Ark.  .538; 
People  V.  Chun  Heong,  86  Cal.  329,  24 
P.  1021 ;  Dunbar  v.  Jones,  87  A.  -787, 
87  Conn.  253 ;  Money  v.  Seattle,  It.  & 
S.  Ry.  Co.,  109  I'.  307,  59  Wash.  120. 

9  8  Martin  v.  Vaught.  194  S.  W.  10, 
128  Ark.  293;  Mitchell  v.  Ilindman, 
150  111.  538,  37  N.  E.  916  :  Strohniever 
V.  Jamison,  208  111.  App.  612;  Gordon 
V.  Stadelman,  202  111.  App.  255 ;  Mey- 
er V.  Mead,  83  111.  19;  McCowan  v. 
Northeastern  Siberian  Co.,  84  P.  614, 
41  Wash.  675. 

Instructions  lield  proper  ivithin 
rule.  An  instruction  that  the  jury 
were  not  bound  to  decide  in  conform- 
ity with  the  declarations  of  any  num- 
ber of  witnesses  which  did  not  pro- 
duce conviction  in  their  minds  against 
a  less  number,  or  against  a  presump- 
tion of  law,  or  other  evidence  satisfy- 
ing them;  in  other  words,  that  it  was 
not  the  greater  number  of  witnesses 
that  should  control  where  their  testi- 
mony was  not  satisfactory  to  the  jury 
against  a  less  number  whose  testi- 
mony did  satisfy  them,  and  that  it 


was  upon  the  quality,  rather  than  the 
quantity  or  number,  of  witnesses  that 
the  jury  should  act.  People  v.  Bot- 
kin,  98  P.  861,  9'  Cal.  App.  244.  An 
instruction  that  the  weight  of  the 
testimony  does  not  necessarily  depend 
on  the  greater  number  of  witnesses, 
but  that  the  jury  may  consider  all 
the  facts  and  circumstances  appear- 
ing from  the  evidence,  and  determine 
from  that  which  of  the  witnesses  are 
entitled  to  the  greater  weight,  and 
that,  if  they  believe  that  the  evidence 
of  the  smaller  number  of  witnesses  on 
one  side  is  more  credible  than  the  tes- 
timony of  a  greater  number  of  wit- 
nesses on  the  other  side,  then  the  evi- 
dence preponderates  on  the  side  of  the 
smaller  number  of  witnesses.  St. 
Louis  &  O.  Ry.  Co.  v.  Union  Trust  & 
Savings  Bank,  70  N.  E.  651.  209  111. 
457.  An  instruction  that  the  jury 
may  consider  the  greater  number  of 
witnesses  that  may  testify  on  one  side 
or  the  other  of  conteste<l  issues,  hut 
that  the  preponderance  of  evidence  is 
not  necessarily  with  the  greater  num- 
ber of  witnesses,  l>ut  it  is  that  supe- 
rior weight  of  evidence  that  inclines 
the  minds  of  the  jurors  to  accept  one 
side  in  preference  to  the  other,  re- 
gardless of  the  number  of  witnesses. 
Quiggle  V.  Viming,  54  S.  E.  74,  125  Ga. 
98. 

9  0  Kansas  City.  M.  &  B.  R.  Co.  v. 
Crocker,  95  Ala.  412,  11  So.  262;  Bro- 
die  V.  Connecticut  Co.,  87  A.  798,  87 
Conn.  363;    Belk   v.   Cooper,  34   111. 


:^oo 


INSTRUCTIONS   TO   JURIES 


494 


On  the  other  hand,  the  court  should  not  unduly  minimize  the 
effect  of  the  numerical  inequality  of  the  witnesses/  and  an  in- 
struction which  is  so  framed  as  to  tend  to  lead  the  jury  to  believe 
that  they  are  not  to  consider  the  number  of  witnesses,  or  which  is 
susceptible  of  the  inference  that  the  number  of  witnesses  upon  any 
given  question  is  of  no  consequence,  is  erroneous,^  and  if  the  court 
undertakes  to  inform  the  jury  of  the  elements  to  be  considered  in 
determining  the  preponderance  of  the  evidence,  it  should  include 
the  element  of  the  number  of  the  witnesses.^     In  one  jurisdiction. 


App.  649;  Crowley  v.  Burlington,  C. 
R.  &  N.  Ry.  CO.,  65  Iowa,  658,  20  N. 
W  467.  22  N.  W.  918;  Divver  v.  Hall 
(City  Ct.  N.  Y.)  46  N.  Y.  S.  533,  20 
Misc.  Rep.  677,  reversed  (Sup.)  47  N. 
Y.  S.  630,  21  Misc.  Rep.  452. 

In  WasMngton,  however,  such  an 
instruction  is  considered  erroneous, 
as  being  misleading  and  confusing. 
Gilmore  v.  Seattle  &  R.  Ry.  Co.,  69  P. 
743,  29  Wash.  150. 

One  credible  witness  as  against 
many  "believed  to  be  nntrutbful. 
Where  there  was  conflict  in  evidence 
on  questions  of  fact,  an  instruction 
that  testimony  of  one  credible  witness 
is  entitled  to^  more  weight  than  the 
testimony  of  many  others,  if  the  jury 
have  reason  to  believe  that  such  wit- 
nesses have  knowingly  testified  un- 
truthfully, is  proper.  Kemp  v.  Slo- 
cum.  110  N.  W.  1024.  78  Neb.  440. 

1  Hodder  v.  Philadelphia  Rapid 
Transit  Co.,  66  A.  2.39,  217  Pa.  110. 

^  Dupuis  v.  Saginaw  Valley  Trac- 
tion Co..  109  N.  W.  413,  146  Mich.  151; 
Pennington  v.  Gillaspie,  06  S.  E.  1009, 
66  W.  Va.  643;  Garske  v.  Town  of 
Ridgeville.  102  N.  W.  22,  123  Wis. 
503,  3  Ann.  Cas.  727. 

Omission  of  ivord  "necessarily." 
An  instruction  to  a  jury  commencing, 
"By  a  preponderance  of  proof,  the 
court  does  not  mean  a  larger  numlier 
of  witnesses  on  a  given  point."  is  mis- 
leading because  omitting  the  word 
"necessarily"  before  the  word  "mean." 
Gallagher  v.  Singer  Sewing  Mach. 
Co.,  177  111.  App.  198. 

3  Chicago  Union  Traction  Co.  v. 
Hampe,  81  N.  E.  1027,  228  111.  346; 
Neville  v.  Chicago  &  A.  R.  Co.,  210  111. 
App.  168 :  Horstman  v.  Chicago  Rys. 
Co.,  210  111.  App.  144  ;  Dodge  v.  Bruce, 
208  111.  App.  570 ;   Richards  v.  Illinois 


Cent.  R.  Co..  197  111.  App.  282 ;  Doyle 
v.  Chicago  City  Ry.  Co.,  189  111.  App. 
438;  De  Joannis  v.  Domestic  Engi- 
neering Co.,  185  111.  App.  271 ;  O'Don- 
oghue  V.  City  of  Chicago,  167  111.  App. 
349 :  Thompson  v.  Dering  Coal  Co., 
158  111.  App.  289;  Fisher  v.  City  of 
Geneseo,  154  111.  App.  288 ;  Andreicyk 
V.  Chicago  &  E.  I.  R.  Co.,  150  111.  App. 
.539;  Cummins  v.  Cleveland,  C,  C. 
&  St.  L.  Ry.  Co.,  147  111.  App.  291; 
Illinois  Commercial  Men's  Ass'n  v. 
Perrin,  139  111.  App.  543 ;  Sullivan  v. 
Sullivan,  139  111.  App.  378. 

Instructions  improper  \iritliin 
rule.  An  instruction  which,  after 
stating  that  the  preponderance  of  the 
evidence  does  not  necessarily  depend 
on  the  number  of  witnesses  testifying 
on  either  side,  undertakes  to  enumer- 
ate the  things  the  jury  may  take  into 
consideration  in  determining  on 
which  side  the  preponderance  of  the 
evidence  is,  and  in  such  enumeration 
entirely  omits  any  reference  to  the 
number  of  the  witnesses  as  one  of 
those  elements,  where  the  number  of 
witnesses  is  important,  is  error,  as 
tending  to  lead  the  jury  to  believe 
that  such  number  is  not  to  be  consid- 
ered at  all.  Devine  v.  City  of  Chica- 
go, 178  111.  App.  39;  Zamiar  v.  Peo- 
ple's Gaslight  &  Coke  Co.,  204  111. 
App.  290;  Lyons  v.  Joseph  T.  Ryer- 
son  &  Son,  90  N.  E.  288,  242  111.  409. 
An  instruction  "that  the  weight  of  the 
testimony  does  not  necessarily  depend 
upon  the  greater  number  of  witnesse.s 
sworn  on  either  side  of  the  question 
in  dispute,"  but  that  the  jury  are  at 
liberty,  as  jurors,  to  consider  all  the 
facts  and  circumstances  appearing 
from  the  evidence  in  the  case  and  de- 
termine from  that  which  of  the  wit- 
nesses are  worthy  of  the  greater  cred- 


495  INSTRUCTIONS   OX   DEGREE   OF   PROOF  §  257 

however,  the  later  cases  have  repudiated  the  numerical  test  of 
the  preponderance  of  the  evidence,  and  in  this  jurisdiction  it  is 
proper  to  instruct  without  quahfication  that  such  preponderance 
does  not  depend  upon  the  number  of  witnesses  and  does  not  mean 
the  greater  number  of  witnesses.* 

§  256.     Effect  of  error  in  defining  preponderance  of  evidence 

The  mere  fact  that  the  charge  of  the  court  is  technically  faulty 
in  defining  preponderance  of  proof  is  not  ground  for  reversing  the 
judgment  if  the  jury  are  not  misled,  or  if  the  case  as  a  whole  is 
fairly  presented  to  them,  and  especially  if  their  verdict  is  obvious- 
.ly  correct.^  So,  where  instructions  have  been  given  properly  lay- 
ing down  the  rule  of  preponderance  of  evidence  and  defining  it, 
the  use  of  words  in  other  instructions  implying  the  necessity  of 
a  higher  degree  of  proof  than  that  involved  in  a  mere  prepon- 
derance may  be  harmless  error.** 


B.  Doctrine:  of  Reasonable  Doubt  in  Criminal' Cases 

1.     Necessity  of  Instructions  Requiring  Proof  Beyond  a  Reasonable 

Doubt 
§  257.     General  rule 

The  jury  should  be  left  in  no  uncertainty  in  a  criminal  prosecu- 
tion as  to  their  duty  to  acquit  the  defendant  if  they  are  not  con- 
vinced of  his  guilt  beyond  a  reasonable  doubt,'  and  ordinarily  it 

it.     Eidem  v.  Cliicajio.  R.  I.  &  P.  Ry.  versible  eiTor,  except  whore  the  ele- 

Co.,  144  111.  App.  .320.  merit  of  the  niiruher  of  witnesses  is 

Instructions  not  improper  with-  shown  to  be  important.    Powell  v.  Al- 

in  rule.     An  instruction  that  the  pre-  ton  &  S.  It.  R..  L'0.">  III.  App.  GO. 

ponderance  of   the   evidence   "is  not  *  Vivian    Collieries    Co.    v.    Cahall, 

alone  to  he  determined  by  the  num-  110  N.  E.  672,  1S4  Ind.  473:    Model 

her  of  witnesses"  testifying  to  a  par-  Clothing  Honse  v.   Hirsch,  85  N.   E. 

ticular  state  of  facts,  and  uamius:  sev-  719,  42  Ind.  App.  270. 

eral  of  the  elements  which  the  jury  ^  Patrick  Red  Sandstone  Co.  v.  Sko- 

should  consider  in  determining  where  man,  1  Colo.  App.  ?.2:>,  29  P.  21. 

the  preponderance  lay,  was  not  objec-  o  Jn  re  Goldthorp's  Estate,  SS  N.  W. 

tionable  on  the  ground  that  it  omitted  •  944,  115  Iowa,  4o0. 

the  element  of  the  number  of  witness-  7  Ala.     Smith  v.  State,  59  So,  190, 

es  testifying  to  any  particular  factor  4  Ala.  App.  678;    Cami)bell  v.  State, 

state  of  facts.    Chicago  City  Ry.  Co.  54  So.  107,  170  Ala.  55 ;   Birt  v.  State, 

V.   Bundy,   71   N.   E.   28,   210  111.  39,  46  So.  858,  1.56  Ala.  29. 

atlirming  judgment  109  111.  App.  637;  Ark.     Woodland    v.    State,   160   S. 

Kravilz  v.  Chicago  City  Ry.  Co.,  174  W.  875,  110  Ark.  15. 

111.  App.  182.  Ky.     Hudson     v.     Commonwealth, 

Harmless     error.     The     omission  170  S.  W.  620,  101  Kj'.  257. 

from  an  instruction  as  to  determining  La.     St^ite  v.   liagau,   22   So.   832, 

the  preponderance  of  the  evidence  of  49  l^a.  Ann.  1625. 

the  number  of  witnesses  as  one  of  the  Requiring  jury  to  be  satisfied  of 

elements  to  be  considered  is  not  re-  defendant's  innocence.    Au  instrue- 


257 


INSTRUCTIONS   TO   JURIES 


496 


will  be  reversible  error  to  fail  so  to  instruct,*  where  a  proper  re- 
quest has  been  made  for  such  an  instruction ;  ^  this  rule  applying 
in   misdemeanor  cases.^** 

Accordingly  it  is  error  to  direct  the  jury  to  find  the  defendant 
guilty,  if  from  all  the  evidence  they  believe  him  to  be  so,  without 
including  the  qualification  that  such  belief  must  be  so  strong  as 
to  be  beyond  a  reasonable  doubt/^  and  it  is  reversible  error  to  re- 


tion  requiring  a  jury  to  be  satisfied  of 
defendant's  innocence  before  they 
should  acquit  him,  and  to  convict  him 
if  they  were  satisfied  of  his  guilt,  is 
erroneous,  as  repealing  the  law  of 
reasonable  doubt.  Long  v.  State,  115 
P.  605,  4  Okl.  Cr.  xiii. 

s  Ala.  Boyd  v.  State,  43  So.  204, 
150  Ala.  101. 

Ark.  Bruce  v.  State,  75  S.  W.  lOSO, 
71  Ark.  475. 

Fla.  Barker  v.  State,  83  So.  2S7, 
78  Fla.  477.  " 

Ky.  Gatliff  v.  Commonwealth,  107 
S.  W.  739,  32  Ky.  Law  Rep.  1063; 
Prater  v.  Commonwealth,  4  Ky.  Law 
Rep.  344. 

Mich.  People  v.  Yund,  128  N.  W. 
742.  163  Mich.  504. 

Mo.  State  v.  Douglas,  167  S.  W. 
552,  258  Mo.  281 :  State  v.  Clark,  47 
S.  W.  886,  147  Mo.  20. 

Pa.  Commonwealth  v.  Hoskins,  60 
Pa.  Super.  Ct.  230. 

Tex.  Fuller  v.  State.  113  S.  W. 
.540,  54  Tex.  Cr.  R.  454;  Logan  v. 
State.  48  S.  W.  575,  40  Tex.  Cr.  R.  85. 
9  Ala.  Parker  v.  State,  59  So.  518, 
5  Ala.  App.  64;  Rosenberg  v.  State, 
59  So.  366,  5  Ala.  App.  196 ;  Black  v. 
State,  55  So.  948,  1  Ala.  App.  168; 
Huckabee  v.  State,  53  So.  251,  168 
Ala.  27;  Davidson  v.  State,  52  So. 
751,  167  Ala.  68,  140  Am.  St.  Rep.  17 ; 
White  V.  Citv  of  Anniston.  49  So.  1030, 
161  Ala.  662;  Welch  v.  State.  46  So. 
856,  156  Ala.  112 ;  Griffin  v.  State,  43 
So.  197,  150  Ala.  49 ;  Young  v.  State, 
43  So.  100,  149  Ala.  16;  Walker  v. 
State,  23  So.  149,  117  Ala.  42. 

Cal.  People  v.  Dole,  55  P.  581.  122 
Cal.  486,  68  Am.  St.  Rep.  50,  revers- 
ing judgment  51  P.  945. 

Iowa.  State  V.  Clark,  140  X.  W. 
821,  160  Iowa,  138;  State  v.  Mathe- 
son,  120  N.  W.  1030,  142  Iowa,  414, 
134  Am.  St.  Rep.  426 ;  State  v.  Bone, 
87  N.  W.  507,  114  Iowa,  537. 


Mo.  State  v.  Reppetto,  66  Mo.  App. 
2.51. 

N.  J.  State  V.  Ackerman,  41  A. 
697,  62  N.  J.  Law,  456. 

Pa.  Commonwealth  v.  Hull,  65  Pa. 
Super.  Ct.  450. 

Tex.  Elder  v.  State,  151  S.  W. 
1052,  68  Tex.  Cr.  R.  520;  Jordt  v. 
State.  95  S.  W.  514,  50  Tex.  Cr.  R.  2. 

Duty  to  acquit  unless  jury  be- 
lieve from  evidence  that  accused 
is  guilty.  In  a  murder  case,  it  was 
error  to  refuse  a  charge  that,  unless 
the  jury  believed  from  the  evidence 
that  accused  was  guilty,  they  should 
find  him  not  guilty,  since  unless  they 
believed  beyond  a  reasonable  doubt 
that  accused  was  guilty,  it  was  their 
duty  to  acquit,  and  they  would  have 
to  believe  guilt  before  they  could  be- 
lieve guilt  beyond  a  reasonable  doubt. 
Seawright  v.  State,  49  So,  325,  160 
Ala.  33. 

In  Texas,  in  the  trial  of  felonies, 
the  doctrine  of  reasonable  doubt 
should  be  given  in  charge  to  the  jury, 
whether  asked  or  not.  Treadway  v. 
State,  1  Tex.  App.  668;  Robmsou  v. 
State.  5  Tex.  App.  519. 

10  Treadway  v.  State,  1  Tex.  App. 
668. 

11  Ala.  Huff  V.  State,  77  So.  939, 
16  Ala.  App.  345;  Kennedv  v.  State, 
70  So.  957,  14  Ala.  App.  23. 

111.  People  v.  Obermeyer,  190  111. 
App.  514;  People  v.  Moore,  161  111. 
App.  56. 

Ky.  Ball  v.  Commonwealth,  99  S. 
W.  326.  30  Ky.  Law  Rep.  600 ;  Arnold 
v.  Commonwealth,  55  S.  W.  894,  21 
Ky.  Law  Rep.  1506. 

Okl.  Kimbrell  v.  State,  123  P.  1027, 
7  Okl.  Cr.  354;  Remer  v.  State,  109 
P.   247.   3   Okl.    Cr.   700. 

Tenn.  Frazier  v.  State,  100  S.  W. 
94,  117  Tenn.  430. 

Tex.  Lewis  v.  State  (Cr.  App.)  231 
S.  W.  113. 


497  INSTRUCTIONS   ON   UEGUEE   OF   PROOF  §  258 

fuse  to  charge  that  the  burden  is  on  the  state  to  prove  every  ele- 
ment of  the  offense  of  which  the  defendant  is  accused  beyond  a 
reasonable  doubt,  where  no  other  instruction  is  given  stating  the 
law  of  reasonable  doubt.^** 

If  the  evidence  of  the  state  consists  of  statements  of  witnesses, 
of  the  truth  of  which  the  jury  are  in  reasonable  doubt,  they  cannot 
convict  on  such  evidence,  although  they  may  not  believe  the  wit- 
nesses of  defendant,  and  the  defendant  is  entitled  to  an  instruc- 
tion to  this  effect.^^ 

§  258.     Qualifications  of  rule 

Where  there  is  no  dispute  of  fact  on  any  material  issue,  and 
there  is  no  possible  room  for  uncertainty  as  to  the  guilt  of  the  ac- 
cused, the  court  need  not  charge  the  doctrine  of  reasonable 
doubt,"  since  the  jury  should  not  be  coaxed  into  a  doubt  by  in- 
structions when  there  is  no  foundation  for  it  in  the  evidence.'^ 
Such  an  instruction  may  be  rendered  unnecessary  by  a  presenta- 
tion in  the  argument  of  the  counsel  for  the  defendant  of  a  state- 
ment of  the  rule  to  which  the  state  has  assented.^^ 

In  some  jurisdictions  it  is  not  error  to  omit  to  charge  the  law 
of  reasonable  doubt,  where  no  request  for  instructions  on  such 
subject  is  made.^^  and  this  is  the  general  rule  in  prosecutions  for 
misdemeanors.^* 

12  People  V.  Cohn,  76  Cal.  386,  18  947,  85  N.  J.  Law,  104.  judgment  af- 
P.  410.  firmed  92  A.  345,  86  N.  J.  ^aw,  706. 

In  Alabama  it  has  been  held  error  Pa.     Commonwealth  v.   Tresca,  31 

to  refuse  to  charge  that  the  prosecu-  Pa.  Super.  Ct.  557;    Same  v.  Di  Sil- 

tion  must  prove  every  material  fact  vestro.  Id.,  537,  556. 

charged  in  the  indictment  to  a  moral  Tex.      Brown   v.    State   (Cr.   App.) 

certainty,    that    it    must    satisfy    the  (-5  s_  "w.  90G. 

minds  of  the  jury  that  defendant  was  15  ^^^^^  ^,    Schoenwald,  31  Mo.  147. 

guilty    beyond    all   reasonable   doubt,  ^^  ^^^^^  ^   Johnson   48  N.  C  266. 

and  that,  if  the  jury  can  account  for  Af-ihw  v    ^t-ite   07  S    W    '^85   80 

his  innocence  upon  any  reasonable  hy-  ]'  ^J;l»>^y  ^-  '^tate,  J.  s.  w  .  -^o,  m^ 

pothesis,  ther  must  acquit.     McAdory  ^^k.  6io.                                         „„i,^,., 

V.  State  62  Ala.  154.  ^  \l  United    States    v.    ^  'mo,  gahela 

13  Mills  V.  State,  55  So.  331,  1  Ala.  Bridge  Co.  (D.  C.  Pa.)  160  1 .  <!-. 
.,-,„  7(5  judgment  afhnued  Pri'sidcnt,  etc..  ot 
'  iVcal.  People  v.  Scott,  141  P.  945,  Moncngnhela  Bridge  Co  v  United 
OA  r-ii    \nn   440  States,  30  S.  Ct.  3o6.  216  U.  S.  In.  o4 

Ga.    S  Estate.  69  Ga.  766.  L.   Ed.  4.35 ;    Biu-gess  v.   State  (Tex. 

N.  J.     State  V.  Seifert  (Sup.)  88  A.      Cr.  App.)  42  S.  W.  562. 
Inst. TO  Jubies — 32 


259 


INSTRUCTIONS   TO  JURIES 


49S 


2.     Siiific'iency  of  Instructions  on  Necessity  of  Proof  Beyond  a  Rea- 
sonable Doubt 

Application  of  doctrine  of  reasonable  doubt  to  defenses,  see  post,  §  320. 
Instructions  criticized  as  invading  province  of  jury,  see  ante,  §  66. 

§  259.     General  principles 

No  particular  formula  need  be  followed  in  charging  upon  rea- 
sonable doubt. ^*  The  governing  principle  to  be  observed  in  fram- 
ing instructions  upon  this  subject  is  that  at  all  times  during  the 
deliberations  of  the  jury,  until  they  have  arrived  at  their  verdict, 
the  presumption  of  innocence  attends  the  accused.^**     If  no  such 


19  State  V.  Dobbins,  62  S.  E.  635, 
149  N.  C.  465. 

2  0  People  V.  T.  Wab  Hing,  114  P. 
416,  15  Cal.  App.  195;  Holmes  v. 
State,  9  Tex.  App.  313;  Emery  v. 
State,  78  N.  W.  145,  101  Wis.  627. 

Instructions  held  sufficient.  On 
the  question  of  reasonable  doubt,  it 
is  sutficient  to  cbarge  that  the  law 
presumes  the  innocence  of  defendant, 
and  that,  before  he  can  be  convicted, 
the  state  is  bound  to  establish  its 
guilt  of  the  crime  charged  beyond  a 
reasonable  doubt.  State  v.  Baker,  37 
S.  W.  SIO,  136  Mo.  74.  An  instruction 
that  before  the  jury  can  convict  they 
must  be  satisfied  beyond  reasonable 
doubt  that  defendant  is  guilty  of  the 
crime  as  alleged ;  that  a  charge  of 
this  nature  is  one  peculiarly  hard  for 
a  defendant  to  clear  himself  of;  that 
from  the  nature  of  the  case  the  prose- 
cutrix and  defendant  are  usually  the 
only  witnesses ;  that  the  jury  should 
be  'pei'fectly  satisfied  from  the  case 
made  out  by  the  witnesses  and  cor- 
roborating evidence,  if  any,  before 
finding  defendant  guilty ;  that,  if  not 
satisfied,  they  should  acquit;  and  that 
the  "reasonable  doubt"  mentioned  is 
as  follows :  "A  defendant  in  a  crim- 
inal action  is  presumed  to  be  innocent 
until  the  contrary  is  proved,  by  not 
the  mere  preponderance  of  evidence, 
but  by  evidence  entirely  convincing 
to  the  jury;  and,  in  case  of  a  reason- 
able doubt  whether  his  guilt  is  satis- 
factorily shown,  he  is  entitled  to  an 
acquittal."  People  v.  Lenou.  79  Cal. 
625,  631,  21  P.  907.  An  instruction: 
"If  you  believe  the  evidence  given  in 
this  case,  in  order  to  convict  the  cir- 


cumstances should  be  such  as  to  pro- 
duce nearly  the  same  degree  of  cer- 
tainty as  that  which  arises  from 
direct  testimony,  and  to  exclude  a 
I'ational  probability  of  innocence. 
The  circumstances  ought  to  be  of  such 
a  nature  as  not  to  be  reasonably  ac- 
counted for  on  the  supposition  of  the 
prisoner's  innocence,  but  perfectly 
reconcilable  with  the  supposition  of 
the  prisoner's  guilt."  State  v.  Nel- 
son, 11  Nev.  334.  An  instruction  that 
"the  presumption  of  law  is  that  the 
defendants  are  innocent,  and  this  pre- 
sumption continues  with  them  until  it 
is  overcome  by  evidence,  beyond  a 
reasonable  doubt,  that  they  are  guilty 
as  charged  ;  a  reasonable  doubt  is  not 
a  mere  possibility  of  a  doubt,  but  it 
must  be  a  reasonable  doubt,  growing 
out  of  all  the  evidence  and  circum- 
stances in  evidence  in  the  case." 
Chavez  v.  Territory,  6  N.  M.  455,  30 
P.  903.  In  a  criminal  prosecution,  it 
is  proper  and  sufficient,  as  a  charge 
on  reasonable  doubt,  to  instruct  that 
the  law  clothes  defendant  with  a  pre- 
sumption of  innocence,  which  attends 
and  protects  him  until  it  is  overcome 
by  evidence  of  his  guilt  beyond  a  rea- 
sonable doubt,  which  means  that  the 
evidence  must  be  clear,  positive,  and 
abiding,  and  fully  satisfy  the  minds 
and  consciences  of  the  jury ;  that  it 
is  not  sufficient  to  justify  a  verdict  of 
guilty  that  there  may  be  a  strong  sus- 
picion, or  even  probability  of  guilt, 
but  the  law  requires  proof  producing 
a  clear,  undoubted,  an  entirely  satis- 
factory conviction  of  guilt,  the  burden 
of  establishing  which  is  on  the  prose- 
cution ;    and  that,  as  the  prosecution 


499 


INSTRUCTIONS   ON   DEGREE   OF   PROOF 


§259 


direction  has  been  given  in  its  main  charge,  the  court  should  ex- 
pressly charge,  on  request,  that  if  the  jury  entertain  a  reasonable 
doubt  of  the  guilt  of  the  defendant  they  must  acquit  him.'^  It 
will  not  be  error  to  fail  to  so  charge  in  so  many  words,  if  such  a 
direction  can  be  clearly  inferred  from  other  instructions  given.'^ 
Instructions  which  imply  that  the  doctrine  of  reasonable  doubt 
is  of  questionable  propriety ,-*  or  which  permit  the  jury  to  weigh 
the  evidence  under  the  rule  in  civil  cases,-*  or  which  are  otherwise 


seeks  a  conviction  on  circumstantial 
evidence  alone,  the  jury  cannot  con- 
vict unless  the  state  has  proven  de- 
fendant's guilt  beyond  a  reasonable 
doubt,  by  facts  and  circumstances  con- 
sistent with  each  other  and  with  his 
guilt,  and  absolutely  inconsistent  with 
anv  reasonable  theory  of  innocence. 
State  V.  Pyscher.  77  S.  W.  8:^6,  179 
Mo.  140.  A  charge  that  "the  defend- 
ant is  entitled  to  the  benefit  of  a 
reasonable  doubt" ;  that  "the  duty  is 
on  the  state  to  prove  to  the  satisfac- 
tion of  the  jury,  beyond  a  reasonable 
doubt,  that  the  defendant  has  com- 
mitted the  specific  crime  with  which 
she  is  charged  in  the  indictment"  ;  that 
"if  the  state  fails  to  do  so,  the  defend- 
ant is  entitled  to  an  acquittal";  that 
"you  are  to  decide  this  case  simply 
upon  the  evidence  produced  here,  and 
in  the  consideration  of  that  evidence  to 
give  the  defendant  the  benefit  of  every 
reasonable  doubt  that  arises  in  your 
minds  as  to  the  commission  of  the 
crime,  and  say  on  your  oaths  from  the 
evidence  whether  she  is  guilty  or  not." 
Gardner  v.  State,  55  N.  J.  Law,  17,  26 
A.  30.  A  charge  that  evidence  is  sutfi- 
cient  to  remove  a  reasonable  doubt 
when  it  convinces  the  judgment  of  an 
ordinarilv  prudent  man  of  the  truth 
of  a  proposition  with  such  force  ttiat 
he  would  voluntarily  act  upon  that 
conviction,  without  hesitation,  in  his 
most  important  affairs.  It  would  be 
unsafe  to  convict  any  person  of  a 
felony  when  the  facts  proved  and  the 
supposition  of  guilt  simply  afford  a 
solution  of  what  would  otherwise  be 
mvsterious  ;  but,  when  the  fact  proved 
are  susceptible  of  explanation,  upon 
no  reasonable  hypothesis,  consistent 
with  innocence,  and  point  to  guilt  be- 
yond any  other  reasonable  solution, 
then  they  are  sntficient  to  rest  a  con- 
viction upon,  although  the  crime  is  of 


the  utmost  malignity  and  the  penalty 
attached  is  the  highest,  known  to  the 
law.  This  principle  should  guide  the 
jury  in  determining  the  degree  of  an 
offence,  as  well  as  the  question  as  to 
whether  the  accused  is  guilty  of  any 
offense.  When  there  is  a  reasonable 
doubt  whether  a  defendant's  guilt  has 
been  satisfactorily  shown,  he  must  be 
acquitted;  and,  when  thei-e  is  a  rea- 
sonable doubt  in  which  of  two  or 
more  degrees  of  an  offense  he  is  guil- 
ty, he  must  be  convicted  of  the  lowest 
degree  onlv.    Stout  v.  State.  90  Ind.  1. 

21  Duthev  V.  State,  111  N.  W.  222, 
131  Wis.  178.  10  L.  R.  A.  (N.  S.)  1032. 

2  2  Mitchell  V.  State,  34  S.  E.  576, 
110  Ga.  272:  State  v.  Taylor.  71  S. 
W.  1005.  171  Mo.  465;  Wintield  v. 
State,  72  S.  W.  182,  44  Tex.  Cr.  R. 
475. 

23  State  V.  Kaufmann,  118  N.  W. 
337.  22  S.  D.  433. 

Instructions  not  erroneous  as 
depreciating  a  reasonable  doubt. 
An  instruction  is  not  erroneous,  as 
giving  the  jury  an  idea  that  a  rea- 
sonable doubt  is  but  a  small  thing, 
which  states  that  it  "does  not  mean 
anything  more  than"  that  the  jury 
should  be  satisfied  beyond  a  doubt 
which,  as  reasonable  men,  they  would 
entertain  in  matters  of  moment  to 
themselves;  that  the  doubt  should 
arise  on  an  examination  of  the  case, 
from  either  the  evidence,  statement  of 
defendant,  conflict  in  the  evidence,  or 
lack  of  evidence ;  and  that  it  does  not 
mean  the  doubt  of  an  eccentric  mind, 
crank,  or  men  with  an  oversensitive 
conscience.  Lewis  v.  State,  90  Ga.  95, 
15  S.  E.  697. 

2  4  Ark.  Jackson  v.  State,  126  S. 
W.  84:;,  94  Ark.  169. 

Ga.  Ponder  v.  State,  90  S.  E.  365, 
18  Ga.  App.  703. 

Mont.     State  v.  Jones,  139  P.  441, 


§259 


INSTRUCTIONS   TO  JURIES 


500 


calculated  to  deprive  the  defendant  of  the  right  to  an  acquittal 
in  case  the  jury  are  not  satisfied  of  his  guilt  beyond  a  reasonable 
doubt,  are,  of  course,  erroneous.-^ 


48  Mont.  505 ;    State  v.  Schnepel,   59 
P.  927,  23  Mont.  523. 

N.  Y.  People  v.  Sliauley,  62  N.  Y. 
S.  389,  30  Misc.  Rep.  290. 

Pa.  Commonwealth  v.  Deitrick.  70 
A.  275,  221  Pa.  7;  Commonwealth  v. 
Stankus,  71  Pa.  Super.  Ct.  286. 

Instructions  held  not  objection- 
able as  authorizing  a  verdict  upon 
a  mere  preponderance  of  tbe  evi- 
dence. A  charge  that  defendant  can- 
not be  convicted  unless  the  state  has 
overcome  the  presumption  of  inno- 
cence, and  has  made  out  every  mate- 
rial allegation  of  the  mdictment  be- 
yond all  reasonable  doubt,  and  that 
satisfactory  proof  is  required,  and 
that  no  mere  preponderance  of  testi- 
mony will  be  sufficient  to  warrant  a 
conviction,  unless  so  strong  as  to  re- 
move all  reasonable  doubt  of  guilt. 
State  v.  Brown,  69  N.  W.  277,  100 
Iowa,  50.  A  charge,  in  a  trial  for 
theft,  that  "the  credibility  of  witness- 
es and  weight  of  evidence  are  commit- 
ted entirely  to  the  jury,  and  by  their 
conclusions  therein,  under  the  law 
given  them  by  the  court  in  charge, 
itliev  should  determine  their  verdict." 
Webb  V.  State,  5  Tex.  App.  65.  Un- 
der an  indictment  for  selling  intoxi- 
cating liquors  to  an  habitual  drunk- 
ard, an  instruction  telling  the  jury 
"that  the  number  of  witnesses  does 
not  necessarily  determine  the  weight 
of  the  evidence  in  any  case,"  but  the 
jury  should  consider  all  the  evidence 
together,  and  determine  from  it  "as 
to  the  weight  of  the  evidence,  and  re- 
turn a  verdict  accordingly,"  is  not  ob- 
jectionable as  authorizing  a  verdict 
of  guilty  upon  a  mere  preponderance 
of  the  evidence,  especially  as  other 
instructions  distinctly  told  the  jury 
the  evidence  must  be  such  as  to  pro- 
duce belief  "beyond  a  reasonable 
doubt."  Brown  v.  People,  65  111.  App. 
58. 

2  3  U.  S.  (C.  C.  A.  La.)  Adler  v. 
United  States,  182  F.  464,  104  C.  C. 
A.  608. 

Ala.     Winter  v.  State,  20  Ala.  39. 
Cal.     I'eople  v.  Ferry,  84  Cal.  31, 
24   P.  33. 


Miss.     Gordon  v.  State,  49  So.  609, 
95  Miss.  543. 

Neb.    Flege  v.  State,  142  N.  W.  276, 
93  Neb.  610,  47  L.  R.  A.  (N.  S.)  1106. 

Tex.    Dobbs  V.  State,  100  S.  W.  946, 
51  Tex.  Cr.  R.  118. 

Va.     Waller  v.  Commonwealth,  84 
Va.  492,  5  S.  E.  364. 

Instructions    insufficient    XFitbin 
rule.     A  charge  that  the  conclusion 
i-eached  must  be  one  which  "thorough- 
ly disciplined  judgments  will  concur 
in  and  no  pure  conscience  will  disap- 
prove."   Batten  v.  State,  80  Ind.  394. 
On  a  prosecution  for  murder,  an  in- 
struction that,  if  the  "minds  and  the 
consciences  of  the  jury  are  fully  satis- 
fied" of  the  existence  of  certain  facts, 
they  should  convict.     Jones  v.  State, 
36  So.  243,  84  Miss.  194.     An  instruc- 
tion,   abstract    in    form,    which    con- 
cludes by  saying  to  the  jury  "and  such 
guilt  may  be  established  by  proof  of 
facts  and  circumstances  from  which 
it  may  be  reasonably  inferred."    Peo- 
ple  V.    Ezell,    155    111.    App.    298.      A 
charge,  on  a  trial  for  incest,  that  "the 
law  presumes  every  defendant  to  be 
innocent  until  his  guilt  is  established 
beyond  a  reasonable  doubt  by  proof. 
In  other  words,  when  the  state  pre- 
fers a  charge  against  a  citizen,  before 
he   can   be   convicted,   the  burden   is 
upon  the  state  to  show,  by  proof,  to 
your    satisfaction,    the    material    ele- 
ments of  the  offense  charged.     If  the 
proof  in  this  case  satisfies  you"  that 
defendant  did  the   act  charged,  then 
defendant    should    be    found    guilty. 
Owen  V.  State,  89  Tenn.  698,  16  S.  W. 
114;    Id.,  89  Tenn.  704,  16  S.  W.  315. 
An    instruction   that   defendant  must 
overcome  any  presumption,  or  estab- 
lish any  defense,  "to  the  satisfaction 
of  the  jury,"  is  error,  as  denying  him 
the  benefit  of  any  reasonable  doubt 
which  may  arise  from  the  evidence. 
Bishop    v.    State,    62    Miss.    289.      A 
charge  on  reasonable  doubt,  that  the 
evidence  should  be  such  as  would  con- 
trol and  decide  tlie  conduct  of  reason- 
able men  in   the  most  important  af- 
fairs of  life,  and  not  a  mere  conjec- 
ture, a  trivial  supposition,  a  bare  pos- 


SOL 


INSTRUCTIONS   OX   DEGREE   OF   PROOF 


259 


An  instruction  that  if  all  the  facts  and  circumstances,  together 
with  all  the  direct  evidence  relied  on  to  secure  a  conviction,  can 


sibility  of  the  innocence  of  defendant, 
was  not  calculated  to  impress  the 
jury  that  defendant  should  satisfy 
them  beyond  a  reasonable  doubt  of 
his  innocence.  Clay  v.  State,  GO  S. 
E.  1028,  -4  Ga.  App.  142. 

Instructions  not  improper  with- 
in rule.    An  instruction  that  if.  after 
a  careful  comparison  and  candid  con- 
sideration   of    all    the    evidenc(\    the 
jury  had  a  doubt  of  defendant's  ^uilt, 
it  would  then  be  their  duty  to  deter- 
mine whether  such  doubt  was  reason- 
able, and,  if  they  found  that  it  was 
not  a  reasonable  doubt,  it  would  not 
be     sufficient     to     acquit     defendant. 
Shumwav  v.  State,  117  N.  W.  407,  82 
Neb.    152,    judgment    affirmed    on    re- 
hearins:  119  N.  W.  517,  82  Neb.  166. 
A  charge  that  the  state  is  required  to 
demonstrate    by    competent    evidence 
and   beyond   a   reasonable  doubt   the 
guilt  of  accused  before  the  jury  could 
convict  him.     McGirt  v.   State,  54  S. 
E.  171,  125  Ga.  269.     An  instruction 
that,  "in  case  of  a  reasonable  doubt 
w^hether    defendant's    guilt    is    satis- 
factorily shown,  he  is  entitled  to  an 
acquittal."      People    v.    Wynn,    65    P. 
126,  133  Cal.  72.    An  instruction  that, 
unless  the  jury  believes  from  all  the 
evidence     beyond     reasonable     doubt 
that  the  defendant  has  been  proved 
guiltv,  thev  will  acquit.     Renaker  v. 
■Commonwealth,    189    S.    W.    92S,    172 
Ky.  714.    A  charge  that  to  warrant  a 
conviction  each  material  circumstance 
and  the  fact  of  guilt  must  be  estab- 
lished to  the  satisfaction  of  the  jui'y 
beyond  every  reasonable  doubt.     Spick 
V. 'state,  121  N.  W.  G04,  140  Wis.  104. 
A  charge  which  recpiires  the  jury  to 
affirmativelv  1)eli6ve  beyond  a  reason- 
able doubt  the  facts  necessary  to  show 
accused's  guilt  before  they  can  convict 
him,   and   which   gives  the  statutory 
charge  on  reasonable  doubt.    Mitchell 
V.  State,  158  S.  W.  815.  71  Tex.  Cr.  K. 
241.     An  instruction  that  if  the  jury 
were    satisfied    beyond    a    reasonable 
doubt  that  accused  was  guilty  of  mur- 
der,   but     had     a     reasonable     doubt 
whether  it  was  committed  under  ex- 
press  or    implied    malice,    they    must 
give  accused  the  benefit  of  such  doubt 
and  not  find  him  guilty  of  a  higher 


grade  than  murder  in  the  second  di'- 
gree,  if  he  was  guilty  of  any  offense. 
Mingo  V.  State,  133  S.  W.  882,  61  Tex. 
Cr.  R.  14.     A  statement  of  the  statu- 
tory doctrine  of  reasonal>le  doultt  in 
the  court's  charge,  that  in  all  criminal 
cases  the  burden  of  proof  was  on  tlic 
state,   that   defendant  was   presununl 
innocent  until  his  guilt  was  establish- 
ed l)y  legal  evidence  beyond  a  reason- 
able doubt,  and  that  in  case  the  jur\- 
had  a  reasonable  doubt  as  to  defend- 
ant's guilt  they  should  acquit.     King 
V.   State,  123  S.  W.  135,  57  Tex.  Cr. 
R.  363.     An  instruction  that  the  law 
presumes  defendant  innocent  until  his 
guilt  is  proved  beyond   a  reasonable 
doulit,  and  if  on  the  whole  case,  or  on 
any  material  fact  necessary  to  estab- 
lisii   his  guilt,    there  is  a  reasonable 
doubt  of  his  guilt,   they   should   find 
him  not  guilty.     Hargis  v.  Common- 
wealth, 123   S.   W.  239,   135  Ky.  578. 
A  chavge  that  to  justify  a  conviction 
the  jury  must  be  convinced  of  accus- 
ed's guilt  not  by  a  preponderance  of 
the  evidence,  but  by  testimony  strong 
enough    to    convince    them    beyond    a 
reasonable  doubt.     People  v.  Lalonde. 
137   N.   W.   74,   171   Mich.   286.      In   a 
prosecution  for  mule  theft,  defendant 
having  claimed  that  he  traded  a  pair 
of  horses  for  the  mules,  an  instruction 
that  if  the  jury  found  from  the  evi- 
dence that  defendant  traded  for  the 
mules,  or  had  a  reasonable  doubt  as 
to  whether  he  did  or  not,  they  should 
acquit    him,    sufficiently    chargeil    the 
doctrine  of   reasonable  doubt,   in   ac- 
conhmce  with  the  facts  as  defendant 
claimed    them    to    be.      Cleveland    v. 
State,  123  S.  W.  142,  57  Tex.  Cr.  R. 
356.    Accused's  right  to  the  benefit  of 
reasonable  doubt  throughout  the  case, 
including  the  issue  whether  he  wound- 
ed a  witness  to  free  himsi^lf  or  with 
intent    to    murder,     was    suthciently 
covered   by   instructions    that    if    the 
jury  believed  beyond  reasonable  doubt 
that   the   assault   was   unlawful,    but 
had  reasonable  doubt  as  to  whether  it 
was  with  intent  to  murder  or  was  an 
aggravated   assault,   accused  was   en- 
titled to  the  benefit  thereof,  and  that 
one  accused  is  presumed  to  be  inno- 
cent until  his  guilt  is  shown  beyond 


259 


INSTRUCTIOXS   TO  JURIES 


50'! 


be  reasonably  accounted  for  on  any  theory  consistent  with  the  in- 
nocence of  the  defendant,  the  jury  should  acquit  him,  places  too 
great  a  burden  upon  him,  as  all  that  he  need  do  is  to  explain  enough 
of  the  facts  to  raise  a  reasonable  doubt.-*'     On  request  the  court 


reasonable  doubt.  Perrj^  v.  State.  133 
S.  W.  685,  61  Tex.  Cr.  R.  2.  On  a 
trial  for  the  theft  of  a  hog,  a  charge 
that,  if  neither  of  the  hogs  found  in 
the  pen  of  defendant  belonged  to  the 
person  named  as  owner  in  the  indict- 
ment, the  defendant  would  not  be 
guilty,  and  that,  if  thei*e  was  a  rea- 
sonable doubt  whether  the  hogs  in  de- 
fendant's pen  were  the  property  of 
such  owner,  defendant  should  be 
found  not  guilty,  considered  as  a 
whole,  sufficiently  informs  the  jury 
that,  if  they  had  reasonable  doubts  of 
the  ownership  alleged,  they  should 
acquit  defendant.  Holloway  v.  State, 
140  S.  W.  453,  63  Tex.  Cr.  R.  503. 
Where,  on  a  prosecution  for  burglary, 
the  court  stated  to  the  jury  each  fact 
essential  to  be  proven  by  the  state, 
and  said  that  unless  they  believed, 
beyond  a  reasonable  doubt,  each  of 
the  facts,  they  must  acquit  the  de- 
fendant ;  that  nothing  was  to  be 
taken  by  implication  against  the  de- 
fendant; that  the  law  presumed  him 
innocent  of  the  crime  until  he  was 
proven  guilty  beyond  a  reasonable 
doubt,  by  competent  evidence,  and 
that,  if  the  evidence  left  on  the  minds 
of  the  jury  a  reasonable  doubt,  they 
should  acquit  him,  and  that  they 
must  determine  the  question  of  his 
guilt  from  all  the  evidence  in  the 
case;  and  that  unless  they  could  say, 
after  a  consideration  of  all  the  evi- 
dence in  the  case,  that  every  essen- 
tial fact  was  proved  beyond  a  reason- 
able doubt,  they  should  find  for 
the  defendant — the  instructions  fully 
informed  the  jury  as  to  their  duty. 
State  v.  Simas,  62  P.  242,  25  Nev. 
432.  Where  the  court  charged  that, 
if  the  evidence  or  the  lack  of  it  left 
in  the  minds  of  the  jui-y  any  rea- 
sonable doubt  as  to  any  of  the  facts 
required  to  be  proved  to  sustain  a 
conviction,  they  must  acquit,  an  in- 
struction that  while  the  jury  were 
not  to  find  defendants,  or  either  of 
them,  guilty,  if  they  entertained  a 
reasonable  doubt  of  guilt,  they  were 
not  to  se:irch  for  a  doubt  and  go  be- 


j-ond  the  evidence  to  hunt  for  doubts ; 
that  a  doubt  referred  to  as  reasonable 
was  such  a  doubt  as  would  naturally 
arise  in  the  mind  of  a  reasonable  man 
on  a  candid,  impartial  consideration 
of  all  the  evidence — was  not  errone- 
ous as  leading  the  jury  to  believe  that 
the  state  Avas  not  required  to  prove 
beyond  a  reasonable  doubt  the  mate- 
rial elements  of  the  offense.  Van 
Wyk  V.  People,  99  P.  1009,  45  Colo.  1. 
Where  the  court  correctly  charged  on 
presumption  of  innocence  and  the  du- 
ty of  the  jury  to  convict  only  if  con- 
vinced beyond  a  reasonable  doubt  of 
accused's  guilt,  an  additional  charge, 
on  the  jury  being  brought  into  court 
after  some  hours  spent  in  consulta- 
tion, that  cases  were  to  be  decided  on 
the  weight  of  evidence,  not  by  count- 
ing witnesses,  and  that  a  single  wit- 
ness might  be  more  satisfying  than 
half  a  dozen  witnesses  contradicting 
him,  and  that  this  was  not  a  case  of 
mistake,  but  some  one  had  falsified, 
and  that  the  jury  might  consider  the 
motive  of  the  prosecutor,  if  he  had 
any  motive,  in  making  a  false  charge, 
was  not  misleading,  as  calculated  ta 
convey  the  impression  that  the  jury 
could  convict  though  they  were  not 
convinced  beyond  a  reasonable  doubt. 
Hack  V.  State,  124  N.  W.  492,  141  Wis. 
346,  45  L.  R.  A.  (N.   S.)  664. 

"Entirely  satisfied"  or  "fully- 
satisfied."  A  statement,  in  an  in- 
struction, that  if,  on  full  considera- 
tion of  all  the  evidence,  you  are 
"fairly  and  clearly  satisfied"  of  de- 
fendant's guilt,  is  equivalent  to  say- 
ing that  the  jury  must  be  "entirely 
satisfied."  People  v.  Riljolsi,  89  Cal. 
492,  26  P.  1082.  Defendant  is  given 
the  full  benefit  of  the  doctrine  of 
reasonable  doubt  by  an  instruction 
that  the  jury  piust  be  "fully  satisfied" 
of  defendant's  guilt  before  they  can 
convict  him ;  and  if  not  "fully  satis- 
fied" that  he  did  the  act  charged,  they 
must  acquit.  State  v.  Charles,  76  S. 
E.  715.  161  N.  C.  286. 

2  0  Horn  v.  Territory,  56  P.  846,  8 
Okl.  .52. 


503  INSTRUCTIONS   ON   DEGREE   OF   PROOF  §  259 

may  be  required  to  charge  that  before  the  jury  can  convict  a  de- 
fendant the  evidence  must  be  so  convincing  as  to  lead  the  minds 
of  the  jury  to  the  conclusion  that  he  is  guilty,-'  or  that  the  hy- 
pothesis of  the  defendant's  guilt  should  flow  naturally  from  the 
facts  proven  and  be  consistent  with  all  the  facts  in  the  case.-** 
Instructions  which  reduce  the  question  of  reasonable  doubt  to  a 
mere  matter  of  belief,-'^  or  which  state  in  effect  that  all  doubts  as 
to  the  guilt  of  the  defendant  are  prima  facie  unreasonable,^'^  or 
that  the  jury  are  to  determine  the  question  of  reasonable  doubt 
from  a  consideration  of  the  evidence  of  the  state  alone,^^  are  er- 
roneous. 

The  charge  should  be  so  framed  as  not  to  deprive  the  defend- 
ant of  any  reasonable  doubt  which  may  enter  the  mind  of  a  juror, 
during  the  process  of  sifting  out  the  evidence  unworthy  of  belief, 
upon  the  consideration  of  any  item  of  evidence,  and  as  not  to 
confine  the  jury  to  a  reasonable  doubt  arising,  after  such  sifting 
out  process  has  been  completed,  on  a  consideration  of  the  evidence 
remaining.^^  It  is  error  to  refuse  to  charge  that,  if  the  evidence 
of  the  state  consists  in  the  statements  of  witnesses  of  the  truth 
of  which  the  jury  have  a  reasonable  doubt,  they  cannot  convict 
thereon,  although  they  may  not  believe  the  witnesses  for  the  de- 
fendant.^^ The  accused  is  entitled  to  an  instruction  that,  if  the 
jury  can  reconcile  the  evidence  upon  any  other  reasonable  theory 
or  hypothesis  than  that  of  the  guilt  of  the  defendant,  it  will  be 
their  duty  to  acquit  him.^* 

Instructions  tending  to  lead  the  jury  to  suppose  that  the  doc- 
trine of  reasonable  doubt  does  not  apply,  unless  they  believe  the 
defendant  to  be  innocent,  are  erroneous.^^    Accordingly  an  instruc- 

27  Willis  V.   State,  33    So.  226,  134  so  Rose  v.  State,  13  Ohio  Cir.  Ct.  R. 

Ala.  429.  342.  7  O.  C.  D.  22G. 

28Neilson  v.  State,  40  So.  221,  146  si  People  v.  Leo,  93  N.  E.  321,  24S 

Ala.  683.  111.  64. 

29  Ala.     Bin-ton  v.   State,  107  Ala.  32  Commouwealth  v.  Colaudro,  SO  A. 

lOS,    18    So.   284 ;     Jackson    v.    State,  571,  231  Pa.  343. 

106  Ala.   12,   17   So.  333 ;     Shields   v.  33  Mills  v.  State,  55  So.  331,  1  Ala. 

State.  104  Ala.  35,  16  So.  85,  53  Am.  App.  76. 

St.  Rep.  17;   Carr  v.  State,  104  Ala.  4,  34  Neilson  v.  State,  40  So.  221.  146 

16  So.  150 ;    Harris  v.  State,  100  Ala.  Ala.   683 ;     Sanford    v.    State,   39    So. 

129,  14  So.  538;    Heath  v.  State,  99  370,  143  Ala.  78;    Larrance  v.  People, 

Ala.  179,  13  So.  689;    Hooks  v.  State,  78  X.  E.  50.  222  111.  155;    Schwantes 

99  Ala.   166,  13   Sq.  767 ;    Pierson  v.  v.  State,  106  X.  W.  237,  127  Wis.  160. 

State,  99  Ala.  148,  13  So.  550:    Green  35Bartels  v.  State,  136  X.  W.  717, 

V.  State,  97  Ala.  59,  15  So.  242.  91  Neb.  575 ;   State  v.  Sehreiber,  75  A. 

Ky.     Claxon  v.  Commonwealth,  30  476,  79  N.  J.  Law,  447. 

S.  W.  998.  Instructions  not  improper  with- 

Miss.     Jeffries  v.  State,  28  So.  948,  in  rule.    An  instruction  that  the  rule 

77  Miss.  757 ;   Webb  v.  State,  73  Miss,  of  reasonable  doubt  "was  not  intend- 

456    19  So.  238.  ed  to  shield  those  who  are  actually 


25^ 


INSTRUCTIONS   TO  JURIES 


504 


tion  requiring  a  belief  in  the  innocence  of  the  defendant  in  order 
to  acquit  him  is  improper.^** 

Special  instructions,  the  tenor  of  which  is  constantly  to  admon- 
ish the  jury  against  entertaining  an  unreasonable  doubt,  there 
being  no  corresponding  caution  against  convicting  the  defendant 
if  a  reasonable  doubt  of  his  guilt  exists,  are  cause  for  reversal, 
although  no  instructions  are  asked  on  the  subject  of  reasonable 
doubt,^'  and  an  instruction,  in  a  misdemeanor  case,  tending  to 
authorize  a  conviction  on  slighter  evidence  than  in  a  prosecution 
for  a  felony,  is  erroneous.^^ 

On  the  other  hand,  instructions  which  require  an  acquittal  re- 
gardless of  whether  the  jury  entertain  a  reasonable  doubt  of  the 
guilt  of  the  accused,^^  or  which  tend  to  lead  the  jury  to  think  that 
a  higher  degree  of  proof  of  guilt  than  that  which  satisfies  beyond 
a  reasonable  doubt  is  required,***  or  which  tell  the  jury  to  acquit 
unless  they  are  absolutely  certain  of  the  guilt  of  the  defendant," 


guilty  from  just  and  merited  punisti- 
ment,  but  is  a  humane  provision  of 
the  law  which  is  intended  for  the  pro- 
tection of  the  innocent,  and  to  guard, 
so  far  as  human  agencies  can,  against 
tlie  conviction  of  those  unjustly  ac- 
cused of  crime."  Cook  v.  State,  82 
N.  E.  1047,  169  Ind.  430. 

3  c  Weber  v.  State,  101  P.  355.  2 
Old.  Cr.  329;  Smith  v.  State,  9  Tex. 
App.  150;  Robertson  v.  Same,  9  Tex. 
App.  209. 

3T  Cross  V.  State,  31  N.  E.  473,  132 
Ind.  65. 

3  8  People  V.  Chartoff,  75  N.  Y.  S. 
1088,  72  App.  Div.  555. 

39  Way  V.  State,  46  So.  273,  155  Ala. 
52. 

4  0  Ala.  Terrv  v.  State,  09  So.  370, 
13  Ala.  App.  115;  Olive  v.  State,  63 
So.  36.  8  Ala.  App.  178;  Dungan  v. 
State.  57  So.  117,  2  Ala.  App.  235; 
Patton  V.  State,  46  So.  862,  156  Ala. 
23;  Pvigsby  v.  State,  44  So.  608,  152 
Ala.  9;  Gordon  v.  State,  41  So.  847, 
147  Ala.  42;  Thayer  v.  State,  35  So. 
400,  138  Ala.  39;  McCormack  v.  State, 
32  So.  268,  133  Ala.  202;  Talbert  v. 
State,  25  So.  690,  121  Ala.  33;  Peag- 
ler  V.  State,  110  Ala.  11,  20  So.  363. 

Cal.  People  v.  Gibson,  178  P.  338. 
39  Cal.  App.  202. 

Iowa.  State  v.  Del)olt.  73  N.  W. 
499.  104  Iowa,  105. 

La.  State  v.  Johnson,  29  So.  24, 
104  La.  417,  81  Am.  St.  Rep.  139. 


Full  belief.  An  instruction  that 
no  preponderance  nor  any  weight  ot 
preponderant  evidence  is  sufficient  to 
support  a  conviction,  unless  it  gener- 
ates full  belief  of  the  facts  necessary 
to  constitute  guilt  of  accused  to  the 
exclusion  of  all  reasonable  doubt,  was 
properly  refused  as  requiring  too  high 
a  degree  of  certainty  in  the  use  of  th6 
word  "full."  McDonald  v.  State,  51 
So.  629,  165  Ala.  85. 

41  Ala.  Keith  v.  State,  72  So.  602, 
15  Ala.  App.  129;  McEwen  v.  State, 
44  So.  019,  152  Ala.  38;  Allen  v. 
State,  111  Ala.  SO,  20  So.  490;  Jack- 
son V.  State,  18  So.  728;  Webb  v. 
State,  106  Ala.  52,  18  So.  491 ;  Thom- 
as V.  State,  107  Ala.  13,  18  So.  229; 
Ross  V.  State,  92  Ala.  28,  9  So.  357,  25 
Am.  St.  Rep.  20  ;  Whatley  v.  State,  91 
Ala.  108,  9  So.  236. 

D.  C.  United  States  v.  Heath,  20 
D.  C.  272. 

Instructions  improper  ^vithin 
rule.  An  instruction  that,  to  war- 
rant a  conviction,  the  evidence  must 
be  "absolutely  incompatible  with  the 
innocence  of  the  accused."  Cornish 
V.  Territory,  3  Wjk).  95,  3  P.  793.  On 
a  trial  for  murder,  it  is  proiier  to 
refuse  requests  to  charge  requiring 
facts  to  be  established  by  evidence 
equivalent  to  "absolute  and  positive 
proof."  People  v.  Benham,  55  N.  E 
11.  100  N.  r.  402.  An  instruction  re- 
quiring the  jury  to  find  accused  not 


505 


INSTRUCTIONS   ON   DEGREE   OP   PROOF 


§  259 


or  which  direct  the  jury  to  acquit  unless  the  evidence  excludes 
every  reasonable  "supposition"  except  that  of  guilt,*^  or  which 
permit  a  reasonable  doubt  on  a  consideration  of  only  part  of  the 
evidence,*^  or  on  a  view  of  something-  outside  of  the  evidence.*^ 
or  which  require  the  jury  to  be  satisfied  beyond  a  reasonable- 
doubt  of  the  truth  of  the  facts  alleged  in  all  the  counts  of  the  in- 
dictment, when  proof  of  the  facts  alleged  in  either  count  is  suffi- 
cient  upon  which   to  base   a   conviction,'*^  or  which  predicate   an 


suilty  unless  the  evidence  generated 
:i  full  lielief  as  to  his  guilt.  Zuoker- 
man  v.  People,  72  N.  E.  741,  213  111. 
114.  A  charge  that  "the  state  is 
bound  to  prove  every  material  fact 
necessary  to  constitute  the  guilt  of 
the  defendant  fully,  clearly,  conclu- 
sively, satisfactorily,  and  to  a  moral 
certainty ;  and  if,  on  the  whole  evi> 
dence  adduced,  tlie  jury  cannot  say 
that  they  have  an  abiding  conviction 
to  a  moral  certainty  of  the  guilt  of 
the  defendant,  tlie  jury  are  bound  to 
give  him  the  benefit  of  the  doubt  and 
acquit  him."  Dennis  v.  State,  23  So. 
1002,  118  Ala.  72.  A  charge  which 
requires  full  proof  of  guilt.  Brooks 
V.  State,  62  So.  569.  8  Ala.  App.  277, 
judgment  reversed  64  So.  295,  185  Ala. 
1.  An  instruction  to  the  jury  that 
"their  opinion  of  the  guilt  of  the  de- 
fendant, based  upon  the  evidence  in 
this  case,  must  nearly  approacli  ab- 
solute certainty ;  that  is,  a  condition 
of  their  minds  so  perfect,  complete, 
and  unconditional  as  to  exclude  the 
possibility  of  a  doubt."  People  v. 
Smith,  105  Cal.  676,  39  P.  38.  No 
error  can  be  predicated  on  the  refusal 
to  define  a  reasonable  doubt  as  "an 
Impression,  after  a  full  comparison 
and  consideration  of  all  the  evidence, 
that  does  not  amount  to  a  certainty 
that  the  charge  against  the  accused  is 
true,"  since  the  word  "certainty" 
therein  Is  unqualified  by  the  terms 
"reasonable  and  moral."  State  v. 
Powers,  37  S.  E.  690,  59  S.  C.  200. 
In  a  homicide  case,  an  instruction, 
that  no  proof  of  guilt  will  satisfy 
the  demands  of  the  law  if  it  does 
not  convince  the  jury  beyond  i-ea son- 
able  doubt  that  the  defendant  is 
necessarily  guilty,  was  properly  re- 
fused, as  the  use  of  the  word  "neces- 
sarily" in  effect  asserted  that  the  (>vi- 
dence  must  oxclnde  all  doubt  of  miilt. 
Daniel    v.    State,    71    So.    79,   14  Ala. 


App.  6.'5,  certiorari  denied  Ex  parte 
Daniels,  72  So.  1019,  196  Ala.  700. 

4  2  Watson  V.  State,  72  So.  569,  15 
Ala.  App.  39;  Diamond  v.  State,  72 
So.  558,  15  Ala.  App.  33,  certiorari 
denied  (Sup.)  Ex  parte  State,  73  So. 
1002,  198  Ala.  694;  Richardson  v. 
State,  68  So.  57,  191  Ala.  21;  Mc- 
Cutcheon  v.  State,  59  So.  714,  5  Ala. 
App.  96;  Sherrill  v.  State,  35  So.  129, 
138  Ala.  3. 

43  Ala,  Williams  v.  State,  69  So. 
376,  13  Ala.  App.  133;  Dodson  v. 
State,  65  So.  206,  10  Ala.  App.  255; 
Roden  v.  State,  59  So.  751,  5  Ala. 
App.  247;  Baker  v.  State.  58  So.  971, 
4  Ala.  App.  17;  Deal  v.  State,  34  So. 
23,  136  Ala.  52. 

Fla.  Hall  v.  State,  S3  So.  513,  78 
Fla.  420.  8  A.  L.  R.  1234. 

4  4  Conner  v.  State,  65  So.  309,  10 
Ala.  Ajjp.  206 ;  Long  v.  State,  23  Neb. 
33,  36  N.  W.  310. 

Instructions  not  improper  \irith- 
in  rule.  An  instruction  that  a  rea- 
sonable doubt  is  such  a  doubt  as 
naturally  arises  after  considering  all 
the  evidence  introduced,  when  review- 
ed in  the  light  of  all  the  facts  and 
circumstances  surroiuiding  the  same, 
was  not  erroneous,  in  that  it  i)ermit- 
ted  the  jury  to  consider  all  the  facts, 
whether  in  evidence  or  not.  State  v, 
Case,  96  Iowa,  264,  65  N.  W.  149. 
Instruction  that  one  accused  is  pre- 
sumed innocent  till  proven  guilty  be- 
yond a  reasonable  douiit,  and  that  i)re- 
sumption  attends  him  till  you  find, 
beyond  a  reasonable  doubt,  that  he  ia 
guilty,  does  not  allow  conviction  on 
anything  other  than  the  evidence ; 
"proven"  meaning  established  by  com- 
petent and  satisfactory  evidence. 
People  v.  Riker,  168  N.  W.  434.  202 
!\Tich.  377. 

4-.  I.ittleton  V.  State,  29  So.  390,  128 
Ala.  31. 


§  259 


INSTRUCTIONS   TO   JURIES 


506 


acquittal  upon  a  reasonable  doubt  of  the  guilt  of  a  third  person,*^ 
are  erroneous,  and  are  properly  refused,  and  it  is  proper  to  in- 
struct that  the  guilt  of  an  accused  need  not  be  shown  to  an  abso- 
lute certainty.*' 

Instructions  should  expressly  characterize  the  doubt  which  will 
authorize  or  require  the  acquittal  of  an  accused  as  a  reasonable 
one,*^  and  should  indicate  what  facts  are  to  be  proven  beyond  a 
reasonable  doubt,"*^  and  should  be  predicated  upon  a  fair  and  im- 
partial comparison  and  consideration  of  the  evidence.^"  An  in- 
struction on  reasonable  doubt  need  not  be  applied  in  express  terms 
to  the  concrete  facts  in  the  case.^^  and  as  a  general  rule  such  an 
instruction  which  substantially  follows  the  language  of  a  statute 
prescribing  the  effect  of  such  a  doubt  will  sufficiently  protect  the 


46  Moye  V.  State,  67  So.  716,  12  Ala. 
App.  127. 

4  7  Welsh  V.  State,  96  Ala.  92,  U 
So.  450 ;  Griffin  v.  State,  89  S.  E.  625 
18  Ga.  App.  402;  Flannigan  v.  State, 
79  S.  E.  745,  13  Ga.  App.  663 ;  Parrish 
V.  State,  14  Neb.  60.  15  N.  W.  357. 

4  8  Ala.  Minor  v.  State,  74  So.  98, 
15  Ala.  App.  556  ;  Hardeman  v.  State, 
70  So.  979,  14  Ala.  App.  35 ;  Givens  v. 
State,  62  So.  1020,  8  Ala.  App.  122; 
Perrv  v.  State,  59  So.  150,  177  Ala.  1 ; 
Blaciv  V.  State,  55  So.  948,  1  Ala.  App. 
168;  Green  v.  State,  53  So.  284,  16S 
Ala.  104;  Thomas  v.  State,  47  So.  257, 
156  Ala.  166:  Kirby  v.  State,  44  So. 
38,  151  Ala.  6G;  Thomas  v.  State,  4.3 
So.  371,  150  Ala.  31 ;  Bro\Yn  v.  State, 
43  So.  194.  150  Ala.  25;  Shirley  v. 
State,  40  So.  269,  144  Ala.  35;  Gor- 
don V.  State,  41  So.  847,  147  Ala.  42 ; 
Bowen  v.  State,  37  So.  233,  140  Ala. 
65;  McClellan  v.  State,  23  So.  653, 
117  Ala.  140;  Daughdrill  v.  State,  21 
So.  378,  113  Ala.  7;  Fleming  v.  State, 
107  Ala.  11,  18  So.  263;  Prince  v. 
State,  100  Ala.  144,  14  So.  409,  46  Am. 
St.  Rep.  28;  Kidd  v.  State,  83  Ala. 
58,  3  So.  442 ;  Jones  v.  State,  79  Ala. 
23. 

Fla.    Ernest  v.  State,  20  Fla.  383. 

Kan.  State  v.  Cassady,  12  Kan. 
550. 

N.  Y.  People  v.  Reiss,  99  N.  T, 
S.  1002,  114  App.  Div.  431 ;  People  v. 
Bcnham,  55  N.  E.  11,  160  N.  Y.  402. 

Tex.  Gibbs  v.  State,  1  Tex.  App. 
12. 

Instrnctions  improper  ivithin 
rule.     An  instruction  that  a  reason- 


able donbt  is  such  a  doubt  as  will 
cause  a  prudent  man  to  hesitate  be- 
fore he  acts,  and  if  there  is  "any 
doubt"  accused  must  be  acquitted. 
Carter  v.  State,  40  So.  82.  145  Ala. 
679.  An  instruction  that  accused  was 
entitled  to  the  legal  presumption  in 
favor  of  his  innocence,  which  in 
doubtful  cases  was  always  sufficient 
to  turn  the  scale.  Woodland  v.  State, 
160  S.  W.  875,  110  Ark.  15.  A  request- 
ed charge,  that  defendant  be  acquit- 
ted "if  there  is  any  doubt  of  the  de- 
fendant's guilt  which  is  not  purely 
speculative  doubt."  Perry  v.  State, 
91  Ala.  83,  9  So.  279.  A  requested 
instiTjction  that  if  the  evidence  leaves 
in  the  mind  ,of  the  jury  any  doubt 
as  to  the  guilt  of  the  defendant,  or 
if  after  a  fair  consideration  of  the 
facts  the  guilt  of  the  accused  remains 
in  doubt,  they  should  acquit.  Prior 
v.  Territory,  89  P.  412,  11  Ariz.  169. 
An  instruction  that,  if  two  persons 
were  both  charged  with  a  homicide 
and  the  jury  had  a  doubt  which  km- 
ed  decedent,  it  should  give  accused 
the  benefit  of  the  doubt  and  acquit 
him.  Hunter  v.  State,  65  S.  E.  154, 
133  Ga.  78. 

4  9  State  V.  Matheson,  120  N.  W. 
3036,  142  Iowa,  414,  134  Am.  St.  Rep. 
426;  Lamb  v.  State,  95  N.  W.  1050, 
69  Xeb.  212. 

-"  Claus.sen  v.  State,  133  P.  1055,  21 
Wyo.  505,  judgment  affirmed  on  re- 
hearing 135  P.  802,  21  Wyo.  505. 

51  State  v.  Amett  (IMo.)  210  S.  W. 
82. 


507 


INSTRUCTIONS   ON   DEGREE   OF   PROOF 


§  260 


rights  of  the  accused.^'  Trial  judges  should  adhere  to  the  well- 
established  precedents  in  framing  or  approving  instructions  on 
the  subject  of  reasonable  doubt,^^  and  it  is  error  to  refuse  an  in- 
struction which  has  been  approved  by  the  court  of  last  resort,  if 
the  idea  embodied  therein  has  not  been  otherwise  conveyed  to 
the  jury."* 

§  260.     Necessity  of  defining  reasonable  doubt 

In  some  jurisdictions  it  is  not  necessary  for  the  court,  at  least 
in  the  absence  of  a  request  therefor,  to  define  the  phrase  "reasona- 
ble doubt,"  ^^  it  being  held  that  the  phrase  is  self-explanatory,^® 
and  that  therefore  such  a  definition  can  serve  no  useful  purpose,^^ 
and  in  some  of  the  cases  it  is  said  that  the  court  should  not  at- 
tempt to  further  clarify  the  term.^* 


5  2  Ga.  Butler  v.  State,  82  S.  E. 
654,  142  Ga.  2S6 ;  Howell  v.  State,  52 
S.  E.  G49,  124  Ga.  698. 

Ky.  Mearns  v.  Commonwealth, 
175  S.  W.  355,  164  Ky.  21.3 ;  Clarj-  v. 
Same,  173  S.  W.  171,  163  Ky.  48; 
Minuiard  v.  Commonwealth,  164  S.  W. 
804,  158  Ky.  210;  Wigginton  v.  Com- 
monwealth, 114  S.  W.  1185;  Tetter- 
ton  V.  Commonwealth,  S9  S.  W.  8,  2S 
Ky.  Law  Rep.  146. 

Okl.  Reeves  v.  Territory,  101  P. 
1039,  2  Okl.  Cr.  351 ;  Douglas  v.  Ter- 
ritory. 98  P.  1023,  1  Okl.  Cr.  583. 

Tex.  Sanchez  v.  State,  153  S.  W. 
1133,  69  Tex.  Cr.  R.  1,34;  Holmes  v. 
State,  150  S.  W.  926,  68  Tex.  Cr.  R. 
17. 

5  3  People  V.  Bickerstaft  (Oal.  App.) 
190  P.  656. 

5  4  Foglia  V.  People,  82  N.  E.  262, 
229  111.  286. 

5  5  Ga.  Bell  v.  State,  96  S.  E.  861, 
148  Ga.  352;  Ponder  v.  State,  90  S. 
E.  363,  18  Ga.  App.  703;  Rice  v. 
State,  84  S.  E.  609,  16  ^>a.  App.  128 ; 
Roberts  v.  State,  84  S.  E.  122.  143  Ga. 
71;  Hall  v.  State,  77  S.  E.  893,  12 
Ga.  App.  571;  Thigpen  v.  State,  76 
S.  E.  596,  11  Ga.  App.  846;  Buckan- 
an  V.  State,  76  S.  E.  73,  11  Ga.  App. 
756;  Barker  v.  State,  57  S.  E.  989, 
1  Ga.  App.  286;  James  v.  State,  57 
S.  E.  959,  1  Ga.  App.  779;  Nash  v. 
State,  55  S.  E.  405,  126  Ga.  549 ;  Bat- 
tle V.  State,  29  S.  E.  491,  103  Ga.  53. 

111.  People  V.  Hansen,  104  N.  E. 
1069,  263  ni.  44. 


Mo.  State  V.  '^Tieeler,  87  Mo.  App. 
580,  582. 

Okl.  Choate  v.  State  (Cr.  App.) 
197  P.  1060. 

Pa.  Commonwealth  v.  Berney,  103 
A.  54,  262  Pa.  176. 

Tenn.     Butler  v.  State,  7  Baxt.  35. 

Tex.  Marshall  v.  State,  175  S.  W. 
154.  76  Tex.  Cr.  R.  386. 

Vt.  State  v.  Marston,  7?  A.  1075. 
82  Vt.  2.50;  State  v.  Costa,  62  A.  38, 
78  Vt.  198 ;  State  v.  Blay,  58  A.  704. 
77   Vt.    56. 

56  Kan.  State  v.  Killion,  148  P. 
643,  95  Kan.  371 ;  State  v.  Davis,  48 
Kan.  1,  28  P.  1092. 

Micli.  People  v.  Stubenvoll,  28  N. 
W.  883,  62  Mich.  329. 

Miss.  Smith  v.  State,  60  So.  330, 
103   INIiss.  356. 

Mo.  State  v.  Robinson,  117  Mo. 
649.   23   S.   W.   1066. 

Okl.  Grausden  v.  State,  158  P. 
157.  12  Okl.  Cr.  417. 

S.  C.  State  V.  Aughtrey,  27  S.  E. 
199,  49  S.  C.  285;  State  v.  Aughtrv, 
26  S.  E.  619,  49  S.  C.  285. 

Tex.  Massey  v.  State,  1  Tex.  App. 
563. 

57  People  V.  Hoty.  103  N.  E.  1007. 
261  111.  239. 

5  8  Ga.  Wimberly  v.  State,  77  S.  E. 
879,  12  Ga.  App.  540. 

Ky.  Mickey  v.  Commonwealth,  9 
Bush,  593. 

Me.     State  v.  Reed,  62  Me.  129. 

Mo.  State  v.  Sykes,  154  S.  W. 
1130,  248  Mo.  708. 


260 


INSTRUCTIONS   TO  JURIES 


50S 


Juries  are  presumed  to  have  common  sense  enough  to  need  no 
metaphysical  explanations  of  what  will  constitute  a  reasonable 
doubt,^'*  and  it  would  seem  clear  that  an  instruction  defining  rea- 
sonable doubt  should  not  be  given,  if  it  has  no  tendency  to  assist 
the  jury  to  a  better  understanding  of  the  phrase.^"  However,  in 
some  jurisdictions,  the  court  should,  on  request,  give  such  a  defini- 
tion in  capital  cases,^^  and  in  other  jurisdictions  such  a  require- 
ment is  a  general  one.®^  High  authority  has  declared  that  a  care- 
ful explanation  of  the  term  "beyond  a  reasonable  doubt"  should 
be  given  to  all  juries  in  criminal  cases,  and  especially  in  important 
trials,  with  a  view  particularly  to  emphasizing  the  word  "reason- 
able," and  minimizing  the  danger  that  the  jury  may  believe  that,, 
although  they  have  arrived  at  the  degree  of  certainty  indicated  by 
the  phrase,  when  broadly  considered,  they  will  yet  be  precluded 
from  a  conviction  if  they  can  honestly  say  that  to  their  minds 
the  defendant  is  possibly  not  guilty.®^  It  cannot  be  doubted  that 
in  all  jurisdictions  the  court  will  commit  no  error  in  failing  to  give 
such  a  definition,  if  no. request  is  made  therefor.®* 


Okl.  Thompson  v.  State,  184  P. 
467,  16  Old.  Cr.  716;  Cannon  v.  Ter- 
ritory. 99  P.  622,  1  Okl.  Cr.  600. 

Tex.  Abrara  v.  State,  36  Tex.  Cr. 
R.  44,  35  S.  W.  389 ;  Bland  v.  State, 
4  Tex.  App.  15 ;  Ham  v.  Same,  Id. 
645. 

W.  Va.  State  v.  Price,  97  S.  E. 
582.  83  W.  Ya.  71,  5  A.  L.  R.  1247; 
State  V.  Worley,  96  S.  E.  56,  82  W. 
Va.  350. 

B9  Hamilton  v.  People,  29  Mich.  173. 

GO  People  V.  Moses,  123  N.  E.  634, 
288  111.  281.  affirming  judgment  212 
111.  App.  641.     • 

61  Terrell  v.  State,  64  S.  W.  223,  69 
Ark.  449 ;  Commonwealth  v.  Varano, 
102  A.  131,  258  Pa.  442. 

62  Davis  V.  State.  35  So.  76,  46  Fla. 
137;  Commonwealth  v.  Bernev,  105 
A.  54.  262  Pa.  176. 

6  3  Emery  v.  State,  78  N".  W.  1*45, 
101  Wis.  627. 

64  Ariz.  Bush  v.  State,  168  P.  50S, 
19  .\riz.  195. 

Cal.  People  v.  Cuin,  149  P.  795, 
27  Cal.  App.  316;  People  v.  Alieru, 
93  Cal.  518,  29  P.  49. 


Conn.  State  V.  Smith,  65  Conn. 
28.'!.  31  A.  206. 

Fla.  Knight  v.  State,  53  So.  541, 
60  Fla.  19;  Bynum  v.  State,  35  So. 
65,  46  Fla.  142;  Shiver  v.  State,  27 
So.  36.  41  Fla.  630. 

Ga.  Tolbert  v.  State,  85  S.  E.  267, 
16  Ga.  App.  311;  Elder  v.  State.  85 
S.  E.  197,  143  Ga.  383;  Sheffield  v. 
State,  83  S.  E.  871,  15  Ga.  App.  514; 
Hathaway  v.  State,  81  S.  E.  260,  14 
Ga.  App.  415 ;  Cook  v.  State,  79  S.  E. 
87,  13  Ga.  App.  308;  Jackson  v. 
State.  64  S.  E.  656,  132  Ga.  570. 

Ind.     Colee  v.  State,  75  Ind.  511. 

Iowa.  State  v.  Mahoney,  97  N.  W. 
10S9.  122  Iowa,  168. 

Mich.  People  v.  Waller,  70  INIich. 
237.  38  N.  W.  261. 

Mo.     State  v.  Leeper,  78  Mo.  470. 

Okl.  Nelson  v.  State,  114  P.  1124, 
5  Okl.  Cr.  368. 

Pa.  Commonwealth  v.  Bernev.  105 
A.  54.  262  Pa.  176. 

Wash.  State  v.  Johnson,  53  P. 
667.  in  Wash.  410. 

Wis.  Murphy  v.  State,  83  N.  W. 
1112.  108  Wis.  Ill;  IMiller  v.  State, 
81  N.  W.  1020,  106  Wis.  15G. 


509 


INSTRUCTIONS   ON   DEGREE   OF   TROOP 


§261 


§  261.     Sufficiency  of  definitions  of  reasonable  doubt 

In  attempting  to  clarify  the  term  "reasonable  doubt,"  courts 
have  usually  done  so — and  this  is  undoubtedly  the  safer  practice — 
by  indicating  what  it  does  not  mean,  for  if  some  positive  form  of 
expression  is  used  the  danger  of  misleading  the  jury  arises,  and 
the  court  feels  it  incumbent  upon  itself  to  qualify  and  hedge  around 
its  previous  statement.  It  has  been  held  proper  to  define  a  rea- 
sonable doubt  as  not  a  mere  doubt,^  as  not  a  mere  possible 
doubt,^®  as  not  a  mere  guess  or  surmise,®'  as  not  a  merely  imag- 
inary or  conjectural  doubt,'"*  as  not  a  fanciful,  forced,  or  captious 
doubt,''^  or  as  not  a  whimsical  or  vague  doubt.''" 

If  it  is  desired  to  give  an  affirmative  definition  it  is  proper  to 
define  a  reasonable  doubt  as  an  actual,  substantial  doubt,  and  not 
one  arising  from  a  mere  whim,  vagary,  or  surmise,'^  as  a  substan- 
tial doubt  touching  the  defendant's  guilt  based  on  the  evidence  or 
want  of  evidence  in  the  case,  and  not  a  mere  possibility  of  his  in- 
nocence,'^ as  one  which  would  be  raised  in  the  minds  of  reason- 
able men  by  the  evidence,  and  not  one  arising  from  some  whim. 


6  5  Lodge  V.  State,  26  So.  200,  122 
Ala.  107. 

Not  required  to  prove  guilt  be- 
yond all  doubt.  A  charge  of  the 
court,  on  a  trial  for  murder,  that 
"the  state  is  not  required  to  prove 
defendant's  guilt  beyond  all  doubt, 
but  only  to  prove  guilt  beyond  a  rea- 
sonable doubt,"  was  not  objectionable 
as  ambisruons  and  misleading.  Little- 
ton V.  State,  29  So.  390.  12S  Ala.  .'51. 

6  6  Ignited  States  v.  McKenzie  (D. 
C.  Cal.)  35  F.  826:  Knight  v.  State, 
49  So.  764,  160  Ala.  58;  People  v. 
Verduzco,  110  P.  970,  13  Cal.  A  pp. 
789. 

Instructions  beld  proper.  A 
charge  on  a  trial  for  murder,  that  de- 
fendant was  presumed  to  be  innocent 
until  proven  guilty  1)eyond  a  reason- 
able doubt :  that  a  i-i-asoiiable  doubt 
was  one  conformalilc  to  reason,  a 
doubt  which  a  reasonable  man  would 
entertain,  and  that  it  did  not  mean 
a  mere  possible  doubt,  because  every- 
thing relating  to  human  affairs  and 
depending  on  moral  evidence  was 
open  to  some  possible  doubt;  that 
it  was  that  state  of  the  case  which, 
after  consideration  of  all  the  evidence, 
left  the  minds  of  the  jurors  in  that 
condition  that  they  could  not  say  they 
felt  an  abiding  conviction  to  a  moi'al 


certainty  of  the  truth  of  the  charge. 
Vasquez  v.  State,  44  So.  7.39,  54  Fla. 
127,  127  Am.  St.  Rep.  129.  An  in- 
struction, "By  reasonable  doubt  is 
meant  that  evidence  of  defendant's 
guilt  must  be  clear  and  convincing 
and  fully  satisfy  your  minds  and  con- 
sciences, but  it  does  not  mean  a  mere 
imaginary,  possible,  or  cai)tious 
doul)t."  is  sufticientlv  affirmative. 
Kelley  v.  State,  202  S.  W.  49,  1.3:'.  Ark. 
261. 

6  7  People  v.  Ah  Lee,  128  P.  1035, 
164  Cal.  .350. 

0  8  Bluett  v.  State,  44  So.  84,  151 
Ala.  41. 

69  Cobb  V.  State,  74  S.  E.  702,  11 
Ga.  Api).  .52;  Hodgkins  v.  State. 
89  Ga.  761,  15  S.  E.  695;  State  v. 
Powers,  163  X.  W.  402,  ISO  Iowa.  693. 

-«>  :\Icnuire  v.  State.  43  Tex.  210. 

71  People  y.  Del  Cerro,  100  P.  887, 
9  Cal.  App.  764. 

72  state  V.  Xerzinger,  119  S.  W. 
379.  220  Mo.  .36:  State  v.  Raice,  123 
N.   W.  70S.  24   S.   D.  111. 

Instructions  beld  proper  xpith- 
in  rule.  An  instruction  that  "r(>a- 
eonable  doubt"  does  not  mean  that 
accused  may  possibly  be  innocent, 
but  means  some  actual  doubt  having 
some  reason  for  its  basis,  and  it  is 
a  doubt  reasonably  arising  from  all 


§261 


INSTRUCTIONS   TO  JURIES 


510 


caprice,  or  prejudice  on  the  part  of  the  jurors/^  as  a  doubt  which 
must  be  supported  by  reason,  and  not  by  mere  conjecture  and  idle 
supposition,  irrespective  of  the  evidence,'*  as  a  doubt  based  on 
some  reason,  and  not  some  purely  imaginary,  fantastic,  or  chi- 
merical doubt,'^  as  a  doubt  founded  on  the  consideration  of  all 
the  circumstances  and  evidence,  and  not  on  mere  conjecture  or 
speculation,''®  as  a  doubt  founded  on  some  good  reason,  and  not 
one  arising  from  sympathetic  feelings,''''  as  a  fair  doubt  based  on 
reason  and  common  sense,  and  not  a  mere  imaginary,  captious,  or 
possible  doubt,''*  or  as  a  doubt  which  leaves  the  mind  of  the  jury, 
in  view  of  all  the  evidence,  in  a  state  of  reasonable  uncertainty  as 
to  the  guilt  of  the  defendant,''^  or  which  leaves  the  jury  in  such  a 


the  evidence  or  want  of  evidence. 
Carter  v.  State,  154  N.  W.  252,  98  Neb. 
742.  Defendant  was  not  prejudiced 
by  a  charge  that  a  reasonable  doubt, 
to  authorize  an  acquittal,  must  be  a 
substantial  doubt,  and  not  a  roere 
possibility  of  innocence;  that  a  rea- 
sonable doubt  exists  when  the  jury  do 
not  feel  an  abiding  conviction,  to  a 
moral  certainty,  of  the  truth  of  the 
charge ;  where  the  evidence  does  not 
satisfy  the  judgment  with  such  cer- 
tainty that  a  prudent  man  would  feel 
safe  in  acting  upon  it  in  his  own  most 
important  affairs,  or  unless  the  evi- 
dence convinces  the  understanding, 
so  that  there  is  an  abiding  convic- 
tion, to  a  moral  certainty,  of  the 
truth  of  the  charge ;  that  the  evi- 
dence need  not  exclude  every  possible 
hypothesis  but  the  guilt  of  defend- 
ant. State  V.  Clancy,  52  P.  267,  20 
Mont.  498. 

"3  Kulp  V.  United  States  (C.  C.  A. 
Pa.)  210  F.  249,  127  C.  C.  A.  67. 

7  4  People  v.  Ross,  46  P.  10.59,  115 
Cal.  233 ;  State  v.  Lewis,  159  P.  415, 
52   Mont.  495. 

An  accused  cannot  complain  of 
an  instruction:  "The  presumption  is 
that  the  defendant  is  innocent,  and 
the  presumption  continueg  up  until 
the  moment  that  you  are  satisfied  by 
the  evidence  beyond  a  reasonable 
doubt  of  his  guilt.  This  reasonable 
doubt  is  such  a  doubt  that  fully  arises 
from  the  evidence.  It  should  not  be 
a  mere  whim  or  surmise.  There 
should  be  such  a  doubt  as  there  is 
a  reason  for  and  which  fully  arises 
out   of   the   evidence.     *     *     *     We 


would  say  further  that  the  doubt 
arises  from  all  of  the  evidence,  and 
if  the  doubt  arises  from  a  single  ju- 
ryman the  other  eleven  jurymen 
sliould  come  to  the  mind  of  that  one. 
It  of  course  taljes  twelve  jurymen  to 
arrive  at  the  verdict."  Common- 
wealth V.  Campbell,  31  Pa.  Super. 
Ct.  9. 

7  5  state  V.  Keehn,  160  N.  W,  666. 

7  6  u.  S.  (D.  C.  Cal.)  United  States 
V.  Knowles,  Fed.  Cas.  No.  15,540,  4 
Sawy.  517;  (C.  C.  Mich.)  United 
States  V.  Darton,  Fed.  Cas.  No.  14,919, 
6  McLean,  46;  (C.  C.  Ohio)  United 
States  V.  Foullie,  Fed.  Cas.  No.  15,143, 
6  McLean.  349. 

Ind.  Kennedy  v.  State.  107  Ind. 
144,  6  N.  E.  .305,"  57  Am.  Rep.  99. 

Ohio.      State  V.   Neil,   1  App.   120. 

Pa.  Commonwealth  v.  Shaub,  5 
Lane.  Law  Rev.  121 ;  Same  v.  Lynch. 
3  Pittsb.  R.  412;  Commonwealth  v. 
Drum,  58  Pa.  9. 

Tex.  Brown  v.  State,  1  Tex.  App. 
154. 

7  7  State  V.  Harsted,  119  P.  24,  66 
Wash.  158. 

7  8  People  V.  Swartz,  76  N.  W,  491, 
118  IMich.  292. 

7  9  Simmons  v.  State,  48  So.  606,  158 
Ala.  8.  See  Mapp  v.  State  (Ga.  App.) 
106  S.  E.  801. 

Minds  of  jurors  Tt^avering  and 
unsettled.  An  instruction  that  "if, 
after  an  honest  and  impartial  exam- 
ination, your  minds  are  wavering,  un- 
settled, unsatisfied,  that  is  the  doubt 
of  the  law,  and  you  .should  acquit ; 
if  that  doubt  does  not  exist,  you 
should  convict"' — correctly  states  the 


511  INSTUUCTIOXS   OX   DEGREE   OF   PROOF  §  261 

condition  of  mind  that  they  cannot  say  that  they  have  an  abiding 
faith  in  the  truth  of  the  charge  against  the  accused.^" 

It  is  proper  to  charge,  under  proper  quahfications,  that  the  jury 
must  not  go  beyond  the  evidence  to  hunt  up  doubts,  and  that 
they  must  not  entertain  such  doubts  as  are  merely  chimerical  or 
conjectural.*^ 

On  the  other  hand,  it  is  error  to  define  a  reasonable  doubt  as  an 
insurmountable  doubt,*^  or  as  an  intelligent  opinion  or  conviction 
that  the  guilt  of  the  defendant  has  not  been  satisfactorily  proven,*^ 
or  as  a  doubt  which  would  satisfy,  or  occur  to,  a  reasonable  man,** 
or  as.  that  want  of  repose  and  confidence  which  an  honest  man  has 
in  the  correctness  of  a  conclusion  which  he  is  about  to  make,  after 
giving  the  question  his  best  thought,*^  or  as  a  doubt  arising  spon- 
taneously from  the  evidence  or  lack  of  evidence,*^  or  as  such  a 
doubt  from  all  the  evidence  that  the  jury  remain  unsatisfied  and 
unconvinced  of  the  guilt  of  the  accused  after  a  full  consideration 
of  all  the  facts  and  circumstaisces  of  the  case.*' 

An  instruction  defining  a  reasonable  doubt  in  the  language  of 
the  statute  will  ordinarily  be  sufficient.** 

§  262.     Doubt  arising  out  of  the  evidence  or  want  of  evidence 

An  instruction  authorizing  the  jury  to  convict  the  defendant  if 
they  believe  beyond   a   reasonable   doubt   that   the   charge   made 

law  as  regards  reasonable  doubt.  Snsq.  Le.g.  Chron.  69;  Same  v.  Bur- 
Dumas  v.  State,  63  Ga.  600.  ton,  Id.  66. 

soparrish  v.  State,  14  Neb.  60,  15  ss  Brown  v.  State,  43  So.  191,  150 

N.  W.  357.  Ala.  25. 

81  Williams  v.  State  (Ark.)  16  S.  W.  so  Scott  v.  State,  60  So.  355,  64 
816 ;    Painter  v.  People,  147  111.  444,  Fla.  490. 

35  N.  E.  64;    Vosbt  v.  State,  145  Ind.  st  Smith   v.    State,    101   P.   S47,    17 

12,  43  N.  E.  1049.  Wyo.  481. 

82  People  V.  Burke;  121  N.  W.  2S2,  ss  Frierson  v.  Commonwealth,  194 
157  Mich.  108.  S.  W.  914,  175  Ky.  684 ;    AYeatherford 

83  Hoffman  v.  State,  73  N.  W.  51.  v.  Commonwealth,  7  Ky.  Law  Rep. 
97  Wis.  571.  827  ;   Bramlette  v.  State.  21  Tex.  App. 

8  4  Avery  v.   State,  27   So.  505,  124  611,  2  S.  W.  765,  57  Am.  Rep.  622. 
Ala.  20;   Vaughn  v.  State,  41  So.  881,  Under    the    Georgia    statute,    an 

52   Fla.   122:     Hampton    v.    State.  39  instruction  defining  reasonalde  doubt 

So.  421.  50  Fla.  .55:    Pndfield  v.  Peo-  as   one  that  grows  out  of   the  testi- 

ple,  146  111.  660,  35  N.  E.  469.  ^  mony    or   absence    of    te.'^tiinonj'    and 

In  some  jurisdictions,  however,  it  leaves  a  reasonable  mind  unsettled, 
has  been  held  proper  to  charge  that  a  and  that  a  .iuror  cannot  raise  an  arti- 
reasonable  doubt  is  one  that  would  ficial  doubt  in  order  to  acquit,  but 
cause  a  reasonably  prudent  or  upright  the  doubt  should  be  real,  and  honest- 
man,  after  a  careful  consideration  of  ly  entertained,  and  tbat  the  proof 
the  evidence,  to  hesitate  to  convict,  should  be  such  as  to  control  the  con- 
Minich  v.  People,  S  Colo.  440.  9  P.  4 ;  duct  of  men  in  the  highest  affairs  of 
Johnson  v.  State,  89  Ga.  107,  14  S.  life,  and  not  a  mere  conjecture,  is 
E.  889 ;  Peterson  v.  State,  47  Ga.  proper.  Parker  v.  State,  59  S.  E.  823, 
524 ;      Commonwealth     v.     Irving,     1  3  Ga.  App.  336. 


262 


INSTRUCTIONS   TO   JURIES 


512 


against  the  defendant  is  true  should  state  that  the  jury  must  be 
convinced  from  the  evidence,*^  and,  on  the  other  hand,  the  jury 
should  be  told  that  the  reasonable  doubt  justifying-  an  acquittal 
must  arise  from  a  consideration  of  all  the  evidence  in  the  case,^" 
having  regard  both  for  what  it  shows  and  does  not  show,^^  since 
the  reasonable  doubt  to  which  a  defendant  is  entitled  is  not  one 
raised  by  the  juror's  personal  information,  from  hearsay  or  other- 
wise, or  from  his  bias  or  prejudice.^'^  and  a  charge  that  a  reason- 
able doubt  as  to  the  guilt  of  the  defendant  arising  out  of  the  evi- 
dence, or  any  part  of  it,  will  require  an  acquittal,  is  properly  re- 
fused as  misleading.^^     A  charge,  however,  that  if  the  evidence. 


8  9  People  V.  Gray,  96  X.  E.  268, 
251  111.  431:  Butler  v.  State.  35  So. 
569,  83  Miss.  437;  State  v.  Price,  97 
S.  E.  582,  S3  W.  Ta.  71,  5  A.  L.  R. 
1247. 

9  0  Ala.  Haswell  v.  State,  S6  So. 
170,  17  Ala.  App.  519 :  Edmonds  v. 
State,  75  So.  873.  16  Ala.  App.  157; 
West  V.  State.  75  So.  709.  16  Ala. 
App.  117;  Jones  v.  State.  74  So.  843. 
16  Ala.  App.  7,  certiorari  denied  75 
So.  1003,  200  Ala.  696:  Minor  v. 
State.  74  So.  98.  15  Ala.  App.  556; 
Bowen  v.  State.  37  So.  233.  140  Ala. 
65. 

Mo.  State  v.  Christian.  161  S.  W. 
736,  2.53  Mo.  .382. 

Rule  in  Texas.  A  charge  that  the 
jury  should  acquit  if  they  have  a  rea- 
sonable doubt  as  to  defendant's  guilt 
is  not  erroneous  by  reason  of  .the  fact 
that  it  does  not  state  that  such  doubt 
must  arise  from  the  evidence.  Mikel 
V.  State,  68  S.  W.  512.  43  Tex.  Cr. 
R.  615. 

Doubt  raised  by  ingennity  of 
counsel.  An  instruction  that  if  a 
reasonable  doubt  of  any  of  the  facts 
necessary  to  convict  was  raised  by  the 
evidence  itself  "or  by  the  ingenuity 
of  counsel"  upon  any  hypothesis  rea- 
sonably consistent  with  the  evidence, 
the  jury  should  acquit,  was  properly 
refused.  People  v.  Wells.  71  N.  W. 
176.  112  Mirh.  648. 

Instructions  beld  proper  -with- 
in rule.  A  charge  that  reasonable 
doubt  is  a  doubt  which  arises  out  of 
the  evidence,  and  appeals  to  reason- 
able men.  and  causes  them  to  hesitate 
to  convict  the  defendant,  and  that, 
if  there  is  such  a  doubt  the  jury  shall 


acquit,  and  if  there  is  no  such  doubt 
it  is  their  duty  to  convict.  Common- 
wealth V.  Couroy,  .56  A.  427.  207  Pa. 
212.  A  charge.  "After  considering  all 
the  evidence,  if  the  jury  have  a  rea- 
sonable doubt  of  the  guilt  of  the  de- 
fendant, they  will  give  the  benefit  of 
the  doubt  to  the  defendant,  and  re- 
turn a  verdict  of  not  guilty."  "Letcher 
V.  State,  48  So.  805.  1.59  Ala.  .59,  17 
Ann.  Cas.  716.  An  instruction  to  ac- 
quit accused,  if  the  jui"y  had  a  rea- 
sonable doubt  of  his  guilt,  and  that, 
to  authorize  an  acquittal,  the  doubt 
miist  be  a  reasonal)le  one,  arising 
from  a  careful  investigation  of  all  the 
evidence.  Foster  v.  Territory.  56  P. 
738,  6  Ariz.  240.  An  instruction,  in 
a  prosecution  for  gambling,  that  a 
reasonable  doubt  is  an  actual  sub- 
sisting doubt  ari.sing  either  from  the 
evidence  or  want  of  evidence.  Goe- 
mann  v.  State.  143  X.  W.  800.  94  Xeb. 
582.  An  instruction  as  to  reasonable 
doubt,  that  the  jury,  in  con.sidering 
the  case,  should  not  go  beyond  the 
evidence  to  hunt  up  doubts,  nor  must 
they  entertain  such  doubts  as  are 
merely  conjectural,  but  a  doubt,  to 
justify  an  acquittal,  must  be  reason- 
able, and  arise  from  a  candid  inves- 
tigation of  all  the  evidence.  Miller 
V.  People,  39  111.  457 ;  Moeck  v  Same, 
100  111.  242,  .39  Am.  Rep.  3S. 

81  Staton  V.  State,  62  So.  387,  8  Ala. 
App.  221. 

9  2  Commonwealth  v.  Di  Silvestro, 
31  Pa.  Super.  Ct.  537.  .5.56;  Same  v. 
Trosca.  Id..  557. 

93  Adkins  v.  State.  76  So.  46-5,  16 
Ala.  App.  181;  Hall  v.  State,  65  So. 
427.  11  Ala.  App.  95;   Davis?  v.  State, 


513 


INSTRUCTIONS  ON   DEGREE   OF   PROOF 


262 


or  any  part  thereof,  after  a  consideration  of  the  whole  of  such  evi- 
dence, generates  a  well-founded  doubt  of  the  guilt  of  the  defend- 
ant, the  jury  must  acquit  him,  should  be  given  on  request.** 

As  has  been  indicated  by  the  above  discussion,  a  reasonable 
doubt  may  arise  from  a  want  of  evidence,  as  well  as  out  of  the 
evidence.*^  Accordingly  a  definition  of  a  reasonable  doubt  should 
not  be  confined  to  one  growing  out  of  the  evidence,  but  should 
include  doubts  created  by  the  want  of  evidence,  or  the  manner  and 
conduct  of  the  witnesses  when  testifying,^^  or  by  the  statement  of 


62  So.  1027,  8  Ala.  App.  147,  certiora- 
ri denied  Ex  parte  Davis,  63  So.  1010, 
184  Ala.  26 ;  McClain  v.  State,  62  So. 
241,  1S2  Ala.  67;  Olden  v.  State,  5S 
So.  307,  176  Ala.  6 ;  Thomas  v.  State, 
43  So.  371.  150  Ala.  31 :  Andrews  v. 
State,  43  So.  196,  150  Ala.  56;  Bar- 
din  V.  State,  38  So.  833.  143  Ala.  74: 
Gordon  v.  State,  36  So.  1009,  140  Ala. 
29;  Winter  v.  State,  32  So.  125,  133 
Ala.  176;  Winter  v.  State,  31  So. 
717,  132  Ala.  32 ;  Gordon  v.  State,  30 
So.  30,  129  Ala.  113 ;  Liner  v.  State, 
27  So.  438,  124  Ala.  1 ;  Lodge  v.  State, 
26  So.  200,  122  Ala.  107 ;  Nicholson  v. 
State.  23  So.  792,  117  Ala.  32. 

Doubt  arising  from  testimony 
of  prosecution.  A  reque.sted  charge 
that  it  is  not  necessary  that  reason- 
able doubt  should  result  from  the  tes- 
timony affirmatiely  produced  at  the 
trial  by  accused,  but  it  may  arise 
from  the  testimony  of  the  prosecu- 
tion, is  properly  modified  by  adding 
that  a  doubt  to  be  reasonable  is  one 
arising  from  a  consideration  of  all 
the  evidence  in  the  case.  People  v. 
Shimonaka,  116  P.  327,  16  Cal.  App. 
117. 

94  Turner  v.  State,  27  So.  272,  124 
Ala.  .59 :  Patterson  v.  Same,  41  So. 
157,  146  Ala.  39. 

9  5  Hale  V.  State.  72  Miss.  140,  16 
So.  387 ;  Massev  v.  State,  1  Tex.  App. 
563. 

9  6  Cal.  People  V.  Bartnett,  113  P. 
S79.  15  Cal.  App.  89. 

Colo.  Maekey  v.  People,  2  Colo. 
13. 

Ind.  Brown  v.  State,  105  Ind.  385, 
5  X.  E.  900:  Wright  v.  State.  69  Ind. 
163.  35  Am.  Rep.  212;  Densmore  v. 
State,  67  Ind.  306,  33  Am.  Rep.  96. 

Iowa.     State  v.  Smith,  180  X.  W.  4. 

iNST.TO  JiTBIES— 33 


Miss.  Kelly  v.  State,  72  So.  928, 
112  Miss.  245  ;  Knight  v.  State,  20  So. 
860,  74  IMiss.  140. 

Mo.  State  v.  Blue,  37  S.  W.  796, 
136  Mo.  41. 

N.  J.  State  v.  Andrews,  71  A.  l(fy, 
77  N.  J.  Law,  108. 

Instructions  Iield  not  improper 
within  rule.  An  instruction  that  a 
reasonable  doubt,  to  justify  an  ac- 
quittal, must  grow  out  of  the  evidence 
after  the  consideration  of  all  of  it. 
Tribble  v.  State,  40  So.  938,  145  Ala. 
23.  A  definition  of  "reasonable 
doubt"  as  "a  substantial  doubt  aris- 
ing from  the  evidence,  and  not  a 
mere  possibility  of  innocence."  State 
V.  Garrison,  49  S.  W.  508,  147  Mo. 
548.  A  charge  that  the  term  "reason- 
able doubt"  meant  a  doubt  having 
some  good  reason  for  it  arising  out  of 
evidence  in  the  case;  such  a  doul^t 
as  the  jury  could  find  a  reason  for  in 
the  evidence,  and.  as  applied  to  the 
evidence  in  criminal  cases,  m<^ant  an 
actual  and  substantial  doubt  growing 
out  of  the  unsatisfactory  nature  of 
the  evidence,  and  the  entire  evidence 
should  be  considered,  and  the  jury 
should  entertain  only  such  doubts  as 
arise  from  the  evidence  and  are  rea- 
sonable. People  v.  Del  Cerro.  100  P. 
887.  9  Cal.  App.  764.  A  charge,  after 
telling  the  jury  that  defendant  was 
presumed  to  be  innocent  until  proof 
of  guilt,  and  that  they  could  believe 
his  statement  in  preference  to  the 
sworn  evidence :  ""The  defendant  is 
entitled  to  any  doubt  you  may  have 
In  your  mind.  That,  however,  must 
be  a  reasonable  doubt.  Then,  if  your 
minds  are  wavering,  and  you  cannot 
decide,  it  is  your  duty  to  give  the  de- 
fendant the  benefit  of  that  doubt  bv 


§  262  INSTRUCTIONS   TO  JURIES  514 

the  accused,  where  such  statement  is  not  under  oath  and  is  not, 


acquittal.  These  doubts  extend  to 
every  material  issue  and  question  in 
the  case.  Thej'  may  arise  from  a 
want  of  evidence  or  spring  out  of 
the  evidence."  Burney  v.  State,  25 
S.  E.  911,  100  Ga.  65.  An  instruction 
that,  if  on  consideration  of  all  the 
evidence,  facts,  and  circumstances 
presented  on  the  trial  the  jury  enter- 
tained a  reasonable  doubt  as  to  de- 
fendant's guilt,  they  should  acquit. 
Dobbs  V.  State,  115  P.  370,  5  Okl.  Cr. 
475,  denying  rehearing  114  P.  358, 
5  Old.  Cr.  475.  A  charge  that  "a 
doubt,  to  justify  an  acquittal,  must 
be  reasonable  and  arise  from  a  candid 
and  impartial  consideration  of  all  the 
evidence  in  the  case."  Moore  v.  State, 
111  P.  822,  4  Old.  Cr.  212.  An  in- 
struction defining  a  reasonable  doubt 
as  "not  a  mere  imaginary  or  possible 
doubt,  but  a  substantial  doubt,  based 
upon  reason  and  common  sense,  and 
induced  by  the  facts  and  circumstanc- 
es attending  the  particular  case  and 
gro'SA'ing  out  of  the  testimony.  It  is 
such  a  doubt  as  will  leave  one's 
mind,  after  a  careful  examination  of 
all  the  evidence,  in  such  condition 
that  he  cannot  say  that  he  has  an 
abiding  conviction  to  a  moral  cer- 
tainty of  the  defendant's  guilt  as 
charged."  State  v.  De  Lea,  93  P.  814, 
36  Mont.  531. 

It  is  not  ground  for  new  trial  that 
the  court  charged  that  a  reasonal)le 
doubt  is  not  some  vague  or  fanciful 
doubt,  but  such  a  doubt  as  arises  from 
the  testimony  in  the  mind  of  a  reason- 
able man  and  leaves  it  hesitating,  un- 
settled, and  undecided.  Barnard  v. 
State.  46  S.  E.  644.  119  Ga.  4.36.  An 
instruction  that  defendant  is  presum- 
ed to  be  innocent,  and  that,  to  war- 
rant conviction,  guilt  must  be  estab- 
lished beyond  a  reasonable  doubt,  but 
to  warrant  a  verdict  of  not  guilty 
on  that  ground  alone  the  doubt  should 
be  a  substantial  doubt  of  guilt  aris- 
ing from  the  evidence  in  the  case, 
and  not  a  mere  possibility  of  inno- 
cence, is  not  objectionable  as  not  al- 
lowinci  an  acquittal  on  account  of  any 
reasonable  doubt  arising  from  any  in- 
sufficiency in  the  evidence,  because, 
whenever  the  sufficiencv  of  the  evi- 


dence is  considered,  its  insufliciency 
is  also  considered.  State  v.  Cushen- 
berry,  56  S.  W.  737,  157  I\Io.  168.  A 
charge  that  a  reasonable  doubt  is  one 
growing  out  of  the  evidence  which 
leaves  the  mind  uncertain  is  not  im- 
proper as  preventing  the  jury  from 
considering  a  reasonable  doubt,  aris- 
ing from  the  absence  of  e^*idence.  or 
based  on  conflicts  therewith  and  a 
consideration  of  accused's  statement. 
Mulligan  v.  State,  89  S.  E.  541,  18  Ga. 
App.  464.  Where  the  court  charged 
that  reasonable  doubt  must  be  a  ra- 
tional doubt,  fairly  arising  from  the 
testimony  and  the  circaimstances  sur- 
rounding the  case;  that  the  burden 
was  on  the  state  to  satisfy  the  jury 
beyond  a  reasonable  doubt  of  the  ex- 
istence of  any  fact  and  circumstance 
necessary  to  form  a  conclusion  of  de- 
fendant's guilt  which  must  be  affirm- 
atively proven  to  a  moral  certainty; 
and  that  the  presumption  of  inno- 
cence attends  the  acaised  from  the 
beginning  to  the  end  of  the  trial,  and 
prevails  unless  overcome  by  evidence 
sufficiently  strong  to  convince  and 
satisfy  the  jury  beyond  a  reasonable 
doubt,  it  was  held  that  such  charge 
was  not  objectionable  as  depriving 
accused  of  the  benefit  of  reasonable 
doubt  arising  from  insufficiency  or 
lack  of  evidence,  in  that  the  court 
in  certain  excerpts  stated  that  a  rea- 
sonable doubt  which  entitled  accused 
to  an  acquittal  was  one  arising  from 
"all  the  evidence  in  the  case."  Hedg- 
er  V.  State,  128  N.  W.  SO,  144  Wis. 
279.  A  charge  that  reasonable  doubt 
is  not  a  mere  possible  doubt;  that 
it  must  be  founded  upon  reason  and 
must  grow  out  of  tlie  evidence  in  the 
case ;  that  it  is  a  doubt  for  which  a 
reason  can  be  assigned,  and  which 
leads  one  to  entertain  a  conscientious 
belief  that  there  is  an  absence  of  nec- 
essary proof  of  guilt ;  that  it  is  an 
honest,  fair  doubt,  raised,  not  from 
an  outside  source,  but  by  the  evidence 
given  in  open  court,  and  which  ap- 
peals to  the  sound  judgment  of  the 
jury — is  not  erroneous,  when  consid- 
ered with  a  further  charge  that  it  is 
presumed  that  defendant  is  innocent, 
lliat      such     presumption      continues 


515 


INSTRUCTIONS  ON   DEGREE   OF   PROOF 


§262 


strictly  speaking,  evidence ;  ®'  and  the  court  should  charge,"*  on 
request,^*  that  a  reasonable  doubt,  authorizing  an  acquittal,  may 
arise  from  the  want  of  satisfactory  evidence  of  the  truth  of  the 
matters  alleged  in  the  indictment. 

A  proper  form  of  instruction  in  this  connection  is  one  to  the 
effect  that  a  reasonable  doubt,  beyond  which  guilt  must  be  affirma- 
tively proved  in  order  to  justify  a  verdict  of  guilty,  is  a  doubt  of 
guilt  reasonably  arising  from  all  the  evidence  or  want  of  evidence 
in  the  case.^  On  the  other  hand,  it  is  error  to  instruct  in  effect 
that,  if  the  jury  have  an  abiding  conviction  of  the  guilt  of  the  de- 
fendant arising  from  the  lack  of  evidence  from  any  source,  they 
will  be  satisfied  beyond  a  reasonable  doubt,  since  this  would  in- 
clude a  failure  of  the  defendant  to  testify  to  facts  within  his  knowl- 
edge, or  to  produce  evidence  to  meet  the  evidence  for  the  state.' 
Where  the  evidence  of  the  guilt  of  the  defendant  is  overwhelm- 


throughout  the  trial  until  satisfac- 
tory evidence  of  guilt  is'  produced, 
that  the  burden  of  establishing  guilt 
rests  upon  the  people,  and  that  the 
prosecution  must  prove  defendant's 
guilt  in  all  its  elements.  People  v. 
Hoffmann,  105  N.  W.  838,  142  Mich. 
r.31. 

In  'Wisconsin  it  has  been  held  that 
the  phrase  "beyond  any  reasonable 
doubt  arising  out  of  or  based  on  the 
"evidence"  and  the  expression  "beyond 
any  doubt  arising  out  of  or  for  want 
of  evidence"  mean  the  same  thing, 
viewed  in  the  light  of  the  legal  pre- 
sumption of  innocence.  Emerv  v. 
State,  78  N.  W.  14.5.  101  Wis.  627. 

In  Pennsylvania  it  is  held  that  an 
instruction  that,  in  order  to  convict, 
the  jury  must  be  convinced  of  guilt 
beyond  a  reasonable  doubt,  and  that 
defendant  should  have  the  benefits  of 
any  doubt,  and  that  a  reasonable 
doubt  is  a  doubt  arising  out  of  a  con- 
sideration of  all  the  evidence,  is  not 
reversil)le  error.  Commonwealth  v. 
Knox,  105  A.  634.  262  Pa.  42S. 

Rule  in  Texas.  A  charge  that  if 
the  jui-y  had  a  reasonable  doubt, 
"from  the  evidence,"  as  to  the  guilt  of 
defendant,  they  should  acquit  him, 
was  not  cause  for  reversal,  although 
the  doubt  may  arise  from  a  want  of 
evidence.  Tomlinson  v.  State  (Tex. 
Cr.  U.)  43  S.  W.  3.32;  Whitesides  v. 
Same,  58  S.  W.  1010,  42  Tex.  Cr.  R. 
151.     In  this  jurisdiction  it  has  been 


said  that  no  one  of  ordinary  sense 
could  reach  the  conclusion  that  the 
defendant  was  guilty  beyond  a  rea- 
sonable doubt  merely  because  there 
was  no  evidence  of  his  innocence. 
Zwicker  v.  State,  27  Tex.  App.  539,  11 
S.    vV.  633. 

9  7  McNeal  v.  State,  63  S.  E.  224,  5 
Ga.  App.  368;  Governor  v.  State,  63 
S.  E.  241,  5  Ga.  App.  357;  Passmore 
V.  State,  63  S.  E.  244,  5  Ga.  App.  366. 

Omission  in  instruction  cured 
by  other  instructions.  An  instruc- 
tion that  a  reasonable  doubt,  in  terms 
of  the  law,  is  a  doubt  that  legitimate- 
ly springs  from  the  evidence,  from 
the  want  of  evidence  or  from  a  con- 
flict in  the  evidence,  is  not  erroneous 
in.  failing  to  state  that  the  reasonable 
doubt  might  arise  from  a  considera- 
tion of  accused's  statement,  where  the; 
court  charges  fully  and  correctly  on 
the  weight  which  the  jury  may  give 
to  such  statement.  Benton  v.  State, 
71  S.  E.  8,  9  Ga.  App.  291. 

9s  Howell  V.  State,  53  So.  954,  98 
Miss.  439. 

1)0  Fealy  v.  City  of  Birmingham,  73 
So.  296.  15  Ala.  App.  367 ;  Gaston  v. 
State,  49  So.  876,  161  Ala.  37;  Car- 
wile  V.  State,  39  So.  220,  148  Ala.  576; 
State  V.  Herwitz,  186  P.  290,  109 
Wash.  153. 

1  Baker  v.  State,  97  N.  W.  566,  120 
Wis.  135. 

2  People  v.  Jordan  (111.)  127  N.  E. 
117. 


263 


INSTRUCTIONS  TO  JURIES 


516 


ing,  the  failure  of  the  court  in  its  charge  to  include  want  of  evi- 
dence as  a  basis  of  a  reasonable  doubt  will  not  constitute  cause  for 
reversal.^ 

§  263.  Defining  reasonable  doubt  as  one  for  which  reason  can  be 
given 
It  is  proper  to  refuse  a  charge  that  a  reasonable  doubt  is  a  doubt 
for  which  the  jury  can  give  a  reason,*  and  in  some  jurisdictions  it 
is  error  so  to  instruct.^  The  objection  to  such  a  definition  is  that 
it  may  convey  to  the  jury  the  impression  that  the  reason  for  the 
doubt  must  be  one  that  can  be  expressed  in  words,®  whereas  a 
doubt  arising  out  of  the  evidence  is  a  mental  operation  for  which 
it  may  be  difficult  or  impossible  to  assign  a  reason,  and  yet,  if 
honestly  entertained  by  the  jury,  must  be  acted  upon.'  In  some 
jurisdictions,  however,  while  not  approved  or  commended  as  being 
in  any  way  enlightening  or  useful,  such  an  instruction  is  not  re- 
versible error,*  where  the  defendant  is  not  shown  to  have  been 


3  Mathis  V.  State,  32  So.  6,  80  Miss. 
491. 

4  Ala.  Howard  v.  State,  44  So.  95, 
151  Ala.  22;  Allen  v.  State,  42  So. 
1006,  148  Ala.  588;  Smith  v.  State,  39 
So.  329,  142  Ala.  14;  Bell  v.  State, 
37  So.  281,  140  Ala.  57;  Mitchell  v. 
State,  37  So.  76,  140  Ala.  118,  103  Am. 
St.  Rep.  17;  Cawley  v.  State,  32  So. 
227,  133  Ala.  128 ;  Jimmerson  v.  State, 
32  So,  141,  133  Ala.  18:  Thompson  v. 
State.  31  So.  725,  131  Ala.  18 ;  Carroll 
V.  State,  30  So.  394,  130  Ala.  99; 
Williams  v.  State,  30  So.  336,  130 
Ala.  31 ;  Bodine  v.  State,  29  So.  926, 
129  Ala.  106 ;  Harvey  v.  State,  27  So. 
763,  125  Ala.  47 ;  Avery  v.  State,  27 
So.  505,  124  Ala.  20;  Talbert  v. 
State,  25  So.  690,  121  Ala.  33;  Rob- 
erts v.  State,  25  So.  238,  122  Ala.  47. 

Ark.  Darden  v.  State,  84  S.  W. 
507,  73  Ark.  315. 

Iowa.  State  V.  Cohen,  78  X.  W. 
857,  108  Iowa,  208,  75  Am.  St.  Rep. 
213 ;  State  v.  Lee,  85  N.  W.  619,  113 
Iowa,  348, 

Contra,  Ellis  v.  State,  25  So.  1,  120 
Ala.  333 ;  Hodge  v.  State.  97  Ala.  37, 
12  So.  164,  38  Am.  St.  Rep.  145,  ap- 
proving Cohen  v.  Same,  50  Ala,  108. 

5  U.  S.  (C.  C.  A.  N.  M.)  Ayer  v.  Ter- 
ritory of  New  Mexico,  201  F.  497,  119 
C.  C.  A.  589,  reversing  judgment  Ter- 
ritory V.  Ayers,  113  P,  604,  15  N,  M. 
581 ;   (C.  C.  A.  N.  M.)  Pettine  v.  Terri- 


tory of  New  Mexico,  201  F.  489,  119 
CCA.  581 

Ark.  Bennett  v.  State,  128  S,  W. 
851.  95  Ark.  100, 

Ind.  Siberry  v.  State,  133  Ind.  677, 
33  N.  E.  681. 

Iowa.  State  v.  Cohen,  78  N,  W. 
857,  108  Iowa,  208,  75  Am.  St.  Rep, 
213. 

Miss.  Klyce  v.  State,  28  So.  827," 
78  Miss.  450. 

Neb.  Blue  v.  State,  125  N.  W.  136, 
86  Neb.  189 ;  Childs  v.  State,  34  Neb. 
236,  51  N,  W.  837 ;  Carr  v.  State,  23 
Neb.  749,  37  N.  W.  630;  Cowan  v. 
State,  22  Neb.  519,  35  N.  W.  405. 

Ohio.  Morgan  v.  State,  48  Ohio 
St.  371,  27  N,  E.  710. 

Okl.  Gransden  v.  State,  158  P. 
157,  12  Okl.  Cr.  417 ;  Morgan  v.  State, 
121  P.  1088,  7  Okl.  Cr.  45;  Gragg  v. 
State,  106  P,  350,  3  Okl.  Cr.  409; 
Reeves  v.  Territory,  99  P.  1021,  2  Okl. 
Cr.  82;  Price  v.  State,  98  P.  447,  1 
Okl.  Cr.  358;  Gibbons  v.  Same,  96 
P.  466,  21  Okl.  340,  1  Okl.  Cr.  198; 
Abbott  V.  Territory.  94  P.  179,  20  Okl. 
119,  1  Okl.  Cr.  1,  16  L.  R.  A.  (N.  S.) 
260,  129  Am.  St.  Rep.  818. 

6  Griggs  V.  United  States  (C.  C.  A. 
Alaska)  158  F.  572,  85  C.  C.  A,  596. 

7  Owens  V.  United  States  (C.  C.  A. 
Alaska)  130  F.  279,  64  C.  C.  A.  525. 

su.  S.     (C.  C.  A.  Alaska)   Griggs 


517 


INSTRUCTIONS   ON   DEGREE  OF   PROOF 


263 


prejudiced  by  it.^  In  some  jurisdictions  it  is  proper  to  so  instruct, 
in  connection  with  other  instructions  intended  to  impress  upon  the 
jury  the  distinction  between  a  reasonable  doubt  and  a  vague,  imag- 
inary one,^*^  and  in  some  of  the  cases  the  rule  is  laid  down  without 
qualification  that  it  is  proper  to  include  in  an  instruction  defining 
reasonable  doubt  the  statement  that  it  is  a  doubt  for  which  some 
good  reason,  arising  out  of  the  evidence  or  the  lack  of  evidence, 
can  be  given. -^^ 


V.  United  States,  158  F.  572,  85  C. 
C.  A.  596. 

Ala.  Rose  v.  State,  42  So.  21,  144 
Ala.  114;  Hammoud  v.  State,  41  So. 
761,  147  Ala.  79 ;  Caddell  v.  State,  34 
So.  191,  136  Ala.  9. 

Or.  State  v.  Morey,  25  Or.  241,  36 
P.  573. 

Utah.  State  v.  Overson,  185  P. 
364,  55  Utah,  230. 

9  People  V.  Steubenvoll,  62  Mich. 
329,  28  N.  W.  883. 

10  U.  S.  (C.  C.  Ga.)  United  States 
V.  Johnson,  26  F.  682;  (O.  C.  S.  C.) 
United  States  v.  Butler,  Fed.  Cas.  No. 
14,700,  1  Hughes,  457. 

Ga.  Lampkin  v.  State,  88  S.  E. 
563,  145  Ga.  40;  Powell  v.  State,  95 
Ga.  502,  20  S.  E.  483 ;  Vann  v.  State, 
83  Ga.  44,  9  S.  E.  945. 

111.  People  V.  Grove,  120  N.  E.  277, 
284  111.  429. 

lia.  State  v.  Jefferson,  43  La.  Ann. 
995,  10  So.  199. 

Minn.  State  v.  Newman,  101  N. 
W.  499,  93  Minn.  393. 

N.  Y.  People  v.  Guidici,  100  N.  Y. 
503,  3  N.  E.  493. 

Pa.  Commonwealth  v.  Knox,  105 
A.  634,  262  Pa.  428. 

S.  D.  State  V.  Lumher  Co.,  152  N. 
W.  708,  35  S.  D.  410. 

Instructions  proper  ivitliin  rule. 
A  charge  that  a  reasonable  doubt  is 
just  such  a  doubt  as  its  name  im- 
plies, not  a  vague  conjecture  nor  fan- 
ciful doubt,  but  such  a  doubt  that  the 
jury,  as  such,  can  give  a  reason  for 
having,  was  not  open  to  the  objection 
that  it  was  calculated  to  impress  the 
jury  that  they  must  have  a  sufficient 
reason  for  doubting  defendant's  guilt 
whereas  the  true  rule  is  that,  if  the 
evidence  leaves  the  mind  wavering 
and  unsettled,  defendant  should  be 
given   the   benefit  of   such   a   doubt. 


Arnold  v.  State,  62  S.  E.  806,  131  Ga. 
494.  An  instruction  defining  reasona- 
ble doubt  as  one  arising  out  of  the 
case  either  from  the  want,  weakness, 
insufficiency,  or  conflict  in  testimony, 
and  which  leaves  the  mind  of  an  hon- 
est juror  wavering  and  in  doubt  as  to 
defendant's  guilt  a  doubt  which  is 
not  a  mere  conjecture,  but  one  for 
which  the  jury  can  assign  a  reason, 
having  heard  the  whole  case,  was  not 
erroneous  because  characterizing  such 
a  doubt  as  one  for  which  a  reason  can 
be  assigned.  Jordan  v.  State,  60  S.  E. 
1063,  130  Ga.  406. 

11  Cal.  People  v.  Yun  Kee,  96  P. 
95,  S  Cal.  App.  82. 

Ga.  Mundy  v.  State,  72  S.  E.  300, 
9  Ga.  App.  835. 

Kan.  State  V.  Wolfley,  89  P.  1046, 
75  Kan.  406,  11  L.  R.  A.  (N.  S.)  87, 
12  Ann.  Cas.  412,  rehearing  denied  93 
P.  337,  75  Kan.  406,  11  L.  R.  A.  (N.  S.) 
87,  12  Ann.  Cas.  412. 

N.  Y.  People  v.  Barker,  47  N.  E. 
31,  153  N.  Y.  111. 

S.  C.  State  V.  Ferguson,  74  S.  E. 
502,  91  S.  C.  235. 

S.  D.  State  v.  Sonnenschein.  159 
N.  W.  101,  37  S.  D.  585;  State  v. 
Grant,  105  N.  W.  97,  20  S.  D.  164,  11 
Ann.  Cas.  1017. 

'Wis.  Butler  v.  State,  78  N,  W. 
590,  102  Wis.  364 ;  Emery  v.  State,  78 
N.  W.  145,  101  Wis.  627. 

Instructions  held,  properly  giv- 
en ivitliin  rule.  A  reasonable  doubt 
is  a  doubt  for  which  a  reason  may  be 
assigijed,  not  necessarily  sufficient  to 
convince  another,  but  such  as  may 
properly  influence  a  juror  honestly 
endeavoring  to  perform  his  duty. 
United  States  v.  Stevens  (C.  C.  Me.) 
Fed.  Cas.  No.  16,392,  2  Hask.  164. 
A  reasonal)le  doubt  is  properly  defin- 
ed, in  charging  the  jury  on  homicide, 


264 


INSTRUCTIONS   TO   JURIES 


518 


§  264.     Actual,  real,  strong,  substantial,  or  well-founded  doubt 

It  is  proper  to  instruct  that  a  reasonable  doubt  must  be  an  ac- 
tual, substantia.1  dovibt/~  or  a  strong,  substantial  doubt,^^  arising 
from  the  evidence  or  want  of  evidence  in  the  case,  as  contrasted 
with  a  mere  possible  doubt,^*  or  a  capricious  or  captious  doubt,^*^ 
or  a  doubt  suggested  by  the  ingenuity  of  counsel  or  the  jury  and 
unwarranted  by  the  evidence,^**  or  one  which  is  sought  for  and  in 
a  manner  created."  Thus  it  is  proper  to  charge  that  a  doubt,  to 
justify  an  acquittal,  must  be  reasonable,  must  be  an  actual  and 


as  such  a  doubt  as  a  man  of  reasona- 
ble intelligence  can  give  some  good 
reason  for  entertaining  if  tie  is  called 
on  to  do  so.  People  v.  Lagroppo,  86 
N.  Y.  S.  116,  90  App.  Div.  219.  affirm- 
ed 71  N.  E.  737,  179  N.  Y.  126.  An 
instruction  to  the  jury  that  defendant 
is  presumed  by  the  law  to  be  innocent, 
that  the  burden  is  upon  the  state  to 
establish  his  guilt  beyond  a  reasona- 
ble doubt,  and  that  "a  reasonable 
doubt  is  a  doubt  for  which  you  can 
give  a  reason ;  in  other  words,  if  the 
evidence  of  defendant's  guilt  satisfies 
you  to  such  an  extent  as  to  leave  you 
without  a  doubt  that  he  may  be  inno- 
cent, for  which  you  can  give  an  intel- 
ligent reason,  then  it  would  be  your 
duty  to  convict ;  such  a  doubt  may 
arise  either  from  affirmative  evidence 
tending  to  show  the  defendant's  inno- 
cence, or  from  the  lack  of  evidence 
sufficient  to  establish  his  guilt" — may 
properly  be  given.  Wallace  v.  State, 
26  So.  713.  41  Fla.  547. 

1^  People  V.  T.  Wah  Hing,  190  P. 
662 ;  People  v.  Cox,  70  Mich.  247,  38 
N.  W.  235 ;  State  v.'  Holloway.  56  S. 
W.  734,  156  Mo.  222;  Ferguson  v. 
State,  72  X.  W.  590,  52  Neb.  432,  66 
Am.  St.  Rep.  512. 

Real,  substantial  doubt.  The 
use  of  the  word  "real,"  in  an  instruc- 
tion stating  that  a  doubt,  to  authorize 
an  acquittal,  must  be  a  real,  substan- 
tial doubt,  is  not  reversible  error. 
State  V.  Davidson.  95  Mo.  155,  8  S.  W. 
413 ;  State  v.  Walker,  98  Mo.  95,  9  S. 
W.  646 ;  State  v.  Payton,  90  Mo.  220, 
2  S.  W.  394.  Compare  State  v.  Da- 
vidson, 44  Mo.  App.  513;  Cleavenger 
v.  State,  65  S.  W.  89,  43  Tex.  Cr.  R. 
273. 

13  State  v.  McAllster,  103  S.  E.  772, 
314  S.  C.  402. 


14  Ala.  Gregory  v.  State,  42  So. 
829.  148  Ala.  566:  Parham  v.  State. 
42  So.  1,  147  Ala.  57 ;  Tribble  v.  State. 
40  So.  9.38.  145  Ala.  23;  Jackson  v. 
State,  34  So.  188,  136  Ala.  22 ;  Owens 
V.  State,  52  Ala.  400. 

Del.  State  v.  Di  Guglielmo,  55  A. 
350,  4  Pennewill,  336. 

Mo.  State  v.  Spaugh,  98  S.  W.  55, 
200  Mo.  571 ;  State  v.  Sacre.  41  S.  W. 
905,  141  Mo.  64;  State  v.  Wells,  111 
Mo.  .533,  20  S.  W.  232;  State  v.  Heed, 
57  Mo,  252. 

Instructions  held  proper. 

Where  the  court  charged  that  defend- 
ants were  presumed  to  be  innocent, 
and  that  it  devolved  on  the  state  to 
prove  by  evidence  beyond  a  reasona- 
ble doubt  that  defendants  committed 
the  crime  as  charged,  and  if,  in  view 
of  the  whole  case,  the  jury  had  a  rea- 
sonable doubt  of  defendants'  guilt,  or 
of  that  of  either  of  them,  the  jury 
would  give  them,  or  either  of  them  of 
whose  guilt  it  had  a  reasonable  doubt, 
the  lienefit  thereof  and  acquit  them  or 
either  of  them  of  whose  guilt  the 
jury  had  such  reasonable  doubt,  but 
that  a  reasonable  doubt,  to  authorize 
an  acquittal,  must  be  a  substantial 
doubt  of  defendants'  guilt,  formed 
on  a  careful  consideration  of  all  the 
facts  and  circumstances  proven  in  the 
case,  and  not  a  mere  po.ssibility  of 
innocence,  etc.,  it  was  held  that  the  in- 
struction was  not  objectionable  as  un- 
intelligible. State  V.  Brooks,  100  S. 
W.   416,   202   Mo.   106. 

15  Marshall  v.  United  States  (C.  C. 
A.  X.  Y.)  197  F.  511,  117  C.  C.  A.  65. 

ic  United  States  v.  Newton  (D.  C. 
Iowa)  52  F.  275. 

17  State  v.  Lally,  43  A.  258,  2  Marv. 
424. 


519 


INSTRUCTIONS   ON   DEGRKE   OF   PROOF 


265 


substantial  doubt,  and  that  a  reasonable  doubt  is  not  a  mere  pos- 
sible doubt,  because  most  things  relating  to  human  affairs  and  de- 
pending on  moral  evidence  are  open  to  some  possible  or  imaginary 
doubt.^8 

A  reasonable  doubt  has  been  defined  as  a  well-founded  doubt,^^ 
and  in  some  jurisdictions  it  is  proper  to  instruct  that  a  reasonable 
doubt  is  a  substantial  and  well-founded  doubt,  founded  on  the 
evidence,-*  or  a  serious,  substantial,  well-founded  doubt,  and  not 
the  mere  possibility  of  a  doubt,^!  although  in  some  jurisdictions, 
while  such  an  instruction  is  not  ground  for  reversal,  it  is  not  com- 
mended,- and  in  other  jurisdictions  it  is  erroneous.^^* 

A  charge  that  a  reasonable  doubt  is  a  strong,  substantial  doubt, 
and  not  a  fanciful  or  imaginary  doubt,  has  been  sustained  in  some 
jurisdictions.^* 

§  265.     Possibility  of  innocence  of  accused 

The  possibility  that  one  prosecuted  for  a  criminal  offense  may 
be  innocent  does  not  require  his  acquittal.^^  An  instruction  to  this 
effect  is  therefore  proper,~<*  and  it  is  proper  to  refuse  a  charge  au- 
thorizing the  jury  to  acquit  the  defendant  if  they  believe  from  the 
evidence  that  there  is  a  reasonable  possibility  of  his  innocence,-' 

2  3  Frazier  v.  State,  100  S.  W.  94, 
117  Tenn.  430. 

2  4  State  V.  Glover,  75  S.  E.  21S,  91 
S.  C.  562;  State  v.  Summer,  32  S.  E. 
771,  o5  S.  0.  32,  74  Am.  St.  Rep.  707 ; 
State  V.  Bodie,  33  S.  C.  117,  11  S.  E. 
624. 

2-.  Ala.  Howard  v.  State.  44  So. 
95,  151  Ala.  22;  Sims  v.  State.  100 
Ala.  23,  14  So.  560;  Martiu  v.  State. 
77  Ala.  1, 

111.  Magee  v.  People,  139  111.  13S, 
28  N.  E.  1077 ;  Pate  v.  People,  3  Gil- 
mau,  644. 

Mass.  Commonwealth  v.  Leach, 
IGO  Mass.  542,  36  N.  E.  471. 

Mo.  State  V.  David,  131  ilo.  3S0, 
33  S.  W.  28 ;  State  v.  Turner.  110  Mo. 
19C,  19  S.  W.  645 ;  State  v.  Evans,  55 
Mo.  460. 

N.  Y.  Poole  V.  People,  80  X.  Y. 
645. 

Tex.  Jackson  v.  State,  9  Tex.  App, 
114. 

2G  Cain  V.  State,  86  So.  166,  17  Ala. 
App.  530 ;  State  v.  Good,  132  Mo.  114, 
33  S.  W.  790:  People  v.  Kerm,  8  Utah, 
268,  30  P.  988. 

2T  Leonard  v.  State,  43  So.  214,  150 
Ala.  89 ;    Harden  v.  State,  40  So.  948, 


18  Wright  V.  State,  42  So.  745.  148 
Ala.  596;  Jimmerson  v.  State,  32  So. 
141,  133  Ala.  18;  Little  v.  State,  89 
Ala.  99,  8  So.  82. 

19  Creagh  v.  State,  43  So.  112,  149 
Ala.  8 ;  Du  Bose  v.  State,  42  So.  862, 
148  Ala.  560 ;  State  v.  Rounds,  76  Me. 
123. 

2  0  State  V.  Gann.  72  Mo.  374;  State 
V.  Senn,  32  S.  C.  392,  11  S.  E.  292. 

Reasonable,  -well-fouiicled  doubt. 
Where  the  court  charged  that  if  the 
jury  should  find  "beyond  a  reasona- 
ble, well-founded  doubt  that  defend- 
ant *  *  *  ,"  they  should  find  him 
guilty,  but  if  on  the  whole  evidence 
they  had  a  reasonal:)le  doulit  of  guilt 
they  should  acquit,  it  was  held  that 
the' use  of  the  phrase  "well-founded" 
was  not  error,  as  the  jury  must  have 
known  that  it  meant  "not  baseless,  or 
founded  on  mere  speculation,  but  real 
and  sulistanlial."  State  v.  Mahoney, 
97  N.  W.   lOSO,  122  Iowa.  1G8. 

21  Earn  v.  People,  73  111.  329;  Smith 
V.  Same,  74  111.  144;  State  v.  Cole- 
man, 20  S.  C.  441. 

2  2  State  V.  Young.  105  Mo.  6.34,  16  S. 
W.  408;  State  v.  Blunt,  91  Mo.  503, 
4  S.  W.  394. 


265 


INSTRUCTIONS  TO   JURIES 


520 


or  if  the  jury  believe  that  there  is  a  possibility  of  mistake  as 
to  the  identity  of  the  defendant  with  the  real  criminal,'^*  and  it 
is  proper  to  instruct  that  a  reasonable  doubt  must  not  be  based 
upon  a  mere  possibility  that  the  defendant  may  be  innocent,  since 
it  may  be  possible  that  he  is  mnocent,  and  yet  at  the  same  time 
there  may  be  no  reasonable  doubt  of  his  guilt.^^ 


145  Ala.  1 ;  White  v.  State,  32  So.  139, 
133  Ala,  122;  Morris  v.  State,  27  So. 
336,  124  Ala.  44;  Howard  v.  State, 
108  Ala,  571,  18  So.  813. 

Illustrations  of  instructions 
held  properly  refused  as  violating 
spirit  of  rule.  An  instruction  that 
to  warrant  a  conviction  the  evidence 
should  be  so  clear  and  convincing  as 
to  lead  to  the  conclusion  that  the  ac- 
cused "cannot  be  guiltless."  Andrews 
v.  State,  32  So.  665,  134  Ala.  47 ;  Gol- 
son  V.  State,  26  So,  975,  124  Ala.  8; 
Yarbrough  v.  State,  22  So.  534,  115 
Ala.  92;  Thornton  v.  State,  21  So. 
356,  113  Ala,  43,  59  Am.  St,  Rep.  97. 
An  instruction  that  defendants  should 
be  acquitted,  if  there  is  evidence  sup- 
porting any  theory  of  their  innocence, 
was  properly  refused.  Reed  v.  State, 
92  N,  W.  321,  66  Neb.  184,  A  requested 
instruction  that,  "to  warrant  a  con- 
viction the  circumstances  ought  fully 
to  preclude  all  possibility  that  any 
other  person  could  have  committed 
the  crime,"  People  v.  Foley,  31  N,  W. 
94,  64  Mich.  148.  A  requested  charge 
that,  if  the  evidence  is  reasonably  con- 
sistent with  the  defendant's  inno- 
cence, the  jury  should  "promptly"  ac- 
quit. Davis  v.  State,  62  So.  1027,  8  Ala. 
App.  147,  certiorari  denied  Ex  parte 
Davis,  63  So,  1010,  184  Ala.  26.  A 
charge  that,  "if  the  conduct  of  the  de- 
fendant was  consistent  with  his  inno- 
cence, then  he  is  not  guilty  of  any 
offense,"  was  properly  refused,  as  in- 
definite, uncertain,  and  tending  to 
mislead.  Adams  v.  State,  31  So.  851, 
133  Ala,  166.  A  requested  charge 
that  one  is  presumed  innocent  till  his 
guilt  is  e.stablished,  and  the  evidence 
to  induce  conviction  should  not  be  a 
mere  preponderance  of  probabilities, 
but  it  should  he  so  convincing  as  to 
lead  the  mind  to  the  conclusion  that 
•accused  cannot  be  innocent,  requires 
too  high  a  state  of  proof.  Sherrill  v. 
State,    35    So.    129,    138   Ala.    3.     A 


charge  is  properly  refused  at  the  re- 
quest of  the  defendant  which  in- 
structs the  jury  "that  they  must  have 
not  only  justifying  reasons  for  a  con- 
clusion of  guilt,  not  only  must  they  be 
able  to  say  upon  reason  that  the  de- 
fendant is  guilty,  but  this  conclusion 
must  impress  itself  upon  the  minds 
of  the  jury  with  such  convincing 
clearness  and  force  that  they  are  un- 
able to  find  in  the  whole  evidence  any 
reason  for  a  contrary  conclusion." 
Mitchell  V,  State,  30  So.  348,  129  Ala. 
23.  '^^lere  evidence  of  crime  is  direct 
and  corroborated,  defendant  is  not  en- 
titled to  instruction  that  if  evidence 
is  reconcilable  with  innocence  defend- 
ant is  entitled  to  acquittal,  Casper  v. 
State,  160  N,  W.  92,  100  Neb,  367. 
Where,  on  the  trial  of  defendant, 
charged  with  carrying  a  concealed 
weapon,  the  only  evidence  to  support 
a  conviction  was  that  of  a  witness 
who  distinctly  said  he  saw  defendant 
draw  his  pistol  from  his  pocket,  an 
instruction  that,  "if  there  was  a  pos- 
sibility that  such  witness  was  mis- 
taken, they  should  acquit  the  defend- 
ant," was  properly  refused,  Wilson 
V.  State,  33  So,  171,  81  Miss.  404. 

2  8  Booker  v,  "State,  76  Ala.  22. 

2  9  Dickey  v.  State,  72  So,  608,  15 
Ala,  App.  135,  certiorari  denied  73  So. 
72,  197  Ala.  610;  Jackson  v.  State,  34 
So.  188,  136  Ala.  22 ;  People  v.  Lucas, 
91  N.  E,  659,  244  111,  603;  State  v. 
Nueslein,  25  Mo.  Ill;  State  v.  Lewis, 
201  S.  W.  80,  273  Mo.  518. 

Instructions  lield  proper  'within 
rule.  Charges  that  if  the  jury  have 
a  fixed  conviction  of  the  truth  of  the 
charge,  and  are  satisfied  beyond  a 
reasonable  doubt,  they  must  convict; 
that  the  doubt  which  will  justify  an 
acquittal  must  be  actual  and  substan- 
tial, and  not  a  mere  possible  doubt; 
and  that  if  the  jury  believe  beyond  a 
reasonable  doubt  that  defendant  is 
guilty,   they   must   convict,   although 


521 


INSTRUCTIONS   ON   DEGREE  OF  PROOF 


§266 


After  the  court  has  charged  that  defendant  must  be  proven 
guilty  beyond  a  reasonable  doubt,  and  that  a  reasonable  doubt  is 
one  that  leaves  the  minds  of  the  jurors  in  that  condition  that  they 
cannot  feel  an  abiding  conviction  to  a  moral  certainty  of  defend- 
ant's guilt,  it  is  not  improper  to  instruct  that  the  state  is  not  called 
upon  to  free  the  case  from  any  possible  doubt  by  proving  the 
guilt  of  defendant  to  an  unassailable  demonstration.^"  An  instruc- 
tion on  this  head,  w^hich  has  been  approved  in  numerous  cases,  is 
to  the  effect  that  the  law  presumes  that  the  defendant  is  innocent 
of  the  offense  charged,  and  that  it  devolves  upon  the  state  to  prove 
him  guilty  beyond  a  reasonable  doubt,  and  if  the  jury  have  a  rea- 
sonable doubt  of  his  guilt  they  should  acquit  him,  but  that  a 
doubt,  to  authorize  an  acquittal  on  that  ground,  should  be  a  sub- 
stantial doubt  founded  on  the  evidence,  and  not  a  mere  possibility 
of  innocence.^^ 

§  266.     Opportunity  of  choice  between  two  opposing  theories 

An  instruction  that,  if  two  opposing  conclusions  can  with  equal 
propriety  be  drawn  from  the  evidence,  the  one  favoring  innocence 


they  also  believe  it  possible  that  he  is 
not  guilty.  Brown  v.  State,  38  So. 
268,  142  Ala.  287.  Ac  instruction  on 
reasonable  doubt,  which  concluded 
with  the  clause  "that  absolute  certain- 
ty is  not  required,  and  it  is  rarely,  if 
ever,  possible  in  any  case,  but  to  jus- 
tify a  conviction  the  evidence,  when 
taken  as  a  whole  and  fairly  consider- 
ed, must  so  satisfy  your  judgments 
and  consciences  as  to  exclude  every 
other  reasonable  conclusion."  State 
V.  Marshall,  74  N.  W.  763,  105  Iowa, 
38.  An  instruction  to  the  jury  defin- 
ing a  "reasonable  doubt"  as  a  sub- 
stantial doubt,  with  a  view  to  all  the 
evidence  in  the  case,  and  not  a  mere 
possihility  of  defendant's  innocence, 
cannot  be  construed  as  inferring  that 
defendant  was  guilty  because  there 
was  no  evidence  of  his  innocence. 
State  V.  Duncan,  44  S.  W.  263,  142 
Mo.  456.  It  is  proper  to  instruct  that 
"beyond  a  reasonable  doubt"  does  not 
mean  beyond  a  mere  doubt,  or  possi- 
bility of  innocence;  that,  if  guilt  be 
established  by  evidence  beyond  any 
doubt  founded  in  reason  and  common 
sense  as  applied  thereto,  a  conviction 
should  follow,  though  the  jury  may 
believe  there  is  doubt  on  the  question, 
not  arising,  however,  to  tlie  certainty 


of  a  reasonable  doubt,  or  though  they 
yet  believe  in  the  possibility  of  inno- 
cence. Emery  v.  State,  78  N.  W.  145, 
101  Wis.  627.  An  instruction  on  rea- 
sonable doubt,  that  "if,  however,  all 
the  facts  established  necessarily  lead 
the  mind  to  the  conclusion  that  the 
defendant  is  guilty,  though  there  be 
a  bare  possibility  that  he  is  innocent, 
you  should  find  him  guilty,"  is  not 
error,  where  there  are  other  clear 
instructions  on  the  subject,  favorable 
to  defendant,  and  all  the  instructions 
on  the  subject  requested  by  defend- 
ant were  also  given.  Mcintosh  v. 
State.  51  N.  E.  354,  151  Ind.  251. 

so  Crane  v.  United  States  (C.  C.  A. 
Cal.)  259  F.  480,  170  C.  C.  A.  456. 

31  State  V.  Maupin,  03  S.  W.  379, 
196  Mo.  164;  State  v.  Temple,  92  S. 
W.  869,  194  Mo.  237,  5  Ann.  Cas.  9-54; 
Id..  92  S.  W.  494,  194  Mo.  228;  State 
v.  Smith,  164  Mo.  567,  65  S.  W.  270  ; 
State  V.  Fisher,  162  Mo.  169,  62  S.  W. 
690;  State  v.  Adair,  160  Mo.  391,  61 
S.  W.  187;  State  v.  Edie,  147  Mo. 
535,  49  S.  W.  563;  State  v.  Knock, 
142  Mo.  515,  44  S.  W.  235;  State  v. 
Sacre,  141  Mo.  64,  41  S.  W.  905;  State 
V.  Clayton,  100  Mo.  516,  13  S.  W.  819, 
IS  Am.  St.  Rep.  565;  State  v.  Nues- 
lein,  25  Mo.  111. 


§  266  INSTRUCTIONS   TO  JURIES  522 

should  be  adopted,^-  or  an  instruction  that,  if  the  evidence  is  such 
that  both  a  theory  of  the  innocence  of  the  defendant  and  of  his 
guilt  can  be  reasonably  deduced  therefrom,  the  jur}^  should  acquit 
him,  is  not  improper  in  some  jurisdictions,^^  although  it  is  proper 
to  refuse  such  an  instruction  where  there  is  no  question  as  to  the 
construction  of  the  testimony,  the  sole  question  being  as  to  the 
credibility  of  the  witnesses,^*  and  in  some  jurisdictions  it  is  con- 
demned as  an  invasion  of  the  province  of  the  jury  and  mislead- 
ing.^^ 

It  is  proper  to  refuse  to  instruct  that,  if  there  arises  from  the 
evidence  two  reasonable  theories,  one  favorable  to  the  state  and 
the  other  to  the  defendant,  it  will  be  the  duty  of  the  jury  to  ac- 
cept the  latter  theory  and  acquit  the  defendant,  although  the  other 
theory  is  the  more  reasonable  and  supported  by  the  stronger  evi- 
dence. In  most  cases  such  an  instruction,  if  acted  upon  literally, 
would  amount  to  a  peremptory  charge  to  find  the  defendant  not 
guilty.^® 

§  267.     Probability  or  supposition  of  innocence 

A  probability  of  the  innocence  of  an  accused  arising  from  the 
evidence  is  a  just  foundation  for  a  reasonable  doubt  of  his  guilt 
and  for  his  consequent  acquittal,^^  and  the  accused  is  entitled  to 
an  instruction  that  in  case  of  such  a  probability  he  is  entitled  to 
an  acquittal.^*     On  the  other  hand,  the  absence  of  such  a  proba- 

3  2  People  V.  Corey,  97  P.  907,  8  Cal.  solute  demonstration.    Page  v.  State, 

App.  720.                   '  81  So.  848,  17  Ala.  App.  70. 

33  Rnglass  V.  State,  196  S.  W.  467,  ss  Ala.     Smith  v.  State,  62  So.  184, 

129  Ark.  583.  182  Ala.  38  :  Davis  v.  State,  61  So.  483, 

24  Cooper  V.  State,  224  S.  W.  726.  7  Ala.  App.  122;   Johnson  v.  State,  57 

See  Deshazo  v.  State,  179  S.  W.  1012,  So.  593,  4  Ala.  App.  47 ;    Fleming  v. 

120  Ark.  494.  State,  43  So.  219.  150  Ala.  19 :   Morris 

35  Harvev  t.   State.  73  So.  200,  15  v.  State,  41  So.  274,  146  Ala.  66;  Xeil- 

Ala.  App.  .311:    Ranks  v.  State  (Ala.)  son  v.  State,  40  So.  221,  146  Ala.  683; 

39  So.  921;    Walker  v.  State,  32  So.  Bardin  v.  State,  38  So.  833,  143  Ala. 

703,  134  Ala.  86.  74;    Shaw  v.   State,  28  So.  390,  125 

3  6  Roux  V.  City  of  Gulf  port,  52  So.  Ala.  SO;    Hender.son  v.  State,  25  So. 

485,  97  Miss.  559:    Runnels  v.  State,  236.  120  Ala.  .360;    Bones  v.  State.  23 

50  So.  499.  96  Miss.  92.  So.   138,   117  Ala.  138 :    Whitaker  v. 

87  People  V.   Rosenberg,  108  N,  E.  State,  106  Ala.  30,  17  So.  456;  Prince 

54,  267  Til.  202;  Browning  v.  State,  30  v.  State,  100  Ala.  144,  14  So.  409,  46 

Miss.  656.  Am.  St.  Rep.  28;    Winslow  v.  State. 

Definition  of  "probability."    An  76  Ala.  42;   Bain  v.  State,  74  Ala.  38. 

instruction  that  probability  of  inno-  111.     People  v.  Fox,  110  N.  E.  26, 

cence  is  a  just  foundation  for  a  rea-  269  111.  300. 

sonable  doubt  of  guilt  is  properly  ex-  Miss.     >s"elms    v.    State,    58    Miss, 

plained    by    defining    probability    as  362. 

having     more     evidence     for      than  Contra,    Graham  v.   State,   73   So. 

against,    and    supporting    or    giving  594,  72  FJa.  .510. 

ground  for  a  belief,  but  not  to  an  ab-  Reasonable     probability.     In     a 


523 


INSTRUCTIONS   ON   DEGREE   OF   PROOF 


268 


bility  is  not  inconsistent  with  the  existence  of  a  reasonable  doubt 
of  guilt.^^  An  accused  is  accordingly  entitled  to  have  included  in 
an  instruction  on  reasonable  doubt  a  statement  that  a  reasonable 
doubt  may  arise,  although  there  is  no  probability  of  his  inno- 
cence,'*" and  it  is  error  to  instruct  that  a  probability  of  innocence 
exists  only  when  the  testimony  showing  innocence  is  stronger 
than  that  showing  his  guilt.^^ 

§  268.     Probability  of  guilt 

An  instruction  which  authorizes  a  conviction  of  the  defendant 
if  the  jury  believe  from  the  evidence  that  there  is  a  high  degree 
of  probability  of  his  guilt,  even  though  they  have  a  reasonable 
doubt  thereof,  is  erroneous.*-     An  instruction,  however,  which  au- 


criminal  prosecution,  a  requested  in- 
struction that  if,  from  the  evidence, 
there  was  "a  reasonable  probability" 
of  defendant's  innocence,  tlien  that 
was  a  just  foundation  for  a  reasona- 
ble doubt,  and  would  authorize  an 
acquittal,  was  not  erroneous  because 
of  the  use  of  the  word  "reasonable"  as 
qualifying-  the  word  "probability." 
Mims  V.  State,  37  So.  354,  141  Ala.  93. 

Eifect  of  other  instructions. 
Where  the  court  correctly  charged  as 
to  reasonable  doubt,  it  was  not  error 
to  refuse  to  charge  that  if  there  was 
a  probability  of  the  innocence  of  the 
defendant  he  should  be  acquitted. 
Campos  V.  State,  95  S.  W.  1042,  50 
Tex.  Cr.  R.  102. 

3  9  Bailey  v.  State,  53  So.  296,  390, 
168  Ala.  4;  Smith  v.  State,  51  So. 
632,  165  Ala.  74 ;  Carter  v.  State,  40 
So.  82,  145  Ala.  679. 

40  Fealy  v.  City  of  Birmingham 
,  (Ala.  Anp.)  73  So.  296 ;  Stewart  v. 
State,  si  So.  944,  133  Ala.  105;  Davis 
V.  State.  31  So.  569,  131  Ala.  10 ;  Car- 
roll V.  State,  30  So.  394,  130  Ala.  99 ; 
Rogers  v.  State,  23  So.  82,  117  Ala. 
192. 

Instructions  held  proper  'within 
rule.  An  instruction  that  if  the  jury 
were  not  satistied  beyond  all  reason- 
able doubt  to  a  moral  certainty,  and 
to  the  exclusion  of  all  other  reason- 
able hypotheses  but  accused's  guilt 
then  they  should  find  him  not  guilty, 
and  that  it  was  not  necessary  to  raise 
a  reasonable  doubt  that  the  jury 
.should  find  from  all  the  evidence  a 


probability  of  accused's  innocence, 
but  such  a  doubt  might  arise  even 
though  there  was  no  probability  of  in- 
nocence in  the  testimony,  and,  if  the 
jury  had  not  an  abiding  conviction  to 
a  moral  certainty  of  guilt,  they 
should  acquit,  was  correct.  Bailey  v. 
State,  53  So.  296,  390,  168  Ala."^  4 ; 
Olden  V.  State,  58  So.  307,  176  Ala.  6. 

Strong  probabilities.  An  instruc- 
tion defining  "reasonable  doubt,"  and 
stating  that  the  jury  were  required  to 
decide  the  questions  submitted  on  the 
"strong  probabilities"  of  the  case,  and 
the  "probabilities"  need  not  be  so 
strong  as  to  exclude  all  doubt  or  pos- 
sibility of  error,  but  must  be  so 
strong  as  to  exclude  every  reasonable 
doubt,  is  not  objectionable  because 
of  the  use  of  the  words  "'strong  proba- 
bilities" and  "pvobabilites."  State  v, 
Harras,  05  P.  774.  25  \Yash.  416. 

*i  Nordan  v.  State,  39  So.  406,  143 
Ala.  13. 

4^  Byrd  V.  State,  64  S.  W.  270,  69 
Ark.  537. 

Directing  acquittal  if  evidence 
only'  establishes  strong  probabili- 
ties of  guilt.  An  instruction  that 
defendant  should  be  convicted,  if  a 
full  consideration  of  the  evidence  pro- 
duced a  conviction  of  guilt  and  satis- 
fied the  mind  to  a  reasonable  cer- 
tainty, and  that  there  should  be  an 
acquittal  if  the  evidence  only  estab- 
lished strong  probabilities  of  guilt,  is 
not  a  denial  of  the  benefit  of  a  rea- 
sonable doubt.  State  v.  Allen,  67  N. 
E.  1053,  68  Ohio  St.  516. 


^269 


INSTRUCTIONS   TO   JURIES 


524 


thorizes  a  conviction  if  there  is  such  a  strong  probability  of  guilt 
as  to  exclude  reasonable  doubt,  is  not  improper.*' 

§  269.  Doubt  which  would  influence,  or  cause  one  to  hesitate  in 
his  private  affairs 
It  is  proper  in  some  jurisdictions  to  define  a  reasonable  doubt 
as  one  which  would  cause  a  reasonable  and  prudent  man  to  hesi- 
tate or  pause  before  acting  in  the  graver  transactions  of  life,'**  or 
in  matters  of  grave  importance  to  himself,*^  or  in  his  own  serious 
or  important  affairs,  or  in  matters  of  as  much  importance  to  him- 
self as  the  case  on  trial  is  to  defendant,*^  or  in  his  own  most  im- 
portant affairs,*'  and  to  instruct  that  the  evidence  will  be  sufficient 


43  Dunbar  v.  United  States,  156  U. 
S.  185,  15  Sup.  Ct.  325,  39  L.  Ed.  390. 

44  Idaho.  State  v.  Nolan,  169  P. 
295,  31  Idaho,  7. 

ni.  Spies  V.  People,  122  111.  1,  12 
N.  E.  865,  3  Am.  St.  Rep.  320 ;  Dunn 
V.  People,  109  111.  635 ;  May  v.  People, 

60  111.  119. 

Neb.  Martin  v.  State,  93  N.  W. 
161,  67  Xeb.  36 ;  Maxfield  v.  State,  74 
N.  W.  401,  54  Neb.  44 ;  Willis  v.  State, 

61  N.  W.  254,  43  Neb.  102. 

4  5  Mayfield  v.  State  (Okl.  Cr.  App.) 
190  P.  276. 

4  6  United  States  v.  Hughes  (D.  C. 
Tex.)  34  F.  732 ;  Minich  v.  People,  8 
Colo.  440,  9  P.  4;  State  v.  Nolan, 
169  P.  295,  31  Idaho,  71;  People  v. 
Dewey,  2  Idaho,  S3,  6  P.  103;  Com- 
monwealth V.  Webb,  97  A.  189,  252 
Pa.  187 ;  State  v.  Harras,  65  P.  774, 
25  Wash.  416. 

Instructions  held  proper  vnth- 
in  rule.  The  jury  having  been  in- 
structed that  defendant  should  be  ac- 
quitted unless  the  evidence  establish- 
ed his  guilt  beyond  a  reasonable 
doubt,  and  that,  as  the  evidence  was 
circumstantial,  the  circumstances 
proven  must  be  wholly  inconsistent 
with  every  other  reasonable  theory, 
except  that  of  guilt,  it  was  proper  to 
charge  that  "a  reasonable  doubt  is 
one  which  fairly  and  naturally  rises 
in  the  mind  after  considering  all  the 
evidence,  and  carefully  examining  the 
whole  case.  If  you  are  then  not  so 
satisfied  and  convinced  of  defendant's 
guilt  that  you  would  act  upon  that 
conviction  in  matters  of  importance  to 
yourselves,  you  should  give  the  de- 
fendant the  benefit  of  your  doubt  and 


acquit.  If  you  are  so  satisfied,  you 
should  convict  him."  State  v.  Schafer, 
74  Iowa,  704,  39  N.  W.  89.  An  in- 
struction "that  no  mere  weight  of 
evidence  will  warrant  a  conviction, 
unless  it  be  so  strong  and  satisfactory 
as  to  remove  from  your  minds  all  rea- 
sonable doubt  of  the  guilt  of  the  ac- 
cused. *  *  *  You  are  not  to  go 
beyond  the  evidence  to  hunt  for 
doubts ;  nor  should  you  entertain 
such  doubts  as  are  merely  chimerical, 
or  are  based  upon  groundless  conjec- 
ture. A  doubt,  to  justify  in  acquittal, 
must  be  reasonable,  and  arise  from  a 
candid  and  impartial  consideration  of 
all  the  evidence  in  the  case,  and  then 
it  must  be  such  a  doubt  as  would 
cause  a  reasonable,  prudent,  and  con- 
siderate man  to  hesitate  and  pause 
before  acting  in  the  grave  and  more 
important  affairs  of  life.  If,  after  a 
careful  and  impartial  cou.sideration  of 
all  the  evidence,  you  can  say  and  feel 
that  you  have  a  firm  and  abiding 
conviction  of  the  guilt  of  the  defend- 
ant, and  are  fully  satisfied  of  the. 
truth  of  the  charge  to  a  moral  certain- 
ty, then  you  are  satisfied  beyond  a 
reasonable  doubt."  State  v.  Elsham, 
70  Iowa,  531,  31  N.  W.  66.  An  in- 
struction defining  "reasonable  doubt" 
as  such  a  doubt  as  would  make  a 
man  of  ordinary  pinidence  waver  or 
hesitate  in  arriving  at  a  conclusion,  in 
considering  a  matter  of  like  impor- 
tance to  himself  as  the  case  on  trial  is 
to  defendant,  is  not  objectionable  as 
requiring  less  positive  proof  of  facts 
in  cases  of  minor  importance  than  in 
those  of  a  graver  nature.  State  v. 
Rosener,  8  Wash.  42,  35  P.  357. 
4T  State  V.  Crockett,  65  P.  447,  39 


525 


INSTRUCTIONS  ON  DEGREE   OF   PROOF 


§209 


to  authorize  a  conviction  if  the  jury  would  act  thereon,  without 
hesitation,  in  their  own  important,  or  most  important,  concerns,'** 
or  if  the  evidence  gives  such  certainty  as  would  be  acted  upon 


Or.  76.  Butler  v.  State,  78  N.  W.  590, 
102  Wis.  364. 

Instructions  sufficient  uritMn 
rule.  A  contention  tliat  a  portion 
of  a  charge,  defining  "reasonable 
doubt"  to  be  a  "doubt  wliicli  would 
cause  a  reasonable  or  prudent  man  to 
pause  or  hesitate  after  giving  the  tes- 
timony that  degree  of  consideration 
to  which  it  is  entitled,"  was  inaccu- 
rate and  prejudicial  to  the  accused, 
in  that  it  omitted  tlie  usual  reference 
to  the  most  important  affairs  of  life, 
was  untenable,  in  view  of  other  por- 
tions of  the  charge,  given  in  the  same 
connection,  that  it  is  the  duty  of  the 
jury  to  scrutinize  the  evidence  with 
the  utmost  caution  and  care,  and 
"bring  to  that  duty  the  reason  and 
prudence  which  you  would  exercise  in 
the  most  important  affairs  of  life," 
etc.  Roszczyniala  v.  State,  104  N.  W. 
113.  125  Wis.  414. 

Doubt  in  matters  of  deepest 
concern.  An  instruction  that  a  rea- 
sonable doubt  is  not  a  captious, 
imaginary,  or  possible  doubt,  but  must 
be  such  a  doubt  as  a  reasonable  man 
would  have  in  matters  of  deepest  con- 
cern to  himself,  and  must  arise  out  of 
the  evidence  in  the  cause,  while  not 
so  full  and  complete  as  it  might  be, 
contains  no  reversible  error.  Carpen- 
ter V.  State,  62  Ark.  286,  36  S.  W.  900. 

Real,  substantial  doubt.  An  in- 
struction that  "reasonable  doubt"  is  a 
real,  substantial  doubt  existing  after 
a  fair  consideration  of  the  testimony, 
and  such  as  would  cause  a  reasonable 
and  prudent  man  to  pause  before  act- 
ing in  a  matter  of  grave  importance 
to  himself,  and  that  if,  after  con- 
sidering all  the  testimony,  a  juror  is 
morally  sure  of  the  guilt  of  the  de- 
fendant, then  he  has  no  reasonable 
doubt,  is  a  correct  definition  of  the 
term.  Chandler  v.  State,  105  P.  375, 
3  Okl.  Cr.  254,  rehearing  denied  107 
P.  735,  3  Okl.  Cr.  254. 

4  8  U.  S.  (Sup.)  Hopt  V.  Utah,  120 
U.  S.  430,  7  S.  Ct.  614,  30  L.  Ed.  708 ; 
(C.  C.  A.  Cal.)  Shepard  v.  United 
States,  236  F.  73,  149  C.  C.  A.  283; 


(C.  C.  La.)  United  States  v.  Wright, 
16  F.  112 ;  (C.  C.  Tex.)  United  States 
V.  IMeagher,  37  F.  875. 

D.  C.  United  States  v.  Heath,  20 
D.  C.  272;  Id.,  19  Wash.  Law  Rep. 
818. 

Ind.  Toops  v.  State,  92  Ind.  13; 
Garfield  v.  State,  74  Ind.  60;  Jarrell 
V.  State,  58  Ind.  293. 

Iowa.     State  v.  Nash,  7  Iowa,  347. 

Kan.    State  v.  Kearley,  26  Kan.  77. 

Mont.  State  v.  Gleim,  17  Mont.  17, 
41  Pac.  998,  31  L.  R.  A.  294,  52  Am. 
St.  Rep.  655. 

Neb.  Lawhead  v.  State,  46  Neb. 
607,  65  N.  W.  779 ;  Polin  v.  State,  14 
Neb.  540,  16  N.  W.  898. 

Pa.  Commonwealth  v.  Andrews,  83 
A.  412,  234  Pa.  597. 

S.  D.  State  v.  Fullerton  Lumber 
Co.,  152  N.  W.  708,  35  S.  D.  410. 

Wis.  Frank  v.  State,  68  N.  W. 
657,  94  Wis.  211;  Ryan  v.  State,  S3 
Wis.  486,  53  N.  W.  836. 

Instructions  beld  proper  ivitbin 
rule.  An  instruction  that  by  a  rea- 
sonable doubt  is  meant  a  real,  sub- 
stantial doubt,  based  on  reason,  and 
reasonable  in  view  of  an  impartial 
consideration  of  all  the  evidence,  and 
if  the  jui-y  is  not  satisfied  therefrom 
of  defendant's  guilt  there  is  a  reason- 
able doubt,  but  if  they  have  an  abid- 
ing conviction  of  defendant'.s  guilt, 
arising  spontaneously  from  the  evi- 
dence, which  they  would  act  on  in 
more  weighty  matters  relating  to  their 
own  affairs,  there  is  no  reasonable 
doubt,  is  not  erroneous.  State  v. 
Neel,  65  P.  494,  23  Utah,  541. 

Doubt  in  grave  and  serious  mat- 
ter affecting  private  affairs.  On 
the  question  of  doubt  it  is  not  error 
to  charge  that  reasonable  doubt  can- 
not be  said  to  exist  where  the  jury  are 
so  firmly  convinced  of  the  facts  neces- 
sary to  establish  defendant's  guilt 
that  if  it  was  a  very  grave  and  serious 
matter,  affecting  their  own  affairs, 
they  would  not  hesitate  to  act  on  such 
conviction.  People  v.  Hughes,  137  N. 
Y.  29,  32  N.  E.  1105,  following  Miles  v. 
United  States,  103  U.  S.  304,  26  L.  Ed, 


§  269  INSTRUCTIONS  TO  JURIES  526 

without  hesitation  in  the  graver  and  more  important  affairs  of 
life.^'* 

The  phrases  "graver  transactions  of  life,"  or  "important  af- 
fairs," the  use  of  which,  under  the  foregoing  statement,  are  per- 
missible in  some  jurisdictions,^  are  not  considered  adequate  in 
other  jurisdictions  to  express  the  character  of  a  reasonable  doubt,^^ 
and  in  these  jurisdictions  instructions  which  permit  the  jury  to 
convict  on  evidence  upon  which  they  would  act  in  matters  of 
grave  concern,  or  in  their  more  weighty  and  important  matters, 
instead  of  in  their  "own  most  important  affairs,"  or  in  matters  of 
the  highest  concern  and  importance  to  their  own  dearest  personal 
interests,  are  erroneous  or  defective. ^^ 

On  the  ground  that  persons  of  the  highest  sagacity  often  do, 
and  must,  act  in  the  most  important  aft'airs  of  life  on  a  slight  pre- 
ponderance of  the  evidence,  the  rule  is  in  some  jurisdictions  that 
an  instruction  that  evidence  on  which  the  jury  would  act  in  their 
most  important  affairs  will  authorize  a  conviction  is  erroneous,^^ 
unless  accompanied  by  the  statement  that  the  evidence  must  be  of 
such  a  character  that  a  prudent  man  would  feel  safe  in  acting, 
without  hesitation,  upon  the  conviction  produced  by  the  evidence 
under  circumstances  where  there  is  no  compulsion  resting  upon 
him  to  act  at  all.^* 

481  and  People  v.  Wayman,  128  N.  Y.  ty  that  they  would  come  to  in  their 

585,  27  N.  E.   1070.  own   grave    and   important   concerns. 

4  9  State  V.  Krampe,  140  N.  W.  898,  and  that  is  the  de^ee  of  certainty, 

161  Iowa,  48.  which    the   law   requires,   and   which 

50  Wacaser  v.   People,  134  111.  438,  will  .iustify  them  in  returning  a  ver- 

25  N.  E.  564.  23  Am.  St.  Rep.  683.  diet  of  guilty,"  was  erroneous.     Jen- 
si  Cal.     People  v.  Wohlfrom  (Sup.)  kins  v.  State.  IS  So.  182,  35  Fla.  737, 

26  Pac.  236 ;    People  v.  Bemmerly,  87  48  Am.  St.  Rep.  267. 

Cal.  117,  25  P.  266.                    _  52  Morgan  v.  State  (Ind.)  130  N.  E. 

^^^^•-.    T^^'^i*''^^    V     Bannigan,    1  505      g^e  Brown  v.   State,    105  Ind. 

Dak.  4al    46  N.  W    597.  3^5    5  ^t    ^   qqq     j^merv  v.  State,  65 

Ky.      Jane    v.    Commonwealth,    2  ]sf  ^  g48   92  Wis   146 

Mote.  30.  '       1.    ,.'     "   .     r 

Minn.      State  v.    Shettleworth.    18  ^^  Indiana  instructions  setting  up. 

Minn.  208  (Gil.  191) :   State  v.  Dineen,  ^^  ^  standard  of  reasonable  doubt,  a 

10  Minn.  407  (Gil.  325).  doubt   which  would  cause  ordinarily 

Nev.     State  V.  Rover,  11  Nev.  343.  prudent  men  to  hesitate  in  their  own 

Wis'.    McAllister  v.  State,  88  N.  W.  important    concerns   have   been    held 

212,  112  Wis.  496:    Emery  v.'  State,  92  ^^t  cause  for  reversal,  in  absence  of 

Wis   146   65  N    W   848  ^     request     for     fuller     instructions. 

See  People  \.  Montlake,  172  N.  Y.  S.  Bartlnw  v.  State,  109  N.  E.  201,  183 

102,  184  App.  Div.  578.  ^^^-    "^'^-      See   Arnold   v.   State,    23 

Grave   and   important   concerns.  ^^^-    ■'^'^■ 

On  a  prosecution  for  murder,  where  ^^  People  v.  Ah  Sing,  51  Cal.  372  ; 

the  evidence  was  purely  circumstan-  Lovett  v.    State,  30  Fla.   142.   11   So. 

tial.  a  charge  that  "in  a  case  of  this  550,  17  L.  R.  A.  705;    Palmerston  v. 

kind  the  conclusion  to  which  the  jury  Territory,  3  Wyo.  333,  23  P.  73. 

is  conducted  is  that  degree  of  certain-  54  Morgan  v.  State  (Ind.)  130  N.  E. 


527 


INSTRUCTIONS  ON   DEGUEE   OF   PROOF 


269 


.  An  instruction  is  erroneous  which  sets  up  as  a  standard  of  a 
reasonable  doubt  a  doubt  which  would  influence  one  in  the  ordi- 
nary and  usual  business  transactions  of  life,'^"  and  in  jurisdic- 
tions in  which  it  is  proper  to  tell  the  jury  that  a  reasonable  doubt 
is  one  which  would  cause  an  ordinarily  prudent  person  to  hesitate 
in  an  important  affair  of  life  it  is  error  to  instruct  that  a  reason- 
able doubt  is  one  which  would,  not  only  influence,  but  control, 
one  in  any  of  the  important  transactions  of  life,  such  an  instruc- 
tion imposing  too  great  a  burden  on  defendant.^ 

In  Alabama  it  is  proper  to  refuse  an  instruction  that,  unless 
the  jury  are  so  convinced  by  the  evidence  of  the  guilt  of  the  de- 
fendant that  they  would  each  venture  to  act  on  that  decision  in 
matters  of  the  highest  concern  and  importance  to  his  own  in- 
terest, they  must  acquit  him ;  ^'  such  ,an  instruction  being  deemed 


argumentative  or  misleading.^^ 

528:  Garfield  v.  State,  74  Ind.  60; 
Bradley  v.  State,  31  Ind.  492. 

5  5  People  V.  Albers.  100  N.  W.  90S, 
137  Mich.  678;  Territory  v.  Lopez.  3 
N.  M.  (Johns.)  104,  2  P.  364 ;  Anderson 
V.   State,  41  Wis.  430. 

Trivial  affairs.  An  instruction 
permitting  the  jury  to  convict  upon 
evidence  upon  which  they  would  act 
in  the  everyday  walks  of  life  is  er- 
roneous, as  authorizing  a  verdict  of 
guilty  on  evidence  which  would  satis- 
fy inthe  trivial  affairs  of  life.  Robin- 
son v.  State  (Ark.)  231  S.  W.  2. 

5  0  Commonwealth  v.  Miller,  139  Pa. 
77.  21  A.  138.  27  Wkly.  Notes  Cas. 
257,  23  Am.  St.  Rep.  170. 

5  7  Minor  v.  State,  74  So.  98,  15  Ala. 
App.  556;  Diamond  v.  State.  72  So. 
558,  15  Ala.  App.  33,  certiorari  denied 
Ex  parte  State,  73  So.  1002,  198  Ala. 
694;  Phillips  v.  State  65  So.  444,  11 
Ala.  App.  15;  McClain  v.  State,  62  So. 
241,  182  Ala.  67;  Stevens  v.  State,  60 
So.  459,  6  Ala.  App.  6;  Whitmore 
V  State.  52  So.  909,  168  Ala.  45; 
Parker  v.  State,  51  So.  260. 165  Ala.  1 ; 
Phillip-s  V.  State,  50  So.  194,  162  Ala. 
14;  Williams  v.  State,  50  So.  59,  161 
Ala.  52 ;  Smith  v.  State.  49  So.  1029, 
161  Ala.  94;    Kelly  v.   State,  49  So. 


535,  160  Ala.  48 ;  Medley  v.  State,  47 
So.  218,  156  Ala.  78;  Mason  v.  State, 
45  So.  472,  153  Ala.  46;  Parker  v. 
State,  45  So.  248,  153  Ala.  25 :  Rigsby 
V.  State,  44  So.  608,  152  Ala.  9 ;  Kirby 
v.  State.  44  So.  38.  151  Ala.  66 ;  T^on- 
ard  V.  State,  43  So.  214,  150  Ala.  89 ; 
Brown  v.  State,  43  So.  194,  150  Ala. 
25;  Toliver  v.  State,  38  So.  801.  142 
Ala.  3;  Bowen  v.  State,  37  So.  233,  140 
Ala.  65 ;  Walker  v.  State,  35  So.  1011, 
1.39  Ala.  56 ;  Goodlett  v.  State.  33  So. 
892.  136  Ala.  39;  Allen  v.  State,  32 
So.  318,  1.34  Ala.  1.59. 

5  8  Smith  v.  State,  62  So.  184,  182 
Ala.  .38:  Martin  v.  State,  56  So.  64. 
2  Ala.  App.  175;  Shirley  v.  State,  40 
So.  269,  144  Ala.  35;  Banks  v.  State, 
30  So.  921 :  Pitts  v.  State,  37  So.  101, 
140  Ala.  70;  Spraggins  v.  State,  35 
So.  1000.  139  Ala.  93:  Jarvis  v.  State. 
34  So.  1025,  138  Ala.  17:  Smith  v. 
State  34  So.  396,  137  Ala.  22;  Deal 
V.  State.  34  So.  23,  1.36  Ala.  52 ;  Wil- 
lis V.  State.  33  So.  226.  134  Ala.  429: 
Mann  v.  State.  .32  So.  704.  134  Ala.  1 ; 
Sanders  v.  State,  32  So.  654,  134  Ala. 
74;  Thompson  v.  State,  31  So.  725, 
131  Ala.  18;  Amos  v.  State.  26  So. 
524,  123  Ala.  50;  Rogers  v.  State,  22 
So.  666,  117  Ala.  9. 


§270 


INSTRUCTIONS  TO  JURIES 


528 


§  270.     Moral  or  mathematical  certainty 

The  terms  "beyond  a  reasonable  doubt"  and  "to  a  moral  cer- 
tainty" are  the  legal  equivalents  of  each  other  and  may  be  used 
interchangeably,^  and  while  it  is  not  error  to  fail  to  so  instruct,^" 
it  is  proper,**!  and  would  seem  advisable,  to  do  so  where  both  terms 
are  used.  It  is  therefore  proper,  where  the'  court  has  fully  ex- 
plained the  necessity  of  being  satisfied  of  guilt  beyond  a  reason- 
able doubt,**^  to  instruct  that  the  state  is  only  required  to  prove 
the  truth  of  its  charge  against  the  defendant  to  a  moral  certain- 
ty,^* or  to  a  moral  and  reasonable  certainty  and  beyond  a  reason- 
able doubt.®*  On  the  other  hand,  the  court  may  refuse  to  use  the 
term  "to  a  moral  certainty,"  where  the  phrase  "beyond  a  reason- 
able doubt"  is  employed.®^ 

As  is  indicated  by  the  statement  of  the  above  rule,  there  is  a 


59  Jones  V.  State,  100  Ala.  88,  14 
So.  772;  Hendrix  v.  United  States, 
101  P.  125,  2  Okl.  Cr.  240;  State  v. 
WappensteiD,  121  P.  989,  67  Wash. 
502. 

Reasonable  and  moral  certainty. 
On  a  trial  for  murder,  proof  beyond  a 
reasonable  doubt  is  not  such  as  to 
establish  truth  of  the  facts  to  an  ab- 
solute certainty,  but  such  as  estab- 
lishes them  to  a  reasonable  and  moral 
certainty,  a  certainty  that  convinces 
and  directs  the  understanding,  and 
satisfies  the  reason  and  judgment,  of 
those  who  are  bound  to  act  conscien- 
tiously upon  it.  State  v.  Staley,  14 
Minn.  105  (Gil.  75).  In  a  charge  on 
circumstantial  evidence,  it  was  not  er- 
ror for  the  court  to  state  that  such 
evidence  must  produce,  "in  effect,  a 
reasonable  and  moral  certainty"  of 
defendant's  guilt,  instead  of  that  it 
must  produce  "the  effect  of  a  reason- 
able and  moral  certainty."  Loggins 
v.  State,  32  Tex.  Cr.  R.  364,  24  S.  W. 
512. 

Fully  satisfied  to  a  moral  cer- 
tainty. An  instruction  defining  rea- 
sonable doubt,  that  if  "the  jury  are 
fully  satisfied  to  a  moral  certainty" 
they  are  satisfied  beyond  a  reasonable 
doul)r,  is  not  prejudicial  because  of 
the  use  of  the  word  "fully."  Wheeler 
V.  State,  113  N.  W.  253,  79  Neb.  491. 

Moral  evidence.  An  instruction 
that  moral  certainty  is  that  degree  of 
proof  which  the  law  requires  of  moral 
evidence,  and  is  descriljed  as  a  state 
of  impression   produced   by  facts   in 


which  a  reasonable  mind  feels  coer- 
cion or  necessity  to  act  in  accordance 
therewith,  is  not  error.  People  v. 
Burns,  69  P.  16,  70  P.  1087,  138  Cal. 
159,  60  L.  R.  A.  270. 

6  0  Chandler  v.  State",  68  So.  536,  12 
Ala.  App.  287. 

61  Killen  v.  State,  75  So.  176,  16 
Ala.  App.  31,  certiorari  denied  Ex 
parte  State,  76  So.  568,  200  Ala.  474 ; 
Varner  v.  State  (Ga.  App.)  108  S.  B. 
SO. 

6  2  Griggs  V.  State,  86  S.  E.  726,  17 
Ga.  App.  301;  Smith  v.  State,  74  S. 
E.  447,  10  Ga.  App.  840  ;  Cole  v.  State, 
53  S.  E.  958,  125  Ga.  276;  Bone  v. 
State,  30  S.  E.  845.  102  Ga.  387;  Ode- 
neal  v.  State,  157  S.  W.  419,  128  Tenn. 
60. 

63  Simmons  v.  State,  48  So.  606,  158 
Ala.  8;  Bailey  v.  State,  32  So.  57, 
133  Ala.  155;  People  v.  Chutuk,  124 
P.  566,  18  Cal.  App.  768;  State  v. 
Long,  43  A.  493,  72  Conn.  39. 

6  4  Ponder  v.  State,  90  S.  E.  376,  18 
Ga.  App.  727. 

Moral  and  legal  certainty.  A 
charge  that  all  the  law  requires  is 
moral  and  legal  certainty,  and  that  if 
jury  had  such  certainty  beyond  a  rea- 
sonable doubt  they  should  convict, 
was  not  objectionable  as  applying  to 
a  criminal  case  the  degree  of  proof 
applicable  only  to  a  civil  case.  New- 
some  V.  State  (Ga.  App.)  102  S.  E.  876. 

6  5  Wolf  V.  State,  197  S.  W.  582,  130 
Ark.  591;  Stewart  v.  State,  115  S. 
W.  374,  88  Ark.  602 ;  Commonwealth 
V.  Costley,  118  Mass.  1. 


529 


INSTRUCTIONS  ON  DEGREE  OF   PROOF 


§270 


hesitancy  in  some  of  the  cases  to  use  the  term  "moral  certainty," 
or  "to  a  moral  certainty,"  ^  unless  associated  in  some  way  with 
the  phrase  "beyond  a  reasonable  doubt,"  and,  while  it  is  held  to 
be  error  to  refuse  an  instruction  that  the  jury  must  be  satisfied 
beyond  all  reasonable  doubt  and  to  a  moral  certainty  of  the  gnilt 
of  the  defendant  before  they  can  convict,®'  it  is  also  held  that  a 
charge  that  before  the  jury  is  authorized  to  render  a  verdict  of 
guilty  the  state  must  prove  the  defendant's  guilt  to  a  moral  cer- 
tainty is  properly  refused  as  elliptical.®^ 

It  is  proper  to  refuse,  as  requiring  too  high  a  degree  of  proof, 
a  charge  that  the  state  is  bound  to  prove  the  guilt  of  the  defendant 
clearly,  fully,  convincingly,  and  to  a  moral  certainty,®^  or  beyond  a 
moral  certainty ,'^*'  or  a  charge  that,  unless  the  evidence  against 
the  defendant  excludes  to  a  moral  certainty  every  hypothesis  or 
supposition  but  that  of  guilt,  there  shall  be  no  conviction,'^  and 
even  when  the  phrase  "every  hypothesis  or  supposition  but  that 
of  guilt,"*  in  the  above  instruction,  has  been  qualified  by  the  word 
"reasonable"  or  "rational,"  it  has  been  held  proper  to  refuse  it." 


68  Norman  v.  State,  74  S.  E.  428, 
10  Ga.  App.  802. 

6  7  Svkes  V.  State,  44  So.  398,  151 
Ala.  80;  Rogers  v.  State,  22  So.  666, 
117  Ala.  9;  Williams  v.  State,  52 
Ala.  411;  McVay  v.  State  (Miss.)  26 
So.  947. 

Proof  of  guilt  to  a  moral  cer- 
tainty and  beyond  a  reasonable 
doubt.  Instruction  that  accused  can- 
not be  convicted  upon  suspicion,  but 
his  guilt  must  be  determined  upon  an 
impartial  consideration  of  the  evi- 
dence, and  unless  that  establishes  his 
guilt  to  a  moral  certainty  beyond  all 
reasonable  doubt  he  must  be  acquit- 
ted, is  a  sufficient  charge  on  reason- 
able doubt.  People  v.  Ashland.  128 
P.  798,  20  Cal.  App.  168.  In  a  murder 
case  an  instruction  that  the  prosecu- 
tion is  not  required  to  establish  ac- 
cused's guilt  beyond  any  possible 
doubt,  but  all  that  is  required  is 
moral  certainty,  that  is,  that  degree 
of  proof  which  produces  conviction  in 
an  unprejudiced  mind,  and,  if  the  jury 
are  satisfied  beyond  a  reasonable 
doubt  of  accused's  guilt,  they  should 
convict,  was  not  erroneous,  because 
failing  to  state  that  the  jury  should 
be  satisfied  "to  a  moral  certainty  and 
beyond  a  reasonable  doubt,"  especial- 
ly where  the  instructions  as  a  whole 
iNST.TO  Juries — 84 


required  that  degree  of  proof.  People 
V.  Simmons,  95  P.  48,  51,  7  Cal.  App. 
xiii. 

6  8  McMillan  v.  State,  75  So.  824,  16 
Ala.  App.  148 ;  Minor  v.  State,  74  So. 
98,  15  Ala.  App.  556 ;  Little  v.  State, 
39  So.  674,  145  Ala.  662. 

Contra,  Walker  v.  State,  23  So.  149, 
117  Ala.   42. 

6  9  Bullington  v.  State,  69  So.  319, 13 
Ala.  App.  61;  Campbell  v.  State,  62 
So.  57,  182  Ala.  18;  Montgomery  v. 
State,  49  So.  902,  160  Ala.  7. 

-"  Koberson  v.  State,  99  Ala.  189, 
13  So.  532. 

•  71  Ala.  Keith  v.  State,  72  So.  602, 
15  Ala.  App.  129;  Moss  v.  State,  67 
So.  431,  190  Ala.  14;  Ragsdale  v. 
State,  32  So.  674.  134  Ala.  24;  An- 
drews V.  State,  32  So.  665,  134  Ala. 
47;  Gafiford  v.  State,  25  So.  10,  122 
Ala.  54. 

Mich.  Hall  V.  People,  39  Mich. 
717. 

7  2  Thomas  v.  State,  65  So.  863,  11 
Ala.  App.  85;  Griffin  v.  State,  43  So. 
197,  150  Ala.  49 ;  Nevill  v.  State,  32 
So.  596,  133  Ala.  99. 

Instruction  requiring  state  to 
prove  that  no  other  person  than 
defendant  could  possibly  have 
committed  the  offense  charged.  A 
charge  in  a  homicide  case  that  there 


270 


INSTRUCTIONS  TO  JURIES 


530 


As  has  been  stated  elsewhere,  instructions  should  not  be  so 
framed  as  to  tend  to  lead  the  jury  to  think  that  they  must  be  con- 
vinced beyond  all  doubt,  and  an  accused  is  not  entitled  to  an  in- 
struction that  the  truth  of  the  charge  against  him  must  be  estab- 
lished to  an  absolute  moral  certainty,'^  and  it  is  proper  to  charge 
that  in  order  to  convict  there  need  not  be  absolute  mathematical 
certainty  of  proof  of  guilt.'* 

§  271.     Abiding  conviction  to  a  moral  certainty 

It  is  proper  in  some  jurisdictions  to  instruct  the  jury  that  a  rea- 
sonable doubt  is  such  a  doubt  as  leaves  the  minds  of  the  jury, 
after  a  consideration  of  all  the  evidence,  in  such  a  condition  that 
they  cannot  say  that  they  have  an  abiding  conviction  to  a  moral 
certainty  of  the  truth  of  the  charge  against  the  defendant,'^  al- 
though it  may  not  be  error  to  refuse  such  an  instruction,  in  view 
of  other  instructions  given, ''^^  and  in  some  jurisdictions  such  an 
instruction  is  erroneous,  or  is  properly  refused,  as  likely  to  con- 
fuse the  jury,  and  as  not  making  the  meaning  of  reasonable  doubt 


should  not  be  a  conviction  unless  to  a 
moral  certainty  the  evidence  excludes 
every  other  reasonable  hypothesis 
than  that  of  guilt  of  accused,  and  no 
matter  how  strong  may  be  the  facls 
if  they  can  be  reconciled  vpith  the 
theory  that  some  other  person  may 
have  done  the  act,  then  the  guilt  of 
accused  is  not  shown  by  that  full 
measure  of  proof  that  the  law  re- 
quires, is  properly  refused,  as  requir- 
ing too  high  a  degree  of  proof.  Par- 
ham  v.  State,  42  So.  1,  147  Ala.  57; 
Bailev  v.  State,  53  So.  296,  390,  168 
Ala.  4. 

T3  People  V.  Hecker,  109  Cal.  451,42 
P.  307,  30  L.  R.  A.  403;  People  v. 
Davis,  64  Cal.  440,  1  P.  889. 

Instructions  held  properly  re- 
fused within  rule.  An  instruction 
that  the  law  is  that  not  only  must  the 
jury  have  justifying  reasons  for  con- 
clusion of  guilt,  not  only  must  tliey  be 
able  to  say  upon  reason  that  the  ac- 
cused is  guilty,  but  that  their  conclu- 
sion must  be  so  reasonable  to  their 
minds  as  to  exclude  all  doubts  of  their 
correctness  to  a  moral  certainty. 
Greer  v.  State,  47  So.  300,  156  Ala.  15. 

T4  Ala.  King  v.  State,  87  So.  701, 
17  Ala.  App.  536;  Winter  v.  State,  26 
So.  940,   123  Ala.  1;    Hicks  v.  State, 


26  So.  337,  123  Ala.  15;  Martin  v. 
State,  77  Ala.  1. 

Ga.  Loyd  v.  State  (App.)  106  S.  E. 
601;  Jackson  v.  State,  45  S.  E.  604, 
118  Ga.  780 ;  Hodge  v.  State,  43  S.  E. 
2.55.  116  Ga.  852 ;  Davis  v.  State,  39 
S.  E.  906,  114  Ga.  104. 

Neb.  St.  Louis  v.  State,  8  Neb.  405, 
1  N.  W.  371. 

T5  u.  S.  (D.  C.  Ala.)  United  States 
V.  Zes  Cloya,  35  F.  493. 

Ala.     Coleman  v.  State,  59  Ala.  52. 

Cal.  People  v.  Davis,  67  P.  59,  135 
Cal.  162;    People  v.  Ashe,  44  Cal.  288. 

Kan.  State  v.  Patton,  71  P.  840, 
66  Kan.  486. 

Mich.  People  V.  Finlcy,  38  Mich. 
482. 

Minn.  State  v.  Couplin,  178  N.  W. 
486,   146  Minn.  189. 

Nev.  State  v.  Van  Winkle,  6  Nev 
340. 

Tex.  Chapman  v.  State,  3  Tex. 
App.  67. 

Abiding  conviction  of  guilt.  An 
instruction  that,  before  defendant 
could  be  found  guilty,  the  jury  must 
have  a  "fixed  abiding  conviction  of 
guilt,"  was  not  erroneous.  Thomp- 
son v.  State,  184  P.  467,  16  Okl.  Cr. 
716. 

7c  Woodruff  V,  State,  31  Fla.  320, 
12   So.  653. 


531 


INSTRUCTIONS   ON   DEGREE  OP   PROOF 


272 


any  clearer  than  the  phrase  itself.''''  It  is  proper  to  give  the  con- 
verse of  the  above  instruction  to  the  effect  that  the  jury  are  satis- 
fied beyond  a  reasonable  doubt  of  the  fact  of  the  guilt  of  the  ac- 
cused if,  after  a  consideration  of  all  the  evidence  in  the  case,  they 
have  an  abiding  conviction  to  a  moral  certainty  of  such  fact.''* 

§  272.     Coinscientious  belief 

An  instruction  that  a  conscientious  belief  that  the  defendant  is 
guiltv  of  the  crime  charged  against  him  will  authorize  his  convic- 
tion is  erroneous/*  since  mere  conscientious  belief  is  not  belief 
beyond  a  reasonable  doubt,**^  and  such  an  instruction  in  effect,  re- 
quires the  jury  to  convict  if  they  believe  the  defendant  to  be 
guilty.*^ 

Such  an  instruction  is  not  cured  by  an  instruction  that  the  jury 
mu.st  believe  the  defendant  guilty  beyond  a  reasonable  doubt  be- 
fore they  can  convict,*^  but  a  charge  to  convict  if  the  jury  con- 
scientiouslv  believe  the  defendant  to  be  guilty  beyond  a  reason- 


7  7  Little  V.  People.  157  111.  153.  42 
N.  E.  3S9 ;  Claussen  v.  State,  183  P. 
1055.  21  Wvo.  505.  judpiient  aflirmed 
on  rehearing  135  P.  802,  21  Wyo.  505. 

In  New  Jersey  a  reasonable  donbt 
has  not  as  yet  l>een  authoritatively 
defined  as  the  want  of  an  abiding  con- 
viction of  cuilt.  State  v.  Silverio,  7(3 
A.  1069,  79  N.  J.  Law,  482. 

7  8  U.  S.  rsup.)  Miles  v.  United 
States,  103  U.  S.  304.  2G  L.  Ed.  481. 

Ala.  Frazier  v.  State,  86  So.  173. 
17  Ala.  App.  486;  Harrison  v.  State, 
40  So.  568.  144  Ala.  20;  McKee  v. 
State.  82  Ala.  32,  2  So.  451. 

Ark.  Snyder  v.  State,  111  S.  W. 
465,  86  Ark.  456. 

Neb.  Willis  v.  State,  43  Xeb.  102, 
61  N.  W.  254. 

N.  J.  Donnelly  v.  State.  26  N.  .T. 
Law.  601. 

Abiding  conviction  of  guilt.  An 
instrnclion  that,  if,  from  all  the  cir- 
cnmstances,  the  jury  are  convinced 
of  aecus^Hl's  guilt,  "and  that  you  have 
an  abiding  conviction  that  the  defend- 
ant is  guilty  of  murder,"  they  should 
convict  was  misleading  and  argumen- 
tative in  requiring  the  jury  to  be  con- 
vinced that  they  had  an  abiding  con- 
viction of  guilt,  instead  of  that  they 
be  convinced  of  the  fact  of  guilt.  Peo- 
ple v.  Rischo,  105  N.  E.  8,  262  111. 
.-96. 


Abiding  conviction  based  on 
ivant  of  evidence.  ATI  instruction 
that,  if  from  careful  consideration  of 
all  the  evidence  or  want  of  evidence 
the  jury  could  say  that  they  had  an 
abiding  conviction  of  truth  of  charge, 
they  would  be  satisfied  beyond  a  rea- 
sonable doubt,  has  been  held  to  be 
error.  Gammol  v.  State.  166  N.  W. 
250.  101  Neb.  532,  modifying  on  re- 
bearlncr  opinion  in  163  N.  W.  854.  101 
Neb.  532. 

7  9  Taylor  v.  State,  42  So.  60S.  .89 
Miss.  671 ;  Ellerbee  v.  State,  30  So. 
57.  79  Miss.  10;  Orr  v.  State,  18  So. 
118:  Brown  v.  State,  72  Miss.  997. 
17  So.  278 ;  Hemphill  v.  State,  16  So. 
491;  Burt  v.  State,  72  Misi?.  408,  16 
So.  .342,  48  Am.  St.  Rep.  563 ;  Brown 
v.  Stnte.  72  Miss.  95.  16  So.  202. 

Belief  as  reasonable  and  con- 
scientious men.  An  instructiou  is 
erroneous  which,  after  stating  that  a 
reasonable  doubt  cannot  be  defined, 
tells  the  jury  that  they  should  con- 
vict if  they  are  satisfied  from  all  fche 
evidence,  as  reasonable  and  conscien- 
tious men,  of  defendant's  guilt.  Pow- 
ers V.  State.  21  So.  657.  74  Miss.  777. 

80  .Johnson  v.  State  (Miss.)  16  So 
494. 

St  Rucker  v.  State  CSUss.)  IS  So. 
121. 

**2  Campbell  v.  State  (Miss.)  17  So. 
441. 


273 


INSTRUCTIONS  TO  JURIES 


532 


able  doubt  is  not  an  improper  qualification  of  the  doctrine  of  rea- 
sonable doubt.*3 

§  273.     Effect  of  doubt  upon  any  particular  fact 

There  is  generally  such  a  relation  between  the  definitive  ele- 
ments of  a  public  offense  and  mutual  corroboration  in  the  proofs 
of  them  as  to  make  it  improper  to  single  them  out  for  isolated  de- 
tached consideration.  But  in  the  end,  all  things  considered,  the 
established  measure  of  proof  of  an  oflfense  charged  is  also  the 
measure  of  the  proof  of  each  essential  constituent  element.**  Ac- 
cordingly, on  principle  and  by  the  weight  of  authority,  an  instruc- 
tion that  it  is  not  necessary,  to  convict  an  accused,  that  every  ma- 
teria] allegation  in  the  indictment  shall  be  established  beyond  a 
reasonable  doubt  if  the  jury  are  satisfied  after  a  consideration  of 
the  entire  case  of  his  guilt  beyond  a  reasonable  doubt,  is  errone- 
ous,*^ and  defendant  is  entitled  to  have  the  jury  instructed  that, 
unless  every  element  necessary  to  constitute  the  crime  charged  is 
proven  beyond  a  reasonable  doubt,  they  must  acquit  him,*^  al- 


83  Moore  v.  State,  38  So.  504,  86 
Miss.  160 :  Hammond  v.  State,  21  So. 
149.  74  Miss.  214. 

Proof  \i7hicli  satisfies  judgment 
and  conscience  of  jury.  An  in- 
struction which  defines  proof  beyond 
a  reasonable  doubt  to  be  "such  proof 
as  satisfies  the  judgment  and  con- 
science of  the  jury,  as  reasonable  men 
applying  their  reason  to  the  evidence 
before  them,  that  the  crime  charged 
has  been  committed  by  the  defend- 
ant, and  so  satisfies  them  as  to  leave 
no  other  reasonable  conclusion  possi- 
ble," is  correct.  People  v.  Ezzo,  104 
Mich.  341,  62  N.  W.  407. 

84  Spear  v.  United  States  (C.  C.  A. 
Ark.)  22S  F.  485,  143  C.  C.  A.  67. 

86  Heard  v.  United  States  (O.  C.  A. 
Ark.)  228  F.  .503,  143  C.  C.  A.  85; 
Spear  v.  United  States  (C.  C.  A.  Ark.) 
228  F.  485,  143  C.  C.  A.  67;  State  v. 
Ottley,  126  N.  W.  334,  147  Iowa,  329 ; 
State  v.  Kimes,  124  N.  W.  164,  145 
Iowa.  346. 

"Each  and  every"  material  alle- 
gation. An  instruction  that,  if  the 
state  has  failed  to  establish  "each 
and  every"  of  the  material  allega- 
tions beyond  a  reasonable  doubt,  the 
jury  must  acquit,  is  not  erroneous  be- 
cause of  the  use  of  the  quoted  words 


instead  of  "any."  Larson  v.  State, 
137  X.  W.  894,  92  Xeb.  24. 

8  6  Dunn  V.  State,  84  S.  E.  488,  16 
Ga.  App.  9;  Frazier  v.  State,  100 
S.  W.  94,  117  Tenn.  430. 

In  tlie  federal  courts,  a  request 
for  such  an  instruction,  which  also  re- 
quired that  each  individual  juror  be 
satisfied  beyond  a  reasonable  doubt 
of  each  essential  fact,  has  been  held 
properly  refused.  Richards  v.  United 
States  (C.  C.  A.  Neb.)  175  F,  911,  99 
C.  C.  A.  401. 

"All  the  phases  of  the  case." 
While  every  material  allegation  in  an 
indictment  should  be  proven  beyond 
a  reasonable  doubt,  it  is  not  error  to 
refuse  to  charge  "that  all  the  phases 
of  the  case"  should  be  proven  beyond 
a  reasonable  doubt.  Price  v.  State, 
40  S.  E.  1015,  114  Ga.  855. 

Doubt  raised  by  ingenuity  of 
counsel.  It  was  proper  to  refuse  an 
instruction  that  if  a  reasonable  doubt 
of  any  fact  necessary  to  convict  is 
raised  in  the  mind  of  the  jury  by  the 
evidence  itself,  or  by  the  ingenuity  of 
the  counsel,  on  any  hyiw  thesis  con- 
sistent therewith,  that  doubt  is  deci- 
sive of  the  defendant's  acquittal  as 
misleading.  Horton  v.  Common- 
wealth, 38  S.  E.  184,  99  Va.  848. 


533  INSTRUCTIONS  ON   DEGREE   OF   PROOF  §  273 

though  an  instruction  laying  down  this  rule  in  so  many  words  is 
not  necessarily  required,**'  and  such  an  instruction  may  be  refused 
where  the  insanity  of  the  defendant  is  the  only  issue.** 

As  is  indicated  by  the  foregoing  statement  there  are  decisions 
in  some  jurisdictions  which  seem  to  be  at  variance  with  the  rule 
above  laid  down.  In  Alabama,  while  there  are  cases  to  the  con- 
trary,*® the  preponderance  of  authority  and  the  later  decisions  arc 
to  the  effect  that  the  court  may  properly  refuse  a  charge  that  the 
proof  of  one  single  fact  to  the  satisfaction  of  the  jury  inconsistent 
with  the  guilt  of  the  accused  is  sufficient  to  raise  a  reasonable 
doubt  requiring  an  acquittal.''"  In  Illinois  the  court  may  and 
should  instruct  that  a  reasonable  doubt  which  will  warrant  the 
acquittal  of  a  defendant  in  a  criminal  case  must  be  as  to  his  guilt 
upon  the  whole  evidence,  and  not  as  to  any  particular  fact  in  the 
case,®^  and  an  instruction  which  applies  the  doctrine  of  reasonable 
doubt  to  any  single  fact,  and  not  to  all  the  evidence,  is  erroneous.®' 

The  reasoning  which  underlies  these  decisions  is  somewhat  ob- 
scure. Apparently  they  have  been  influenced  largely  by  the  ap- 
prehension that  to  tell  the  jury  that  before  they  can  convict  they 
must  find  beyond  a  reasonable  doubt  the  existence  of  every  fact 
essential  to  make  out  the  crime  charged  would  divert  the  attention 
of  the  jury  from  a  consideration  of  the  entire  evidence  to  particu- 

87  Benge  v.   Commonwealth,   71    S.  certiorari  Davis  v.  State,  62  So.  1027. 

W.  64.S.  24  Ky.  Law  Rep.  1466.  S  Ala.  App.   147 ;    Winsate  v.   State. 

8?  State   V.    Soper.   49    S.    W.    1007,  55  So.  95.S,  1  Ala.  App.  40;    Moss  v. 

148  INIo   217  State,  44  So.  598,  152  Ala.  30 ;   INIorris 

89  Doty  V.'  State,  64  So.  170,  9  Ala.  ^-  ,f ^t^'  f^  ^%^^l'  / 24  Ala.  44. 
App.  21  f   Roberson  v.   State,   57   So.  .-.t  rn'^'Sn  V       '*'  ^^   ^i  Vv' 
829.  175  Ala.  15;    Simmons  v.  State,  237  I""  J^^  ^,?^^"^-:^  v.  People.  6o  ^. 
48   So.    606,    158   Ala.    8;     Walker   v.  ^:   ^^^  V^,?   "^-   ^^2:    Gorgo  v.  Peo- 

State,  45  So.  640,  153  Ala.  31.  ^^\'  l^  "V  ^^^^-  Jf " 

Instructions  held  proper  within 

90  Richardson  v.  State.  85  So.  789,  rule.  An  instruction  on  reasonable 
204  Ala.  124;  Love  v.  State.  82  So.  ^oubt.  that  the  rnle  requiring  the  ju- 
639,  17  Ala.  App.  149;  Watldns  v.  ^y  to  be  satisfied  of  defendant's  cnHl 
State  (App.)  82  So.  628;  Pinson  v.  beyond  a  reasonable  doubt  in  ord.n- 
State,  78  So.  876,  201  Ala.  522 ;  Cain  to  convict,  is  complied  with  if  taking 
V.  State,  77  So.  453,  16  Ala.  App.  303;  the  testimony  altoi-ether  the  .inry  is 
Ruth  r  v.  State.  77  So.  72. 16  Ala.  App.  satisfied  bevond  a  reasonable'  doubt 
234 ;  Suttles  v.  State.  74  So.  400,  15  and  that  the  reasonable  doubt  which 
Ala.  App.  582;  Pippin  v.  State,  73  the  .inry  may  entertain  must  be  as 
So.  340,  197  Ala.  613;  Cowan  v.  to  the  cuilt  of  accused  on  the  whole 
State,  72  So.  578.  15  Ala.  App.  87;  evidence,  and  not  as  to  an v  particular 
Pearson  v.  State,  69  So.  485,  13  Ala.  fact  "material  to  the  issue  in  the 
App.  181;  Thomas  v.  State,  68  So.  case,"  cannot  be  complained  of  by 
799,  13  Ala.  App.  246,  certiorari  de-  the  defendant  because  of  the  addition 
nied  Ex  parte  Thomas,  69  So.  1020,  of  the  cfuoted  words.  People  v  Scar- 
193  Ala.  682 ;    Moss  v.   State,  67  So.  bak,  92  N.  E.  286,  245  111.  435. 

431,   190  Ala.   14;     Ex   parte   Davis,  9  2  people  v.  Zurek,  115  N    E    644 

63    So.    1010,    184    Ala.    26,    denying      277  111.  621.  '      ' 


§  273  INSTRUCTIONS   TO  JURIES  534 

lar  features  thereof.  But  it  is  hard  to  resist  the  conclusion  that 
the  form  of  instruction  approved  in  these  jurisdictions  is  likely  in 
some  cases  to  mislead  the  jury  into  the  belief  that,  although  they 
may  not  be  convinced  beyond  a  reasonable  doubt  that  some  fact 
essential  to  conviction  has  been  proven,  they  may  yet  bring  in  a 
verdict  of  guilty. 

An  instruction  which  applies  the  doctrine  of  reasonable  doubt 
to  each  and  every  incident  connected  with  the  case  is  too  broad,^^ 
as  is  an  instruction  that  the  jury  must  acquit  if  they  have  a  rea- 
sonable doubt  of  material  facts,  without  regard  to  whether  they 
are  facts  essential  to  the  establishment  of  the  guilt  of  defendant.^* 
Thus,  in  a  prosecution  for  seduction,  it  is  error  to  charge  that  the 
corroborating  evidence  must  be  proven  beyond  a  reasonable 
doubt. ^^  The  reasons  which  render  proper  an  instruction  that  not 
every  circumstance  offered  in  evidence  tending  to  prove  ultimate 
facts  must  be  established  beyond  a  reasonable  doubt  are  as  ap- 
plicable where  the  prosecution  rests  its  case  upon  direct  evidence 
as  where  it  relies  upon  circumstantial  evidence. ^^ 

The  defendant  has  no  right  to  single  out  each  material  fact  and 
have  the  court  direct  the  jury  that  if  they  have  a  reasonable  doubt 
as  to  the  existence  of  such  fact  they  ought  to  acquit.^" 

§  274.     Necessity  of  convincing  each  juror  beyond  a  reasonable 
doubt  in  order  to  convict  or  to  prevent  an  acquittal 

Instructions  are  erroneous  which  tend  to  convey  the  impression 
that  the  doubt  of  an  individual  juror  of  the  guilt  of  the  accused 
cannot  be  put  into  the  scales  against  the  conviction  of  his  fellow 
jurors  beyond  a  reasonable  doubt  of  such  guilt.^^     On  the  con- 

9  3  state  V.  Watkins,  31  So.  10.  106  Moon.  117  P.  757,  20  Itlaho,  202,  Ann. 

La.  380.  '  Cas.  1913A.  724;    People  v.  Faber,  92 

9  4  Leonard  v.  State,  43  So.  214,  150  N.  E.  674,  199  X.  Y.  256,  20  Ann.  Cas. 

Ala.  89;    Rnrton  v.  State,  37  So.  435,  879. 
141  Ala.  32.  Instructions        held        improper 

osLasater  v.  State,  94  S.  W.  59,  77  within  rule.     An  instruction  that  to 

Ark.  468.  vote   time   after   time    in    accordance 

9  6  Hollywood  V.   State,  120  P.  471,  with  the  first  ballot,  and  not  try  to 

19  Wyo.   493,   Ann.   Cas.   1913E,  218,  reach    a    verdict   was    to  violate   the 

rehearing  denied  122  P.  588,  19  Wyo.  oaths  of  the  jurors  to  return  a  ver- 

493,  Ann.  Cas.  1913E,  218;    Horn  v.  diet   according  to   the  evidence,    and 

State,  73  P.  705,  12  Wyo.  80.  "this  each  of  you  can  do  and  do  no 

9  7  City  of  Topeka  v.  Roberts,  141  P.  violence  to  your  consciences  as  fair- 
240,  92  Kan.  607 ;  State  v.  Robinson,  minded,  conscientious,  and  intelli- 
139  S.  W.  140,  230  Mo.  712;  State  gent  jurvmen."  People  v.  Whitlow, 
V.  Garth,  05  S.  W.  275,  164  Mo.  553;  139  P.  826,  24  Cal.  App.  1.  An  in- 
State  V.  Crawford,  34  Mo.  200;  State  struction  defining  a  reasonable  doubt 
V.  Dimn,  18  Mo.  419.  to  be  siich  as  "arises  in  the  minds  of 

08  Shanon   v.    State,   83    S.    E.   150.  the  whole  jury"  ig  prejudicial,  as  b(>- 

15    Ga.    App.    .340;     State    v.    Louie  ing  capable  of  the  construction  that 


535 


INSTRUCTIONS   ON    DEGREE   OF   PROOF 


§  274 


trary,  it  is  proper  to  instruct  that  before  the  jury  can  convict  the 
defendant  in  a  criminal  case  each  juror  must  be  convinced  of  his 
guilt  beyond  a  reasonable  doubt,''*  that  each  juror  should  act  for 
himself  upon  his  individual  convictions,^  and  that  if  any  juror 
entertains  a  reasonable  doubt  of  the  guilt  of  the  defendant  he 
should  not  vote  for  a  verdict  of  guilty  because  a  majority  of  the 
jurors  believe  him  to  be  guilty.' 


they  roust  oonviot  unless  they  all  en- 
tertain siifh  doubt.  State  v.  Stew- 
art. 52  Iowa.  2S4.  a  N.  W.  00;  State 
V.  Sloan,  .")  Towa,  217,  7  X.  W.  510. 

Instructions  held  not  improper 
\i7ithin  rule.  An  instruction  that  si 
reasonable  doubt  is  not  a  mere  pos- 
sible doubt,  but  a  fair  doubt,  srowiui; 
out  of  the  evidence  or  lack  of  evi- 
dence, and  exists  when  each  juror  is 
unable  to  say  that  he  has  an  abiding 
conviction  to  a  moral  certainty  of  the 
truth  of  the  charge,  etc.,  was  not  ou- 
jectionable  as  in  effect  charging  that 
such  doubt  exists  only  when  all  the 
jurors  have  a  reasonable  doubt. 
State  V.  Thompson,  .87  P.  700.  31 
Utah.  228. 

59  Ala.  T^ussell  v.  State,  78  So. 
916,  201  Ala.  572;  McDade  v.  State, 
64  So.  510,  10  Ala.  App.  241;  Hooten 
V.  State,  64  So.  200.  0  Ala.  App.  9; 
Doty  V.  State,  64  So.  170.  9  Ala.  App. 
21  ;  Green  v.  State,  53  So.  284.  168 
Ala.  104;  Phillips  v.  State,  47  So. 
245,  156  Ala.  140;  Leonard  v.  State, 
4^!  So.  214,  150  Ala.  80;  ^^^^atlev  v. 
State,  P,9  So.  1014,  144  Ala.  68; 
Fletcher  v.  State.  31  So.  561,  132  Ala. 
10;  Mitchell  v.  State,  30  So.  348,  129 
Ala.  23;  Hale  v.  State,  26  So.  2.36, 
122  Ala.  85 ;  Carter  v.  State,  103  Ala. 
93.  15  So.  893. 

Ind.  Rains  v.  State,  36  N.  E.  532, 
137  Ind.  83. 

1  Simon  v.  State,  108  Ala.  27,  18 
So.  731;  Fassinow  v.  State,  89  Ind. 
235. 

2  People  V.  Singh,  128  P.  420,  20 
Cal.  App.  146. 

Instructions  held  proper  t^itn- 
in  rule.  An  instruction  that  defend- 
ant on  trial  for  murder  was  entitled 
to  the  independent  judgment  of  every 
juror  and  that  if  any  juror  entertain- 
ed a  reasonable  doubt  as  to  defend- 
ant's' guilt  and   should,   for  conveni- 


ence, vote  for  the  conviction  of  mur- 
der in  the  second  degree,  or  even 
manslaughter,  he  would  be  violating 
his  oath  and  doing  a  grievous  wrong 
to  defendant.  People  v.  Watson.  133 
P.  298.  165  Cal.  645.  An  instruction 
that  a  juror  entertaining  a  reasonable 
doubt  of  accused's  guilt  should  vote 
to  acquit  and  continue  to  so  vote  un- 
til convinced  to  the  contrary,  and  that 
a  juror  should  not  hesitate  to  change 
his  views  when  convinced  that  they 
are  erroneous.  People  v.  Wilt,  160  P. 
561,  173  Cal.  477.  A  charge,  on  a 
prosecution  for  murder,  that  if  any 
one  or  any  number  of  the  jury,  after 
deliberating  on  all  the  evidence, 
should  be  of  the  opinion  that  defend- 
ant had  not  been  proven  guilty  by 
the  evidence  to  a  moral  certainty  and 
beyond  every  reasonable  doubt,  those 
entertaining  such  opinion  should  vote 
for  an  acquittal,  and  should  adhere 
to  their  opinion  until  convin-cod  of 
their  error  beyond  all  reasonable 
doubt ;  that  mere  iirobabilities  were 
not  sufficient  to  warrant  a  conviction, 
and  that  it  was  not  sudicient  that 
the  greater  weight  of  the  evidence 
support  the  allegations  of  the  in- 
formation, or  sufhcient  that  on  the 
doctrine  of  reasonable  chances  It  was 
more  probable  that  defendant  was 
guilty  than  innocent.  Peoi>le  v.  Mur- 
phy, 80  P.  709,  146  Cal.  502.  An  in- 
struction that,  if  any  juror  entertain- 
ed a  reasonable  doubt  of  guilt,  it  was 
his  duty  not  to  vote  for  a  verdict  of 
guilty  nor  to  be  influenced  to  so  vote 
for  the  sole  reason  that  othi^r  jurors 
favored  such  verdict  was  not  errone- 
ous as  permitting  the  juror  to  enter- 
tain a  reasonable  doubt  to  vote  for 
verdict  of  guilty  because  otlier  jurors 
did  so  provided  he  finds  some  addi- 
tional reason.  Salt  Lake  City  v.  Kob- 
inson,  125  P.  657,  40  Utah,  44S. 


§274 


INSTRUCTIONS  TO  JURIES 


536 


In  some  jurisdictions  the  rule  is  that  an  accused  is  entitled  to 
an  instruction  that  he  cannot  be  convicted  so  long  as  any  juror  en- 
tertains a  reasonable  doubt  of  his  guilt,^  or  that  jurors  need  not 
surrender  their  honest  convictions  in  order  to  agree  upon  a  ver- 
dict;* or  that  it  is  the  duty  of  a  juror  having  a  reasonable  doubt  of 
the  guilt  of  the  defendant  not  to  surrender  his  position  merely  be- 
cause the  majority  of  the  jurors  disagree  with  him.^  In  other 
jurisdictions,  however,  an  instruction  that  the  jury  cannot  bring 
in  a  verdict  of  guilty  if  any  juror  has  a  reasonable  doubt  of  the 
guilt  of  the  defendant  is  properly  refused,  as  stating  a  proposition 
already  obvious  to  the  jury,^  or  as  misleading  or  tending  to  en- 
courage a  disagreement,'  where  the  court  has  instructed  as  to  the 
presumption  of  innocence  and  as  to  reasonable  doubt  on  the  part 
of  the  jury  generally.* 


3  Grimes  v.  State,  105  Ala.  86,  17 
So.  184;  Parker  v.  State,  136  Ind. 
284,  35  N.  E.  1105 ;  McGuire  v.  State, 
2  O,  C.  D.  318,  3  Ohio  Cir.  Ct.  R.  551. 

4  People  V.  Wong  Loung,  114  P.  829, 
J. 59  Cal.  520. 

5  People  V.  Dole,  55  P.  581,  122 
Cal.  486,  68  Am.  St.  Rep.  50,  revers- 
ing judgment  51  P.  945. 

Instructions  not  improper  ivi th- 
in rnle.  A  charge  to  the  effect  that, 
"if  any  one,  or  any  number,  of  you," 
shoul(J  believe  that  accused  has  not 
been  proven  guilty  by  the  evidence, 
to  a  moral  certainty  and  beyond  every 
reasonable  doubt,  those  holding  that 
opinion  should  vote  for  acquittal,  and 
should  so  adhere  to  their  opinion  un- 
til convinced,  beyond  all  reasonable 
doubt,  that  they  are  wrong;  "but  it 
is  the  duty  of  every  juror  to  reason 
with  his  fellow  jurors,  to  the  end 
that  he  may  join  in  a  lawful  verdict, 
and  to  discard  any  opinion  he  may 
have  formed,  when  convinced  that 
such  opinion  is  not  justified  by  the 
evidence,"  but  that  a  mere  probabili- 
ty or  a  preponderance  of  the  evidence 
is  not  sufficient  to  convict,  nor  is  it 
sufficient  that  upon  the  doctrine  of 
chances  guilt  be  more  probable  than 
innocence,  is  not  erroneous,  as  liable 
to  lead  the  jury  to  believe  that  any 
juror  should  vote  to  convict,  unless 
satisfied  of  guilt  beyond  a  reasonable 
doubt.  People  v.  Davenport,  120  P. 
451,  17  Cal.  App.  557.  Where  the 
court,  after  the  jury  had  considered 


a  criminal  case  for  a  time,  stated 
that  he  had  no  knowledge  as  to  how 
the  jury  stood,  that  it  might  be  the 
proper  thing  for  a  minority  to  consid- 
er whether  they  might  be  wrong  and 
a  majority  right,  that  no  juror  should 
yield  his  well-grounded  conviction  or 
violate  hig  oath,  and  that,  if  upon 
further  consideration  a  juror  could 
not  conscientiously  yield,  he  ought  not 
to  do  so,  directed  the  jury  to  further 
consider  the  case,  it  was  held  that  the 
remarks  were  not  erroneous  as  in- 
structing for  a  majority  verdict.  Peo- 
ple V.  Coulon,  114  N.  W.  1013,  151 
Mich.  200. 

6  People  V.  Curtis,  56  N.  W.  925,  97 
Mich.  489;  State  v.  Young,  105  Mo. 
634,  16  S.  W.  408;  State  v.  Coleman, 
98  N.  W.  175,  17  S.  D.  594. 

7  U.  S.  (C.  C.  A.  Neb.)  Richards 
V.  United  States,  175  F.  911,  99  C. 
C.  A.  401. 

Fla.  Cook  V.  State,  35  So.  665, 
46  Fla.  20. 

Ga.  Fogarty  v.  State,  80  Ga.  450, 
5  S.  E.  782;  Smith  v.  State,  63  Ga. 
168. 

lU.  People  V.  Lee,  86  N.  E.  57::5, 
237  111.  272. 

Mo.  State  v.  Taylor,  134  Mo.  109, 
35  S.  W.  92. 

Ohio.  Davis  v.  State,  57  N.  E. 
1099,   63  Ohio   St.   173. 

8  State  V,  Hamilton,  57  Iowa,  596, 
11  N.  W.  5 ;  Walford  v.  State,  63  So. 
316,  106  Miss.  19;  State  v.  Gushing, 
50  P.  512,  17  Wash.  544. 


537 


INSTRUCTIONS  ON   DEGREE  OF   PROOF 


§274 


Instructions. should  not  be  so  framed  as  to  pretermit  the  delil)- 
eration  of  the  jurors  tog'ether,  or  prevent  them  from  freely  con- 
sultrng  with  each  other."  While  each  juror  must  decide  the  ques- 
tion of  the  guilt  of  the  defendant  for  himself,  he  should  do  so  only 
after  a  consideration  of  the  case  with  his  fellow  jurors,  and  he 
should  not  hesitate  to  sacrifice  his  views  or  opinions  of  the  case, 
when  convinced  that  they  are  wrong,  even  although  in  so  doing 
he  defer  to  the  views  or  opinions  of  others.^** 

Instructions  which  overemphasize  the  duty  of  each  juror  to  ad- 
here to  his  own  opinion,  and  thereby  tend  to  lead  him  arbitrarily  to 
disregard  the  opinions  of  his  fellow  jurors,  are  properly  refused,^^ 


In  Mississippi,  early  cases  at 
variance  with  tlie  text  (Ammons  v. 
State,  42  So.  165,  89  Miss.  369;  Bell 
V.  State,  42  So.  542,  89  Miss.  810,  119 
Am.  St.  Rep.  722,  11  Ann.  Cas.  431) 
have  been  overruled. 

Instructions  held  suflScient 
\idtliin  rule.  A  charge  that,  before 
the  jury  can  convict,  they  must  find 
acCTised  guilty  beyond  a  reasonable 
doubt,  and  that  a  "reasonable  doubt" 
is  that  state  of  the  case  which,  after 
the  entire  comparison  and  consider- 
ation of  all  the  evidence,  leaves  the 
minds  of  the  jurors  in  that  condi- 
tion that  they  cannot  say  that  they 
feel  an  abiding  conviction  to  a  moral 
certainty  of  the  truth  of  the  charge — 
that  is,  to  a  certainty  that  causes  and 
directs  the  understanding  and  satis- 
fies the  reason  and  judgment  of  those 
who  are  bound  to  act  conscientiously 
upon  it — is  ordinarily  a  sufficient  ad- 
monition as  to  the  separate  individ- 
xial  duty  of  each  juror.  State  v. 
Smith,  114  P.  1074,  84  Kan.  646. 
Compare,  State  v.  Witt,  8  P.  769,  34 
Kan.  488.  Where  the  court  instructs 
that  the  jury  should  acquit  unless 
they  are  satisfied  beyond  a  reasonable 
doubt  that  accused  is  guilty,  it  suffi- 
ciently informs  the  jury  that  each 
juror  should  pass  his  own  judgment 
on  the  evidence.  Oborn  v.  State,  126 
N.  W.  737,  143  Wis.  249,  31  L.  R.  A. 
(N.  S.)  966. 

9  Diamond  v.  State,  72  So.  558,  15 
Ala.  App.  33,  certiorari  denied  Ex 
parte  State,  73  So.  1002,  198  Ala.  694; 
Lewis  V.  State,  25  So.  1017,  121  Ala. 
1 ;  Biddle  v.  State,  199  S.  W.  913,  131 
Arlj.   537;    Little  v.   People,   157  111. 


153,  42  N.  E.  3S9 ;  State  v.  Hennessy, 
90  P.  221,  29  Nev.  320,  13  Ann.  Cas. 
1122. 

Instructions  not  objectionable 
ivithin  rule.  An  instruction  that 
each  juror  should  act  for  himself  and 
form  his  own  judgment  uninfluenced 
by  the  judgment  of  others,  and  thus 
determine  the  guilt  or  innocence  of 
the  defendant  from  his  own  stand- 
point, was  not  objectionable  as  pro- 
venting  the  jury  from  discussing  the 
evidence  or  indulging  in  an  inter- 
change of  views  concerning  the  guilt 
or  innocence  of  accused.  Knapp  v. 
State,  79  N.  E.  1076,  168  Ind.  153,  11 
Ann.   Cas.  604. 

10  People  V.  Rodloy,  63  P.  351,  131 
Cal.  240. 

11  Ala.  Burk  v.  State,  75  So.  702. 
16  Ala.  App.  110:  Holmes  v.  State.  34 
So.  180,  136  Ala.  SO;  Cunninsham 
V.  State.  23  So.  693.  117  Ala.  59. 

Conn.  State  v.  Rathbun,  51  A.  540, 
74  Conn.  524. 

D.  C.  Horton  v.  United  States,  15 
App.  D.  C.  310. 

Fla.  Hall  v.  State.  83  So.  513,  78 
Fla.  420,  8  A.  L.  R.  1234. 

Kan.  State  v.  Logan,  85  P.  798,  73 
Kan.  730. 

Mich.  People  V.  Wood,  99  Mich. 
620,  58  N.  W.  638. 

Minn.  State  v.  Rue,  75  N.  W.  235, 
72  Minn.  296. 

N.  C.  State  v.  Bowman,  80  N.  C. 
432. 

Instructions  improper  uritliin 
rule.  A  requested  charge  that  "be- 
fore you  can  convict  each  one  of  you 
must  believe  beyond  all  reasonable 
doubt"   that  accused   committed   the 


§274 


INSTRUCTIONS   TO   JURIES 


538 


and  while  it  is  not  the  duty  of  the  court  to  exhqrt  the  jury  to 
agree/-  it  is  proper  to  instruct  that  a  juror  should  not  shut  his 
ears  to  anything  said  by  his  fellow  jurors  in  opposition  to  his  own 
views.^^ 

An  instruction  which  requires  the  jury  to  acquit  the  defendant 
unless  every  member  of  the  jury  is  persuaded  of  his  guilt  beyond 
a  reasonable  doubt  is  properly  refused/*  since,  while  there  may  be 
a  mistrial  because  of  the  reasonable  doubt  of  one  or  more  jurors 
less  than  twelve,  there  cannot  be  an  acquittal  unless  all  the  jurors 
are  reasonably  doubtful  of  the  guilt  of  the  defendant/^  and  in 
some  jurisdictions  it  is  proper  to  charge,  after  having  instructed 


act  charged,  "and  if  either  member 
of  the  jury  have  a  reasonable  doubt" 
thereof  he  must  so  find,  did  more 
than  require  unanimity  of  belief  of 
guilt  beyond  a  reasonable  doubt,  and 
was  bad.  as  making  each  juror  the 
keeper  of  the  consciences  of  the  oth- 
ers, bj^  asserting  the  duty  of  a  single 
juror  who  doubts  to  find  in  accord- 
ance with  his  doubt.  Troup  v.  State, 
49  So.  332,  160  Ala.  125.  An  instruc- 
tion on  reasonable  doubt,  that  defend- 
ant was  entitled  to  the  verdict  of  12 
men,  each  of  whom  on  the  whole  evi- 
dence must  be  free  from  any  reason- 
able doubt  in  his  own  mind,  not  the 
minds  of  the  prosecutors  or  the  court, 
and  each  juror  should  be  allowed  to 
have  his  own  conception  of  what  a 
reasonable  doubt  is  to  him.  not  what 
it  is  to  the  prosecution,  and  was  un- 
der no  legal  compulsion  to  give  or  be 
able  to  formulate  and  state  the  rea- 
son which  may  raise  a  reasonable 
doubt  in  his  mind  and  conscience,  it 
lieing  sufficient  if  any  member  of  the 
jury  in  fact  had  any  reasonable 
doubt,  the  defendant  being  then  en- 
titled to  his  vote  of  not  guilty  on  the 
verdict,  was  erroneous,  and  properly 
refused.  Taylor  v.  State,  42  So.  608, 
S9  Miss.  671. 

1^  People  V.  Rodley,  63  P.  351,  131 
Cal.  240. 

13  Jackson  v.  State,  91  Wis.  253,  64 
N.  W.  838. 

14  Ala.  Wood  V.  State,  88  So.  28, 
17  Ala.  App.  654  ;  Baader  v.  State,  75 
So.  820,  16  Ala.  App.  144;  Strother  v. 
State,  72  So.  566,  15  Ala.  App.  106; 
Smith  V.  State,  72  So.  316,  197  Ala. 
193 ;    Bryant  v.  State,  68  So.  704,  13 


Ala.  App.  206.  certiorari  denied  69 
So.  1017.  193  Ala.  673 ;  Buckhanon  v. 
State,  67  So.  718,  12  Ala.  App.  36; 
Phillips  v.  State.  65  So.  444,  11  Ala. 
App.  15;  Hall  v.  State.  65  So.  427,  11. 
Ala.  App.  95 ;  Harper  v.  State,  63  So. 
23,  8  Ala.  App.  346 ;  Gaston  v.  State, 
60  So.  805,  179  Ala.  1;  Graves  v. 
State,  52  So.  34,  166  Ala.  671 ;  Grain 
V.  State,  52  So.  31,  166  Ala.  1 ;  Smith 
V.  State.  51  So.  610,  165  Ala.  50 ;  Park- 
er V.  State,  51  So.  260,  165  Ala.  1; 
Howard  v.  State.  50  So.  954,  165  Ala. 
18:  Reaves  v.  State,  48  So.  373,  158 
Ala.  5;  Shelton  v.  State.  42  So.  30, 
144  Ala.  106:  Yeats  v.  State,  38  So. 
760,  142  Ala.  58. 

Fla.  Ayers  v.  State,  57  So.  349,  62 
Fla.  14;  McCall  v.  State,  46  So.  321, 
55  Fla,  108;  Boyd  v.  State,  33  Fla. 
316.  14  So.  836. 

Iowa.  State  v.  Rorabacher,  19 
Iowa,  154. 

Mo.  State  V.  Tavlor,  134  Mo.  109, 
35  S.  W.  92. 

15  Ala.  Turner  v.  State,  49  So. 
828,  160  Ala.  40;  Outler  v.  State,  41 
So.  460.  147  Ala.  39 ;  Bardin  v.  State, 
38  So.  833,  143  Ala.  74;  Andrews  v. 
State,  32  So.  665.  134  Ala.  47:  Nevill 
v.  State,  32  So.  596.  133  Ala.  99;  Jini- 
merson  v.  State,  32  So.  141,  133  Ala. 
38:  Davis  v.  State,  31  So.  569,  131 
Ala.  10;  Littleton  v.  State,  29  So. 
300,  128  Ala.  31. 

Ga.  Price  v.  State,  40  S.  E.  1015, 
114  Ga.  855. 

Okl.  Hodge  v.  Territorv,  69  P. 
1077,  12   Okl.  108. 

W.  Va.  State  v.  McCauslaud,  96 
S.  E.  938,  82  W.  Va.  525. 


539 


INSTRUCTIONS   ON   DEGREE   OF   PROOF 


§275 


that  there  can  be  no  conviction  if  any  juror  is  not  convinced  be- 
yond a  reasonable  doubt,  that  the  jury  cannot  acquit  unless  they 
all  entertain  a  reasonable  doubt/*'  but  in  other  jurisdictions  such 
a  charge  constitutes  reversible  error.^' 

Where  the  general  charge  covers  the  individual  responsibility 
of  each  juror  as  to  reasonable  doubt,  a  special  charge  on  the  same 
subject  is  properly  refused.-^* 

§  275.     Belief  or  doubt  as  men 

In  some  jurisdictions  an  instruction  that  the  oath  taken  by  a 
juror  imposes  no  obligation  on  him  to  doubt  as  a  juror  what  he 
would  believe  from  the  evidence  as  a  man  without  having  taken 
an  oath,  or  that  a  juror  is  not  at  liberty  to  disbelieve  as  a  juror 
what  he  believes  as  a  man,  is  proper.^^  It  is  an  essential  element 
of  such  an  instruction  that  it  require  that  the  belief  of  the  jurors 
as  men  should  be  derived  from  the  evidence ;  the  proper  form  being 
that  "you  are  not  at  liberty  to  disbelieve  as  jurors,  if  from  the 
evidence  you  believe  as  men."'^®     Such  an  instruction  is  not  re- 


16  Whittle  V.  State.  89  So.  43,  205 
Ala.  639;  State  v.  Rogers,  56  Kan. 
362,  43  r.  256. 

Requiring  agreement  either  to 
convict  or  acquit.  In  a  prosecution 
for  liomicide,  a  cliarge  that  all  of  the 
jury  must  agree  before  defendant  can 
be  acquitted  or  convicted  was  proper. 
Tribble  v.  State,  40  So.  938,  145  Ala. 
23.  Jury  could  not  have  been  misled 
by  an  instruction  that  "the  whole  of 
your  number  must  agree  in  finding 
the  defendant  guilty  or  not  guilty." 
State  V.  Inich,  173  P.  230,  55  Mont.  1. 

1-  Stitz  V.  State,  104  Ind.  359,  4  N. 
E.  145. 

IS  State  V.  Phelps,  5  S.  D.  480,  59 
N.  W.  471. 

loCal.  People  V.  Wordeu,  45  P. 
844,  113  Cal.  569. 

Colo.  I'erry  v.  People,  87  P.  796, 
38  Colo.  23. 

Idaho.  State  V.  Louie  Moon,  117 
P.  757,  20  Idaho,  202,  Ann.  Cas.  1913A, 
724. 

111.  People  V.  Zajicek,  84  N.  E. 
249.  233  111.  198 ;  Watt  v.  People,  126 
111.  9,  18  N.  E.  340,  1  L.  R.  A.  403; 
Spies  V.  People,  122  111.  1,  12  N.  E. 
Saru  3  Am.  St.  Rep.  320. 

Neb.  Bothwell  v.  State,  99  N.  W. 
669,  71  Neb.  747;  Reed  v.  State,  92 
N.  W,  321,  66  Neb.  1S4;    Savary  v. 


State,  87  N.  W.  34,  62  Neb.  166 ;  Lei- 
senberg  v.  State,  84  N.  W.  6,  60  Neb. 
628 ;  i^artley  v.  Slate,  73  N.  W.  744, 
53  Neb.  310;  Fanton  v.  State,  69  N. 
W.  953,  50  Neb.  351,  36  L.  R.  A.  158 ; 
Barney  v.  State,  68  N.  W.  636,  49  Neb. 
515. 

Pa.  Clark  v.  Commonwealth.  123 
Pa.  555,  16  A.  795,  23  Wkly.  Notes 
Cas.  317,  following  McISIeen  v.  Com- 
monwealth, 114  Pa.  300,  9  A.  878. 

Doubt  of  an  honest  man  outside 
the  jury  box.  An  instruction  that  a 
i-easouable  doubt  in  the  .iury  box  is 
exactly  the  same  kind  of  reasonable 
doubt  that  an  honest  man  meets  up 
with  in  human  life  was  not  error. 
State  V.  Pitt,  SO  S.  E.  1060,  160  N.  C. 
268,  Ann.  Cas.  1910C,  422. 

-0  People  V.  Kingcannon,  114  N.  E. 
508,  276  111.  251;  Ilighley  v.  I'eople, 
177  P.  975,  65  Colo.  497 ;  Robinson  v. 
State,  106  P.  24,  18  Wyo.  210. 

Instruction  held  not  to  permit 
jury  to  return  verdict  based  on 
their  belief  as  men  vpithout  re- 
gard to  the  evidence.  An  instruc- 
tion correctly  detiuing  "reasonable 
doubt"  and  charging  that  the  jury 
were  not  at  liberty  to  disbelieve  as 
jurors,  if  they  believed  as  men,  that 
their  oath  imposed  no  obligation  on 
them  to  doubt  where  no  doubt  would 


276 


INSTRUCTIONS  TO  JURIES 


540 


garded  as  of  much  service  in  guiding  the  jury  to  a  correct  conclu- 
sion as  to  the  amount  of  proof  required  in  order  to  convict,^^  it  not 
being  commended  even  in  jurisdictions  where  it  is  proper  to  give 
it,'^^  and  in  some  jurisdictions  such  an  instruction  is  erroneous,  and 
should  be  refused,  as  tending  to  relieve  the  jury  from  the  obliga- 
tion of  their  oath,^*  or  as  being  of  no  benefit  and  likely  to  mis- 
lead.24 

§  276.     Doubt  as  to  grade  or  degree  of  offense  charged 

The  court  should  so  frame  its  charge  as  to  leave  no  question  that 
if  the  jury  believe  the  defendant  to  be  guilty  of  the  crime  charged 
against  him,  but  have  a  reasonable  doubt  as  to  whether  defendant 
is  guilty  of  the  highest  degree  of  the  offense  alleged,  or  of  a  lower 
degree,  they  should  convict  only  of  the  lower  degree,^^  and  in  some 
jurisdictions,  the  court  should  specially  so  charge,  either  of  its 
own  motion  or  on   request.^®     In   other  jurisdictions,  where  the 


exist,  if  no  oath  had  been  administer- 
ed, was  not  erroneous,  in  that  it 
relieved  the  jury  from  the  obligation 
of  their  oath  and  permitted  them  to 
return  a  verdict  of  guilty,  based  on 
their  belief  as  men  that  accused  was 
guilty,  without  regard  to  the  evidence. 
McQueary  v.  People,  110  P.  210,  48 
Colo.  214,  21  Ann.  Cas.  560. 

21  People  v.  Clark  (Cal.)  192  P.  521 ; 
People  V.  Whitney,  53  Cal.  420. 

2  2  Holmes  v.  State,  118  N.  W.  99, 
82  Neb,  406;  Clements  v.  State,  114 
N.  W.  271,  80  Meb.  313;  Fife  v.  Com- 
monwealth, 29  Pa.  429. 

23ind.  Siberry  v.  State,  1.33  Ind. 
677,  33  N.  E.  681,  following  Cross  v. 
State,  132  Ind.  65,  31  N.  E.  473. 

N.  Y.  People  v.  Johnson,  140  N.  Y. 
350,  35  N.  E.  604. 

W.  Va.  State  v.  Ringer,  100  S.  B. 
413,  84  W.  Va.  546;  State  v.  Price, 
97  S.  E.  582,  83  W.  Va.  71,  5  A.  L.  R. 
1247 ;  State  v.  Young,  97  S.  E.  134,  82 
W.  Va.  714;  State  v.  McCausland,  96 
S.  E.  938,  82  W.  Va.  525. 

2  4  State  v.  Worley,  96  S.  E.  56,  82 
W.  Va.  350 ;  State  v.  Alderson,  82  S. 
E.  1021,  74  W.  Va.  732 ;  State  v.  Tay- 
lor, 50  S.  E.  247,  57  W.  Va.  228. 

Instructions  lield  improper.  An 
instruction  closing,  "In  other  words, 
what  satisfies  the  mind  outside  of  the 
jury  box  should  do  so  within,"  is  er- 
roneous, as  tending  to  mislead  the 
jury  into  believing  that  it  would  not 


be  necessary  for  them  to  carefully 
weigh  the  facts  provetl.  State  v. 
Ruby,  61  Iowa,  86,  15  N.  W.  848. 

Instructions  held  not  improper 
•within  rule.  Where,  in  a  prosecu- 
tion for  manslaughter,  the  court  in- 
structed that  a  reasonable  doubt  is 
not  a  vague  or  uncertain  doubt,  and 
that  what  the  jury  believes  from  the 
evidence  as  men  they  should  believe 
as  jurors,  but  later  the  court  qualified 
this  instruction  as  follows:  "The 
court  instructs  the  jury  that  notwith- 
standing the  instruction,  given  at  the 
instance  of  the  state,  that  a  juror  is 
not  at  liberty  to  doubt  as  a  juror  and 
believe  as  a  man,  yet  if,  on  the  evi- 
dence of  this  case,  such  doubt  is  rais- 
ed as  would  cause  a  juror  to  hesitate, 
and  to  refrain  from  acting,  were  it  a 
grave  business  matter,  then  such 
doubt  is  a  reasonable  doubt,  and  such 
juror  should  give  the  defendant  the 
benefit  of  that  doubt,"  it  was  held 
that  the  instructions  were  correct. 
State  V.  Dickey,  37  S.  E.  695,  48  W. 
Va.  325. 

2  5  Shelton  v.  Commonwealth,  140  S. 
W.  670,  145  Ky.  543 ;  Ewing  v.  Com- 
monwealth, 111  S.  W.  352,  129  Ky. 
237 ;  Walker  v.  State,  214  S.  W.  331, 
85  Tex.  Cr.  R.  482;  Lagroue  v.  State, 
209  S.  W.  411,  84  Tex.  Cr.  R.  609. 

2  0  Ind.  Koehler  v.  State,  123  N.  E. 
Ill,  188  Ind.  387;  Coolman  v.  State, 
72  N.  E.  508,  163  Ind.  503. 


541 


INSTRUCTIONS  ON  DEGREE  OF   PROOF 


§277 


court  has  charged  the  doctrine  of  reasonable  doubt  on  the  whole 
case,  such  an  instruction  is  not  required,^''  in  the  absence  of  a  re- 
quest,-^ or  in  the  absence  of  some  special  showing  of  a  necessity 
for  it.2*  Such  a  charge  is  not  one  on  the  weight  of  the  evidence, 
nor  is  it  objectionable  as  intimating  that  the  court  is  of  the  opin- 
ion that  defendant  is  guilty  of  some  degree  of  the  offense  charged.^" 
Where  such  an  instruction  is  given,  it  should  be  expressed  in 
language  comprehensible  to  nonprofessional  men,^^  and  it  should 
require  the  doubt  to  be  a  reasonable  one.^~ 

§  277.     Giving  benefit  of  doubt  to  state 

Instructions  which  give  the  benefit  of  a  reasonable  doubt  to  the 
state,  or  which  tend  to  lead  the  jury  to  think  that  the  defendant 
must  prove  his  innocence  beyond  a  reasonable  doubt,  are,  of  course, 
under  the  principles  discussed  in  the  preceding  sections,  errone- 


ous 


33 


Iowa.  State  v.  Walters,  45  Iowa, 
389. 

Ky.  McCandless  v.  Commonwealth, 
185  S.  W.  1100,  170  Ky.  301 ;  Demaree 
V.  Commonwealth,  82  S.  W.  231,  26 
Ky.  Law  Rep.  507;  Arnold  v.  Com- 
monwealth, 72  S.  W,  753,  24  Ky.  Law 
Rep.  1921 ;  Mullins  v.  Commonwealth, 
67  S.  W.  824,  23  Ky.  Law  Rep.  2433 ; 
Williams  v.  Commonwealth,  80  Ky. 
313,  4  Ky.  Law  Rep.  3;  Fields  v. 
Commonwealth,  5  Ky.  Law  Rep.  (ab- 
stract) 861. 

Duty  to  conform  to  statute.  An 
instruction  telling  the  jury  that  if 
they  beliered  from  the  evidence  be- 
yond a  reasonable  doubt  that  defend- 
ant was  guilty,  but  had  a  reasonable 
doubt  as  to  the  degree  of  his  offense, 
"they  should  find  him  guilty  of  that 
offense  highest  in  degree  of  which 
they  have  no  reasonable  doubt."  while 
not  conforming  to  the  Code  provi- 
sion, as  would  have  \>eea  better,  was 
not  prejudicial.  Ireland  v.  Common- 
wealth, 57  S.  W.  616,  22  Ky.  Law 
Rep.  478. 

2  7  Abbott  v.  State,  86  N.  Y.  460; 
Smith  v.  State  (Tex.  Cr.  App.)  78  S. 
W.  517 ;  Little  v.  State,  47  S.  W.  984, 
39  Tex.  Cr.  R.  654. 

2  8  Hall  V.  State,  28  Tex.  App.  146, 
12  S.  W.  739. 

Applying  doctrine  of  reasonable 
doubt  as  betiveen  murder  in  sec- 
ond    degree     and     manslaughter. 


Under  the  rule  that,  in  a  prosecution 
for  homicide,  the  charge  of  the  court 
should  apply  the  doctrine  of  reason- 
able doubt,  as  between  the  different 
degrees  involved  in  the  case,  an  in- 
struction that,  in  order  to  warrant  a 
verdict  of  murder  in  the  second  de- 
gree, the  jury  must  believe  from  the 
evidence  beyond  a  reasonable  doubt 
that  defendant  committed  the  homi- 
cide with  implied  malice,  etc.,  suffi- 
ciently applies  the  doctrine  as  be- 
tween murder  in  the  second  degree 
and  manslaughter,  in  the  absence  of 
a  request  for  a  special  instruction. 
Powell  v.  State,  28  Tex.  App.  393,  13 
S.  W.  599. 

2 -J  McKinney  v.  State,  55  S.  W.  175. 

3  0  Tinsley  v.  State,  106  S.  W.  347, 
52  Tex.  Cr.  R.  91. 

81  Eanes  v.  State,  10  Tex.  App,  421. 

8  2Daughdrill  v.  State,  21  So.  378, 
113  Ala.  7;  Jackson  v.  State,  91  Ga. 
271,  18  S.  E.  298,  44  Am.  St.  Rep.  22 ; 
State  V.  May,  72  S.  W.  918,  172  Mo. 
630. 

3  3  Ark.  Bell  V.  State,  98  S.  W.  705, 
81  Ark.  16. 

D.  C.  Le  Cointe  v.  United  States, 
7  App.  D.  C.  16. 

Ky*.  Hall  v.  Commonwealth,  13  Ky. 
Law  Rep.  (abstract)  399. 

Neb.  Hayward  v.  State,  149  N.  W. 
105.  97  Neb.  9. 

Tex.  Terrell  v.  State,  111  S.  W. 
152,  53  Tex.  Cr.  R.  604;    Godsoe  v. 


§278 


INSTRUCTIONS  TO  JURIES 


542 


§  278.     Repetition  of  instructions 

After  the  court  has  once  fully  charged  the  jury  as  to  the  law  of 
reasonable  doubt,  it  is  not  required  in  each  separate  subsequent 
instruction  to  inform  the  jury  as  to  its  duty  in  the  eve^it  of  enter- 
taining a  reasonable  doubt  of  the  guilt  of  the  defendant.^*  One  in- 
struction on  the  doctrine  of  reasonable  doubt  is  sufficient,  and  a 
great  number  of  additional  instructions  are  open  to  objection  on 
the  ground  that  they  are  liable  to  lead  the  jury  to  believe  that  the 


State,  108  S.  W.  388,  52  Tex.  Cr.  R. 
626. 

Instructions  improper  witliin 
rule.  Au  instruction  in  a  homicide 
case  that  "by  'reasonable  doubt'  is  not 
meant  that  which  of  possibility  may 
arise,  but  it  is  doubt  engendered  by 
the  investigation  of  the  whole  proof, 
and  an  inability  after  such  investiga- 
tion to  let  the  mind  rest  easily  upon 
the  certainty  of  guilt  or  innocence." 
State  V.  Moss,  61  S.  W.  87,  106  Tenn. 
359.  Au  instruction,  on  a  prosecution 
for  murder,  on  the  issue  of  manslaugh- 
ter, that  if  the  jury  believed  beyond 
a  reasonable  doubt  that  defendant 
shot  deceased,  and  that  previous 
thereto  defendant  had  been  informed 
by  his  wife  that  deceased  had  used 
insulting  language  to  her,  etc.  Mel- 
ton v.  State,  83  S.  W.  822,  47  Tex.  Cr. 
R.  4.51.  An  instruction,  "If  you  have 
a  reasonable  doubt  that  the  animal 
slaughtered  by  defendant  was  not  the 
property  of  C,  the  prosecutor,  you 
will  find  defendant  not  guilty."  Lan- 
ders V.  State  (Tex.  Cr.  App.)  63  S. 
W.  557. 

Application  of  doctrine  of  rea- 
sonable doubt  to  defenses,  see 
post,  §  320. 

3  4  Cal.  People  v.  Waysman,  81  P. 
1087,  1  Cal.  App.  246;  People  v.  Mc- 
Roberts,  81  P.  734,  1  Cal.  App.  2.5. 

Fla.  Sylvester  v.  State,  35  So.  142, 
46  Fla.  166. 

Ga.  Miller  v.  State  (App.)  107  S. 
E.  7S4 ;  Thomas  v.  State,  91  S.  E.  247, 
19  Ga.  App.  104,  conforming  to  an- 
swers to  certified  questions,  91  S.  E. 
109.  146  Ga.  346;  Ha.yes  v.  State,  88 
S.  E.  752.  18  Ga.  App.  68;  Thomas 
V.  State,  88  S.  E.  718,  18  Ga.  App.  21 ; 
Montford  v.  State,  87  S.  E.  797,  144 
Ga.  582;  Bowen  v.  State,  84  S.  E. 
793,  16  Ga.  App,  179 ;   Raper  v.  State, 


84  S.  E.  560,  16  Ga.  App.  121 ;  Watts 
V.  State,  71  S.  E.  766,  9  Ga.  App.  500; 
Harris  v.  State,  57  S.  E.  937,  1  Ga. 
App.  136 ;  Fargerson  v.  State,  57  S.  E. 
101,  128  Ga.  27 ;  Tolbert  v.  State,  56 
S.  E.  1004,  127  Ga.  827;  Goodin  v. 
State,  55  S.  E.  503, 126  Ga.  560 ;  Cress 
V.  State,  55  S.  E.  491,  126  Ga.  564; 
Williams  v.  State,  51  S.  E.  167,  125 
Ga.  265 ;  Davis  v.  State,  54  S.  E.  126, 
125  Ga.  299 ;  Smith  v.  State,  52  S.  E. 
329,  124  Ga.  213;  Carter  v.  State,  49 
S.  E.  280,  121  Ga.  360;  Barnes  v. 
State,  35  S.  E.  396,  113  Ga.  189 ;  Carr 
v.  State,  84  Ga.  250,  10  S.  E.  626; 
Vauu  V.  State,  83  Ga.  44,  9  S.  E.  945. 

111.  Delahoyde  v.  People,  72  N.  E. 
732.  212  111.  554. 

Ind.  Wheeler  v.  State,  63  N.  E. 
975,  158  Ind.  687  ;  Deilks  v.  State,  141 
Ind.  23,  40  N.  E.  120;  McCulley  v. 
State,  62  Ind.  428 ;  Jones  v.  State,  49 
Ind.  549. 

Iowa.  State  v.  Christ,  177  N.  W. 
54 ;  State  v.  Crouch,  107  N.  W.  173. 
130  Iowa,  478. 

Kan.  State  v.  McDonald,  193  P. 
179,  107  Kan.  568;  State  v.  Ryno,  74 
P.  1114,  68  Kan.  348,  64  L.  R.  A.  303 ; 
State  v.  Fox,  62  P.  727,  10  Kan.  App. 
578. 

Ky.  Lake  v.  Commonwealth,  104  S. 
W.  1003,  31  Ky.  Law  Rep.  1232 :  Pow- 
ers V.  Commonwealth,  63  S.  W.  976. 
110  Ky.  386,  23  Ky.  Law  Rep.  146,  53 
L.  R.  A.  245;  Id.,  61  S.  W.  7.35,  110 
Ky.  386,  22  Ky.  Law  Rep.  1807,  53 
L.  R.  A.  245;  McClernand  v.  Com- 
monwealth, 12  S.  W.  148;  Davis  v. 
Commonwealth,  4  Ky.  Law  Rep.  717. 

Mo.  State  v.  Washington,  146  S. 
W.  1164,  242  Mo.  401;  State  v.  Strick- 
land, 90  S.  W.  725,  191  Mo.  616 ;  State 
V.  Laytou.  90  S.  W.  724,  191  Mo.  613 : 
State  V.  Coleman,  84  S.  W.  978,  186 
Mo.  151,  69  L.  R.  A.  381;    State  v. 


543 


INSTRUCTIONS   ON   DEGREE   OF   PROOF 


§278 


court  is  in  doubt  as  to  the  guilt  of  the  accused.^^  A  statement  in 
the  opening  part  of  the  charge  of  the  court  that  the  jury  must  be 
satisfied  of  the  guilt  of  the  defendant  beyond  a  'reasonable  doubt 
need  not  be  repeated  every  time  the  court  refers  to  any  finding 
from  the  evidence,^^  and  where  the  court  properly  charges  on  the 
presumption  of  innocence  and  reasonable  doubt  in  its  main  charge, 
it  is  not  required  to  repeat  such  matter  in  giving  additional  in- 
structions after  receiving  an  informal  verdict  from  the  jury.^' 

Under  the  above  rule,  an  instruction  which  sets  out  the  facts 
necessary  to  constitute  the  oflfense  charged,  and  tells  the  jury  that 
if  they  find  those  facts  they  shall  bring  in  a  verdict  of  guilty,  is 


Pyscher,  77  S.  W.  836,  179  Mo.  140; 
State  v.  McLaughlin.  50  S.  W.  315,  149 
Mo.  19;  State  v.  Wright,  42  S.  W. 
934,  141  Mo.  333 ;  State  v.  Good,  132 
Mo.  114,  33  S.  W.  790. 

Neb.  Dunn  v.  State,  79  N.  W.  719, 
58  Neb.  807;  Davis  v.  State,  70  N. 
W.  984,  51  Neb.  301;  Carleton  v.  State, 
43  Neb.  373,  61  N.  W.  699. 

N.  J.  Brown  v.  State,  42  A.  811, 
62  N.  J.  Law,  666. 

N.  M.  Territory  v.  Price,  91  P. 
733,  14  N.  M.  2G2. 

N.  D.  State  v.  Currie,  80  N.  W. 
475,  8  N.  D.  545. 

Okl.  Cole  V.  State  (Cr.  App.)  195 
P.  901. 

Tex.  Miller  v.  State,  189  S.  W. 
259,  SO  Tex.  Cr.  R.  226:  Condron  v. 
State,  155  S.  W.  253,  69  Tex.  Cr.  R. 
513 ;  Price  v.  State,  70  S.  W.  966,  44 
Tex.  Cr.  R.  304:  Ramirez  v.  State,  66 
S.  W.  1101,  43  Tex.  Cr.  R.  455 ;  Ford 
V.  State  (Cr.  App.)  56  S.  W.  338; 
Edens  v.  State,  55  S.  W.  815,  41  Tex. 
Cr.  R.  522;  Sanches  v.  State  (Cr. 
App.)  55  S.  W.  44. 

See  State  v.  Calkins,  109  N.  W.  515, 
21  S.  D.  24. 

Illustrations  of  instructions 
properly  refused  ivitliin  rule. 
Where,  in  a  prosecution  for  assault, 
the  court  charged  that  the  burden 
was  on  the  prosecution  to  prove  every 
element  of  the  offense  beyond  a  rea- 
sonable doubt,  an  instruction  that,  if 
the  jury  found  from  the  evidence  that 
some  other  person  willfully,  feloni- 
ously, and  with  malice  aforethought 
assaulted  prosecutor  or  committed 
any  one  of  the  lesser  offenses  includ- 
?d  in  that  charge,  and  defendant  aid- 


ed and  abetted  in  the  commission  of 
the  offense,  then  he  was  himself 
guilty  of  the  same  crime  was  not  ob- 
jectionable for  failure  to  i-equire  that 
such  aiding  and  abetting  must  have 
been  proved  beyond  a  reasonable 
doubt.  People  v.  Grow,  116  P.  369, 
16  Cal.  App.  147.  Where  the  court 
has  instructed  the  jury  that,  before 
they  could  convict  the  defendant  of 
the  offense  charged,  every  material 
fact  necessary  to  constitute  such  of- 
fense must  be  proved  by  the  evidence 
beyond  a  reasonable  doubt,  it  was 
not  reversible  error  to  instruct  them 
that:  "It  is  for  j-ou  to  determine 
from  all  the  evidence  in  the  case 
whether  or  not  the  liquors  sold  by  the 
defendant,  if  any,  upon  which  the 
state  relies  for  conviction,  were  in- 
toxicating, within  the  meaning  of  our 
statute,"  without  repeating  therein 
the  charge  with  respect  to  burden  of 
proof.  State  v.  Kyne,  62  P.  728,  10 
Kan.  App.  277.  Where  the  court 
charged  that  the  state  had  the  Imrden 
of  establishing  guilt  be.yond  a  reason- 
able doubt,  and  that,  if  such  guilt  was 
not  so  established,  the  jury  should  ac- 
quit, it  was  not  error  to  refuse  to 
charge  that  "if,  from  the  evidence, 
there  was  any  other  hypothesis  than 
the  guilt  of  the  accused,  they  must 
acquit  him."  State  v.  McDonald,  65 
Me,  465. 

3  5  People  v.  Miller,  127  N.  E.  58, 
202  111.  318;  State  v.  Ferrell,  152  S. 
W.  33,  246  Mo.  322. 

36  State  v.  Killian,  92  S.  E.  499,  173 
N.  C.  792. 

8  7  Johnson  V.  State  (Tex.  Cr.  App.) 
67  S..  W.  412. 


§  278  INSTRUCTIONS   TO   JURIES  544 

sufficient,  if  there  is  a  separate  instruction  on  reasonable  doubt ;  ^* 
so  where,  in  a  homicide  case,  the  defendant  interposes  the  plea  of 
self-defense,^®  or  where  the  defense  is  an  alibi,'*®  the  court  need 
not,  in  instructing  on  such  defense,  charge  with  respect  to  rea- 
sonable doubt,  if  it  elsewhere  gives  a  general  charge  on  the  subject 
of  reasonable  doubt,  and,  after  charging  that  the  guilt  of  defend- 
ant must  be  established  to  the  satisfaction  of  the  jury  beyond  a 
reasonable  doubt,  it  is  not  necessary  to  repeat  such  statement  in 
discussing  the  question  whether  a  witness  was  an  accomplice  or 
an  accessory.** 

An  instruction  reiterating  the  right  to  convict  on  finding  the 
defendant  guilty  beyond  a  reasonable  doubt  is  improper.*-  A  mere 
redundancy  of  instructions  as  to  reasonable  doubt,  however,  will 
not  necessarily,  and  perhaps  not  usually,  be  a  ground  for  reversal.*^ 

38  state  V.  Lawson,  145  S.  W.  92,  4i  State  v.  Brandell,  129  N.  W.  242, 

239  Mo.  591.  26  S.  D.  642. 

3  9Eggleston    v.    State,    128    S.    W.  42  Comegys  v.  State,  137  S.  W.  349, 

1105,  59  Tex.  Cr.  R.  542;    Wallace  v.  62  Tex.  Cr.  E.  231. 

State  (Tex.  Cr.  App.)  97  S.  W.  1050.  4  3  People  v.  Kuhn,  125  N.  E.  882, 

40  State  V.  Rockett,  87  Mo,  666.  291  111.  154;    People  v.  Sobzcak,  121 

N.  E.  592,  286  111.  157. 


545         PACTS  ESTABLISHED  OR  ABSENCE  OF  PROOF        §  280 


CHAPTER  XVIII 

FACTS  CONCLUSIVELY  ESTABLISHED  OR  FAILURE  OR  ABSENCE  OF 

PROOF 

§  279.     Facts  established  by  uncontroverted  evidence. 
280.     Failure  or  absence  of  proof. 

§  279.     Facts  established  by  uncontroverted  evidence 
Power  of  court  to  instruct  as  to  undisputed  facts,  see  ante,  §§  G9,  70. 

In  some  jurisdictions,  where  a  material  fact  is  established  by 
the  uncontroverted  evidence,  the  court  should  charge  on  request 
as  to  the  existence  of  such  fact.^  In  other  jurisdictions  the  giving 
of  such  an  instruction  is  within  the  discretion  of  the  trial  court."-* 
The  court  is  not  bound  to  charge  the  uncontroverted  opinion  of 
an  expert  as  an  absolute  fact.^ 

§  280.     Failure  or  absence  of  proof 

Power  of  court  to  affirm  failure  or  absence  of  proof,  see  ante,  §  71. 

Where  there  is  no  evidence  tending  to  prove  a  particular  issue 
of  fact,  the  court  may  properly  so  instruct  the  jury,  whether  re- 
quested to  do  so  or  not,*  and  the  rule  in  most  jurisdictions  is  that 
where  there  is  no  evidence  to  sustain  an  issue  or  establish  a  fact,^ 
or  where  the  evidence  adduced  is  so  light  and  inconclusive  that 
no  rational,  well-constructed  mind  can  infer  from  it  the  fact  which 
it  is  offered  to  establish,  it  is  the  duty  of  the  court,  when  applied 
to  for  that  purpose,  to  inform  the  jury  that  there  is  no  evidence 

1  Knislit  Iron  &  Metal  Co.  v.  Orr,  Mass,     Lane  v.  Old  Colony  &  F.  R. 
SI   So.  633,  202  Ala.   677;    Fields  v.  Co..  80  Mass.  (14  Gray)   143.  • 
Karter,  25  So.  800.  121  Ala.  329.  Mich.     Scripps  v.  Reilly,  3S  Mich. 

2  New  Ware  Furniture  Co.  v.  Rey-  10. 

nolds,  84  S.  E.  401.  10  Ga.  App.  19;  Miss.     Ganiett     v.     Kirkman,     33 

Scott  V.  Vaidosta,  M.  &  TV.  R.  Co.,  78  Miss.  389. 

S.  E.  784,  13  Ga.  App.  65.  Neb.     Hiatt  v.  Brooks,  17  Neb.  33, 

3  Lawlor   v.    French    (Com.   PI.)   14  22  N.  W.  73. 

Misc.  Rep.  497,  35  N.  Y.  Supp.  1077.  N.  C.     Satterwhite  v.  Hicks.  44  .\ 

4  Feitl  V.  Chicago  City  Ry.  Co.,  113  C.  105,  57  Am.  Dec.  577 :  Brown's 
111.  App.  381,  .iudgment  affirmed  71  Heirs  v.  Patton's  Iloirs,  35  N.  C.  44U. 
N.  E.  991,  211  111.  279 ;  King  v.  King,  Pa.  Thomas  v.  Thomas,  21  Pa  (9 
56  S.  W.  534,  1.55  Mo.  406;    State  v.  Harris)   315. 

Fiore,  108  A.  363,  93  N.  J.  Law,  362.  Proof  of  fraud.     Where  there  is 

judgment  affirmed   110   A.   909;    Eg-  an   allegation  of  fraud,    but   no   evi- 

gl^estou  V.  City  of  Seattle,  74  P.  800,  dence  is  adduced  in  its  support,  the 

33  Wash.  671 ;    Drumheller  v.  Amer-  court  is  properly  requested  to  char"-e 

lean  Surety  Co.,  71  P.  25,  30  Wash,  that  fraud    is   iiot   to   be   presumed; 


530 


the    presumption    being     against    it. 
5  Ind.     Hynds  v.  Hays,  25  Ind.  31.      Price  v.  Heath,  41  Hun    (N.  Y.)  585. 
Inst. TO  Juries— 35 


§280 


INSTRUCTIONS   TO   JURIES 


54G 


to  warrant  their  finding  the  particular  fact  in  issue.®  In  some  ju- 
risdictions, however,  the  court  cannot  be  required  to  declare  to 
the  jury  that  there  is  no  evidence  of  a  particular  fact,'  and  in  one 
jurisdiction  it  is  held  that  a  general  prayer  for  a  charge  that  there 
is  no  evidence  of  a  particular  fact  is  bad  practice,  since  the  court 
may  not  remember,  and  that  the  best  method  is  to  have  opposing 
counsel  indicate  the  evidence  relied  on  to  establish  the  fact  in  is- 
sue, and  then  have  the  court  charge  as  to  its  effect.*  Such  an  in- 
struction with  respect  to  material  facts  will,  of  course,  be  reversible 
error,  if  there  is  some  evidence  of  the  fact  in  question.® 


G  Belr  V.  Marriott,  9  Gill  (Md.)  331 ; 
Lewis  V.  Baltimore  &  O.  R.  Co.,  38 
Md.    588,    17    Am.    Rep.    521. 

7  Ala.  Huguley  v.  State,  72  So. 
764.  15  Ala.  App.  1S9 :  McLaughlin  v. 
Beyer,  61  So.  62,  181  Ala.  427 ;  Soutli- 
erii  Ry.  Co.  v.  Hobson,  58  So.  751,  4 
Ala.  App.  408;  Louisville  &  N.  R. 
Co.  V.  Perkins,  51  So.  870,  165  Ala. 
471,  21  Ann.  Cas.  1073;  2Etna  Ins. 
Co.  V.  Kennedy,  50  So.  73,  161  Ala. 
600,  135  Am.  St.  Rep.  160;  Western 
Union  Telegraph  Co.  v.  McMorris,  48 
So.  349,  158  Ala.  563,  132  Am.  St.  Rep. 


46;  Borough  v.  G.  M.  Harrington  & 
Son,  42  So.  557,  148  Ala.  305. 

S.  D.  Cannon  v.  South  Dakota 
Cent.  Ry.  Co.,  137  N.  W.  347,  29  S.  D. 
433. 

Tex.  Texas  &  P.  R.  Co.  v.  Miller, 
79  Tex.  78.  15  S.  W.  264.  11  L.  R.  A. 
395,  23  Am.  St.  Rep.  308. 

8  Lancaster  County  Bank  v.  Al- 
bright. 21  Pa.  (9  Harris)  228. 

s  AViese  v.  Gerudorf,  106  N.  W. 
1025,  75  Neb.  826;  Zibbell  v.  City  of 
Grand  Rapids,  89  N.  W.  563,  129  Mich. 
659 ;    Speed  v.  Herrin,  4  Mo.  356. 


547  SUMMING   UP  THE   WHOLE   CASE  §  282 


CHAPTER  XIX 

SUMMING  UP  THE  WHOLE  CASE  Oil  SUMMARIZING  THE  ENTIRE 

EVIDENCE 
§  281.     Duty  of  court. 

282.  Sufficiency  of  summary. 

283.  Remedy  for  inaccuracies  or  omissions. 

Power  of  court  to  review  the  evidence,  see  ante,  §§  38,  39. 

§  281.     Duty  of  court 

On  the  ground  of  the  impracticability  of  doing  so,  it  has  been 
held  that  instructions  purporting  to  state  all  the  facts  of  a  case  are 
not  to  be  commended.^  But  in  some  jurisdictions,  particularly 
in  criminal  cases,  it  is  considered  to  be  the  duty  of  the  court  to  aid 
the  jury  by  recalling  and  collating  the  details  of  the  evidence,' 
and  to  present  the  evidence  to  the  jury  in  such  light  and  with  such 
comment  that  they  may  see  its  relevancy  and  pertinency  to  the 
particular  issue  on  which  it  is  admitted ;  ^  this  duty  existing,  al- 
though a  just,  clear,  and  accurate  presentation  of  the  evidence  may 
be  regarded  by  the  jury  as. bearing  hardly  on  the  accused.* 

§  282.     Sufficiency  of  summary 

If  the  court  attempts  to  summarize  and  declare  the  contentions 
made  by  either  party,  it  should  do  so  wath  great  care,  and  only 
after  being  assured  that  it  appreciates,  not  only  what  those  con- 
tentions are,  but  their  relative  importance  as  viewed  by  the 
counsel.''     Where  the  trial  judge  undertakes  to  define  the  issues, 

1  Mavr  V.  Hodiie  &  Homer  Co..  78  ■''  People  v.  Fanning,  131  N.  T.  659, 
111.  App.  556.  30  N.  E.  569. 

2  Bank  of  La  Favette  v.  I'hipps.  101  *  People  v.  Fanning,  131  N.  T.  659. 
S.  E.  696,  24  Ga.  App.  613 ;    State  v.  30  N.  E.  569. 

Means,  50  A.  30,  95  Me.  364,  85  Am.  5  Turner  v.  State,  63  S.  E.  294.  131 

St.  Rep.  421.  Ga.  761;    Duthey  v.  State,  111  N.  W. 

If  a  cause  is  compHcated,  or  the  222,  131  Wis.  178. 

law  applicable  to  it  not  to  l>e«suppos-  Designating    contention    of    one 

ed  to  be  within  the  knowledge  of  the  party  as   a  theory.     Charge   refer- 

.iury,  and  particularly  if  the  trial  is  ring    to    plaintiff's    and    defendant's 

of  a   charge  of  a  high   criminal  of-  "claims."  and  thereafter  referring  to 

fense,  it  is  the  duty  of  the  court  to  plaintiff's   claim   as   the   "theory"   of 

point  out  to  the  jury  the  controverted  the  plaintiff,  was  not  objectionable  as 

questions  of  fact,  and  see  that  the  law  presenting  plaintiff's  case  as  a  mere 

applicable  thereto  is  given  to  the  jury,  theory,  instead  of  one  supported  by 

either  in  the  instructions  of  counsel  or  evidence ;    the    terms    "claims"    and 

in  its  own  charge ;    and  where  this  is  "theory"    having    been    used    in    the 

not  done,  if  justice  is  not  accomplish-  same  sense,  as  is  customary  by  trial 

ed  a  new  trial  will  be  granted.    State  courts.     Dl    Maio  v.   Yolen    Bottling 

V.  Brainard,  25  Iowa,  572.  Works,  107  A.  497,  93  Conn.  597. 


§  282  INSTRUCTIONS  TO  JURIES  548 

his  statement  should  be  complete  and  accurate,®  and  an  instruction 
which,  after  stating-  substantially  the  allegations  of  the  complaint, 
only  says  that  the  defendant  denies  certain  of  these  allegations, 
witnout  specifying  them,  is  insufficient.'  A  summary  by  the  court 
of  the  entire  cause,  or  of  the  facts  proven,  must  not  omit  some  of 
the  facts,  or  ignore  any  issue  material  to  the  cause  * 

A  statement  of  the  evidence  should  be  fair  and  impartial.^  and  if 
the  court  recapitulates  the  evidence  for  one  side,  it  must  give  a 
like  summary  for  the  other.^**  When  the  trial  judge  undertakes  to 
state  the  tendencies  of  the  evidence,  care  should  be  exercised  that 
the  statement  sets  forth  the  tendencies  making  for  the  support  of 
the  contentions  of  both  parties. ^^ 

Instructions  purporting  to  summarize  the  principal  facts,  which 
minimize  the  evidence  for  one  side,^^  or  call  the  attention  of  the 
jury  only  to  those  facts  which  are  favorable  to  one  of  the  parties,^^ 
are  consequently  erroneous. 

How  far  the  trial  judge  should  go  in  such  a  summary,  however, 
depends  very  largely  on  the  circumstances  of  the  case,  and  to  some 
extent  upon  the  arguments  of  counsel.^*  The  trial  judge  need  only 
give  the  substance  of  the  testimony,  if  counsel,  after  being  asked 
if  they  wish  a  recapitulation  of  the  evidence  in  detail,  do  not  re- 
quest it,^^  and  the  court  is  not  required  to  recapitulate  every  item 
of  the  evidence,^®  it  being  sufficient  if  the  review  of  the  evidence 
fahly  presents  the  course  of  the  respective  contentions  of  the  par- 
ties, calls  the  attention  of  the  jury  to  the  principal  questions  at 


6  Kev  y  State,  94  S.  E.  283,  21  Ga.  12  McCabe  v.  City  of  Philadelphia, 
App.  .300.  12  Pa.  Super.  Ct.  383. 

7  Rand  V.  Butte  Electric  Ey.  Co.,  13  Tanner  v.  Clapp,  139  111.  App. 
107  P.  87.  40  Mont.  398.  353. 

8  P>elvidere  City  Ry.  Co.  v.  Bute,  i*  Commonwealth  v,  Colandro,  80 
128  111.  App.  620;'  Mayr  v.  Hodse  &  A.  .571,  231  Pa.  343:  Commonwealth 
Homer  Co.,  78  111.  App.  556:    Delmar  v.  Penrose,  27  Pa.  Super.  Ct.  101. 

Oil  Co.  V.  Bartlett,  59  S.  E.  684,  62  ic  state  v.  Gould,  90  N.  C.  658. 

W.  Va.   700.  16  u.  S.     Stilson  v.  U.  S.,  40  S.  Ct. 

9  Sawyer  v.  Worce.ster  Consol.  St.  28,  250*  U.  S.  583,  63  L.  Ed.  1154,  af- 
Ry.,  120  N.  E.  404.  231  Mass.  215 ;  firming  judgment  (D.  C.  Pa.)  U.  S.  v. 
Siracusa  v.  Miller  Const.  Co.,  43  Pa.  Stilson,  254  F.  120;  Allis  v.  United 
Super.  Ct.  460.  States.  155  U.  S.  117,  15  Sup.  Ct.  36, 

10  Lamar  v.  King,  53  So.  279.  108  39  L.  Ed.  91. 

Ala.   285;     Moon   v.    State,   77    S.   E.  N,  C.     State  v.  Morris,  10  N.  C.  (3 

108S.  12  Ga.  App.  614 ;    Hash  v.  Com-  Hawks)  388. 

monwealth,  88  Va.  172.  13  S.  E.  .398;  Or.     State  v.  Newlin,  182  P.  1.33,  92 

Sullivan  v.  Mansion  Milling  Co.,  101  Or.  589. 

N.  W.  679,  123  Wis.  300.  Pa.     Wally  v.   Clark,   106   A.   542, 

11  Bates  y.  Birmingham  Ry.,  Light  203  Pa.  322;  Commonwealth  v.  Den- 
&  Power  Co.,  S2  So.  14,  203  Ala.  54.  nery,  102  A.  874.  259  Pa.  223. 


549 


SUMMING   UP   THE    WHOLE   CASE 


§282 


issue/''  and  assists  the  jury  to  recall  the  evidence  as  a  substantial 
whole  and  to  appreciate  its  bearing;  ^*  nor  is  it  reversible  error  for 
the  court  to  recite  the  testimony  for  one  side  more  fully  than  that 
for  the  other,  if  the  substance  of  the  testimony  for  both  parties  is 
stated  impartially/*  and  the  fact  that  the  court  takes  more  time 
in  changing  the  jury  in  regard  to  the  evidence  for  one  side  than 
he  does  in  summing  up  the  evidence  for  the  other  side  does  not 
of  itself  show  an  impropriety ,^<*  nor  is  it  necessary  to  give  the  tes- 
timony of  each  witness  separately,-^  or  to  give  the  exact  words  of 
witnesses,^^  or  to  recapitulate  the  testimony  of  each  witness  in 
the  consecutive  order  in  which  he  is  examined.^^ 

It  is  not  improper  for  the  court  to  state  its  memory  of  the  evi- 
dence,^* and  where  the  facts  or  evidence  are  not  complicated,  it 
may  be  a  sufficient  summing  up  of  the  case  for  the  court  merely 
to  read  the  notes  of  the  evidence  and  charge  the  law  in  general 
terms."^ 

In  a  criminal  case,  in  the  absence  of  a  request  for  more  definite 


17  state  V.  Haney,  19  N.  C.  390; 
Tavloi-  V.  Burrell,  7  Pa.  Super.  Ct. 
461. 

Rule  under  statute  requiring 
summary.  Where  a  statute  requir- 
ed the  court,  in  charging  the  jury,  to 
"state  in  a  plain  and  correct  manner 
the  evidence  given  in  the  case,  and 
declare  and  explain  the  law  arising 
thereon."  and  defendant  did  not  re- 
quest the  court  so  to  charge,  nor  was 
there  any  objection  or  exception  to 
the  charge  for  failure  to  comply  with 
the  statute,  it  was  held  that  error 
could  not  be  predicated  of  the  failure 
of  the  court  to  go  fully  into  the  evi- 
dence, as  it  was  plain  and  simple,  and 
the  jury's  attention  was  directed  to 
the  material  evidence  in  behalf  of  de- 
fendant, and  they  were  instructed 
that,  if  it  was  true,  he  was  not  guilty. 
State  v.  Pritchett,  106  N.  C.  667,  11 
S.  E.  857.  Where  a  defendant  charg- 
ed with  a  capital  offense  has  pleaded 
"Not  guilty,"  his  consent  that  the 
judge  need  not  read  over  his  notes  is 
not  a  waiver  of  his  right  under  such 
statute  to  have  the  judge  set  forth 
such  evidence  as  is  required  to  give 
proper  instructions.  State  v.  Groves, 
28  S.  E.  262,  121  N.  C.  563. 

18  Commonwealth  v.  Kaiser,  39  A. 
299,  184  Pa.  St.  493,  42  Wkly.  Notes 


Cas.  26 ;  McCosh  v.  Myers,  25  Pa.  Su- 
per. Ct.  61. 

Undesirability  of  referring  to 
every  item  of  evidence.     It  is  not 

possible  nor  even  desirable  that  the 
judge  should  refer  to  and  emphasize 
every  item  of  evidence  on  both  sides 
in  a  way  tliat  counsel  would  consider 
adequate.  In  doing  so  he  would  run 
the  risk  of  coming  to  speak  as  an  ad- 
vocate rather  than  a  judge.  Nor  is  he 
required  to  go  over  all  the  evidence 
on  a  particular  point  every  time  he 
refers  to  the  point  in  the  course  of 
his  charge.  Commonwealth  v.  House, 
36  Pa.  Super.  Ct.  363,  judsmeut  re- 
versed 72  A.  804.  223  Pa.  487. 

19  Jamison  v.  Hawkins,  13  Pa.  Su- 
per. Ct.  372. 

2  0  Commonwealth  v.  Clommer,  42 
A.  675.  190  Pa.  202,  43  Wkly.  Notes 
Cas.  539. 

21  Maynard  v.  Tyler,  168  Mass.  107, 
46  N,  E.  413. 

2  2  Berkman  v.  Friedman,  174  N.  Y. 
S.  163.  105  Misc.  Rep.  350. 

2  3  State  V.  Jones,  97  N.  C.  469,  1  S. 
E.  680. 

24  Haskell  v.  Cape  Ann  Anchor 
Works,  59  N.  E.  1113,  178  Mass.  485, 
4  L.  R.  A.  (N.  S.)  220. 

2  5  State  V.  Beard,  32  S.  E.  804,  124 
N.  C.  811. 


§  282  INSTRUCTIONS   TO  JURIES  650 

instructions,  a  statement  that  the  grand  jury  has  indicted  the  de- 
fendant for  a  named  offense,  and  that  he  has  filed  a  plea  of  not 
guilty,  which  makes  the  issue  to  be  tried,  sufficientl^y  presents 
the  issues.-^  The  issues  as  defined  by  the  statement  of  the  court 
should  be  those  finally  presented  to  the  jury  on  the  pleadings  and 
the  evidence  adduced."' 

§  283.     Remedy  for  inaccuracies  or  dmissions 

A  party  complaining  of  any  inadequacy  in  the  presentation  by 
the  court  of  his  contentions  to  the  jury,  or  of  any  inaccuracy  of 
the  trial  judge  in  stating  the  testimony  or  of  the  failure  of  such 
summary  to  include  certain  details  of  the  evidence  should  call  the 
attention  of  the  judge  to  such  inaccuracy  or  omission  and  give  him 
an  opportunity  to  rectify  it.^* 

26  Parks  V.  State,  100  S.  E.  724,  24  N.   C.     State  v.  Cliambers,  104  S. 

Ga.  App.  24.3.     Faison  v.  State,  79  S.  E.  G70.  180  N.  C.  70-5 ;    State  v.  Cole- 

E.  39,  13  Ga.  App.  180.  man,  101   S.  E.  261,   178  N.   O.  757 ; 

2  7  Dawson  County  Irr.  Co.  v.  Daw-  ^tor^^^'  v   Stokes,  100  S.  E.  689,  178  N. 

son  County,  173  N.  W.  696,  103  Neb.  %^^^'^  J^^^^^  \ff^'''-^-  f"  \f,^'- 
^Q^  '  1(3  N.  C.  808;    State  v.  Burton,  90  S. 

^  „.  „   ^        E.  561,  172  N.  C.  939 ;   State  v.  Gradv. 

2  8  Ga.     Pettigrew  v.  State,  81  S.  E.       §3  ;p^-    q    q^o 

446,   14   Ga.   App.   462;    Williams   v.  pa'.    Oehmler  v.  i-ittsburg  Rys.  Co., 

State,  48  S.  E.  368,  120  Ga.  870.  05  p^,  ,s,,per.  Ct.  617. 

Neb.     Barton   v.    Shull,   97  N.   W,  Wis.     Horr  v.  C.  W.  Howard  Pa- 

292,  70  Neb.  324.  per  Co.,  105  N.  W.  668,  126  Wis.  160. 


551 


DECLARING   LAW   OX   FACTS   GROUPED   FOR   PURPOSE 


§284 


CHAPTER  XX 

GROUPING  FACTS  FOR  PURPOSE  OF  DECLARING  LAW  THEREON  OR 
DIRECTING  VERDICT 

§  2S4.  Necessity  of  hypothetical  statement. 

285.  Propriety  and  necessity  of  instruction  grouping  facts. 

2SG.  Duty  to  include  essential  facts. 

2S7.  Duty  not  to  include  more  than  essential  facts. 

Power  of  court  to  declare  law  on  hypothetical  statement  of  facts,  see  ante,  §§ 
116,  117. 

§  284.     Necessity  of  hypothetical  statement 

As  we  have  seen  in  a  preceding  chapter,  section  74,  a  charge  as- 
serting disputed  facts,  instead  of  stating  them  hypothetically,  con- 
stitutes an  invasion  of  the  province  of  the  jury.  It  follows,  there- 
fore, that,  on  conflicting  evidence,  an  instruction  declaring  the  law 
on  a  certain  state  of  facts  should  be  hypothetical  in  form.^  Where 
the  facts  in  a  case  are  admitted,  or  not  disputed,  the  court  may 
charge  directly  on  them  without  hypothesis,^  and  in  some  jurisdic- 
tions the  rule  is  that  in  such  case  direct  instructions  ought  to  be 
ofiven.^ 


1  Ala.  Shipp  V.  Shelton,  69  So. 
102.  193  Ala.  658;  Green  v.  Brady, 
44  So.  408.  152  Ala.  507;  Westbrook 
V.   Fulton.  79  Ala.  510. 

111.  Hopkinson  v.  People,  IS  111. 
264. 

Ky.  Thompson  v.  Thompson,  56 
Kv.  (17  B.  Mon.)  22;  Barclay  v. 
Blackburn,  29  Ky.  (6  J.  J.  Mar.sh.) 
115. 

Md.  Ricards  v.  Wedemeyer,  75 
Md.   10,   22  Atl.   1101. 

Mo.     Watson  v.  Musick,  2  Mo.  29. 

N.  Y.  Chapman  v.  Erie  R.  Co.,  55 
N.  Y.  579;  Gardner  v.  Clark,  17 
Barb.  538;  Gurney  v.  Smithson,  20 
N.  Y.  Super.  Ct.   (7  Bosw.)  396. 

N.  C.  Wil.son  V.  Ilolley,  66  N.  C. 
40S. 

Pa.  Bartley  v.  Williams,  66  Pa. 
329;  Delaware,  L.  &  W.  R.  Co.  v. 
Smith.  1  Walk.  88. 

Using  figures  by  way  of  illustra- 
tion. Although  it  is  not  considered 
a  safe  practice,  it  is  not  reversible 
error  for  a  .ludge,  in  charging  the  ju- 
rj'  in  a  personal  injury  suit,  to  use 


figures  by  way  of  illustration  in  di- 
recting the  jury  how  to  estimate  the 
]3resent  value  of  the  loss  of  future 
earnings,  where  he  clearly  states  to 
the  jury  that  the  figures  are  used 
merely  by  way  of  illustration,  and 
with  no  intention  of  indicating  what 
he  thinks  the  verdict  should  be.  Reed 
V.  American  Dvewood  Co.,  SO  A.  873, 
231   Pa.   431. 

■.;  Ala.  Bynon  v.  State,  2^  So.  640. 
117  Ala.  SO.  67  Am.  St.  Ren.  163 
Carter  v.  Chambers,  79  Ala.  223 
South  &  N.  A.  R.  Co.  V.  IMcLendon, 
63  Ala.  266;  Nelms  v.  Williams,  18 
Ala.  650;  Williams  v.  Shackelford, 
16  Ala.  318 ;  Henderson  v.  :Mabry,  13 
Ala.   713. 

Tex.     Hedgepeth   v.   Robertson,  18 
Tex.  858. 

3  Ala.     Swift  V.  Fitzhugh,  9  Port. 
39. 

Ga.     Thornton  v.  Lane,  11  Ga.  459. 

Mich.     Wisner     v.     Davenport,     5 
Mich.  501. 

N.     Y.     Powers     v.     Ingraham,    3 
Barb.  576. 


§285 


INSTRUCTIONS  TO  JURIES 


552 


§  285.     Propriety  and  necessity  of  instruction  grouping  facts 

In  some  jurisdictions  the  court  is  prohibited  by  statute  from 
charging  upon  the  effect  of  evidence,  in  the  absence  of  a  request 
so  to  do  by  one  of  the  parties.*  But  while  it  is  held  that  the  prac- 
tice of  grouping  facts  on  which  a  party  relies  is  not  to  be  encour- 
aged, because  not  the  safest  method,®  and  because  it  tends  unduly 
to  magnify  the  importance  of  the  matters  suggested  for  special 
mention,®  and  because  such  grouping  does  not  harmonize  with 
the  recognized  distinction  between  the  function  of  the  court  and 
jury  in  the  determination  of  questions  of  fact,'  it  is  nevertheless 
held  in  most  jurisdictions  that  an  instruction  grouping  the  facts, 
so  as  to  present  the  theory  of  one  party  or  the  other,  and  charging 
the  law  thereon,  will  not  be  erroneous,*  where  the  grouping  is 


4  Ala.  Edmunds  v.  State,  76  So. 
466.  16  Ala.  App.  182;  Birmingham 
Southern  R.  Co.  v.  Morris,  63  So.  768, 
9  Ala.  App.  530;  Birmingham  Ry., 
Light  &  Power  Co.  v.  Elmitt,  57  So. 
1015.  3  Ala.  App.  664 ;  Hughes  v.  Al- 
bertville  Mercantile  Co.,  57  So.  98,  3 
Ala.  App.  462 ;  Birmingham  Ry., 
Light  &  Power  Co.  v.  Murphy,  56  So. 
S17.  2  Ala.  App.  .588;  Campbell  v. 
State,  43  So.  743,  150  Ala.  70;  Gaf- 
ford  V.  State,  28  So.  406,  125  Ala. 
1;  Beasley  v.  State,  50  Ala.  149,  20 
Am.  Rep.  292. 

Instructions  improper  within 
rule.  Fidelity  &  Deposit  Co.  of 
Maryland  v.  Art  jNIetal  Const.  Co.,  50 
So.  186,  162  Ala.  .323. 

Under  the  Alabama  statute,  the 

court  may,  however,  when  the  evi- 
dence is  in  dispute,  state  the  evidence 
and  its  tendencies,  and  in  so  doing 
may  state  the  respective  theories  of 
the  parties.  Murray  v.  State,  69  So. 
.3,54.  13  Ala.  App.  175;  Dennis  v. 
State,  20  So.  925,  112  Ala.  64.  Shoe- 
malvo  v.  State,  86  So,  151,  17  Ala.  App. 
461. 

5  St.  Louis,  B.  &  M.  Ry.  Co.  v.  Drod- 
dy  (Tex,  Civ,  App.)  114  S.  W,  902, 

An  instruction  which  states  the 
farts  from  the  standpoint  of 
plaintiff,  and  tells  the  jury,  if  they 
l)elievp  tliese  facts  to  be  true,  to  find 
for  plaintiff,  is  objectionable,  as  de- 
tailing the  facts  in  evidence.  IMitch- 
ell-Tranter  Co.  v,  Ehmett,  65  S,  W. 


835,  23  Ky,  Law  Rep.  1788,  55  L.  R. 
A.  710. 

6  Hanson  v.  City  of  Anamosa,  158 
N,  W.  591,  177  Iowa,  101 ;  Van  Nor- 
man V,  Modern  Brotlierhood  of  Amer- 
ica, 121  N.  W.  1080,   143  Iowa.  536. 

7  Peterson  v.  Baker,  97  P.  373,  78 
Kan.  .337;  Roberson  v.  Stokes,  106  S. 
E.  151,  181  N.  C.  59. 

Giving  supplemental  instruc- 
tions to  avoid  misleading  jury. 
Wliere  an  instruction  groups  together 
a  number  of  facts  or  circumstances 
similar  to,  or  identical  with,  those 
disclosed  by  the  evidence  and.  assum- 
ing or  taking  for  granted  the  exist- 
ence of  such  facts  or  circumstances, 
draws  legal  conclusions  therefrom, 
an  improper  impression  may  be  made 
upon  the  minds  of  the  jury,  unless 
some  other  instruction  is  given,  leav- 
ing it  to  the  jury  to  deteniiine  the 
existence  of  such  facts  or  circum- 
stances, Swigart  v,  Hawley,  29  N,  E. 
883,  140  111.  186,  and  it  is  accord- 
ingly proper,  and  may  be  the  duty  of 
the  court,  to  give  such  a  supplement- 
al instruction.  People  v.  Chadwick, 
76  Pac.  884.  143  Cal,  116;  Swigart 
V,  Hawley,  29  N.  E.  883,  140  111.  186. 

8  Pittsburgh,  C.  &  St.  L.  R,  Co,  v. 
Noel,  77  Ind,  110,  following  Louis- 
ville, N,  A.  &  C,  R.  Co.  V,  Richardson, 
66  Ind.  43,  .32  Am,  Rep.  94;  Skiles 
v.  State,  123  N,  W,  447,  85  Neb,  401 ; 
Kerr  Crain  &  Hay  Co,  v,  Marion 
Cash  Feed  Co,,  103  S.  E,  375.  179  N. 
C.  6.54;  State  v.  Watkins,  75  S.  E. 
22,  159  N,  C,  4S0, 


FRANK  L.  SIMONS 

756  S.  SPRING  ST. 

LOS  ANGELES..  CAL. 


553 


DECLARING   LAW   ON   FACTS   GROUPED   FOR   PURPOSE 


§286 


not  such  as  to  confuse  or  mislead  the  jury  or  indicate  the  opniion 
of  the  court,"  and  that  in  a  proper  case  a  party  is  entitled  to  such 
an  instruction/*  and  in  some  jurisdictions  it  is  held  that  a  general 
instruction  to  render  a  certain  verdict  on  finding  certain  facts  is 
wrong  only  when  it  omits  facts  necessary  to  the  conclusion. ^^ 
Such  a  hypothetical  statement  should  have  support  in  the  evi- 
dence/~  and  should  fairly  present  the  case  shown  in  evidence.*'^ 
The  facts  included  in  such  a  statement  must  be  the  ultimate  ones/"* 
since,  as  shown  in  another  place, ^^  inferences  of  fact  from  other 
facts  are  exclusively  for  the  jury  to  make. 

§  286.     Duty  to  include  essential  facts 

•  As  indicated  by  the  foregoing  statement,  an  instruction  which 
directs  a  particular  verdict,  if  the  jury  find  from  the  evidence  that 
certain  facts  exist,  must  embrace  all  the  facts  and  conditions  nec- 
essary to  such  a  verdict,*^  and  an  instruction  which  directs  a  ver- 


0  St.  Louis  S.  W.  Ey.  C!o.  of  Texas 
V.  Byers  (Tex.  Civ.  App.)  70  S.  W. 
558. 

1 0  Colo.  Stoltz  V.  People,  148  P. 
S65,  59  Colo.  342. 

Pa.  Hood  V.  Hood,  2  Grant.  Cas. 
229. 

Tex.  Hannes  v.  Raube  (Civ.  App.) 
210  S.  W.  9S5 ;  Texas  &  N.  O.  R.  Co. 
V.  Harrington  (Civ.  App.)  209  S.  W. 
683;  Southern  Kansas  Ry.  Go.  of 
Texas  v.  Wallace  (Com.  App.)  206  S. 
W.  505,  reversing  judgment  (Civ. 
App.)  152  S.  W.  873 ;  Texas  &  P.  Ry. 
Co.  V.  Johnson,  118  S.  W.  1117,  55 
Tex.  Civ.  App.  495;  St.  Louis,  B.  & 
M.  Rv.  Co.  V.  Droddy  (Civ,  App.)  114 
S.  W.  902. 

Wis.  McDonell  v.  Dodge,  10  Wis. 
106. 

11  .Tackson  v.  Southern  Pac.  Co., 
103  P.  1098,  11  Cal.  App.  101. 

12  Ga.  Jackson  v.  State,  88  Ga. 
784,  15  S.  E.  677;  Willis  v.  Willis, 
18  Ga.  13. 

Minn.  Chandler  v.  De  Graff,  25 
•Minn,  88. 

Mo.  Wise  V.  Wabash  R.  Co.,  115 
S.  W.  4.52,  135  IMo.  App.  230;  Brad- 
ford V.  Pearson,  12  Mo.  71. 

N.  C.  State  v.  Collins,  30  N.  C. 
407. 

13  Oliver  v.  State,  39  Miss.  526; 
Murphy's  Hotel  v.  Cuddv's  Adm'r,  97 
S.  E.  794.  124  Va.  207 ;  Life  Ins.  Co. 
of    Virginia    v.    Hairston,    62    S.    E. 


1057,  108  Ya.  832,  128  Am.  St.  Rep. 
989. 

14  Maltby  v.  Northwestern  Virginia 
R.  Co..  16  ]Md.  422. 

15  Ante,  §§  58-62. 

16  Ala.  Alabama  Great  Southern 
R.  Co.  V.  Loveman  Comi)ress  Co.,  72 
So.  311.  196  Ala.  683;  Louisville  & 
N.  R.  Co.  v.  Rice,  101  Ala.  676,  14 
So.  639 ;  Pritchett  v.  Munroe,  22  Ala. 
501;  Dill  v.  Camp.  22  Ala.  249;  Row- 
land v.  Ladiga's  Heirs,  21  Ala.  9. 

Cal.  Gallagher  v.  Williamson,  23 
Cal.  331,  83  Am.  Dee.  114. 

Colo.  Kent  V.  Treworgv,  125  P. 
128,  22  Colo.   App.  441. 

Ga.     Towns  v.  Kellett,  11  Ga.  286; 

Idaho.  Johnson  v.  Eraser,  2  Ida- 
ho (Hash.)  404,  18  P.  48;  Deasey  v. 
Tlmrman,  1  Idaho,  775. 

111.  Dowdev  V.  Palmer,  122  N.  E. 
102,  287  111.  42;  Illinois  Cent.  R. 
Co.  V.  Warriner,  82  N.  E.  246,  229  111. 
91,  affirming  judgment  132  111.  App. 
301 ;  Chicago  Consol.  Traction  Co.  v. 
Schritter,  78  'N.  E.  820.  222  111.  .364, 
affirming  judgment  124  111.  App.  578; 
Bradlpy  v.  Vandalia  R.  Co.,  207  111. 
App.  592;  Conrad  v.  St.  Tx)uiR.  S.  & 
P.  R.  Co.,  201  111.  App,  276 ;  Richards 
V.  Illinois  Cent.  R.  Co.,  197  111,  App. 
282;  Re.vnolds  v.  Alton,  Granite  City 
&  St.  Louis  Traction  Co,,  183  111.  App, 
538;  Schultz  v.  Bumwell  Coal  Co., 
180  111,  App.  693 ;  Carroll  v.  Chicago 
City  Ry.  Co.,  ISO  111,  App,  309 ;   Fisch- 


INSTRUCTIONS   TO   JURIES 


554 


§  286 

diet  if  th'e  jury   finds  that  the  case  as  laid   in   the   declaration   is 


er  V.  Chicago  &  VT.  I.  R.  Co..  171  111. 
App.  347;  Pfohman  v.  Chifago  &  A. 
R.  Co.,  161  111.  App.  190 ;  Heuuigli  v. 
Cleveland,  C,  C.  &  St.  L.  Ry.  Co..  143 
111.  Apo.  283;  Gould  v.  Aurora.  E. 
&  C.  Rv.  Co.,  141  111.  App.  344 ;  Hard- 
ing V.  Timet.  124  111.  App.  437 ;  New 
Ohio  Washed  Coal  Co.  v.  Hindman, 
119  111.  App.  2S7 ;  Alton  Light  &  Trac- 
tion Co.  v.  Oiler,  119  111.  App.  181. 
judgment  affii-med  Same  v.  Oliver,  75 
N.  E.  419,  217  111.  15.  4  L.  R.  A.  (N. 
S.)  399;  Chicago  City  Ry.  Co.  v. 
O'Donnell,  114  111.  App.  359;  West 
Chicago  St.  Ry.  Co.  v.  Winters.  107 
111.  App.  221;  Dauchy  Iron  Works 
V.  Toles,  107  111.  App.  216;  Chicago 
Citv  Ry.  Co.  V.  Mauger.  105  111.  App. 
579;  jNIcNulta  v.  Jenkins,  91  111.  App. 
309;  Chicago  Athletic  Ass'n  v.  Eddy 
Electric  Mfg.  Co.,  77  111.  App.  204; 
Lake  Shore  &  M,  S.  Ry.  Co.  v.  Beam, 
11   111.  App.  215. 

Ind.  Citv  of  Decatur  v.  Eady,  115 
N.  E.  577,  186  Ind.  205,  L.  R.  A. 
1917E,  242 ;  Chicago,  I.  &  L.  Ry.  Co. 
V.  Lake  County  Savings  &  Trust  Co., 
114  N.  E.  454.  186  Ind.  358;  Neeley 
v.  Louisville  &  S.  I.  Traction  Co.,  102 
N.  E.  455.  53  Ind.  App.  659:  Bragg 
V.  Eagan,  98  N.  E.  835,  51  Ind.  App. 
513,  Wyman  v.  Turner,  14  Ind.  App. 
118,  42  N.  E.  652;  Larue  v.  Russell, 
26  Ind.  386. 

Iowa.  McNamara  v.  Dratt,  40 
Iowa,  413. 

Md.  Carrington  v.  Graves.  89  A. 
2.37.  121  Md.  567 ;  Maryland  &  D.  R. 
Co.  V.  Porter,  19  Md.  458;  Peterson's 
Ex'rs  v.  Ellicott.  9  Md.  52;  Beall  v. 
Bcall.   7   Gill,  233. 

Miss.     Dean    v.    Tucker,    58    Miss. 

487 ;    Meyer  v.    Blakemore,   54   Miss. 

570. 
Mo.     Clayton  Lumber  Co.  v.  Seever 

(App.)  223  S.  W.  442;    Shortridge  v. 

Raiffeisen,  222   S.  W.   1031,  204   Mo. 

App.  106;    Albritton  v.  Kansas  City, 

183    S.    W.    239,    192    Mo.    App.    574; 

Rissmiller  v.  St.  Louis  &  II.  Ry.  Co. 

(App.)  187  S.  W.  573;    Birtwhistle  v. 

Woodward,  95  Mo.  113,  7  S.  W.  465 ; 

Boothe    v.    Loy,    83    Mo.    App.    601; 

Thomas  v.  Babb,  45  Mo.  384;    Chap- 
pell  V.  Allen,  38  Mo.  213. 


Neb.  Standard  Distilling  &  Dis- 
tributing Co.  V.  Harris,  106  N.  W.  582, 

75  Neb.   480;    Levy  v.    Cunningham, 

76  N.  vr.  882,  56  Neb.  348;  Cousaul 
V.  Sheldon,  33  Neb.  247,  52  N.  W. 
1104. 

Okl.  [Murphy  v.  Hood  &  Lumley, 
73  P.  261,  12  Okl.  593. 

Tex.  Bering  Mfg.  Co.  v.  Femelat, 
79  S.  W.  869,  35  Tex.  Civ.  App.  36; 
Willoughby  v.  Townsend,  45  S.  W. 
861,  18  Tex.  Civ.  App.  724. 

Va.  Winn  Bros.  &  Baker  v.  Lips- 
combe,  '  103  S.  E.  623,  127  Va.  554 ; 
Carpenter  v.  Smithey,  88  S.  E.  321, 
118  Va.  533 ;  Jones'  Adm'r  v.  City 
of  Richmond,  88  S.  E.  82,  118  Va. 
612 ;  Hawkins  &  Buford  v.  Edwards, 
84  S.  E.  654.  117  Va.  311 ;  Pocahontas 
Consol.  Collieries  Co.  v.  Hairston,  83 
S.  E.  1041,  117  Va.  118;  Hughes  v. 
Kelly,  30  S.  E.  387. 

W.  Va.  Penix  v.  Grafton,  103  S. 
E.  106.  86  W.  Va.  278 ;  Stuck  v.  Kan- 
awha &  M.  Ry.  Co.,  89  S.  E.  280,  78 
W.  "^'a.  490;  Petry  v.  Cabin  Creek 
Consol.  Coal  Co.,  88  S.  E.  105,  77  W. 
Va.  654:  McVey  v.  St.  Clair  Co.,  38 
S.  E.  648,  49  W.  Va.  412;  Ward  v. 
Ward,  35  S.  E.  873,  47  W.  Va.  766; 
Claiborne  v.  Chesapeake  &  O.  Ry.  Co., 
33  S.  E.  262,  46  W.  Va.  S63 ;  Pritv 
v.  Chesapeake  &  O.  R.  Co.,  33  S.  E. 
255,  46  W.  Va.  538;  McCreery's 
Adm'x  V.  Ohio  River  R.  Co.,  27  S.  E. 
.327,  43  W.  Va.  110;  Wooddell  v. 
West  Virginia  Imp.  Co.,  38  W.  Va.  23. 
17  S.  E.  386;  Thompson  v.  Douglass, 
35  W.   Va.   337,   13   S.   E.  1015. 

It  is  proper  to  refuse  an  instruc- 
tion predicated  on  a  partial  and  im- 
perfect state  of  facts  as  shown  by 
the  testimony.  City  of  Atchison  v. 
King,  9  Kan.  550;  Himes  v.  McKin- 
ney,  3  Mo.  382. 

Instructions  erroneous  xirithin 
rule.  In  a  passenger's  action  against 
a  carrier  for  failure  to  permit  her 
to  alight  at  her  destination,  a  charge 
that  before  a  verdict  could  be  reu- 
der(>d  for  plaintitf  the  jury  must  be 
reasonably  satisfied  tbat  the  station 
was  not  called  in  a  distinct  and  au- 
dible tone  in  the  car  in  which  plaintiff 
was  riding  held  properly  refused,  as 


555 


DECLARING    LAW    ON    FACTS    GROUPED   FOR   PURPOSE         §  286 


proved  should  not  be  given  where  the  declaration  does  not  con- 


failing  to  hypothesize  that  the  name 
of  the  station  was  called  a  reason- 
able time  before  plaintiff  \Yas  to  get 
off.  Central  of  Georgia  Ry.  Co.  v. 
Baniitz,  84  So.  474,  17  Ala.  App.  201. 
In  prosecution  for  grand  larceny  by 
stealing  sawlogs,  instruction  that  if 
the  jury  found  the  defendant  took  the 
logs  but  claimed  ownershiii  and  mani- 
fested ownership  by  words  and  acts 
at  the  time,  then  this  would  rebut  any 
felonious  taking  under  the  hxw,  and 
defendant  was  not  guilty,  was  prop- 
erly refused,  since  it  disregarded  the 
element  of  good  faith  in  the  claim  of 
ownership.  Bridgeman  v.  State 
(Ark.)  225  S.  W.  1.  AVhere  an  inter- 
est in  a  logging  contract  has  been 
sold  under  representations  amounting 
to  a  warranty,  and  it  appears  that 
vendee  is  entitled  to  an  abatement 
from  the  purchase  money  because  of 
damages  occasioned  by  the  breach  of 
the  warranty,  it  is  error  to  give  a 
binding  instruction  which  ignores  the 
evidence  of  the  breach  of  the  war- 
ranty. IVIyers  v.  Cook  (W.  Va.)  104 
S.  E.  593.  While  negligence  may  be 
predicated  as  a  matter  of  law  on  the 
fact  that  an  automobile  is  being  driv- 
en in  the  nighttime  at  such  a  rate  of 
speed  that  it  cannot  be  stopped  within 
a  radius  illuminated  by  its  lights,  it 
was  erroneous  for  the  court  to  lay 
down  the  general  rule  of  law  that  it 
is  negligence  per  se  to  drive  an  auto- 
mobile at  night  at  a  rate  of  speed 
which  will  not  permit  stopping  with- 
in such  distance ;  such  instruction 
not  taking  into  account  the  degree  of 
darkness  of  the  night  or  known  con- 
ditions of  the  road.  Ham  v.  Los  An- 
geles County  (Cal.  App.)  ISO  P.  462. 
Where,  under  the  evidence,  part  of 
the  damages  to  plaintiff's  lands  might 
have  been  the  result  of  an  ordinary 
flood,  in  connection  with  defendant's 
tilling  in  the  lowlands  on  one  side  of 
the  stream,  though  part  of  it  might 
have  been  the  result  of  an  extraordina- 
ry flood,  an  instruction  rtHpiesting  a 
verdict  for  defendant  on  the  finding  of 
there  having  been  an  extraordinary 
flood  was  properly  refused,  as  liased 
on  a  part  of  the  evidence  only.    SIoss- 


ShefHeld  Steel  &  Iron  Co.  v.  MitcheU, 
52   So.   09,   1«7  Ala.   22G. 

Instructions  not  improper  \(ritli- 
in  rule.  In  an  action  against  a  rail- 
road company,  an  instruction  that  if 
the  jury  believed  from  the  evidence 
that  the  engine  was  derailed,  and 
that  the  derailment,  if  any,  was  caus- 
ed by  the  condition  they  found  the 
track  to  have  been  in,  yet,  if  they  be- 
lieved from  the  evidence,  that  the  de- 
fendant was  not  negligent  in  havini; 
and  permitting  the  track  to  be  in  the 
condition  it  was  in,  or  if  they  believed 
from  the  evidence  that  plaintiff  was 
not  injured,  or  if  they  believed  that 
the  track  was  not  in  a  safe  condition, 
and  that  such  condition  was  occasion- 
ed solely  by  unusual  rainfall,  which 
could  not  have  been  foreseen,  they 
should  return  a  verdict  for  defendant, 
was  not  objectionable  as  .stating  all 
the  terms  and  conditions  upon  which 
defendant  was  entitled  to  a  verdict, 
and  as  Affirmatively  excluding  all 
other  matters.  Galveston,  H.  &  S.  A. 
Ry.  Co.  v.  Roberts  (Tex.  Civ.  App.) 
91  S.  W.  .'575.  In  an  action  against 
a  railroad  company,  an  instruction 
that  if  the  jury  believed  from  the 
evidence  that  the  railroad  track  at 
the  place  where  the  engine  was  de- 
railed was  in  a  defective  condition, 
and  that  defendant  was  negligent, 
and  such  negligence,  if  any,  was  the 
direct  cause  of  plaintiff's  injuries,  if 
any,  they  should  find  for  plaintiff, 
M-as  not  objectionable  as  undertaking 
to  submit  all  the  issues  and  excluding 
the  principal  def(>nse,  that  the  action 
was  due  to  a  hidden  defect  in  the  em- 
bankment which  could  not  have  been 
discovered.  Galveston,  II.  &  S.  A.  Ky. 
Co.  V.  Roberts  (Tex.  Civ.  App.)  91  S. 
W.  375. 

Charge  on  particular  phase  of 
case.  If  an  instruction  in  an  action 
for  breach  of  contract  directs  a  ver- 
dict for  either  party  or  amounts  to 
.such  a  direction  in  ca.se  the  jury  shall 
find  certain  facts,  it  must  necessarily 
contain  all  the  facts  which  will  au- 
tliorize  the  verdict  directed,  and  it 
is  immaterial  that  it  does  not  under- 
take to   instruct  the  jury  as  to  the 


286 


INSTRUCTIONS  TO  JURIES 


556 


tain  all  the  averments  necessary  to  entitle  the  plaintiff  to  recover." 
Prayers  for  instruction  which  conclude  with  a  direction  to  find 
a  verdict  for  the  party  offering  them  must  include  every  fact  and 
circumstance  in  evidence  that  might  justify  an  adverse  conclusion, 
and  make  it  clear  that,  on  the  evidence  thus  presented,  the  adverse 
party  has  no  right  to  a  verdict  in  his  favor.^*  If  an  instruction 
directing  a  verdict  on  the  finding  of  facts  so  grouped  omits  an 
essential  fact,  the  omission  cannot  be  supplied  by  another  instruc- 
tion.i^ 

In  criminal  cases  an  instruction  purporting  to  state  hypotheti- 
cally  the  facts  which,  if  believed  b}^  the  jury,  will  warrant  a  con- 
viction, is  erroneous  if  it  omits  an  element  necessary  to  such  con- 
viction,^" and  where  an  accused  asks  for  instructions  embodying 
the  principle  of  law  entitling  him  to  an  acquittal,  all  the  elements 
required  to  establish  such  principle  must  be  stated  among  the 
facts.^^ 

If  such  an  instruction,  however,  embraces  all  the  ultimate  or 
essential  facts,  its  omission  to  recite  circumstances  not  controlling 
will  not  render  it  erroneous,-'  and  the  omission  of  a  material  ele- 
ment will  constitute  harmless  error,  where  the  record  shows  that 


whole  case  but  only  as  to  particular 
parts  of  the  contract.  Farmers' 
League  &  Community  Telephone  Ass'n 
V.  Ohio  &  Mississippi  Valley  Tele- 
phone Co.,  194  111.  App.   166. 

Charge  on  one  of  twro  theories  of 
case.  In  the  absence  of  a  motion  to 
make  more  definite  and  certain  a  i>eti- 
tion  so  drawn  as  to  permit  a  recov- 
ery by  plaintiff  for  noncompliance 
with  a  condition  precedent  in  a  sale 
or  for  breach  of  warranty,  the  court 
is  not  in  error  in  charging  on  either 
theory,  but  a  charge  on  either  theory 
must  include  all  the  essential  ele- 
ments of  a  recovery  on  such  theory. 
Henry  Gaus  &  Sons'  Mfg.  Co.  v.  Ma- 
gee,  Lattimore  &  La  Berge  Mfg.  Co., 
42    Mo.    App.    307. 

17  Petei-s  V.  Howard,  206  111.  App. 
610;  Ilox.sey  v.  St.  Louis  &  S.  Ry. 
Co.,  171  111.  App.  109;  Latham  v. 
Cleveland,  C,  C.  &  St.  L.  Ey.  Co.,  164 
111.  App.  559. 

18  United  States  v.  Metropolitan 
Club  of  City  of  Washington,  11  App. 
D.  C.  180. 

19  Gage  V.  City  of  Vienna,  196  111. 
App.    585 ;     American    Sheet    &    Tin 


Plate  Co.  V.  Bucy,  87  N.  E.  1051,  43 
Ind.  App.  501. 

2  0  Gregg  V.  People,  98  111.  App.  170; 
Eahlie  v.  State,  81  N.  E.  584,  168 
Ind.  615 ;  Davidson  v.  State,  34  N.  E. 
972,  135  Ind.  254 ;  Bode  v.  State,  113 
N.  W.  996,  80  Neb.  74. 

Instructions  improper  witMn 
rule.  In  a  prosecution  for  larceny  of 
a  yearling,  where  defendant  claimed 
that  he  bought  the  animal  from  an- 
other and  the  whole  defense  was  bot- 
tomed on  that  theory,  a  general  in- 
struction, purporting  to  cover  all  ele- 
ments of  the  offens'e,  which  after 
charging  on  the  burden  of  proof  au- 
thorized conviction,  if  defendant  con- 
verted to  his  own  use  the  animal  and 
it  belonged  to  the  prosecuting  wit- 
ness, was  erroneous  because  it  omit- 
ted the  essential  element  of  felonious 
or  criminal  intent.  Johnson  v.  State, 
219  S.  W.  32,  142  Arli.  573. 

21  State  V.  Guldor,  37  So.  622,  113 
La.  727. 

2  2  Farley  v.  Smith,  39  Ala.  38;  Illi- 
nois Cent.  R,  Co.  V.  Byrne,  68  N.  E. 
720,  205  111.  9,  affirming  judgment  105 
111.  App.  96;    Chicago  &  A.  R.  Co.  v. 


557      DECLARING  LAW  ON  FACTS  GROUPED  FOR  PURPOSE    §  287 

the  negation  of  the  element  omitted  was   not  relied  on  by  the 
adverse  party .~^ 

Moreover,  a  party  may  ask  for  a  charge  on  the  facts  as  he  sees 
them,  and  is  not  required  to  include  facts  upon  which  his  adver- 
sary relies.'**  All  that  the  law  requires  is  that  an  instruction  based 
upon  some  particular  hypothesis  warranted  by  the  evidence,  which 
undertakes  to  summarize  the  elements  in  the  cause  essential  to 
a  recovery  upon  that  theory,  must  not  omit  any  essential  matter,-^ 
and  it  will  be  sufficient  if  all  the  essential  facts  are  included,  al- 
though only  by  inference.^^ 

§  287.     Duty  not  to  include  more  than  essential  facts 

An  instruction  in  which  the  court  groups  certain  facts,  and  de- 
clares that  if  the  jury  find  such  facts  to  exist  a  party  will  be  en- 
titled to  a  certain  verdict,  is  erroneous,  if  the  party  would  be  so 
entitled  on  the  finding  of  any  one  of  such  facts.-' 

Hirrin-ton    61  N   E    622.  192  111.  9 ;  probable  cause  is  a  part  of  the  cause 

affirming  jml?ment  90  111.  App.  638.  of  action   of  tbe  plaintiff  in   an  ac- 

"3  St    Louis    A    &  T    H.  R.  Co.  v.  tion    for    malicious    prosecution,    an 

Holman,  155  111.  21,  39  N.  E.  573,  af-  instruction    in    such    an    action,    au- 

firmin-  58  111.  App.  617.  thorizing  verdict  for  plamtitf  on  find- 

24  111.     Kellyville      Coal      Co.      v.  iug    malice    alone,    and    rgnormg    the 

Strine     75   N  "  E.    375,    217    111.    516 ;  element  of  want  of  probable  cause,  Is 

O'Leary  v    Zindt,  109  111.  App.  309;  erroneous;  the  rule  that  an  instruc- 
Mt   Olive  &  S.  Coal  Co.  v.  Bademach-  '    tion  covering  plaintiffs  case  need  not 

er  60  N  E   888  190  111.  538,  affirming  include    an    affirmative    defense,    but 

iu'dcment  92  111.  App.  442.  may  leave  such  defense  to  be  covered 

Md.     Woodward  v.  Dudley  A.  Tyng  by   defendant's    instructions,   not   ap- 

&  Co     91  A    166,  123  Md.  98 ;    Wil-  plying.     De  W^itt  v.  Syfon,  211  S.  W. 

liams  'v.  Woods,  16  Md.  220 ;    Day  v.  716.  202  Mo.  App.  469. 

Day,  4  Md.  262.  -^  Springfield    Consol.    Ry.    Co.    \. 

Mo.     Harrod  v.  Hammond  Packing  Hoeffner,  51  'N.  E.  SS4,  175  111.  634, 

Co.,  102  S.  W.  637.  125  Mo.  App.  357;  affirming  judgment  71  111.  App.   162. 

Hester   v.    Jacob   Dold   Packing   Co.,  --^g  Keno  v.  City  of  St.  Joseph,  169 

84  Mo.  App.  451.  Mo.  642,  70  S.  W.  123. 

Right  of  plaintifiE  to  exclude  af-  2  7  Hightower   v.    State,    110   S.    W. 

firmative    defense.     Since   want   of  750,  53  Tex.   Cr.  R.  486. 


288 


INSTRUCTIONS   TO  JURIES 


558 


CHAPTER  XXI 

EXCLUSION  OF  EVIDENCE  FROM  CONSIDERATION  OF  JURY 

§  288.  Evidence  improperly  admitted. 

289.  Evidence  whicli  has  been  excluded,  withdrawn,  or  already  stricken  out. 

290.  Evidence  on  issues  not  submitted  to  jury. 

291.  Effect   of  erroneous   refusal   to  instruct  against  considering   certain 

evidence. 

292.  Necessity  of  request  for  instruction  to  disregard  evidence. 

§  288.     Evidence  improperly  admitted 

Where  evidence  which  is  not  material  to  the  issues,  or  which 
is  improper  for  any  reason,  has  been  admitted,  the  court  may,^ 
and  should,"  on  request,^  by  its  charge  correct  such  error,  by  ex- 


1  Ala.  Foxworth  v.  Brown,  24  So. 
1,   120  Ala.  59. 

Ga.  Wyatt  v.  State,  88  S.  E.  718. 
18  Ga.  App.  29;  Cook  v.  J.  I.  Case 
Threshing  Mach.  Co.,  87  S.  E.  8.32, 
17  Ga.  App.  54.3;  Williams  v.  State, 
33  S.  E.  648,  107  Ga.  721 ;  Myers  v. 
State.  25  S.  E.  252,  97  Ga.  76. 

Ind.     Utter  v.  Vance,  7  Blackf.  514. 

Ky.  Chesapeake  &  O.  Rv.  Co.  v. 
Stein,  134  S.  W.  1169,  142  Ky.  515. 

Mo.     White  v.  Gray,  32  Mo.  447. 

Tex.  Stevens  v.  State  (Cr.  App.) 
49  S.  W.  105. 

■Wis.  Campbell  v.  Mooro,  3  Wis. 
767. 

Compare  Hall  v.  Earnest,  .36  Barb. 
(N.  Y.)   585. 

Statements  by  counsel.  It  is 
pro])er  to  instruct  the  jury  to  disre- 
gard statements  by  counsel,  not  sworn 
as  witnesses,  as  to  their  personal 
knowledge  of  adverse  witnesses,  made 
to  discr(>dit  them.  Van  Alstine  v. 
Kaniecki,  109  Midi.  .318,  67  N.  W.  502. 

2  Colo.  Rio  Grniide  Southern  R. 
Co.  V.  Campbell,  96  P.  986,  44  Colo. 
1. 

lU.  Pittman  v.  Gaty,  10  111.  (5 
Gilmiin)  1S6. 

Ind.  Gallivan  v.  Strickler,  118  N. 
E.   679,   lis   Ind.   201. 

Iowa.  Internaticmal  Harvester 
Co.  of  America  v.  Chicago,  M.  «&  St. 
P.  Ry.  Co.,  172  N.  W.  471,  186  Iowa, 
3207;  Dilly  v.  Paynsville  I>and  Co., 
1."m   X.   W.  971,  173  Iowa,  536. 


Me.  Harlow  v.  PeiTy,  96  A.  775, 
114  Me.  460,  Ann.  Cas.  191SC,  37. 

Mo.  Smith  v.  Bailey,  209  S.  W. 
945,  200  Mo.  App.  627;  Gutzweiler's 
Adm'r  v.  Lackmann.  39  Mo.  91. 

N.  M.  Price  v.  Wood,  54  P.  231,  9 
N.  M.  397. 

Ohio.  Geiger  v.  State,  71  N.  E. 
721,  70  Ohio  St.  400;  Henkle  v.  Mc- 
Clure,  32   Ohio  St.   202. 

Pa.     Commonwealth    v.    Duffy,    49 

3  Ga.  Schmidt  v.  Mitchell,  43  S. 
E.  371.  117  Ga.  6. 

111.  Barr  v.  Wilmington  Coal  Min. 
&  :\rfff.  Co..  5  111.  App.  (5  Bradw.)  442. 

Ind.  Eppert  v.  Hall,  1.33  Ind.  417, 
31  N.  E.  74,  .32  N.  E.  713. 

Kan.  Guthrie  v.  Merrill,  4  Kan. 
187. 

N.  Y.  Woolsey  v.  Trustees  of  Vil- 
lage of  Ellenville,  50  N.  E.  270,  1.55 
N.  Y.  573,  affirming  judgment,  32  N. 
Y.  S.  546,  84  Hun.  236 :  O'Dell  v.  Bon- 
ta.  142  N.  Y.  S.  179.  157  App.  Div.  .349. 
Harrington  v.  City  of  Buffalo,  ,50  Hun, 
601,  2  N.  Y.  Supp.  .333,  judgment  re- 
versed 121  N.  Y.  147,  24  N.  E.  186. 

S.  C.  Fass  V.  Western  Union  Tel- 
egraph Co..  64  S.  E.  2.33,  82  S.  C.  461. 

Tex.  Ft.  Worth  &  D.  C.  Ry.  Co.  v. 
Speer  (Civ.  Ap]).)  212  S.  W.  762;  Occi- 
dent Fire  Ins.  Co.  v.  Lini^  (Civ.  App.) 
179  S.  W.  523 ;  W.  P.  Carmichael  Co. 
v.  Miller  (Civ.  App.)  178  S.  W.  976; 
Byrd  Irr.  Co.  v.  Smyth  (Civ.  App.) 
157   S.  W.  260. 


559 


EXCLUSION    OF    EVIDENCE 


§  288 


eluding-  the  eonsideration  of  such  evidence  from  the  jurv.  or 
directing-  them  to  disregard  it.  Under  the  above  rule  the  jury  may 
be  instructed  to  disregard  certain  evidence  if  they  find  certain 
things  to  be  true,*  and  counsel,  objecting  to  a  hypothetical  question 
asked  of  an  expert  witness,  on  the  ground  that  it  assumes  facts 
not  proved,  may  have  the  court  instruct  the  jury  to  disregard  the 
testimony  of  the  expert  unless  they  are  satisfied'  that  all  the  mat- 
ters assumed  as  facts  in  such  question,  and  on  which  it  is  based, 
are  true,^  and  where  the  direct  testimony  of  a  witness  is  entirely 
destroyed  by  his  cross-examination,  it  is  proper  to  tell  the  jur\' 
to  disregard  such  direct  testimony.® 

Where  the  state  seeks  to  introduce  evidence  as  a  link  in  the 
chain  of  circumstances  against  the  defendant  in  a  criminal  case, 
its  relevancy  can  only  be  determined  after  the  judge  has  heard 
it,  and,  if  irrelevant,  he  must  instruct  the  jury  to  disregard  it."" 
Where,  however,  incompetent  evidence  is  brought  out  by  a  party 
in  cross-examining  the  witnesses  for  the  other  side,  he  is  not  en- 
titled to  have  the  jury  instructed  to  disregard  such  evidence.* 


Pa.  Sui>er.  Ct.  fi-M ;  Coininonwealtli 
V.  Lyuoh.  Id.,  370 :  Common  wealth  v. 
Sweoney,  Id. ;  Commonwealth  v.  Sho- 
hert.  Id.  o71 ;  Commonw(^alth  v.  De- 
luissoy,  Id.;  Devling  v.  Williamson,  0 
Watts,  311. 

S.  C.  Massillon  Sign  &  Poster  Co. 
V.  Buffalo  I.ick  Si)rini;s  Co.,  61  S.  E. 
KIOS,  SI  S.  C.  114. 

Tenn.  Low  v.  State,  65  S.  W.  401, 
lOS  Tenn.   127. 

Tex.  Bartlesville  Zinc  Co.  v.  Cam- 
pania Minora  Ysinacio  Uodriiruez  Ra- 
mos. S.  A.  (Civ.  App.)  202  S.  W.  104S; 
Scott  V.  State,  16G  S.  W.  720.  73  Tex. 
Cr.  R.  622;  Ornor  v.  State.  143  S.  W. 
035.  65  Tex.  Cr.  R.  137.  Bradlev  v. 
State,  132  S.  W.  484.  60  Tex.  Cr.  R. 
398;  Ilollins  v.  State  (Cr.  App.)  60 
S.  W.  504 ;  Wilson  v  State,  51  S.  W. 
016.  41  Tex.  Cr.  R.  115. 

Wash.  Rontley  v.  Western  Union 
Teh^uraph  Co..  167  T'.  1127.  OS  Wash. 
431.  I..  R.  A.  lOlSr.,  065. 

W,  Va.  Patton  v.  Elk  lUver  Nav. 
Co.,  13  W.  Va.  250. 

Evidence  whose  relevancy  de- 
pends on  introduction  of  other 
evidence.  Evidence,  the  r(>lev;incy 
of  which  does  not  appear  at  the  time, 
may  nevertheless  he  (•omi>etent,  where 
it  is  proposed  to  connect  it  with  the 


fact  to  he  proved  by  other  evidence : 
but,  if  it  should  not  be  so  connected, 
the  court  should  histruct  the  jury 
to  disregard  it.  P.edell  v.  Janney,  9 
111.  (4  Cilman)  103. 

4  Dowdy  V.  Watson,  41  S.  E.  266, 
115  Ca.  42;  Pittman  v.  Gaty,  10  III. 
(5  Cilman)  186. 

5  llallawell  v.  Union  Oil  Co.  of  Cal- 
ifornia, 173  P.  177.  36  Cal.  App.  672. 

6  Xiendorff  v.  Afanhattan  Ry.  Co.. 
4  App.  Div.  46,  38  N.   Y.  S.  600. 

7  State  v.  McKoAven,  53  So.  353,  126 
La.   1075. 

s  Smith  V.  State,  73  So.  188,  72  Fla. 
263:  Gray  v.  State,  17S  S.  W.  337. 
77  Tex.  Cr.  R.  221. 

Evidence  brought  out  by  accus- 
ed on  cross-examination  of  ac- 
complice. Where,  on  the  cross-ex- 
amination of  an  accomi>lioe,  defend- 
ant made  the  witness  his  own,  and 
brought  out  acts  and  dechirations  not 
inquired  about  by  the  state,  made 
by  the  witness  after  the  killing  in 
defendant's  absence,  which  tended 
to  connect  him  with  the  crime,  de- 
fendant was  not  entith'd  to  an  in- 
struction eliminating  such  acts  and 
declarations  from  the  case.  Renron 
V.   State,  94  S.  W.  688,  78  Ark.  284. 


288 


INSTRUCTIONS  TO  JURIES 


560 


Any  instruction  which  makes  it  plain  to  the  jur}^  that  evidence 
improperly  admitted  is  not  to  be  included  in  their  deliberations  is 
sufficient  for  that  purpose.  Ordinarily  an  instruction  that  the  jury 
are  not  to  consider  such  evidence  will  constitute  a  sufficient  with- 
drawal of  it.*  Such  an  instruction  should  clearly  specify  the  evi- 
dence which  is  to  be  disregarded ;  ^^  but  where  a  ruling  striking 
out  certain  evidence  at  the  trial  is  plain,  an  instruction  directing 
the  jury  not  to  consider  the  evidence  so  stricken  in  its  presence 
is  not  objectionable  for  failure  to  identify  the  stricken  matter.^^ 

§  289.     Evidence  which  has  been  excluded,  withdrawn,  or  already 
stricken  out 

There  cannot  be  error  in  withdrawing  from  the  jury  by  an  in- 
struction evidence  wdiich  has  already  been  stricken  on  motion ;  ^^ 
but,  as  a  general  rule,  where  improper  evidence  has  been  ruled 
out,  it  is  unnecessary  to  instruct  the  jury  to  disregard  it,^^  par- 
ticularly where  the  court  has  instructed  the  jury  to  disregard  all 
evidence  which  has  been  ruled  out.^* 

The  court  may  refuse  to  instruct  the  jurv^  that  they  must  dis- 
regard evidence  which  has  been  withdrawn,^^  and  where  a  particu- 
lar issue  has  been  withdrawn  from  the  jury  by  an  instruction,  it 


9  Kahn  v.  Triest-Rosenberg  Cap 
Co.,  73  P.  164,  1.39  Cal.  .340:  Shep- 
bard  v.  Goben,  142  Ind.  318,  39  N.  E. 
506 ;  Wright  v.  Gillespie,  43  Mo.  App. 
244. 

Use  of  "may"  instead  of  "must." 
In  a  trial  for  killing  an  officer  who 
sought  to  arrest  accused  for  an  of- 
fense, on  the  district  attorney  with- 
drawing his  contention  tliat  such  of- 
fense was  a  felony,  an  instruction 
that  the  jury  "may"  disregard  all 
evidence  concerning  such  offense  was 
not  erroneous  for  using  the  word 
"may"  instead  of  "must" ;  the  objec- 
tion not  having  been  taken  at  the 
trial,  and  it  appearing  that  the  jury 
must  have  understood  that  they  were 
required  to  disregard  the  evidence'. 
Commonwealth  v.  Phelps,  95  X.  E. 
868,  209  Mass.  396,  Ann.  Cas.  1912B, 
566. 

10  Bess  V.  Commonwealth,  77  S.  W. 
S49,  116  Ky.  927,  25  Kv.  Law  Rep. 
1091;  Hall  v.  State,  60  S.  W.  7Sy, 
43  Tex.  Cr.  R.  479. 

11  Considine  v.  City  of  Dubuque, 
102  N.  W.  102,  126  Iowa,  283. 


12  Central  Indiana  Ry.  Co.  v. 
Clark,  112  X.  E.  892.  63  Ind.  App.  49. 

13  Cal.  People  v.  Pasqueria,  159 
P.  173,  30  Cal.  App.  625. 

111.  Yezner  v.  Roberts,  Johnson  & 
Rand  Shoe  Co.,  140  111.  App.  61. 

Ind.  City  of  La  Porte  v.  Henry.  83 
X.  E.  6.55,  41  Ind.  App.  197;  Pfaffen- 
back  V.  Lake  Shore  &  M.  S.  Ry.  Co., 
142  Ind.  246.  41  X.  E.  530;  Grand 
Rapids  &  I.  R.  Co.  v.  Horn,  41  Ind. 
479. 

Iowa.  State  v.  Foster,  114  X.  W. 
36.  136  Iowa,  527. 

Micli.  People  v.  Sharp,  127  X^  W. 
758.  163  Mich.  79. 

Mo.  Dobbs  V.  Gates'  Estate,  60  Mo. 
App.  658. 

W.  Va.  State  v.  Gebhart,  73  S.  E. 
964,  70  W.  Ya.  232. 

14  State  V,  Roupetz,  85  P.  778,  73 
Kan.  663:  State  v.  Tracy,  129  N.  W. 
1033,  21  X.  D.  205. 

15  Russell  V.  Bush,  71  So.  397,  196 
Ala.  309 ;  Brown  v.  Matthews,  79  Ga. 
1,  4  S.  E.  13. 


&61  EXCLUSION   OP   EVIDENCE  §  292 

is  not  necessary  to  state  further  that  the  evidence  on  that  subject 
is  also  withdrawn.^**  Where,  however,  after  testimony  given  by 
a  witness  has  been  ruled  out,  he  repeats  it,  the  jury  should  be  ad- 
monished not  to  consider  his  statements,^'  and  where  evidence  er- 
roneously admitted  is  subsequently  excluded,  it  is  held  in  some 
jurisdictions  that  the  court  should  direct  the  jury  not  to  consider 
such  evidence  for  any  purpose. ^^  In  other  jurisdictions  it  is  held 
that  where  improper  evidence  is  admitted,  and  subsequently  strick- 
en out  as  soon  as  its  inadmissibility  develops,  the  failure  of  the 
court  to  instruct  the  jury  on  the  matter  is  not  error,  in  the  ab- 
sence of  any  request  for  such  an  instruction.^^  While,  where  the 
court  during  the  trial  has  once  told  the  jury  to  disregard  evidence 
improperly  admitted,  it  may  be  error  for  it  to  refuse  a  request  to 
repeat  such  direction  in  its  general  charge,^"  it  is  not  required  of 
its  own  motion  to  so  instruct  a  second  time.~^ 

§  290.     Evidence  on  issues  not  submitted  to  jury 

It  is  error  to  instruct  the  jury  to  consider  evidence  on  an  issue 
not  submitted  to  them."" 

§  291.     Effect  of  erroneous  refusal  to  instruct  against  consider- 
ing certain  evidence 
Error  in  refusing  to  tell  the  jury  to  disregard  certain  evidence 
is  not  cause  for  reversal,  where  it  is  apparent  that  the  jury  did 
not  consider  it.^^ 

§  292.     Necessity  of  request  for  instruction  to  disregard  evidence 

The  failure  of  the  trial  court  to  instruct  the  jury  to  disregard  in- 
competent or  immaterial  evidence,  which  has  been  admitted  with- 
out objection,^*  or  evidence  which  has  been  excluded  or  stricken 
out  as  inadmissible,^^  or  evidence  which,  competent  at  the  time  of 

16  Kirsher  v.  Kirsher,  94  N.  W.  --  Hammer  v.  Chicago,  R.  I.  &  P. 
846,  120  Iowa,  3.37.  Ry.  Co.,  70  Iowa.  623,  2.1  N.  W.  246. 

17  United  States  Health  &  Accident  "^  Frizelle  v.  Kaw  Valley  Paint  & 
Ins.  Co.  V.  Jolly  (Ky.)  118  S.  W.  281.  C>il  Co.,  24  Mo.  App.  529. 

TQ  T-^     -.  „   -o  nn  o     ooo   ion  2  4  Co-opei'ative    Raw    Fur    Co.    v. 

''  iZ^l^^  I-  ^y^^"°^'  I?  ,^*^-  ^f'  189       American  Credit  Indemnity  Co.  (C.  C. 

rl^-  -fso  \.}  ^Ir^  '"•  ■''  ^^  ^''-       A.  Mich.)  240  F.  67,  153  C.  C.  A.  103 ; 

o9o,  189  Ala.  464.  ^^^^^  ^.    ^^^.^.^^    ^^    ,^    ^^^^   ^^  ^^^ 

19  Pierson  v.  Illinois  Cent.  R.  Co.,  352,  21  Ann.  Cas.  454:  Martin  v.  Cole- 
112  N.  W.  923,  149  Mich.  167;  Mar-  man  (Com.  PI.)  14  Misc.  Rep.  505.  35 
tin  V.  McCray,  171  Pa.  575,  33  A.  108.  n.  Y.  Supp.  1069;    McRae  v.  Malloy. 

20  Jones  V.  United  States  Mut.  Ace.  93  N.  C.  154 ;   Martin  v.  Seaboard  Air 
Ass'n  of  City  of  New  York,  92  Iowa,  Line  Ry.,  48  S.  E.  616,  70  S.  C,  8. 
652,  61  N.  W.  485.  25  Iowa.      Croft   v.   Chicago,   R.   I. 

21  Fink  V.  Ash,  99  Ga.  106,  24  S.  E.  &  P.  Ry.  Co.,  109  N.  W.  723,  134  Iowa, 
976.  411. 

Inst. TO  Juries— 36 


§  292 


INSTRUCTIONS   TO  JURIES 


562 


its  admission,  becomes  subsequently  incompetent  or  immaterial,'" 
will  as  a  general  rule  not  constitute  error,  in  the  absence  of  a  re- 
quest for  such  an  instruction. 


Kan.  Gulliford  v.  McQuillen,  89 
P.  927,  75  Kan.  454. 

Mict.  Bai-nett  v.  Farmers'  Mut. 
Fire  Ins.  Co.,  73  N.  W.  372,  115  Mich. 
247. 

N.  Y.  Gall  V.  Fuukensteiu,  21  N. 
E.  1119;  Gall  \.  Gall,  114  N.  Y.  109, 
21  N.  E.  106. 


Tex.  Russell  V,  Nail,  79  Tex,  664, 
15   S.  W.  635. 

2  6  McGee  v.  Kinsey,  1  Phila.  (Pa.) 
326;  Aitkin's  Heirs  v.  Young,  12  Pa. 
(2  Jones)  15,  51  Am.  Dec.  608 ;  Blum 
V.  Jones  (Tex.  Civ.  App.)  23  S.  W. 
844. 


563 


LIMITING   EFFECT    OF   EVIDENCE 


§293 


CHAPTER  XXII 

EXPLAINING   PUIiPOSE   FOR   WHICH  PARTICULAR   EVIDENCE   MAY 

BE  CONSIDERED 

§  293.  General  rule  as  to  propriety  and  necessity  of  instructions. 

294.  Specilic  applications  of  rule. 

295.  Evidence  only  proper  as  bearing  on  the  credibility  of  a  witness. 

296.  Evidence  of  other  offenses. 

29Y.  Evidence  competent  only  for  or  against  one  of  two  or  more  coparties. 

298.  Limitations  of  rule. 

299.  Effect  of  limiting  scope  of  evidence  at  time  of  its  admission. 

300.  Necessity  of  request  lor  limiting  instructions. 

Stating  purpose  of  evidence  as  invading  province  of  jury,  see  ante,  §  45. 

§  293.     General  rule  as  to  propriety  and  necessity  of  instructions 

Where  certain  evidence  is  of  such  a  character  as  may  nattirally 
be  misapprehended  by  the  jury  and  accorded  weight  on  questions, 
to  which  it  has  no  proper  application,  a  cautionary  instruction  as 
to  the  effect  of  such  evidence  is  entirely  proper,^  and  the  general 
rule  is,  both  in  civil-  and  in  criminal  cases,-'  that  in  such  a  case 


1  Hanley  v.  Fidelity  &  Casualty  Co., 
161  N.  W.  114,  ISO  Iowa,  805 ;  Same 
V.  Travelers'  Protective  Ass'n,  161  N. 
W.  125. 

2  Adkins  v.  Brett.  193  P.  251;  Cleve- 
land, C.  C.  &  St.  L.  Ry.  Co.  v.  Gos- 
sett,  87  N.  E.  723,  172  Ind.  525; 
In  re  Kah's  Estate,  113  N.  W.  563, 
136  Iowa,  116;  Tankersley  v.  Lincoln 
Traction  Co.,  163  N.  W.  850,  101  Neb. 
578. 

Instxnctions  proper  within  rule. 
In  a  case  where  incompetent  testimo- 
ny was  admitted  without  objection  on 
cross-examination  showing  that  plain- 
tiff had  consulted  two  other  attorneys 
who  had  declined  to  take  his  case,  and 
where  an  attempt  was  made  to  show 
tliat  plaintiff  had  learned  from  them 
why  he  had  no  cause  of  action,  to  the 
end  that  the  credihility  of  his  evi- 
dence might  be  affected,  an  instruc- 
tion that  it  was  immaterial  how  many 
lawyers  plaintiff'  visited  before  bring- 
ing the  action,  but  if  as  a  result  of 
any  visit  he  afterwards  told  a  differ- 
ent story,  and  which  was  not  true, 
that  could  be  taken  into  considera- 
tion, but  that  the  lawyers'  views  of 
the  matter  had  nothing  to  do  with  the 


case,  was  properly  given  to  eliminate 
the  effect  of  the  testimony  as  to  the 
lawyers'  oi)inions  as  to  the  merits  of 
the  case,  and  to  leave  for  the  jury's 
consideration  so  much  of  the  testi- 
mony as  might  tend  to  influence  or 
color  plaintiff's  testimony.  Pereira  v. 
Star  Sand  Co.,  94  P.  835,  51  Or.  477. 
Where  one  i^ei-son  testifies  that  he  put 
a  certain  amount  of  money  in  a  box. 
and  sent  it  to  another,  and  the  latter 
testifies  that  no  money  was  received 
in  the  box,  error  cannot  be  predicated 
of  a  charge  that  the  amount  of  money 
which  was  deposited  in  the  box  and 
sent  should  be  determined  from  the 
testimony  of  the  former  witness 
alone.  Murray  v.  Norwood,  77  Wis. 
405,  46  N.  W.  499. 

3  Cal.  People  v.  Botkiu,  98  P.  861. 
9  Cal.  App.  244. 

Ky.  Ellis  V.  Commonwealth,  143  S. 
W.  425,  140  Ky.  715. 

I<a.  State  v.  Honore,  46  So.  655. 
121  La.  573. 

Mont.  State  v.  Nielson,  100  P. 
220,  38  Mont.  451. 

OkL  Gray  v.  State,  111  P.  825.  4 
Okl.  Cr.  292,  32  L.  R.  A.  (N.  S.)  142. 


293 


INSTRUCTIONS  TO  JURIES 


564 


it  is  proper  for  the  court  to  tell  the  jury  for  what  purpose  evi- 
dence which  has  been  admitted  may  be  considered,  and  that,  where 
evidence  which  is  competent  for  one  purpose,  but  not  for  another, 
is  admitted,  the  court  may,*  and  should,^  upon  request,®  limit  its 


4  Ga.  Pratt  Engineering  &  Ma- 
chine Co.  V.  Trotti,  83  S.  E.  107,  142 
Ga.  401. 

111.  Erickson  v,  Fred  Miller  Brew- 
ing Co.,  1S9  111.  App.  394;  Lowe  v. 
Alton  Baking  &  Catering  Co.,  158  111. 
App.  458. 

Ky.  Brents  v.  Louisville  &  N.  R. 
Co.,  104  S.  W.  961,  31  Ky.  Law  Rep. 
1216. 

Mo.  Andrew  v.  Linebaugh,  169  S. 
W.  135,  260  Mo.  623 ;  Buckry-Ellis  v. 
Missouri  Pac.  Ky.  Co.,  138  S.  W.  912, 
158  Mo.  499;  Home  Lumber  Co.  v. 
Hartman,  45  Mo.  App.  647. 

Neb.  Eaapke  &  Katz  Co.  v. 
Schmoeller  &  Mueller  Piano  Co.,  118 
N.  W.  652,  82  Neb.  716. 

Tex.  Buchanan  v.  Houston  &  T.  C. 
R.  Co.  (Civ.  App.)  ISO  S.  W.  625;  Carl 
V.  Wolcott  (Civ.  App.)  156  S.  W.  334 ; 
Lehmann  v.  Medack  (Civ.  App.)  152  S. 
W.  4.38;  Ai-mstrong  v.  Burt,  138  S. 
W.  172;  Southern  Kansas  Ry.  Co.  of 
Texas  v.  Morris  (Civ.  App.)  99  S.  W. 
433,  judgment  affirmed  102  S.  W.  .396, 
100  Tex.  611,  123  Am.  St.  Rep.  834, 

5  U.  S.  (C.  C.  N.  Y.)  Hollenback  v. 
Hand,  189  F.  929. 

Conn.  Barlow  Bros.  Co.  v.  Par- 
.sons,  49  A.  205,  73  Conn.  696;  Smith 
V.  Phipps,  65  Conn.  302,  32  A.  367. 

111.     Webster  v.  Enfield,  10  111.  (5 
^  Oilman)  298. 

^  Iowa.  Kircher  v.  Incorporated 
Town  of  Larchwood,  95  N.  W.  184, 
120  Iowa,  578. 

Ky.  Ditto  V.  Slaughter,  92  S.  W.  2, 
28  Ky.  Law  Rep.  1164. 

Md.  Haney  v.  Marshall,  9  Md. 
194. 

N.  C.  Croom  v.  Whitehead,  93  S. 
E.  854,  174  N.  C.  305 ;  Burton  v.  Wil- 
mington &  W.  R.  Co.,  84  N.  C.  192 ; 
laitlier  v.  Skeen,  53  N.  C.  356. 

Okl.  St.  Louis  &  S.  F.  R.  Co.  v. 
Murray,  150  P.  884,  50  Okl.  64. 

Or.  Dorn  v.  Clarke-Woodward 
Drug  Co.,  133  P.  351,  65  Or.  516. 

Tex.  Commonwealth  Bonding  & 
Casualty  Co.  v.  Hendricks,  168  S.  W. 
1007 ;    Puryear  v.  State,  28  Tex.  App. 


73,  11  S.  W.  929;  Kelley  v.  State,  18 
Tex.  App.  262;  Branch  v.  State,  15 
Tex.  App.  96  ;  Weir  v.  McGee,  25  Tex. 
Supp.  20. 

Utali.  McKinney  v.  Carson,  99  P. 
660.  35  Utah,  180. 

Illustrations  of  cases  in  ^rliicli 
sucli  limiting  instructions  re- 
quired. Where  plaintiff  sues  for  in- 
juries sustained  from  an  attack  by 
defendant's  dog,  evidence  of  the  gen- 
eral reputation  of  the  dog  for  being 
vicious  is  competent  only  on  the  issue 
of  defendant's  knowledge  of  the  dog's 
disposition,  and  it  is  reversible  error 
to  refuse  an  instruction  so  limiting 
the  testimony.  Triolo  v.  Foster  (Tex. 
Civ.  App.)  57  S.  W.  698.  Where,  in  an 
action  against  an  electric  light  com- 
pany to  recover  the  amount  of  a  judg- 
ment against  plaintiff  for  causing  the 
death  of  a  boy  by  defective  insulation, 
plaintiff  introduced  in  evidence  the 
record  in  the  original  suit  to  show 

G  Ala.  Birmingham  Trust  &  Sav- 
ings Co.  v.  Currev.  57  So.  962,  175  Ala. 
373,  Ann.  Cas.  ioilD,  81. 

Ga.  Central  of  Georgia  Ry.  Co.  v. 
Brown,  74  S.  E.  839,  138  Ga.  107. 

Ind.  Pittsburgh,  C,  C.  &  St.  L. 
Ry.  Co.  V.  Parish,  62  N.  E.  514.  28 
Ind.  App.  189,  91  Am.  St,  Rep.  120. 

Mo.  Ozark  Orchard  Co.  v.  Kansas 
City  Southern  Ry.  Co.,  158  S.  W.  884, 
173  Mo.  App.  450;  McMoitow  v.  Dow- 
ell,  90  S.  W.  728,  116  Mo.  App.  289. 

N.  Y.  Franklin  v.  Hoadley,  111  N. 
Y.  S.  300,  126  App.  Div.  687;  Hard- 
ing v.  Barney,  20  N.  Y.  Super.  Ct.  (7 
Bosw.)  353. 

Tex.  Missouri,  K.  &  T.  Ry.  Co.  of 
Texas  v.  Cherry,  97  S.  W.  712,  44  Tex. 
Civ.  App.  232 ;  Bell  v.  Missouri,  K.  & 
T.  Ry.  Co.  of  Texas,  82  S.  W.  1073,  36 
Tex.  Civ.  App.  569;  Missouri,  K.  & 
T.  Ry.  Co.  V.  Collins,  39  S.  W.  150,  15 
Tex.  Civ.  App.  21. 

Va.  Cohen  v.  Bellenot,  32  S.  B. 
455. 

W.  Va.  Welch  v.  King,  95  S.  E. 
844,  82  W.  Va.  258. 


565 


LIMITING   EFFECT    OF   EVIDENCE 


§   293 


application  to  the  purpose  for  which  it  is  competent;  care  being 
taken  to  observe  the  legal  restrictions  against  charging  on  the 
weight  of  the  evidence.' 


the  amount  of  damages  it  had  sus- 
tained by  reason  of  defendant's 
breach  of  contract,  and  which  also 
showed  that  a  verdict  had  been  re- 
turned and  judgment  rendered 
against  it  and  in  favor  of  defendant 
who  was  a  codefendant  in  such  suit, 
it  was  held  that  it  was  prejudicial  er- 
ror to  charge  the  jury  that  they  might 
consider  such  record  generally  and 
give  the  facts  therein  shown  such 
weight  as  they  thought  them  entitled 
to.  City  of  Oweusboro,  Ky.,  v.  West- 
inghouse.  Church,  Kerr  &  Co,  (C.  C. 
A.  Ky.)  165  F.  385,  91  C.  C.  A.  335. 
Where  defendant  is  accused  of  ol> 
taining  money  on  a  draft  by  false  rep- 
resentations, and  the  certificate  of  a 
notary,  stating  that  the  draft  had 
been  protested,  was  admitted  in  evi- 
dence under  a  statute  making  it  ad- 
missible in  "evidence  of  the  facts 
therein  stated,"  it  is  error  to  refuse 
to  charge  that  it  cannot  be  considered 
for  any  other  purpose  than  to  show 
the  fact  of  protest.  May  v.  State,  15 
Tex.  App.  430.  Where  evidence  is  ad- 
mitted of  an  independent  assault  by 
a  third  part}',  unknown  to  defendant,, 
on  deceased,  by  reason  of  which  de- 
ceased was  being  talcen  home,  and 
was  killed  on  his  way  by  defendant, 
the  purpose  of  such  evidence  should 
be  set  out  in  an  instruction  limiting  it 
in  its  operation  to  an  explanation  of 
the  presence  of  the  deceased  at  the 
place  of  the  homicide.  Bruner  v. 
United  States,  96  P.  597,  21  Okl.  410, 
1  Okl.  Cr.  205.  Where  plaintiff,  suing 
on  a  policy,  alleged  the  appointment 
hy  each  party  of  a  competent  and  dis- 
interested appraiser,  a  letter  received 
in  evidence  demanding  a  new  apprais- 
al and  intimating  that  defendant's  ap- 
praiser was  incompetent  and  interest- 
ed should  liave  been  limited  to  show- 
ing the  demand,  though  it  was  set 
out  in  plaintiff's  declaration,  and  nc 
motion  to  strike  it  out  was  made. 
Messier  v.  Williamsburg  City  Fire 
Ins.  Co.,  108  A.  832,  42  K.  I.  460.  In 
a  prosecution  for  murder,  in  which 
witnesses  to  defendant's  good  reputa- 


tion were  cross-examined  by  questions 
whether  they  had  heard  of  his  having 
been  concerned  in  previous  specific 
crimes,  it  was  error  for  the  court 
to  omit  to  charge  that  such  questions 
and  their  answers  must  be  limited  in 
their  effect  to  the  determination  of 
the  witness'  knowledge  of  defendant's 
reputation,  and  could  not  be  consider- 
ed as  showing  that  defendant  had 
been  guilty  of  such  crimes,  evidence 
of  specific  misconduct  being  inadmis- 
sible on  the  question  of  reputation. 
Commonw'ealth  v.  Colandro,  80  A. 
571,  231  Pa.  343.  Where,  in  an  action 
against  an  alleged  firm,  the  existence 
of  which  is  in  issue,  evidence  of  the 
declarations  of  two  of  the  alleged 
partners  showing  the  existence  of  tlie 
partnership  was  admitted  on  the  issue 
of  fraud  on  the  part  of  the  two  on 
the  theory  that  their  discharge  in 
bankruptcy  did  not  exempt  them 
from  liability  for  the  debt  created,  it 
was  error  to  refuse  an  instruction 
limiting  the  consideration  of  the  evi- 
tloce  to  such  issue.  Robinson  v. 
First  Nat.  Bank,  82  S.  W».  505,  98  Tex. 
184,  reversing  judgment  (Civ.  App.) 
79  S.  W.  103.  Where  in  personal  in- 
jury action  photographs  were  admis- 
sible on  issue  of  contributory  negli- 
gence, but  not  to  show  defect  in 
street,  court  must  limit  the  evidence 
to  purpose  for  which  admissible. 
Bullock  V.  Yakima  Vallev  Transp. 
Co.,  184  P.  641,  108  Wash.  413. 
Where,  in  an  action  for  injuries  sus- 
tained by  plaintiff,  while  driving  with 
others,  owing  to  the  alleged  defect  in 
a  highway,  the  driver  was  asked,  on 
cross-examination,  if  one  of  the  per- 
sons was  a  married  woman,  and,  on 
objection,  counsel  stated  he  proposed 
to  show  the  character  of  the  party, 
and  desired  to  test  the  knowledge  of 
the  witness  on  that  subject,  as  bear- 
ing on  his  credibility,  and  testimony 
was  admitted  that  the  plaintiff,  at  the 
time  of  the  injury,  was  one  of  a  party 

7  James  v.  State,  219  S.  W.  202,  86 
Tex.  Cr.  R.  598. 


§  294 


INSTRUCTIONS   TO   JURIES 


566 


§  294.     Specific  applications  of  rule 

In  an  action  by  a  husband  or  wife  for  the  alienation  of  the  af- 
fections of  his  or  her  spouse,  an  instruction  may  be  necessary  limit- 
ing the  effect  of  declarations  of  the  latter.^  So,  in  an  action  for 
injuries  sustained  by  a  servant  through  coming  in  contact  with 
an  unguarded  machine,  the  court  should  instruct,  with  respect  to 
evidence  that  the  machine  in  question  was  guarded  after  the  ac- 
cident, that  it  is  only  competent  to  show  the  practicability  of  a 
guard,'*  and  where  evidence  has  been  heard  by  the  jury  bearing  on 
an  alleged  offer  of  compromise  by  a  party,  the  latter  is  entitled  to 
an  instruction  that  such  offer  should  not  be  regarded  as  a  recogni- 
tion of  liability.^*  The  above  rule  applies  to  evidence  which  is 
admissible  only  in  mitigation  of  damages,^^  or  which  is  pertinent 
only  to  the  question  of  exemplary  damages,^'^  and  cautionary  in- 


of  men  and  women  who  had  been 
drinking,  and  were  on  their  way  to  a 
place  where  they  expected  to  get  more 
liquor  and  have  a  high  time,  it  was 
held  that,  in  order  to  guard  against 
prejudicial  misuse  of  the  evidence, 
plaintiff  had  a  right  to  have  the  .iury 
instructed  that  it  could  only  be  con- 
sidered on  the  question  of  due  care. 
Guertin  v.  Town  of  Hudson,  53  A. 
736,  71  X.  II.  .50.5. 

Instructio^ns  held  sufficient 
within  rule.  An  instruction  that,  if 
the  property  in  question  was  not  the 
property  mentioned  in  the  Informa- 
tion and  taken  from  prosecutor  at  the 
time  and  place  alleged,  such  taking 
might  be  considered  for  the  purpose 
of  identification,  but  would  not  war- 
rant a  conviction,  properly  limited  the 
effect  of  the  evidence.  People  v.  Cas- 
tile, 86  P.  746,  3  Cal.  App.  487. 
Where  the  court  charged  that,  if  B. 
inflicted  the  wounds  which  caused  de- 
cedent's death,  the  jury  should  return 
a  verdict  of  not  guilty  as  to  both  de- 
fendants, and  that  in  order  to  convict 
defendants,  or  either  of  them,  the 
jury  must  be  fully  satisfied  of  the 
existence  of  each  fact  necessary  to 
establish  their  guilt,  one  of  which  be- 
ing that  one  of  the  defendants,  and 
not  B.,  intlicted  the  fatal  wound,  the 
court  sulliciently  charged  the  effect  of 
evidence  that  deceased  had  not  been 
cut  by  either  of  the  defendants,  but 
by  B.  State  v.  Bowman,  67  S.  E. 
1058.  152  N.  C.  817.    On  trial  for  mur- 


der, where  the  evidence  is  circum- 
stantial, and  the  state  introduces  an 
indictment  against  accused,  charging 
him  with  another  crime,  for  the  pur- 
pose of  proving  the  motive,  an  in- 
struction that  the  fact  that  accused 
is  charged  with  another  crime  is  not 
proof  of  guilt  of  homicide  sufficiently 
protects  the  right  of  accused.  State 
V.  McKowen,  53  So.  353,  126  La. 
1075.  By  the  judge  carefully  in- 
structing the  jury  that  the  statement 
of  defendant  K.  on  being  arrested, 
that  whatever  part  he  had  in  the 
killing  was  under  compulsion  of  de- 
fendant B.,  was  to  be  considered 
against  K.  alone,  and  not  in  the 
slightest  against  B.  the  rights  of  B. 
were  protected.  Commonwealth  v. 
Borasky,  101  N.  E.  377,  214  Mass.  313. 

8  Bourne  v.  Bourne  (Cal.  App.)  185 
P.  489 ;  Clark  v.  Clark,  118  N.  E.  123, 
187  Ind.  25;  Miller  v.  Miller.  134  N. 
W.  1058,  154  Iowa,  344;  Hardwick  v. 
Hardwick,  106  N.  W.  639,  130  Iowa, 
230. 

9  Minea  v.  St.  Louis  Cooperage  Co., 
162  S.  W.  741,  179  Mo.  App.  705. 

If  St.  Louis  Southwestern  Ry.  Co. 
V.  Mitchell,  171  S.  W.  895,  115  Ark, 
.339,  Ann.  Cas.  1916E,  317;  Chicago 
City  Ry.  Co.  v.  Schuler,  111  111.  App. 
470. 

11  Snyder  v.  Tribune  Co.,  143  N.  W. 
519,  161  Iowa,  671. 

12  Williams  v.  Hicks  Printing  Co., 
150  N.  W.  183,  159  Wis.  90. 


567 


LIMITING   EFFECT   OF   EVIDENCE 


§  295 


structions  may  be  required  as  to  the  purpose  and  effect  of  mortal- 
ity tables.^"* 

§  295.     Evidence  only  proper  as  bearing  on  the  credibility  of  a 
witness 
Where  evidence  is  only  admissible  for  the  purpose  of  impeach- 
ing a  witness,  or  to  corroborate  him,  the  court  may,  and  should, 
both  in  civil^*  and  in  criminal  cases,^^  so  instruct,  and  that  it  is 


13  Scott  V.  Chicaw.  R.  I.  &  P.  Ry. 
Co.,  141  N.  W.  10G5.  100  Iowa,  806; 
Stearns  Coal  &  Luml)er  Co.  v.  Wil- 
liams. 1S6  S.  W.  981,  171  Ky.  46. 

14  Colo.  Anson  v.  Evans,  19  Colo. 
274,  35  P.  47. 

Ind.  Johnson  v.  Samuels,  114  N. 
E.  977,  186  Ind.  56. 

Ky.  Watson  v.  Kentucky  &  Indi- 
ana Bridge  &  R.  Co.,  126  S.  W.  146, 
137  Ky.  619,  opinion  modified  129  S. 
W.  341,  137  Ky.  619;  Georgetown  Wa- 
ter, Gas,  Electric  &  Power  Co.  v. 
Neale,  125  S.  W.  293,  137  Ky.  197; 
Illinois  Cent.  R.  Co.  v.  Johnson,  115 
S.  W.  798. 

N.  J.  Moloney  v.  Public  Service 
Ry.  Co.,  106  A.  376,  92  N.  J.  Law,  539. 

N,  C.  Sprague  v.  Bond,  113  N.  C. 
551,  IS  S.  E.  701;  Henson  v.  King, 
47  N,  C,  385. 

Tex.  Texas  &  P.  Ry.  Co.  v.  Mis- 
souri Iron  &  Metal  Co.  (Civ.  App.)  178 
S.  W.  597 ;  Texas  Loan  &  Trust  Co.  v. 
Angel,  86  S.  W.  1056,  39  Tex.  Civ. 
App.  166 ;  Halsell  v.  Decatur  Cotton 
Seed  Oil  Co.  (Civ.  App.)  36  S.  W.  848. 

15  Ga.  Griggs  v.  State,  86  S.  E. 
726,  17  Ga.  App.  301;  Hayes  v.  State, 
54  S.  E.  809,  126  Ga.  95, 

111.  Purdy  V.  People,  140  111.  46,  29 
N.  E.  700,  following  Ritter  v.  People, 
130  111.  255,  22  N.  E.  605. 

Kan.  State  v.  Wellington,  43  Kan. 
121,  23  Pac.  156. 

Mich.  People  v.  Row,  98  N.  W.  13, 
135  Mich.  505. 

Mo.  State  v.  Weeden,  133  Mo.  70, 
34  S.  W.  473. 

Tex.  Rowan  v.  State,  124  S.  W. 
668,  57  Tex.  Cr.  R.  625,  136  Am.  St. 
Rep.  1005;  Dobbs  v.  State,  113  S.  W. 
921,  54  Tex.  Cr.  R.  579;  Tabor  v. 
State,  107  S.  W.  1116,  52  Tex.  Cr.  R. 
387;  Joy  v.  State,  51  S.  W.  933,  41 
Tex.  Cr.  R.  46;  Coker  v.  State,  35 
Tex.  Cr.  R.  57,  31  S.  W.  655 ;   Shackel- 


ford V.  State  (Cr.  App.)  27  S.  W.  8; 
Engers  v.  State  (Cr.  App.)  26  S.  W. 
987  ;  Drake  v.  State,  25  Tex.  App.  293, 
7  S.  W.  868. 

Vt.  State  V.  Bolton,  102  A.  489,  92 
Vt.  157. 

Illustrations  of  sufficient  in- 
structions. Where  defendant  testi- 
fies in  his  own  behalf,  and  there  is 
evidence  tending  to  impeach  his  char- 
acter for  truth,  an  instruction  that 
such  evidence  shall  be  regarded  by 
the  jury  only  in  determining  the  cred- 
it, if  any,  to  be  given  defendant's  tes- 
timony as  a  witness  in  his  own  be- 
half, sutficiently  restricts  the  applica- 
tion of  sucii  evidence  to  defendant's 
character  as  a  witness.  State  v. 
Rains])arger,  79  Iowa,  745,  45  N.  W. 
302.  Where,  in  a  prosecution  for  pat- 
ricide, accused's  witness  testified  that 
the  feelings  between  accused  and  de- 
cedent had  always  heen  kind,  and  on 
cross-examination  she  testified  that 
she  had  never  heard  accused  make 
any  threat  against  his  father,  and  she 
was  then  asked  whether  she  did  not 
have  a  conversation  with  a  third  per- 
son, in  which,  in  response  to  inquiries 
as  to  how  the  trouble  arose,  she  re- 
plied that  accused  made  a  certain 
threat,  and  she  answered,  "No,"  it 
was  held  that  an  instruction  that  the 
impeaching  testimony  was  not  admit- 
ted as  going  to  accused's  guilt,  but 
.solely  as  affecting  the  credibility  of 
the  witness,  sufficiently  guarded  the 
admission.  Connell  v.  State,  75  S.  W. 
512,  45  Tex.  Cr.  R.  142.  Where,  in 
cross-examining  defendant  as  to  cred- 
ibility, it  was  disclosed  that  he  had 
been  indicted  for  murder,  in  jail 
twice,  and  paid  fines  for  gambling, 
but  had  not  been  locked  up,  it  was 
held  that  a  charge  that,  if  there  was 
testimonj'  tending  to  show  that  he 
had  been  legally  charged  with  some 


295 


INSTRUCTIONS   TO  JURIES 


568 


not  substantive  evidence  upon  the  matters  in  issue.*®  This  rule 
applies  where  evidence  of  the  contradictory  statements  of  a  wit- 
ness has  been  admitted/'  or  where  evidence  of  the  prior  convic- 
tion of  a  defendant  in  a  criminal  case,  or  that  he  has  been  charged 
with  other  offenses  than  that  for  which  he  is  being  prosecuted, 
has  been  adduced  for  the  purpose  of  discrediting  his  testimony,** 
or  where  evidence  of  an  involuntary  confession  of  a  defendant  is 
admitted  to  impeach  him.*^ 

It  is  especially  important  in  criminal  cases,  where  the  defend- 
ant has  testified  in  his  own  behalf  and  impeaching  testimony  has 
been  adduced  against  him,  that  the  instructions  of  the  court  should 
be  so  framed  as  not  to  be  likely  to  lead  the  jury  to  think  that  they 


other  crime  or  crimes  than  the  one 
on  trial,  then  the  jury  could  consider 
such  evidence  only  to  aid  in  determin- 
ing weight  and  credibility  of  his  testi- 
mony, and  for  no  other  purpose  what- 
ever, was  sufficient.  Leftrick  v.  State, 
116  S.  W.  817,  55  Tex.  Cr.  R.  204. 

16  Indian  Head  Coal  Co.  v.  Miller, 
110  S.  W.  S13,  33  Ky.  Law  Rep.  650; 
Owensboro  City  Ry.  Co.  v.  Allen,  108 
S.  W.  357,  32  Ky.  Law  Rep.  1353; 
Illinois  Cent.  R.  Co.  v.  Houchins.  89  S. 
W.  530,  121  Ky.  526,  28  Kv.  Law  Rep. 
499,  1  L.  R.  A.  (N.  S.)  375,  123  Am. 
St.  Rep.  205:  Straight  Creek  Coal 
Co.  v.  Haney's  Adm'r,  87  S.  W.  1114, 
27  Ky.  Law  Rep.  1117;  MuUins  v. 
Commonwealth,  67  S.  W.  824,  23  Ky. 
Law  Rep.  2433. 

17  111.  Nelson  v.  Northwestern  El- 
evated R.  Co.,  170  111.  App.  119. 

Ky.  South  Covington  &  C.  St.  Ry. 
Co.  V.  Finan's  Adm'x.  155  S.  W.  742, 
153  Ky,  340;  Louisville  Gas  Co.  v. 
Kentucky  Heating  Co.,  134  S.  W.  205, 
142  Ky.  253 ;  Georgia  Home  Ins.  Co. 
V.  Kelley,  113  S.  W.  882 ;  Fueston  v. 
Commonwealth,  91  Ky.  230,  15  S.  W. 
177. 

Tex.  Kearse  v.  State,  151  S.  W. 
827,  68  Tex.  Cr.  R.  a33 ;  Pratt  v. 
State.  129  S.  W.  364,  59  Tex.  Cr.  R. 
635;  Dickey  v.  State  (Cr.  App.)  27  S. 
W.  140;  Thompson  v.  State,  29  Tex. 
App.  208,  15  S.  W.  206;  Foster  v. 
State,  28  Tex.  App.  45,  11  S.  W.  832; 
Rogers  v.  State,  26  Tex.  App.  404,  9 
S.  W.  762. 

IS  Iowa.  State  v.  Johnson,  133  N. 
W.  115,  1.52  Iowa,  675. 

Tex.  Hutton  v.  State  (Cr.  App.)  33 
S.  W.  009;    Warren  v.  State,  33  Tex. 


Cr.  R.  .502,  26  S.  W.  1082;  Mahoney 
V.  State,  33  Tex.  Cr.  R,  388,  26  S. 
W.  622. 

Wash.  State  V.  Brownlow,  154  P. 
1099.  89  Wash.  582. 

Wis.  Fosdahl  v.  State,  89  Wis.  482, 
62  N.  W.  185. 

Instructions  ■roith  respect  to  ef- 
fect of  evidence  of  other  accusa- 
tions held  sufificient.  In  a  prosecu- 
tion for  murder,  a  charge  that  "the 
testimony  relating  to  former  indict- 
ments against  the  defendant  was  ad- 
mitted for  the  sole  purpose  of  affect- 
ing the  defendant's  credibility  as  a 
witness"  did  not  constitute  reversible 
error,  on  the  ground  that  it  failed  to 
inform  the  jury  that  they  should  con- 
sider such  testimony  for  no  other  pur- 
pose than  as  affecting  defendant's 
credibility.  Tardy  v.  State,  78  S.  W. 
1076,  46  Tex.  Cr.  R.  214.  A  charge 
that  testimony  has  been  introduced  to 
the  effect,  if  true,  that  defendant  has 
been  charged  with  other  offenses  than 
that  for  which  he  is  indicted,  and 
that  the  jury  cannot  consider  this  tes- 
timony as  evidence  of  any  allegation  of 
the  indictment,  but  if  they  believe  this 
evidence  to  be  true  they  may  consider 
it  only  in  determining  the  weight  of 
the  testimony  of  defendant  as  a  wit- 
ness, or  his  credibilitj-,  "if  you  think 
it  entitled  to  any  consideration  what- 
ever," is,  if  anything,  too  favorable  to 
defendant,  the  quoted  words  not  re- 
ferring to  the  testimony  of  defendant, 
but  to  the  alleged  impeaching  testi- 
mony. Ellington  v.  State,  87  S.  W. 
153,  48  Tex.  Cr.  R.  160. 

19  Phillips  V.  State,  35  Tex.  Cr.  R. 
480,  34  S.  W.  272. 


569 


LIMITING   EFFECT   OF   EVIDENCE 


§  296 


can  consider  such  testimony,  not  only  on  the  question  of  the  credi- 
bility of  the  defendant  as  a  witness,  but  on  the  substantive  ques- 
tion of  his  guilt.-^  An  instruction  which,  with  respect  to  a  par- 
ticular transaction,  properly  limits  the  effect  of  impeaching  testi- 
mony of  certain  witnesses,  naming-  them,  but  which  fails  to  so 
limit  impeaching  testimony  of  other  witnesses  in  relation  to  the 
same  transaction,  is  erroneous.^^ 

§  296.     Evidence  of  other  offenses 

It  being  a  fundamental  principle  of  the  criminal  law  that  one 
cannot  be  tried  for  an  offense  other  than  that  named  in  the  indict- 
ment against  him,  the  general  rule  is  that,  where  evidence  is  ad- 
mitted tending  to  show  that  the  defendant  has  been  guilty  of  other 
offenses  than  that  for  which  he  is  being  tried,  the  court  will  err 
if  it  fails  to  tell  the  jury  for  what  purpose  such  evidence  may  be 
considered,^^  and  that  such  evidence  does  not  tend  to  prove  the 
commission    by    the    defendant    of    the    crime    charged.'^      Thus, 


20McGuire  v.  State,  57  So.  57,  2 
Ala.  App.  218. 

Instructions  Iield  improper 
within  rule.  \Yhere,  on  a  prosecu- 
tion for  burglary,  in  addition  to  evi- 
dence of  other  offenses,  proof  of  de- 
fendant's conviction  of  a  felony,  five 
or  more  years  before,  was  admitted 
on  the  question  of  his  credibility,  the 
giving  of  an  instruction,  "Other  of- 
fenses committed  by  defendant  are  in 
evidence  before  you,  and  were  admit- 
ted solely  for  the  purpose  of,  or  not, 
showing  system  on  the  part  of  defend- 
ant, and  of,  or  not,  affecting  his 
credibility  as  a  witness,  and  you  will 
not  consider  the  same  for  any  other 
purpose,"  was  erroneous  as  likely  to 
be  understood  as  justifying  the  jury 
in  considering  the  former  conviction 
as  some  proof  of  defendant's  guilt  of 
the  burglary.  Franklin  v.  State,  110 
S.  W.  64.  5.3  Tex.  Cr.  R.  388. 

21  Bennett  v.  State  (Tex.  Cr.  App.) 
75  S.  W.  314. 

--  Mass.  Commonwealth  v.  Shop- 
ard,  1  Allen,  575. 

Mich.  People  v.  Jacks,  7G  Mich. 
218,  42  N.  W.  1134. 

Or.  State  V.  Lewis,  19  Or.  478, 
24  P.  914. 

Tex.  Thornley  v.  State  (Cr.  App.) 
35  S.  W.  981,  reversing  (Cr.  App.)  34 
S.  AV.  264 ;  Martin  v.  State,  .36  Tex. 
Cr.  R.  125,  35  S.  W.  97G ;    West  v. 


State  (Cr.  App.)  .33  S.  W.  227;  Wil- 
liamson V.  State,  30  Tex.  App.  330,  17 
S.  W.  722;  Alexander  v.  State,  21 
Tex.  App.  406,  17  S.  W.  139,  57  Am. 
Rep.  617;  Hanley  v.  State,  28  Tex. 
App.  375,  13  S.  W.  142;  Barnes  v. 
State,  28  Tex.  App.  29,  11  S.  W.  679 ; 
Gentrv  v.  State,  25  Tex.  App.  614,  8  S. 
W.  925;  Reno  v.  State,  25  Tex,  App. 
102,  7  S.  W.  532;  Mayfield  v.  State, 
23  Tex.  App.  645,  5  S.  W.  161 ;  Davis 
V.  State,  23  Tex.  App.  210,  4  S.  W. 
590;  Harwell  v.  State,  22  Tex.  App. 
251,  2  S.  W.  606 ;  McCall  v.  State,  14 
Tex.  App.  353. 

-■•^  Kollock  V.  State,  88  Wis.  663,  60 
N.  W.  817. 

Instructions  held  sufficient 
M^ithin  rule.  W^hile,  in  a  prosecu- 
tion for  a  crime  committed  under  an 
assumed  name,  the  defense  being  that 
tne  crime  was  committed  by  another, 
the  state's  evidence  may  take  a  wide 
range  and  show  that  he  committed 
the  offense  charged  as  well  as  other 
offenses  under  the  same  name,  to  es- 
tablish his  identity,  the  jury's  consid- 
eration of  such  evidence  should  be 
limited  to  that  purpose,  and  in  a 
prosecution  for  embezzling  money  un- 
der an  as.sumed  name,  an  instruction 
that  evidence  that  defendant  had  also 
received  money  from  others  imder 
the  same  name,  and  bad  committed 
another  offense  under  the  same  name, 


§297 


IXSTRUCTIOXS   TO  JURIES 


570 


where,  on  an  indictment  for  a  conspiracy  to  defraud  a  municipality 
by  the  presentation  and  collection  of  fraudulent  bills,  the  range 
of  inquiry  is  narrov/ed  by  a  bill  of  particulars,  but  evidence  of 
other  fraudulent  bills  is  admitted,  it  is  error  for  the  court  to  re- 
fuse to  instruct  that  the  defendant  is  on  trial  only  for  the  trans- 
action referred  to  in  the  bill  of  particulars. ~* 

§  297.  Evidence  competent  only  for  or  against  one  of  two  or 
more  coparties 

Where  evidence,  which  is  ottered  jointly  on  behalf  of  several 
persons,  but  which  is  competent  only  as  to  some,  is  admitted,  the 
court  must  limit  its  eftect  according  to  its  competency,-^  and 
where,  in  a  civil  action--^  or  in  a  criminal  prosecution,^'  evidence 
competent  against  one  party,  but  not  against  a  coparty  or  code- 
fendant,  is  admitted,  the  latter  is  entitled  to  have  the  jury  instruct- 
ed that  the  effect  of  such  evidence  shall  be  limited  to  the  party 
against  whom  it  is  competent. 

In  a  criminal  prosecution  it  is  not  sufficient  to  charge  in  gen- 


could  not  be  considered  as  evidence  of 
guilt  of  the  embezzlement  charged, 
was  equivalent  to  instructing  that  it 
could  only  be  considered  to  establish 
the  identity  of  accused.  Morse  v. 
Commonvsealth,  111  S.  W.  714,  129 
Ky.  294,  33  Ky.  Law  Rep.  8-31,  894. 
Where  evidence  tending  to  show  de- 
fendant guilty  of  other  offenses  is  ad- 
mitted, an  instruction  to  the  jury  that 
rhey  are  not  to  convict  him  because  the 
evidence  shows  him  a  man  of  bad  char- 
acter in  having  committed  other  of- 
fenses, and  that  they  are  only  to  con- 
sider the  evidence  in  connection  with 
the  offense  on  trial,  is  sufficient.  Peo- 
ple V.  Rogers,  71  Cal.  .565.  12  P.  679. 

2  4  McDonald  v.  People.  126  111.  150, 
18  N.  E.  817,  9  Am.  St.  Rep.  547. 

^3  Hitt  V.  Carr,  109  N.  E.  456,  62 
Ind.  App.  80. 

2  6  Ind.  Black  V.  Marsh,  67  N.  E. 
201.  31  Ind.  App.  53. 

Ky.  Illinois  Cent.  R.  Co.  v.  Houch- 
ins.  S9  S.  W.  5.30.  121  Ky.  .526.  28 
Ky.  Law  Rep.  499.  1  L.  R.  A.  (X.  S.) 
:;7.">.  123  Am.   St.  Rep.  205. 

Mo.  Millspaugh  v.  Missouri  Pac. 
Ry.  Co.,  119  S.  W.  993,  138  Mo.  App. 
31. 

Neb.  Cleland  v.  Anderson,  92  N. 
W.  3(16,  60  Neb.  252,  5  L.  R.  A.  (N. 
S.)  1.36.  rehearing  denied  96  N.  W. 
212,  66  Neb.  2.52,  5  L.  R.  A.  (N.  S.)  136, 


and  judgment  reversed  on  rehearing 
98  N.  W.  107.5,  66  Neh.  252,  5  L.  R.  A. 
(N.  S.)  136,  but  aflu-med  on  further  re- 
hearing 105  N.  W.  1092,  75  Neb.  273, 
5  L.  R.  A.  (N.  S.)  136. 

Tex.  Lefkovitz  v.  Sherwood  (Civ. 
App.)  136  S.  W.  850 :  Gulf.  C.  &  S.  F. 
Ry.  Co.  V.  Holt.  70  S.  W.  591,  30  Tex. 
Civ.  App.  330. 

Utah.  Marks  v.  Culmer,  6  Utah, 
419.  24  P.  .528. 

2  7  Ala.  Jordan  v.  State,  81  Ala.  20, 
1  So.  577:  Williams  v.  State,  81  Ala. 
1,  1  So.  179,  60  Am.  Rep.  133;  Lawson 
v.  State,  20  Ala.  65,  56  Am.  Dec.  182. 

Del.  State  v.  Jones,  Houst.  Cr. 
Cas.  317. 

Iowa.  State  v.  Miller,  81  Iowa,  72, 
40  N.  W.  751. 

La.  State  v.  Donelon,  45  La.  Ann. 
744,  12  So.  922. 

Mich.  People  V.  Arnold,  46  Mich. 
268,  9  N.  W.  406;  (1886)  Same  v. 
Maunausau,  GO  Mich.  15,  26  N.  W.  797. 

S.  C.  State  V.  Workman,  15  S.  C. 
540 ;    Same  v.  Dodson,  16  S.  C.  453. 

Tex.  Short  v.  State  (Cr.  App.)  29 
S.  W.  1072;  Perigo  v.  State,  25  Tex. 
App.  533,  8  S.  W.  660;  Collins  v. 
State.  24  Tex.  App.  141,  5  S.  W.  848; 
Barron  v.  State,  23  Tex.  App.  462,  5 
S.  W.  237. 

Va.  .lones  v.  Commonwealth,  31 
Grat.  836. 


571 


LliMlTIXG   EFFECT   OF    EVIDENCE 


§298 


eral  terms  that  the  confessions  of  one  defendant  in  the  absence  of 
the  other  are  not  evidence  against  the  latter,  but  it  is  the  duty  of 
the  court  to  explain  to  the  jury  the  exclusive  purpose  for  which 
such  evidence  is  competent  and  to  admonish  them  not  to  consider 
it  for  any  other  purpose.-*  A  party  desiring  that  evidence,  only 
admissible  against  a  coparty,  be  limited  in  its  application  to  such 
coparty  should  request  an  instruction  to  that  etifect,"*  this  rule, 
however,  not  applying  where  the  question  is  whether  the  testi- 
mony supports  the  verdict.^" 

§  298.     Limitations  of  rule 

The  above  rule  requiring  instructions  limiting  the  effect  of  evi- 
dence, is  usually  confmed  to  those  instances  where  evidence  ad- 
mitted may  be  used  for  an  illegitimate  purpose.=*^  Where  there 
can  be  no  mistake  as  to  the  purpose  for  which  evidence  is  ad- 
mittcd,^-  or  where  it  appears  from  the  whole  record  that  evi- 
dence was  admitted  solely  for  a  certain  purpose,^^  an  instruction 
limiting  its  efifect  is  not  required.  Evidence  proving  directly  the 
main  issue  involved  in  the  trial,='*  or  evidence  admissible  generally. 


28  N.  C.  State  V.  Oxeiuline,  107  N. 
C.  7Sa,  12  S.  E.  573. 

2  0  Hancock  v.  IluHett,  S2  So.  522, 
'>03  Ala.  272 ;  Sweet  v.  Montpelier 
Sav.  Rank  &  Trust  Co.,  S4  P.  542,  73 
Kan.  47 ;  Crandell  v.  White,  164  Mass. 
34  41  N.  E.  204 ;  Bo-s(>ss  v.  Bop;.iiess, 
1-^7  Mo.  305,  20  S.  W.  lOlS;  Dentliuger 
V.  Martin  (Tex.  Civ.  App.)  221  S.  W. 

1095.  ,  .     ^ 

Evidence  admissible  only  against 
garnishee.  Where  evidemo  admissi- 
ble onlv  against  the  garnishee  w.as 
admitted  at  the  consolidated  trial  of 
the  garnishment  proceedings  and  the 
main  action,  it  was  the  duty  of  de- 
fendants to  have  requested  a  special 
charge  limiting  the  effect  of  the  evi- 
dence if  they  did  not  wish  it  consider- 
ed against  them.  Earhart  v.  Agnew 
(Tex.  Civ.  App.)  100  S.  W.  1140. 

so  Birkman  v.  Fahrenthold,  114  S. 
W.  428.  52  Tex.  Civ.  App.  335. 

31  Texarkana  (5as  &  Electric  Co.  v. 
Lanier.  120  S.  W.  07,  59  Tex.  Civ. 
App.  19.S;  Roma  v.  State,  IIG  S.  W. 
59S.  55  Tex.  Cr.  II.  344. 

32  State  V.  Gaston,  90  Iowa,  .505,  G5 
N.  W.  415 :  Owenhy  v.  Louisville  & 
N.  R.  Co..  SI  S.  E.  907,  1G5  N.  C.  041 ; 
Cain  V.  State,  153  S.  W.  147,  68  Tex. 
Cr.  R.  507 ;    Gates  v.  State,  SG  S.  W. 


769,  4S  Tex.  Cr.  R.  131;  Clark  v.  State 
(Tex.  Cr.  App.)  36  S.  W.  273. 

33  State  v.  Helm.  97  Iowa.  37S.  66  rN. 
W.  751;  Slate  v.  Davis,  70  S.  E.  417. 
88  S.  C.  204. 

Improbability  that  evidence  will 
be  used  for  an  improper  purpose. 
Wliere  defendant  and  several  otliers 
.iointly  indicted  for  theft  conspired  to 
throw  a  crowd  of  persons  into  con- 
fusion, and  to  take  property  from 
their  persons,  evidence  as  to  the  vari- 
ous articles  stolen  from  different  per- 
sons in  the  crowd  during  such  confu- 
sion being  admitted  against  defendant 
as  contemporaneous  acts  tending  to 
show  intent,  it  was  nut  error  for  the 
court  to  refuse  to  limit  the  effect  of 
the  testimony  on  the  theory  of  ex- 
traneous crimes,  where  there  was  no 
])robal)ility  that  the  jury  would  con- 
vict for  an  offense  not  charged  in  tiic 
indictment.  Long  v.  State,  114  S.  W. 
6.32.  55  Tex.  Cr.  R.  55. 

34  Hudson  V.  Stale,  28  Tex.  App. 
323.  13  S.  W.  388. 

Extraneous  matter.  On  a  murder 
trial,  where  the  state  has  proved  the 
killing  of  deceased  l>y  two  persons  in 
an  attemjit  to  rob  him,  evidence  that 
a  few  minutes  (hereafter,  and  at  the 
same  place,  three  otliers  were  simihir- 


§  299  INSTRUCTIONS   TO  JURIES  572 

although  introduced  for  a  particular  purpose,^^  is  not  within  the 
scope  of  the  above  rule. 

§  299.  Effect  of  limiting  scope  of  evidence  at  time  of  its  admis- 
sion. 
In  criminal  cases  the  rule  is  held  to  be  that  a  statement  made 
by  the  trial  judge  on  the  admission  of  evidence,  not  competent  on 
the  main  issue,  limiting  its  scope,  does  not  relieve  him  from  the 
necessity  of  afterwards  instructing  the  jury  as  to  the  purpose  for 
which  it  can  be  considered;^®  but  in  civil  cases  such  a  limitation 
by  the  court  at  the  time  of  the  admission  of  evidence  will  preclude 
urging  as  error  the  subsequent  failure  of  the  court  to  give  an 
equivalent  instruction,^''^  unless  the  attention  of  the  court  is  called 
to  the  matter  by  a  request  for  instructions.^^  Even  in  civil  cases, 
however,  if  the  court,  after  having,  at  the  time  of  the  admission 
of  evidence,  so  limited  its  scope,  has  occasion  in  its  charge  to  refer 
to  such  evidence,  it  should  be  careful  to  again  explain  the  purpose 
for  which  it  can  be  considered.^^ 

§  300.     Necessity  of  request  for  limiting  instructions 

The  general  rule,  in  civil  proceedings,  is  that  a  party  who  fails 
to  request  such  an  instruction  limiting  the  scope  of  certain  evi- 
dence cannot  complain  of  the  failure  to  give  it  as  a  ground  for 
reversal.^**     Thus,   where   evidence   is   admitted   in    mitigation    of 

ly  assaulted  for  a  like  purpose  by  two  no  request  being  made,  tliat  such  evi- 

persons,  one  of  whom  was  positively  dence  is  not  admissible  against  the 

identified  as   one  of  the  defendants,  other,    is    not    ground    for    reversal. 

and  the  other  of  whom  resembled  his  Commonwealth  v.  Keating,  133  Mass. 

codefendant,  is  not  extraneous  matter  572. 

within  the  rule  which  requires  that  3  7  Ark.    McCarty  v.  Nelson,  195  S. 

the  jury  .shall  be  instructed  to  restrict  W.  689,  129  Ark.  280. 

their  consideration  of  extraneous  mat-  Conn.    Barber  v.  Brace,  3  Conn.  9, 

ter  adduced  in  evidence  to  the  specific  8  Am.  Dec.  149. 

purpose  for  which  it  was  admitted.  Iowa.     Purcell  v.  Tibbies,  69  N.  W. 

I^eper  v.  State,  29  Tex.  App.  63,  14  S.  1120,  101  Iowa,  24. 

W.  398.  .  Mo.     Atkinson  v.  American  School 

3  5  Bartley  v.  Comer  (Tex.  Civ.  App.)  of  Osteopathy,  202  S.  W.  452,  199  Mo. 

89  S.  W.  82.  App.  251. 

3e  Thompson  v.  State,  29  Tex.  App.  N.  H.    Lee  v.  Lamprey,  43  N.  H.  13. 

208.  15  S.  W.  206.  Tex.      D'Arrigo  v.   Texas   Produce 

Rule  in   absence  of  request  for  Co.,  44  S.  W.  531,  18  Tex.  Civ.  App. 

instruction.       In    Massachusetts    it  41. 

has  been   held  that,   where  two   are  Wis.     Hacker  v.  Heiney,  87  N.  W. 

jointly  tried  for  an  assault,  and  evi-  249,  111  Wis.  313. 

dence  of  admissions  by  one  of  the  fact  3  8  Liles  v.  Fosburg  Lumber  Co.,  54 

that  the  other  committed  the  assault,  S.  E.  795,  142  N.  C.  39. 

and  that  he  was  present  at  the  time,  so  Westfeldt  v.  Adams,  47  S.  E.  816, 

is  admitted,  the  court  ruling  at  the  135  N.  C.  591. 

time  that  .such  evidence  is  only  ad-  4o  u.  S.     (C.  C.  A.  Ohio)  Young  v. 

missihle   against   the   person    making  Corrigan.  210  F.  442,  127  C.  C.  A.  174. 

the  admission,  its  failure  to  instruct,  Ala.    Postal  Telegraph-Cable  Co.  v. 


573 


LIMITING   EFFECT   OF   EVIDENCE 


§  300 


damages  only,  it  is  plaintiff's  duty  to  request  an  instruction  lim- 


Minderhout,  71  So.  89,  14  Ala.  App. 

392,  certiorari  denied  71  So.  91,  195 

Ala.  420;   Big  Sandy  Iron  &  Steel  Co. 

V.  Williams,  63  So.  1011,  184  Ala.  184; 

Sloss-Slieitield    Steel    &    Iron    Co.    v. 

Mitchell,  61  So.  934.  938,  181  Ala.  576, 

671 ;  Birmingham  Ry.,  Light  &  Power 
•Co.  V.  Long,  59  So.  382,  5  Ala.  App. 

510;    United   States   Cast   Iron  Pipe 

&  Foundry  Co.  v.  Driver,  50  So.  118, 

162    Ala.    580;     First   Nat.    Bank    v. 

Alexander,  50   So.  45,  161  Ala.  580; 

Long  Distance  Telephone  &  Telegraph 

Co.  V.   Schmidt,  47  So.  731,  157  Ala. 

391:    Seniggs  v.  Bibb.  33  Ala.  481. 
Ark.     Lisko  v.  Uhren,  196  S.   W. 

816.  130  Ark.  Ill;    C.  H.   Smith  Tie 

&  Timber  Co.  v.  Weatherford,  121  S. 

W    943.  92  Ark.  6;    Bodcaw  Lumber 

Co.  V.  Ford.  102  S.  W.  896,  82  Ark.  555. 
Cai.    Liebrandt  v.  Sorg,  65  P.  1098, 

133  Cal.  571. 

Colo.     Melcher   v.   Beeler,   110   P. 

181,  48  Colo.   233,   139  Am.   St.  Rep. 

273. 

D.    C.     Washington   Times   Co.   v. 

Downey.  26  App.  D.  C.  258,  6  Ann. 

Cas.  765. 

Ga.  Gordon  v.  Gilmer,  80  S.  E. 
1007.  141  Ga.  347 ;  Stallins  v.  South- 
ern Rv.  Co..  78  S.  E.  421,  140  Ga.  55; 
Central  of  Georgia  Ry.  Co.  v.  Brown, 
74  S.  E.  839,  138  Ga.  107 ;  A.  G.  Gar- 
butt  Lumber  Co.  v.  Camp,  73  S.  E. 
841,  137  Ga.  592  ;  McCommons  v.  Wil- 
liams, 62  S.  E.  230,  131  Ga.  313. 

ni.  Bird  V.  Bird,  75  N.  E.  760,  218 
111.  1.58;  Foley  v.  Everett,  142  111. 
App.  250. 

Imd.  Chesapeake  &  O.  Ry.  Co.  v. 
Perrv  (App.)  125  N.  E.  414:  Irvine  v. 
Baxter  Stove  Co.  (App.)  123  N.  E.  185 ; 
International  Harvester  Co.  of  Ameri- 
ca v.  Haueisen.  118  N.  E.  .320.  66  Ind. 
App.  355;  Clark  v.  Clark,  118  N.  E. 
123,  187  Ind.  25 ;  Cleveland,  C,  C.  & 
St.  L.  Ry.  Co.  v.  Clark,  97  N.  E.  822, 
51  Ind.  App.  392;  Coddington  v.  Ca- 
naday,  61  N.  E.  567,  157  Ind.  243; 
Benjamin  v.  McElwaine-Richards  Co., 
37  N.  E.  362,  10  Ind.  App.  76. 

Iowa.  Hall  v.  City  of  Shenandoah, 
149  N.  W.  831,  167  Iowa,  735 ;  Green- 
lee V.  Ealy,  124  X.  W.  166,  145  Iowa, 
394 :  Hanson  v.  Kline,  136  Iowa,  101, 
113  N.  W.  504 ;   Kircher  v.  Incorporat- 


ed Town  of  Larchwood,  95  N.  W.  184, 
120  Iowa,  578:  Puth  v.  Zimbleman,  68 
N.  W.  895,  99  Iowa,  641. 

Kan.    Cooper  v.  Harvey,  94  P.  213, 
77  Kan.  854. 

Ky.     Chicago  Veneer  Co.  v.  Jones, 
135  S.  W.  430,  143  Ky.  21. 

Me.     Reid  v.  Eastern  S.  S.  Co.,  90 
A.  609,  112  Me.  34. 

Md.  Pegg  V.  Warford,  7  Md.  582. 
Mass.  Wagman  v.  Ziskind,  125  N. 
E.  633,  2.34  Mass.  509;  Leavitt  v. 
Mavnes,  117  N.  E.  343,  228  Mass.  350 ; 
Wachtel-Pickert  Co.  v.  Leonard,  105 
N.  E.  354,  217  Mass.  417;  Common- 
wealth V.  Fenno,  134  Mass.  217 ;  Penn. 
Mut.  Life  Ins.  Co.  v.  Crane,  134  Mass. 
56,  45  Am.  Rep.  282;  Commonwealth 
V.  Keating,  133  Mass.  572 ;  Potter  v. 
Baldwin.  133  Mass.  427;  Chapin  v. 
Haley,  133  Mass.  127 ;  Commonwealth 
V.  Wunseh,  129  Mass.  477;  Same  v. 
Sargent,  129  Mass.  115. 

Minn.  Nininger  v.  Knox,  8  Minn. 
140  (Gil.  110). 

Mo.  Robinson  v.  City  of  Spring- 
field. 191  S.  W.  1094 ;  Hitt  V.  Hitt,  131 
S.  W.  369,  150  Mo.  App.  631 :  Kirby 
V.  St.  Louis  &  S.  F.  R.  Co.,  1.30  S.  W. 
69,  146  Mo.  App.  304 ;  Stoebier  v.  St. 
Louis  Transit  Co.,  102  S.  W.  651.  203 
Mo.  702;  Rosier  v.  Metropolitan  St. 
Rv.  Co.,  101  S.  W.  1111.  125  Mo.  App. 
159;  E.  O.  Stanard  Milling  Co.  v. 
White  Line  Cent.  Transit  Co.,  122  Mo. 
258,  26  S.  W.  704 ;  Garesche  v.  Presi- 
dent, Directors,  and  Faculty  of  St. 
Vincent's  College,  76  ]Mo.  332. 

Neb.  Fullerton  v.  Fullerton,  136 
N.  W.  847,  91  Neb.  649;  Chicago,  R. 
I.  &  P.  Rv.  Co.  V.  Holmes,  94  N.  W. 
1007.  68  Neb.  826. 

N.  H.  Lord  v.  Manchester  St.  Ry., 
67  A.  639,  74  N.  H.  295;  Dow  v.  Mer- 
rill. 65  N.  H.  107,  18  A.  317. 

N.  J.  Perry  v.  Levy,  94  A.  509,  87 
N.  J.  Law.  670. 

N.  Y.  Devine  v.  Brooklyn  Heights 
R.  Co..  115  N.  Y.  S.  263,  131  App.  Div. 
142 ;  Pritchard  v.  Edison  Electric  Il- 
luminating Co.,  87  N.  Y.  S.  225,  92 
App.  Div.  178.  judgment  affirmed  72 
N.    E.    243,    179   N.    Y.   3G4. 

N.  C.  Muse  v.  Ford  Motor  Co.,  95 
S.  E.  900,  175  N.  C.  466 ;  Tise  v.  Town 
of  Thomasville,  65   S.  E.  1007,  65  S. 


§  300 


INSTRUCTIONS  TO  JURIES 


574 


iting  its  effect,  if  one  is  desired,*^  and  where  evidence  is  intro- 
duced that  a  master,  after  an  accident  which  resulted  in  the  death 
of  a  servant,  took  certain  precautions  to  prevent  the  recurrence  of 
such  accident,  and  the  master  does  not  request  a  charge  that  such 
evidence  is  no  proof  of  negligence  on  his  part,  it  is  not  error  to 
omit  giving  the  instruction.*"  It  has  been  held  in  a  civil  case 
that,  if  a  party  at  the  time  of  the  reception  of  evidence  does  not 
ask  that  its  effect  be  limited,  it  will  not  be  error  to  subsequently 
refuse  his  request  for  an  instruction  qualifying  the  scope  of  such 
evidence.*^ 


E.  2S1 :  Stewart  v.  Raleigh  &  A.  Air 
Line  R.  Co.,  53  S.  E.  877,  141  N.  C. 
253. 

Okl.  Brownell  v.  Moorehead,  165 
P.  408;  Atchison.  T.  &  S.  F.  Ry.  Co. 
V.  Baker.  130  P.  577.  37  Okl.  48. 

Or.  State  v.  Finnigan.  160  P.  370, 
81  Or.  538. 

Pa.  Frank  v.  American  Bond  & 
Mortg.    Co..    70   Pa.    Super.    Ct.    478. 

Tex.  Kampmann  v.  Cross  (Civ. 
App.)  194  S.  W.  437;  Southwestern 
Portland  Cement  Co.  v.  Presbitero 
(Civ.  App.)  190  S.  W.  776 ;  Vaughn  v. 
Morris  (Civ.  App.)  180  S.  W.  954 ;  Car- 
ver V.  Power  State  Bank  (Civ.  App.) 
164  S.  W.  892:  Payne  v.  Snyder  (Civ. 
App.)  160  S.  W.  1153 ;  Wichita  Falls 
Compress  Co.  v.  W.  I.  Moody  &  Co. 
(Civ.  App.)  154  S.  W.  1032;  Posener 
V.  Harvey  (Civ.  App.)  125  S.  W.  356; 
Fordtran  v.  Stowers,  113  S.  W.  631, 
52  Tex.  Civ.  App.  226;  Eastland  v. 
Maney,  81  S.  W.  574,  36  Tex.  Civ. 
App.  147;  San  Antonio  &  A.  P.  Ry. 
Co.  V.  Morgan,  58  S.  W.  544,  24  Tex. 
Civ.  App.  58 ;  Mutual  Life  Ins.  Co.  of 
New  York  v.  Baker,  10  Tex.  Civ.  App. 
515.  31  S.  W.  1072:  Roos  v.  Lewyn, 
5  Tex.  Civ.  App.  593,  24  S.  W.  538; 
Shumard  v.  Johnson,  66  Tex.  70,  17 
S.  W.  398 :  Walker  v.  Brown.  66  Tex. 
556,  1  S.  W.  797. 

Utah.  Jensen  v.  Davis  and  Weber 
Counties  Canal  Co.,  137  I'.  635.  44 
Utah.  10 ;  McKinney  v.  Carson,  99  P. 
660,  35  Utah,  180;  State  v.  Greene, 
94  P.  987,  33  Utah,  497. 

Wash.  Blystone  v.  Walla  Walla 
Valley  Ry.  Co.,  165  P.  1049,  97  W\ash. 
46 ;  Burger  v.  Taxicab  Motor  Co.,  120 
P.  519,  66  Wash.  676 :  Sproul  v.  City 
of  Seattle,  49  P.  489,  17  Wash.  256. 


Wis.  Viellesse  v.  City  of  Green 
Bay,  85  N.  W.  665.  110  Wis.  160. 

Illustrations  of  omissions  to  in- 
struct held  not  error  ivithin  rule. 

Evidence  that,  after  an  accident  caus- 
ed by  a  washout  of  a  bridge  whose 
bents  were  laid  on  stone  without  be- 
ing bolted  down,  defendant,  in  re- 
building the  bridge,  bolted  the  bents 
down  into  the  rock,  was  admissible  to 
rebut  the  testimony  of  a  witness  for 
defendant  that  the  bents  of  the  wash- 
ed-out bridge  had  not  been  so  fastened 
because  the  character  of  the  rock 
would  not  permit  it ;  and  an  objection 
that  it  was  likely  to  be  considered  by 
the  jury  as  showing  negligence  in  the 
construction  of  the  old  bridge  was 
waived,  iinless  made  by  a  request  for 
an  instruction  as  to  the  puiposes  for 
which  the  evidence  was  admissible. 
St.  Louis  &  S.  F.  Ry.  Co.  v.  George, 
85  Tex.  150,  19  S.  W.  1036.  Where, 
in  an  action  against  a  telegraph  com- 
pany for  negligence  and  wantonness 
in  the  transmission  of  the  telegram, 
evidence  is  received  as  to  the  wealth 
of  the  company,  it  is  not  reversible 
error,  where  a  nonsuit  is  granted  as 
to  the  cause  of  action  for  wantonness, 
to  fail  to  instruct  not  to  consider  such 
evidence  on  the  cause  of  action  for 
negligence,  in  the  absence  of  a  request 
therefor.  Smith  v.  Western  Union 
Telegraph  Co.,  58  S.  E.  6,  77  S.  C.  378, 
12  Ann.  Cas.  654. 

41  Young  V.  Corrigan  (D.  C.  Ohio) 
208  F.  431. 

42  Lind  V.  Uniform  Stave  &  Pack- 
age Co.,  120  N.  W.  839.  140  Wis.  183. 

4  3  Missouri,  K.  &  T.  Ry.  Co.  of  Tex- 
as V.  Stark  Grain  Co..  120  S.  W.  1146. 
Time        of        making        request. 


575 


LIMITING   EFFECT    OP      EVIDENCE 


§  300 


The  above  rule  is  also  generally  applied  in  criminal  cases,**  as 
where  evidence  admitted  is  competent  only  for  the  purpose  of 
affecting  the  credibility  of  a  witness,*^  or  where  it  is  desired  to 


Where,  after  reading  a  deposition, 
taken  on  notice  to  one  of  the  two  de- 
fendants, the  court  adjourned  for  the 
day,  a  request  by  the  other  defend- 
ant's coiinsel  the  first  thing  the  next 
morning,  to  the  effect  that  the  depo- 
sition couUl  not  be  considered  as  evi- 
dence against  the  latter  defendant, 
was  made  in  ample  time.  Millspaugh 
V.  Missouri  Pac.  Ry.  Co.,  119  S.  W. 
993,   138  Mo.   App.   31. 

In  New  York,  however,  it  has  been 
held  that  the  fact  that  when  evi- 
dence of  a  statement  by  defendant's 
superintendent,  admissible  for  a  par- 
ticular purpose  only,  was  received, 
defendant  did  not  insist  that  the  iu- 
ry  be  then  informed  as  to  the  limited 
puri>ose  for  which  it  could  properly 
be  considered,  did  not  result  in  a 
waiver  of  defendant's  right  to  have 
the  .iury  sribsequently  charged  to  that 
effect.  Walsh  v.  Carter-Crume  Co., 
110  N.  y.  S.  523,  126  App.  Div.  229. 

44  U.  S.  (C.  C.  A.  Mo.l  Moffatt  v. 
United  States,  232  F.  522,  146  C.  C. 
A.  4S0;  (C.  C.  A.  Or.)  Hallowell  v. 
United  States,  253  F.  865,  165  C.  C. 
A.  345,  certiorari  denied  249  U.  S. 
615,  39  S.  Ct.  390,  63  L.  Ed.  803, 
judgment  affirmed  on  rehearing  258  F. 
237.   169  C.  C.  A.  303. 

Ala.  Houston  v.  State,  82  So.  503, 
203  Ala.  261. 

Ark.  Oakes  v.  State,  205  S.  W. 
305.  135  Ark.  221;  Williams'v.  State, 
198  S.  W.  699,  131  Ark.  264. 

Cal.  People  v.  Escalera,  171  P. 
975,  36  Cal.  App.  212 ;  People  v.  Mon- 
roe. 70  P.  1072,  138  Cal.  97. 

ria.  Andrew  v.  State,  56  So.  6S1, 
62  Fla.  10. 

Ga.  Cantrell  v.  State,  SO  S.  E. 
649,  141  Ga.  98. 

Iowa.  State  v.  Pelser,  163  X.  YV. 
600,  182  Iowa,  1 ;  State  v.  Glaze,  159 
N.   W.   2G0,   177   Iowa,   457. 

Mo.  State  v.  Douglas,  167  S,  W. 
552,  258  Mo.  281 ;  State  v.  Rasco,  144 
S.   W.  449,  239  Mo.  535. 

N.  J.  State  V.  Brand,  72  A.  131, 
77  N.  J.  Law,  4S6,  affirming  judgment 
69  A.  1092,  76  N.  J.  Law,  267. 


X.  Y.  People  v.  Weinseimer,  83  N. 
E.  1129,  190  N.  Y.  537,  affirming  judg- 
ment 102  N.  Y.  S.  579,  117  App.  Div. 
603. 

N.  C.  State  v.  Stancill,  100  S.  E. 
241,  178  N.  C.  683 ;  State  v.  Eiiglish, 
80  S.  E.  72,  164  N.  C.  497. 

Okl.  Gray  v.  State,  111  P.  825,  4 
Okl.  Cr.  292,  32  L.  R.  A.  (N.  S.)  142. 

Tex.  Hensley  v.  State,  211  S.  W. 
590,  85  Tex.  Cr.  R.  260 ;  Thompson  v. 
State.  178  S.  W.  1192,  77  Tex.  Gr. 
R.  417;  Johns  v.  State.  174  S.  W.  610, 
76  Tex.  Cr.  R.  303;  Montgomery  v. 
State.  151  S.  W.  813,  68  Tex.  Cr.  R. 
78;  Harris  v.  State,  150  S.  W.  796, 
68  Tex.  Cr.  R.  208. 

Wash.  State  V.  Douette,  71  P.  556, 
31  Wash.  6. 

"W.  Va.  State  v.  Baker,  99  S.  E. 
252.  84  W.  Va.   151. 

Excuses  for  failure  to  xaake  re- 
quest. Where  certain  evidence  for 
the  stiite  was  admitted  against  the 
objection  of  defendant,  and  the  court 
stated  that  it  would  properly  limit 
the  evidence  by  its  instructions,  and 
failed  to  give  such  an  instruction,  but 
no  suggestion  was  made  to  the  court 
in  resi)ect  to  such  evidence,  except  as 
stated,  defendant  cotild  not  assign  er- 
ror for  the  court's  failure  to  limit  the 
effect  of  the  evidence.  State  v.  Sim- 
as,  62  P.  242,  25  Nev.  432. 

45  U.  S.  (C.  C.  A.  Alaska)  Ball  v. 
United  States,  147  F.  32,  78  C.  C.  A. 
126. 

Ala.  ]\Torris  v.  State,  41  So.  274, 
146  Ala.  66. 

Cal.  People  v.  Peck,  185  P.  S'^l ; 
People  V.  Haydon.  123  P.  1102,  18  Cal. 
App.  543,  rehearing  denied  123  P. 
1114,   18  Cal.   App.  543. 

Ga.  Fit/patrick  v.  State,  99  S.  E. 
128,  149  Ga.  75. 

Ky.  Bennett  v.  Commonwealth, 
194  S.  W.  797,  175  Ky.  540;  Day  v. 
Commonwealth,  191  S.  W.  105.  173 
Ky.  269  ;  Haywood  v.  Commonwealth, 
170  S.  W.  624,  161  Ky.  338. 

Mo.  State  v.  Gatlin,  70  S.  W.  885, 
170  Mo.  354. 

Tex.  Watts  v.  State,  171  S.  W. 
202,  75  Tex.  Cr.  R.  330. 


§  300 


INSTRUCTIONS  TO  JURIES 


576 


limit,  as  against  one  defendant,  the  effect  of  evidence  admissible 
as  against  his  codefendant,*®  or  where  the  defendant  wishes  the 
effect  of  evidence  of  other  offenses  to  be  limited,^'  although  in  some 
criminal  cases  the  duty  of  the  court  in  this  regard  seems  to  be 
more  strictly  enforced  than  in  civil  cases,^*  and  in  criminal  cases 
the  rule  has  been  laid  down  that  whenever  extraneous  matter  ad- 
mitted in  evidence  for  a  specific  purpose  incidental  to  the  proof 
of  the  main  issue  is  not  admissible  directly  to  prove  such  issue, 
and  may  tend  to  exercise  a  strong,  undue,  or  improper  influence 
upon  the  jury  as  to  the  main  issue,  injurious  and  prejudicial  to 
the  rights  of  the  defendant,  it  is  the  duty  of  the  court,  without  any 
request,  to  so  limit  and  restrict  such  evidence  as  that  such  unwar- 
ranted results  cannot  ensue.*® 


46  U.  S.  (C.  C.  A.  Ohio)  Foster  v. 
United  States,  178  F.  165,  101  C.  0.  A. 
485:  (C.  C.  A.  Tex.)  Bryant  v.  United 
States,  257  F.  378,  168  C.  C.  A.  418. 

111.  People  V.  Dfirr,  104  N.  E.  389, 
262  111.  202.  affirming  judgment  179 
111.  App.  130. 

Ind.  Thompson  v.  State,  125  N.  E. 
641. 

Minn.  State  v.  Newman,  149  N. 
W.  945,  127  Minn.  445. 

N.  J.  State  V.  Unger,  107  A.  270, 
93  N.  J.  Law,  50;  State  v.  Stanford. 
101  A.  53,  90  N.  J.  Law,  724. 

N.  C.  State  v.  Fain,  97  S.  E.  716, 
177  N.  C.  120. 

Utah.  State  v.  Gillies,  123  P.  93, 
40  Utah,  541,  43  L.  R.  A.  (N.  S.)  776. 

See,  also,  ante,  §  297,  note  29. 

4T  People  V.  Ciulla,  187  P.  46 ; 
People  V.  Germino,  175  P.  489,  38 
Cal.  App.  100;  People  v.  Moran, 
144  P.  152,  25  Cal.  App.  472;  Peo- 
ple V.  Bransfield,  124  N.  E.  363,  289 
111.  72;  Glover  v.  People,  68  N.  E. 
464,  204  lU.  170. 

4  8  State  V.  Lavin,  46  N.  W.  553,  80 


Iowa.  555 ;  State  v.  Collins,  28  S.  E. 
520,  121  N.  C.  667 ;  Paris  v.  State.  35 
Tex.  Cr.  R.  82,  31  S.  W.  855 ;  Oliver 
V.  Same,  33  Tex.  Cr.  R.  541,  28  S.  W. 
202 ;  Sexton  v.  State,  33  Tex.  Cr.  R. 
416,  26  S.  W.  833. 

'Where  defendant  has  objected 
to  the  admission  of  certain  evi- 
dence and  taken  the  position  that  it 
is  wholly  incompetent  for  any  pur- 
pose, he  cannot  be  expected  to  request 
the  court  to  charge  the  jury  as  to  the 
purpose  for  which  the  evidence  should 
be  regarded  or  considered.  Porter  v. 
State,  91  N.  E.  340,  173  Ind.  694. 

Rule  in  misdemeanor  cases.  In 
Texas,  in  a  prosecution  for  a  misde- 
meanor, the  court,  unless  requested, 
need  not  instruct  the  jury  to  consider 
evidence,  only  admissible  to  corrob- 
orate the  testimony  of  the  prosecu- 
trix, for  that  purpose  alone.  Duke  v. 
State,  35  Tex.  Cr.  R.  283,  33  S.  W. 
349. 

40  Wilson  V.  State,  39  S.  W.  373, 
37  Tex.  Cr.  R.  373 ;  Maines  v.  State, 
23  Tex.  App.  576,  5  S.  W.  123. 


577 


SUBMISSION   TO  JURY  FOR   SPECIAL  FINDINGS  §  301 


CHAPTER  XXIII 

^.ermTT    T>T?nPT?TFTY     AND    SUFFICIENCY    OF    INSTRUCTIONS 
^^^^'^VnlRrcTsE  ^rSUBSTT^D  TO  JURY  FOR  SPECIAL 
wnr^rvi^  FINDINGS 

§  301.     In  general, 
foi:    ^SteLTSwe'er^Seral  verdict  ana  special  Sndings  or  between 

special  fiudings. 

^  wLre^heTaTe  is  submitted  to  the  jury  for  a  special  verdict 
they  should  only  be  instructed  upon  the  questions  which  hey  are 
to  answer  1  and  general  instructions  on  any  subject  involved 
shouM Tot  be  given.^  save  so  far  as  is  necessary  to  assist  m  an- 
swe  no-  each  interrogatory  propounded,3  ^s  they  are  apt  to  have 
a  te  dency  to  confuse  the  jury,*  and  it  is  proper  to  refuse  mstruc-- 
tions  general  in  their  application  to  all  the  issues  of  the  case,  or 

Mauch  V.  City  of  Hartford,  87  N  W. 
"51  fi     11''    Wis     40;     Rhyner    v.    t^itj 
of  Menasha.  83  N.  W.  303.  107  Wis 
201:    Goesel  v.  Davis,  76  N.  W.   <6S, 
100  Wis.  678. 

Definitions.  The  court  cannot,  Dy 
general  instructions,  define  the  mean- 
ing of  terms  used  in  questions  sub- 
mitted to  the  jury  for  a  special  ver- 
dict, ai=?  such  a  practice  would  result 
in  a  verdict  special  in  part  and  gen- 
eral in  part.  Louisville  &  N.  R.  Co. 
V.  Cambron,  8  Ky.  Law  Rep.  (ab- 
stract) 615. 

Harmless  error.  Where,  in  an  ac- 
tion for  negligence,  the  case  was  sub- 
mitted on  special  interrogatories,  and 
for  a  special  verdict  only,  the  fact 
that  the  court  instructed  generally  on 
the  law  as  though  a  general  verdict 
was  to  be  returned,  while  such  ac- 
tion was  improper,  is  not  error,  where 
the  instructions  did  not  indicate  how 
the  iury  should  find  upon  any  given 
question  of  fact.  Reed  v.  City  of 
Madison,  85  Wis.  667.  56  N.  W.  182. 

3  Lathrop  v.  Fargo-Moorhead  bt. 
Rv.  Co.,  136  N.  W.  88,  23  N.  D.  246 ; 
Dallas  Hotel  Co.  v.  Fox  (Tex.  Civ. 
App.)  196  S.  W.  647. 

4  Southwestern  Telegraph  &  Tele- 
phone Co.  V.  Andrews  (Tex.  Civ.  App.) 
169  S.  W.  218. 


iMass.     Tarbell  v.  Forbes,  58  N. 
E.    873.    177   Mass.   238. 

N.   C.     Earnhardt   v.   Clement,   49 
S.  E.  49,  137  N.   C.  91.  ^ 

N.  D.     Morrison  v.  Lee,  102  ^.  vv. 
223.    13   N.   D.    591. 

Wis.  McHatton  v.  McDonnells 
Estate  165  N.  W.  468,  166  Wis.  323 ; 
MWer'v.  Home  Ins.  Co.,  106  N.  W. 
10S7.  127  Wis.  293;  Van  De  Bogart 
v  ^Marinette  &  Menominee  Paper  Co., 
106  N.  W.  805,  127  Wis.  104;  Lyon 
V  City  of  Grand  Rapids,  99  N.  W. 
311  121  Wis.  609 ;  Schrunk  v.  Town 
of  St.  Joseph,  97  N.  W.  946.  120  Wi^. 
003-  Gutzman  v.  Clancy,  90  N.  W. 
1081,  114  Wis.  589,  58  L.  R.  A.  744 ; 
Patnode  v.  Westenhaver,  90  N.  W. 
467,  114  Wis.  460;  Cullen  v.  Hamsch, 
89  N  AV.  900,  114  Wis.  24;  Gerrard 
v  La  Crosse  City  Ry.  Co.,  89  N.  W. 
125  113  Wis.  258,  57  L.  R.  A.  465; 
Bvington  v.  City  of  :\Ierrill,  88  N.  W. 
26  "'1''  Wis.  211;  Missinskie  v.  Mc- 
Murdo.  S3  N.  W.  75S,  107  Wis.  578; 
New  Home  Sewing-Mach.  Co.  v.  Sim- 
on. SO  N.  W.  71.  104  Wis.  120. 

2  Ind.     Boyce  v.   Schroeder,  51  N. 
E.  376,  21  Ind.  App.  28. 

Tex.     International    &    G.    N.    Ry. 
Co.  V.  Reek,  179  S.  W.  699. 

Wis.     Howard  v.  Beldenville  Lum- 
ber Co.,  108  N.  W.  48,  129  Wis.  98; 
Inst. TO  Juries— 37 


§301 


INSTRUCTIONS   TO  JURIES 


578 


suitable  only  to  a  case  submitted  for  a  general  verdict.^  •  It  is  only- 
proper,  where  a  special  verdict  is  requested,  to  give  such  instruc- 
tions as  are  necessary  to  inform  the  jury  as  to  the  issues,  the  rules 
for  weighing  evidence,  who  has  the  burden  of  proof,  and  what- 
ever else  may  be  necessary  to  enable  the  jury  clearly  to  understand 
their  duties. •* 

As  is  indicated  by  the  foregoing  discussion,  a  demand  for  a  spe- 
cial verdict  does  not  deprive  the  court  of  the  right,  or  relieve  it  of 
the  duty,  to  instruct  the  jury  as  to  the  nature  of  the  action  and  the 
issues,  as  to  the  form  of  the  special  verdict,  and  the  general  duties 
of  the  jury.'  Instructions  which  will  assist  the  jury  in  returning 
pertinent  and  intelligent  answers  to  special  interrogatories  pro- 
pounded may  be  given,*  and  the  court  should  explain  to  the  jury 
distinctly  what  facts  are  material  to  be  found  within  the  issues,^ 
and  so  instruct  them  as  to  enable  the  jury  to  answer  each  ques- 
tion intelligently  and  to  find  and  settle  the  facts.^*^ 


5  Kan.  Warden  v.  Reser,  38  Kan. 
86.  16  P.  60. 

Tex.  Southwestern  Portland  Ce- 
ment Co.  V.  Cballen  (Civ.  App.)  200  S. 
\V.  213 :  Moore  v.  Pierson  (Civ.  App.) 
03  S.  W.  1007. 

Wis.  Collins  V.  Mineral  Point  & 
N.  Rv.  Co.,  117  'X.  W.  1014,  136  Wis. 
421;  Kohler  v.  West  Side  R.  Co.,  74 
N.  W.  568,  99  Wis.  33 ;  Klatt  v.  N.  C. 
Foster  Dumber  Co.,  73  N.  W.  5G3,  97 
Wis.   641. 

Discretion  of  court.  In  Georgia 
it  is  held  that  where,  in  an  ennity 
case,  a  special  verdict  is  demanded  by 
the  parties,  and  questions  covering 
the  issues  of  fact  are  submitted  to 
the  jury,  the  .1udge  may.  in  his  dis- 
cretion, limit  his  instructions  to  such 
matters  as  are  involved  in  the  ques- 
tions submitted,  and  omit  general  in- 
structions covering  the  law  of  the 
whole  case.  Livingston  v.  Taylor,  63 
S.  E.  694,  132  Ga.  1. 

6  Udell  v.  Citizens'  St.  R.  Co.,  52 
X.  E.  799,  152  Ind.  507,  71  Am.  St. 
Rep.  336;  Roller  v.  King,  49  N.  E. 
948.  150  Ind.  159;  Ivouisville,  N.  A. 
&  C.  Ry.  Co.  v.  Frawley,  9  X.  E.  594, 
110  Ind.  18. 

Damages.  In  Texas,  under  a  stat- 
ute, where  a  case  is  submitted  to 
the  .lury  on  special  issues,  it  is  not 
necessary  for  the  court  to  charge  on 
the  measure  of  damages.     St.  Louis, 


S.  F.  &  T.  Ry.  Co.  v.  Wall  (Civ.  App.) 
165  S.  W.  527. 

7  U.  S.  (C.  C.  A.  Neb.)  Ward  v. 
Cochran,  71  Fed.  127,  18  C.  C.  A.  1. 

Ind.  Sprinkle  v.  Taylor,  27  N.  E. 
122,  1  Ind.  App.  74 ;  Louisville,  N.  A. 
&  C.  Ry.  Co.  v.  Hart,  119  Ind.  273,  21 
N.  E.  753,  4  L.  R.  A.  549;  Johnson 
V.  Culver,  116  Ind.  278,  19  N.  E. 
129;  Woollen  v.  Wire.  110  Ind.  251, 
11  N.  E.  236 ;  Toler  v.  Keiher,  81  Ind. 
383. 

Tex.  Cole  v.  Crawford,  69  Tex. 
124,  5  S.  W.  646. 

8  Kalteyer  v.  Mitchell  (Civ.  App.) 
110   S.   W.  462. 

9  Louisville,  X.  A.  &  C.  Rv.  Co.  v. 
Buck,  19  N.  E.  453,  116  Ind.  566,  2 
L.  R.  A.  520,  9  Am.  St.  Rep.  883. 

If*  Wawrzjuiakowski  v.  Hoffman  & 
Billings  INIfg.  Co.,  131  N.  W.  429,  146 
Wis.  153 ;  Baxter  v.  Chicago  &  N.  W. 
Ry.  Co.,  SO  X.  W.  644,  104  Wis.  307. 

Instructions  held  proper  \Fitli- 
in  rule.  In  an  action  to  recover  for 
services  in  furnishing  plans  for  a 
building,  it  being  in  issue  whether 
plaintiff's  compensation  was  contin- 
gent uiwn  the  building  costing  not 
over  a  certain  sum,  and  defendant 
having  referred  the  special  question 
to  the  jury.  "Was  the  agreement  con- 
ditional on  the  cost  of  the  building  V 
an  instruction  submitted,  in  connec- 
tion therewith  by  the  trial  court,  that 


579 


SUBMISSION   TO  JURY   FOR   SPECIAL  FINDINGS 


302 


If  any  instructions  are  given  as  to  where  the  burden  of  proof 
rests,  the  jury  should  be  so  informed  that  they  will  understand 
the  subject  as  to  each  material  fact  in  issue/^  and  the  giving  to 
the  jury  of  general  rules  of  law  appropriate  to  the  particular  inter- 
rogatories in  connection  with  which  such  rules  are  given  is  prop- 
er.^2  An  instruction  requested  to  be  given  in  connection  with 
special  findings  should  expressly  designate  the  particular  inter- 
rogatory to  which  it  is  directed/^  and  all  parts  of  the  charge  bear- 
ing on  a  special  interrogatory,  whether  given  by  the  court  of  its 
own  motion  or  on  request  should  be  given  together  in  connection 
with  a  submission  of  such  question.^* 

§  302.     Effect  of  special  findings 

While,  in  one  jurisdiction  there  is  no  restraint  Upon  the  trial 
court  giving  an  instruction  as  to  the  effect  of  special  findings  made 
by  them  upon  the  ultimate  rights  and  liabilities  of  the  parties,^^ 
in  the  majority  of  jurisdictions  the  rule  is  that  instructions  ex- 
plaining- to  the  jury  the  effect  of  an  answer  to  a  special  interroga- 
tory or  of  special  findings  as  a  whole  upon  such  ultimate  rights  or 
liabilities  should  not  be  given,^^  and  such  an  instruction  is  prop- 


if  before  he  began  to  build  defendant 
knew,  or  should  have  known,  that  the 
building  would  cost  more,  and  then 
used  plaintiff's  plans,  an  answer  of 
"no"  to  the  question  would  be  justi- 
fied, was  not  erroneous,  as  telling  the 
jury  what  answer  to  make  thereto; 
the  instruction  being  proper  in  order 
to  secure  an  answer  decisive  of  the 
issue.  Bennett  v.  Greenwood,  114  lN. 
W.  1019,  151  Mich.  274. 

1 1  Siebrecht  v.  Hogan,  75  N.  W.  71, 
99  Wis.  437. 

12  Sanger  v.  First  Nat.  Bank  of 
Amarillo  (Tex.  Civ.  App.)  170  S.  W. 
1087;  Banderob  v.  Wisconsin  Cent. 
Ry.  Co.,  113  N.  W.  73S,  133  Wis.  249. 

13  Banderob  v.  Wisconsin  Cent. 
Ry.  Co.,  113  N.  W.  738,  133  Wis.  249. 

14  Banderob  v.  Wisconsin  Cent. 
Ry.  Co.,  113  N.  W.  738,  133  Wis.  249. 

15  Smith  V.  Rhode  Island  Co.,  98 
A.  1,  39  R.  I.  146. 

16  Mich.  Taylor  v.  Davarn,  157  N. 
W.  572,  191  jNIich.  243. 

N.  D.  Morrison  v.  Lee,  102  N.  W. 
223,  13  N.  D.  591. 

Tex.  Laybourn  v.  Bray  &  Shifflet 
(Civ.  App.)  214  S.  W.  630 ;  Hovey  v. 
See  (Civ.  App.)  191  S.  W.  606. 


Wis.  Christl  v.  Hauert,  160  N.  W. 
1061,  164  Wis.  624;  Banderob  v.  Wis- 
consin Cent.  Ry.  Co.,  113  N.  W.  738, 
133  Wis.  249 ;  Mus'bach  v.  Wisconsin 
Chair  Co.,  84  OST.  W.  36,  108  Wis.  57 ; 
Baxter  v.  Chicago  &  N.  W.  Rv.  Co., 
80  N.  W.  644,  104  Wis.  307;  Coats  v. 
Town  of  Stanton,  90  Wis.  1.30.  62 
N.  W.  619.  See  Lyttle  v.  Goldberg, 
111  N.  W.  718,  131  Wis.  613. 

In  Texas  the  decisions  are  con- 
flicting; it  being  held  in  one  case 
that  to  assume  that  to  inform  thp  ju- 
ry that  under  a  certain  state  of  facts 
tlie  plaintiff  can  recover,  and  that 
under  another  state  of  facts  he  can- 
not, will  influence  them  to  find  the 
facts'  requiring  a  judgment  in  favor 
of  the  plaintiff,  is  an  impeachment  of 
the  system  of  trial  by  jury  as  being 
fundamentally  unreliable.  J.  M.  Guf- 
fey  Petroleum  Co.  v.  Dinwiddle  (Tex. 
Civ  App.)  182  S.  W.  444 ;  Texarkana 
&  Ft.  S.  Ry.  Co.  V.  Casey  (Tex.  Civ. 
App.)  172  S.  W.  729. 

Instructions  held  improper 
within  rule.  Where  the  first  special 
interrogatory  embodied  the  claim  of 
the  defense  that  plaintiff  was  paid 
3^50  in  full  for  a   release  of   dower, 


302 


INSTRUCTIONS   TO  JURIES 


580 


erly  refused.-^'^  Such  rule  does  not  preclude  the  court  from  reliev- 
ing- the  jury  of  the  labor  of  determining  a  subsidiar}^  question  sub- 
mitted after  reaching  a  conclusion  on  a  primary  question  neces- 
sarily terminating  the  controversy,  as  the  jury  must  see/^  and 
a  charge  is  not  erroneous  merely  because  an  intelligent  juror  may 
be  able  to  infer  therefrom  the  effect  on  the  final  result  of  his  an- 
swers to  the  special  interrogatories,*^  and  an  instruction  which  in- 
forms the  jury  that  an  affirmative  answer  to  such  an  interrogatory 
will  be  in  favor  of  a  party,  but  which  does  not  go  so  far  as  to  tell 
the  jury  the  effect  of  such  answer  upon  the  ultimate  right  of  ei- 


and  the  second  embodied  the  claim 
of  the  plaintiff  that  she  was  to  have 
the  balance  of  all  proceeds  of  real 
estate  and  personal  property  after 
the  payment  of  debts  and  broker's 
commission  as  a  consideration  for  the 
release,  but  plaintiff's  testimony  did 
not  fully  support  the  contention  that 
she  was  to  have  the  proceeds  of  per- 
sonal property,  it  is  error  for  the 
court  to  instruct  that,  if  the  jury  an- 
swered the  first  question,  "No,"  they 
must,  in  his  opinion,  answer  the  sec- 
ond question.  "Yes."  Lyttle  v.  Gold- 
bers.  Ill  N.  W.  718,  131  Wis.  618.^ 

Instrnctions  lield  not  objection- 
able within  rule.  An  insti'uction  in 
an  action  by  an  employe  for  injuries 
caused  by  being  caught  by  an  un- 
guarded shafting,  that  the  law  re- 
quires the  employer  to  securely  guard 
shaftings  so  located  as  to  be  danger- 
ous to  employes,  and,  if  the  shafting 
was  so  located  as  to  be  dangerous  to 
the  employ^  at  the  time  of  the  injury, 
the  jury  should  find  that  the  place 
furnished  by  the  employer  to  the  em- 
ploye in  which  to  do  his  work  was  not 
reasonably  safe,  was  not  objection- 
able, as  stating  to  the  jury  the  ef- 
fect of  their  answer.  Walker  v. 
Simmons  Mfg.  Co.,  Ill  N.  W.  694, 
131  Wis.  542.  On  an  issue  as  to 
plaintiff's  contributory  negligence,  an 
insti-uction  that  the  court  must  be 
informed  by  a  special  verdict  wheth- 
er plaintiff  contributed  to  tlie  acci- 
dent by  a  slight  want  of  ordinary 
care,  which  would  be  negligence  on 
her  part,  was  not  objectionable,  as 
informing  the  jury  of  the  effect  of 
their  answer  on  plaintiff's  right  of 
recovery.    Brunette  v.  Town  of  Gagen, 


82  N.  W.  564,  106  Wis.  618.  Where, 
in  an  action  for  injuries  to  a  minor 
servant,  the  court  instmcted,  in  re- 
spect to  a  question  to  the  jury  as  to 
whether  plaintiff  exercised  ordinary 
care,  that  if  plaintiff  knew  that  there 
was  a  revolving  knife,  and  that  his 
hand  was  liable  to  come  in  contact 
therewith  in  cleaning  out  a  certain 
hopper,  he  must  be  held  to  have  as- 
sumed the  risk,  although  he  was  at- 
tempting to  do  the  work  by  the  ex- 
press direction  of  defendant,  and 
that  the  true  test  as  to  whether  a 
minor  has  assumed  the  ordinary  risks 
of  his  employment,  or  is  guilty  of 
contributory  negligence.  Is  not  wheth- 
er he  comprehended  the  danger,  but 
whether  he  ought  to  have  known  of 
it,  and  that  defendant  had  a  right  to 
assume  that  plaintiff  was  a  person 
of  ordinary  common  sense  for  one  of 
his  years,  and  that  he  would  exercise 
such  care  to  avoid  dangers  which 
were  visible,  or  which  he  knew  or 
ouglit  to  have  known  existed,  as 
might  be  reasonably  expected  of  one 
of  his  years  and  capacity,  it  was 
held  that  the  instructions  were  not 
violative  of  the  rule  that  the  court 
should  not  advise  the  jury  as  to  the 
effect  of  their  answers.  Horn  v.  La 
Crosse  Box  Co.,  Ill  N.  W.  522,  131 
Wis.  384. 

17  Crawford  v.  Texas  Improvement 
Co.  (Tex.  Civ.  App.)  196  S.  W.  195; 
Moore  v.  Coleman  (Tex.  Civ.  App.) 
195  S.  W.  212. 

18  Sicard  v.  Albenberg  Co.,  118  N. 
W.  179,  136  Wis.  622. 

18  Banderob  v.  Wisconsin  Cent.  Ry. 
Co.,  113  N.  W.  iSS,  133   Wis.  249. 


581  SUBMISSION   TO   JURY  FOR   SPECIAL  FINDINGS  §  303 

ther  party  to  recover  does  not  call  for  a  reversal.^®  As  a  corollary 
of  the  above  rule  the  jury  may  be  properly  instructed  that  they 
have  nothing-  to  do  with  the  legal  consequences  of  the  facts  found 
by  them.^i 

§  303.     Consistency  between  general  verdict  and  special  findings 
or  between  special  findings 

It  is  error  to  charge  that  the  special  findings  of  the  jury  must 
conform  to  their  general  verdict  ;^^  the  object  of  a  special  verdict 
being  to  get  the  unbiased  decision  of  the  jury  on  some  material 
question  of  fact,  without  any  reference  in  their  minds  as  to  how 
the  finding  will  affect  their  general  verdict,^^  and  to  ascertain 
whether  the  jury  have,  in  making  up  their  general  verdict,  prop- 
erly applied  the  law,  as  given  by  the  court,  to  the  facts  in  the 
case."* 

In  one  jurisdiction,  however,  it  is  held  that,  while  it  is  not  good 
practice,  it  is  not  error  to  tell  the  jury  that  it  is  important  that 
their  special  findings  agree  with  their  general  verdict,-^  and  in  an- 
other jurisdiction  instructions  cautioning  the  jury  to  be  careful 
that  their  general  verdict  harmonize  with  their  special  findings,  or 
tending  to  impress  them  with  the  necessity  of  consistency  between 
such  findings  and  the  general  verdict,  are  not  erroneous.^® 

The  jury  may  be  admonished  to  make  their  answers  to  the  sev- 
eral questions  submitted  for  a  special  verdict  consistent  with  each 
other.^' 

2  0Wankowsi<i    v.    Crivitz    Pulp    &  Ry.  v.  Sivey,  27  Ohio  Cir.  Ct.  R.  248. 

Paper  Co.,  118  N.  W.   643,  137  Wis.  23  Ryan    v.    Rockford    Ins.    Co.,    77 

123.  Wis.  611,  46  N.  W.  SS5. 

2iNeanow  \.  Uttecti,  46  Wis.  581,  24  Beeclier  v.  Galvin,  71  Mich.  391, 

1  N.  W.  221.  39   N.    W.   469. 

22  Kan.     Coffey ville  Vitrified  Brick  25  Germaine  v.   City  of  Muskegon, 

Co.    V.    Zimmerman,    60    P.    1064,    61  105  Mich.   213,  63   N.  W.   78. 

Kan.      750;       Kilpatrick-Koch      Dry  26  Capital  Citv  Bank  v.  Wakefield, 

Goods  Co.  V.  Kahn,  53  Kan.  274,  36  S3    Iowa,    46,    48    N.    W.    1059;     Des 

Pnc.  327.  Moines  &  D.  Land  &  Tree  Co.  v.  Polk 

Mich.     Mechanics'  Bank  v.  Barnes,  County  Homestead   &   Trust   Co.,   82 

86  IMich.  632,  49  N.  W.  475;    People  Iowa,  663,  45  N.  W.  773. 

V.   Murray,   17  lN.   W.   843,   52   Mich.  27  Hoppe  v.   Chicago,   M.  &   St.   P. 

288 ;    Cole  v.  Boyd,  47  Mich.  98,  10  N.  Ry.  Co.,  61  Wis.  357,  21  ?sr.  W.  227. 

W.  124.  Contra,  St.  Louis  &  S.  F.  R.  Co.  v. 

Ohio.     Cleveland,  C,   C.   &   St.  L.  Burrows,  61  P.  439,  62  Kan.  89. 


§    304  INSTRUCTIONS   TO  JURIES  582 

CHAPTER  XXIV 

INSTRUCTIONS  IN  EQUITY  CAUSES 

§  304.     Necessity  of  instructions. 
305.     Propriety  of  instructions. 

§  304.     Necessity  of  instructions 

When,  in  an  equitable  proceeding,  a  jury  is  called  simply  for 
advisory  purposes,  the  court  need  give  only  such  instructions  as 
it  sees  fit,  and  may  properly  refuse  all  requests  for  instructions.^ 
But,  where  an  equity  case  is  submitted  to  a  jury  and  tried  as 
an  action  at  law,  it  will  be  treated  as  if  it  were  an  action  at  law, 
and  the  parties  may  request  special  instructions,^  and,  in  jurisdic- 
tions, where  a  jury  is  a  necessary  part  of  the  chancery  system, 
the  court  should  be  careful,  on  the  submission  of  an  issue  of  fact 
in  an  equitable  action  to  a  jury,  to  instruct  them  as  to  the  nature 
of  the  issue  and  the  application  of  the  evidence  produced  before 
them,^  and  it  is  not  only  the  province,  but  the  duty,  of  the  court, 
when  requested  so  to  do,  to  instruct  the  jury  what  portions  of  the 
answer  of  defendant  are  responsive  to  the  allegations  of  the  bill.'* 
Such  an  instruction  is  not  upon  a  question  of  fact,  but  relates  to 
the  admissibility  of  evidence.^ 

§  305.     Propriety  of  instructions 

Where  questions  of  fact  are  submitted  to  the  jury  in  an  equity 
case,  the  instructions  should  not  be  general,  as  in  a  suit  at  law, 
but  should  only  relate  to  the  determination  of  the  questions  of 
fact  submitted.®  Instructions  merely  pertinent  to  other  questions 
in  the  case  should  not  be  given.' 


7 


1  Cal.     Dominguez  v.  Dominguez,  7  the   answer   of  the   defendant  re- 
Cal.  424.  sponsive    to    the   bill    is    evidence, 

Colo.    Royce  v.  Latshaw,  62  P.  627,  and  there  is,  in  fact,  matter  in  tlie 

15  Colo.  App.  420 ;  Danielson  v.  Gude,  answer  not  responsive  wliicli  is  mate- 

17  P.  283,  11  Colo.  S7.  rial,  the  court  should  further  charge 

111.    Worthing  v.  Hall,  153  111.  App.  that  such  nonresiDonsive  matter  is  on- 

587.  ly  pleading,  and  not  evidence.     Neal 

Mo.     Baker   v.   Payne   (Mo.   App.)  v.  Patten,  40  Ga.  363. 
198    S.    W.    75;     Blood    v.    Sovereign  s  Adkins  v.  Hutchings.  79  Ga.  260, 

Camp  Woodmen  of  the  World,  120  S.  4  S.  E.  887 ;    Shiels  v.  Stark,  14  Ga. 

W.  700,  140  Mo.  App.  526.  429. 

2  Van  Vleet  v.  Olin,  4  Nev.  95,  97  c  Farmers'  Bank  v.  Butterfield.  100 
Am.  Dec.  513.  Ind.   229 ;     Stickel  v.  Bender,   15  P. 

3  Ely  v.  Early,  94  N.  C.  1.  580,  37  Kan.  457. 

4  Webb   V.    Robinson,    14   Ga.   216;  ^  Carlisle  v.  Foster,  10  Ohio  St.  198; 
Beall  V.  Beall,  10  Ga.  342.  Perry  v.  Clift  (Tenn.  Ch.  App.)  54  S. 

Where    the    court   charges   that  W.  121. 


583 


PARTICULAR   MATTERS  IN   CRIMINAL   CASES  §  306 


CHAPTER  XXV 

INSTRUCTIONS-  ON  PARTICULAR  MATTERS  IN  CRIMINAL  CASES 

A.      In    GENEBAIi 

§  306.  Proof  ot  corpus  delicti. 

307.  Intent  ol:  defendant. 

308.  Evidence  of  intent. 

309.  Motive  or  lack  of  motive. 

310.  Place  of  offense. 

3I2:    SS'ructioS  necessary  or  proper  where  two  or  more  persons  are  Joint- 
ly  indicted  or  jointly  tried. 

B.     Peincipals  and  Accessoeies 

313.  Necessity  and  propriety  of  instructions. 

314.  Sufficiency  of  instructions. 

C.    Grade  or  Degree  of  Offense 

315.  Necessity  and  propriety  in  general. 

316.  Pleadings  and  evidence  to  sustain. 

317.  Sufficiency  of  instructions. 

Vnvm  of  verdict  in  criminal  cases,  see  post,  §  388,    .    .  o,,f«    <?< 

Instmctions  on  admissions  and  confessions  in  criminal  cases,  see  ante,   §S 

215—221 
Instructions  on  character  of  accused,  see  ante,  §§  236-244 
Instructions  on  circumstantial  evidQiice,  see  ante,  §§  ;^b--3o. 
Instructions  on  presumptions  in  criminal  cases,  see  ante,  §§  lSS-19b,  IJh,  -OU 

2Q9 

Instructions  on  reasonable  doubt,  see  ante    §§257-278. 
Punishment  in  criminal  cases,  see  post,  ^^  dD4-ddO. 

A.  In  General 

S  306.     Proof  of  corpus  delicti  ,      ,  , 

The  court  may  be  required  to  charge  that  the  jury  should  acquit 
the  defendant  if  they  find  that  the  corpus  delicti  has  not  been 
proved  1  unless  no  issue  is  raised  with  respect  to  the  commission 
of  an  ofTense.2  It  may  be  the  duty  of  the  court  to  charge  as  to 
what  is  proper  evidence  of  the  corpus  delicti,^  and  though  it  has 
been  held  that  it  is  not  necessary,  where  no  improper  evidence  has 
been  introduced,  for  the  judge  to  point  out  to  the  jury  what  cir- 
cumstances tend  to  prove  the  corpus  delicti,  and  what  ones  tend 

1  Territory  v.  Monroe,  6  P.  478,  2  proof  of  corpus  delicti,  see  ante,  §  218. 

Ariz    1     Williams  v.  State  (Tex.  Cr.  2  (Tex.  Cr.  App.)  Hopkms  v.  State, 

Ann~t  65  S    W    1059  53  S.  W.  619. 

'   Instructions   as  'to  necessity   of  3  Francis  V.  State,  7  Tex.  App.  501. 
corroboration     of     confession     by 


§  306  INSTRUCTIONS  TO  JURIES  584 

to  prove  defendant's  connection  with  the  crime  alleged,*  it  is  also 
held  that,  where  circumstances  are  introduced  in  evidence  having 
no  tendency  to  prove  the  corpus  delicti,  but  having  some  tend- 
ency to  show  the  guilt  of  the  defendant,  if  a  crime  has  been  com- 
mitted, the  court  should  charge  on  request  that  the  corpus  delicti 
cannot  be  proven  by  such  circumstances.^ 

It  is  improper  to  refer  to  the  jury  the  determination  of  the 
meaning  of  the  words  "corpus  delicti."  ® 

§  307.     Intent  of  defendant 

Where  the  guilt  or  innocence  of  the  defendant  depends  upon 
the  question  of  intent,  and  instructions  are  properly  requested  on 
that  subject,  they  should  be  given/  and  an  omission  to  instruct 
on  intent  as  an  element  of  the  offense  charged  may  constitute  re- 
versible error,  although  no  request  is  made  therefor;^  but  where 
the  statute  on  which  an  indictment  is  predicated  does  not  couple 
with  the  prohibited  act  any  specific  intent,  it  is  not  necessary  that 
an  instruction,  including  all  the  essential  elements  of  the  offense, 
specifically  mention  the  intent.^ 

§  308.     Evidence  of  intent 

It  is  proper  to  instruct  that  the  intent  with  which  the  accused 
did  the  act  alleged  as  an  offense  may  be  inferred  from  all  the  facts 
and  circumstances  under  which  the  act  complained  of  was  com- 
mitted as  disclosed  by  the  evidence/®  and  an  instruction  to  the 
contrary  is  properly  refused.^^ 

4  State  V.  Roberts,  63  Vt.  139,  21  be  a  union  or  joint  operation  of  act 
A.  424.  and  intent  or  criminal  negligence,  fol- 

5  State  V.  Davidson,  30  Vt.  377,  73  lowed  by  an  explanation  tbat  it  was 
Am.  Dec.  312.  not  possible  to  look  into  tbe  mind  of 

6  Burgess  v.  State,  42  So.  681,  148  a  man,  and  see  wbat  its  workings  are, 
Ala.  654.  or  to  bring  a  photograph  of  the  mind 

7  Shaeffer  v.  State,  61  Ark.  241,  32  of  the  man  and  exhibit  it  to  the  jury, 
S.  W.  679 :  State  v.  Essex,  175  N.  W.  so  as  to  determine  clearly  and  abso- 
795,  170  "Wis.  512.  lutely  what  the  workings  of  a  human 

8  State  V.  Green,  39  P.  322, 15  Mont.  being's  mind  are,  and  that  from  ne- 
424.  cessity  the  law  required  the  jury  to 

9  McClure  v.  People,  61  P.  612,  27  '  gather  the  intention  with  which  the 
Colo.  358;  State  v.  Conley,  217  S.  act  was  done  from  all  the  surrounding 
W.  29,  280  Mo.  21.  circumstances,  was  not  objectionable 

10  State  V.  Woodward,  84  Iowa,  172,  as  being  argumentative,  misleading, 
50  N,  W.  885;  State  v.  Williams,  66  or  suggestive.  People  v.  McRoberts, 
Iowa,  573,  24  N.  W.  52.  81  P.  734,  1  Cal.  App.  25. 

Instructions      on      intent      held  n  Cross  V.   State,  55  Wis.   261,   12 

proper.    A  charge  that  there  must      N.  W.  425. 


585  PARTICULAR   MATTERS   IN   CRIMINAL    CASES  §  309 

§  309.     Motive  or  lack  cf  motive 

In  jurisdictions  where  the  court  is  allowed  to  comment  on  the 
evidence,  it  is  not  improper  to  instruct  that  the  establishment  of 
a  motive  on  the  part  of  the  defendant  to  commit  the  alleged  crime 
makes  it  "more  likely  that  he  committed  it  than  a  man  who  had 
no  motive."  ^^  An  instruction  calculated  to  authorize  the  jury  to 
imagine  a  motive  without  proof  is  erroneous. ^^  Within  this  rule 
an  instruction  that  no  one  can  lay  bare  the  secrets  of  the  mind  and 
that  there  may  have  been  a  concealed  motive,  although  it  is  im- 
possible to  prove  any,  may  be  ground  for  reversal.^*  The  general 
rule  is  that  it  is  proper  to  instruct,  in  connection  with  an  instruc- 
tion that  the  failure  of  the  state  to  show  a  motive  for  the  offense 
charged  is  a  circumstance  in  favor  of  the  accused,^^  that  it  is  not 
essential  to  a  conviction  that  a  motive  be  proven,  ^^  and  instruc- 
tions which  may  mislead  the  jury  into  believing  that  the  state  is 
required  to  prove  a  motive  on  the  part  of  the  defendant  are  prop- 
erly refused.^' 

Where  the  attention  of  the  jury  has  been  directed  to  the  motive 
of  accused  in  committing  a  crime  by  an  instruction  that  a  motive 
is  not  a  necessary  element  of  guilt,  it  is  error  to  refuse  an  instruc- 
tion that  the  absence  of  a  probable  motive  is  a  circumstance  in 
favor  of  the  accused,  ^^  and  in  some  jurisdictions  it  is  held  without 
qualification  that  such  an  instruction  should  be  given,i»  on  re- 
quest,2"  where  the  evidence  does  not  disclose  a  motive.  In 
other  jurisdictions  the  rule  is  that  the  court  need  not  instruct  on 
the  effect  of  the  absence  of  an  apparent  motive  for  the  alleged 
crime  because  of  the  mere  fact  of  such  absence,^^  and  where  the 
intent  to  commit  the  act  charged  to  constitute  the  offense  has  been 
shown  or  where  defendant's  own  testimony  shows  a  motive,  the 
defendant  is  not  entitled  to  an  instruction  on  the  effect  of  the  ab- 
sence of  motive.^^     In  some  jurisdictions  an  instruction  that  the 

12  Commonwealth  v.  Keegan,  70  Pa.  is  State  v.  Santino  (Mo.)  186  S.  W. 
Super.  Ct.  436.                                                 976:   State  v.  Foley,  46  S.  W.  733,  144 

13  People  V.   Enwright,   66  P.  726,       Mo.  600. 

184  Cal.  527.  19  state  v.  Jolinson,  72  So.  370,  139 

14  People  V.   Enwright,   66  P.   726,       l^.  829. 

134  Cal.  527.  r-^  ..    .    ^.  .        -,0  20  vaughan   v.    Commonwealth,   85 

15  Lanckton    v.    United    States,    18       .,,„    ati    o  0    tti    kqa 

App.  D.  C.  348;    State  v.  Harrington,  ^^-  ^^^'  ^  ^-  ^-  ^^^-  ,,„,,,    „^ 

95  S.  W.  235,  198  Mo.  23.  ^^  State  v.  Cox,  175  S.  W.  50,  264 

16  Lanckton  v.  United  States,  18  Mo.  408:  State  v.  Brown,  68  S.  W. 
App.  D.  C.  348 ;   Wheeler  v.  State,  63  568,  16S  Mo.  449. 

N.    E.    075.    158    Ind.    687:     State   v.  22  State  v.  Santino,  186  S.  W.  976 ; 

David.  33  S.  W.  28.  131  Mo.  380.  State  v.  Feeley,  92  S.  W.  663,  194  Mo. 

17  Ward  V.  State,  45  So.  221,  153  300,  3  L.  R.  A.  (N.  S.)  351,  112  Am. 
Ala.  9:  People  v.  Enright,  99  N.  E.  St.  Rep.  511;  State  v.  Lynn,  70  S.  W, 
936,  256  111.  221,  Ann.  Cas.  1913E,  318.  127,  169  Mo.  664. 


§  310  INSTRUCTIONS   TO  JURIES  586 

absence  of  evidence  to  show  a  motive  for  the  crime  alleged  is  a 
circumstance  in  favor  of  defendant  is  considered  misleading.^^ 

§  310.     Place  of  offense 

As  a  general  rule  the  failure  of  the  court  in  a  criminal  prosecu- 
tion to  instruct  on  the  question  of  venue  is  erroneous  only  where 
there  is  a  question  as  to  the  proof  of  venue  or  when  there  is  no 
proof  of  venue.~*  An  instruction  authorizing  the  jury  to  convict 
the  defendant  if  they  should  find  that  he  committed  the  acts 
charged  in  the  indictment  or  information  is  not  objectionable  be- 
cause it  fails  to  require  them  to  find  that  such  acts  were  committed 
at  the  place  named  in  such  pleading,-^  and  where  an  instruction 
has  been  given  requiring  the  state  to  prove  that  the  crime  alleged 
was  committed  in  the  county  in  which  the  indictment  was  found, 
it  is  not  error  for  the  court  to  omit  to  add  such  direction  to  an  in- 
struction that  the  people  are  not  bound  to  prove  the  exact  time 
alleged  in  the  indictment ;  ^^  but  where,  on  the  trial  of  a  person 
charged  as  an  accessory  before  the  fact,  the  evidence  tends  to  prove 
the  commission  of  the  crime  in  two  or  more  counties,  the  court 
should  in  plain  terms  charge  that  there  should  be  an  acquittal,  if 
no  accessorial  act  was  committed  in  the  county  in  which  the  in- 
formation was  iiled.^'  Where  the  question  of  venue  is  a  serious 
one,  and  is  fought  out  as  an  issue  before  the  jury,  it  will  be  re- 
versible error  to  fail  to  submit  it  to  them,-*  and  the  court  should 
declare  the  necessity  of  proving  the  venue  beyond  a  reasonable 
doubt.^^ 

§311.    Time  of  offense 

The  instructions  need  not  specify  the  date  of  the  offense,  when 
the  allegations  and  the  proof  show  that  it  occurred  on  a  certain 
day.^**  and  ordinarily,  in  a  criminal  prosecution,   it  is  proper  for 

2  3  Carwile  v.  State,  39  So.  220,  148  ly  informed  the  jury  that,  to  warrant 

Ala.   576 ;    Jackson  v.   State,  34   So.  conviction,  the  conversion  must  have 

188,  136  Ala.  22.  taken   place  in   B.   county.     Pech   v. 

2  4  Ragsdale  v.  State,  32  So.  674,  1.34  State,  154  S.  W.  998,  69  Tex.  Cr.  R. 

Ala.  24 ;    Cook  v.  State,  35  So.  665,  46  490. 

Fla.  20.  2  6  Cook  v.  People,  52  N.  E.  273,  177 

2  0  Thain  v.  State,  106  N.  E.  690,  182  111.  146. 

Ind   345;    Dyer  v.  State,  74  Ind    594:  ^r  Burlingim  v.  State,  85  N.  W.  76, 

Walker  v.   State,  151   S.  W.  318,  68  q^  j^^^   276 
Tpx    Oi'    R    S]  ^ 

Instmctions'  sufficiently  specific  ,''J^Ji^^^'^^^r^''-^^''}^A    ^^^    ^'    '^^' 

as  to  place  of  offense.     An  instruc-  ^-^^^'    '^   ^^^-  ^^-  ^-  ^'^• 

tion  that  defendant  was  guilty,  if  he  2  9  Territory  v.  Caldwell,  98  P.  167, 

obtained  possession  of  the  mules  in  14  N.  M.  535. 

B.  county  and  did  "then  and  there"  so  state  v.  Gould,  170  S.   W.  868, 

fraudulently  convert  same,  sufficient-  261  Mo.  694,  Ann.  Cas.  1916E,  855. 


587  PARTICULAR   MATTERS    IN   CRIMINAL   CASES  §  311 

the  court  to  charge,  with  reference  to  the  time  of  the  alleged  of- 
fense, that  if  the  jury  find  that  it  was  committed  on  or  about  the 
date  specified  in  the  indictment  or  information,  or  at  any  date 
within  the  period  of  limitation,  they  will  be  warranted  in  con- 
victing the  defendant,^!  where  only  one  offense  is  testified  to  and 
the  evidence  indicates  no  uncertainty  as  to  the  occasion  referred 
to.s3 

Even  where  the  evidence  of  the  state  shows  the  commission  by 
the  defendant  of  several  ofifenses  of  the  kind  charged  within  the 
time  covered  by  the  indictment,  and  no  election  has  been  made 
or  requested,  the  court  may  properly  refuse  to  charge  that  to  en- 
title the  state  to  a  conviction,  and  at  the  same  time  protect  the 
defendant  from  a  probable  future  prosecution,  the  evidence  must 
show  that  the  defendant  committed  the  offense  charged  at  a  par- 
ticular time  and  upon  a  particular  occasion.'"^*  Where,  however, 
although  the  evidence  shows  the  commission  by  the  defendant  of 
several  distinct  acts,  similar  to  the  one  of  which  he  is  accused,  at 
different  times,  it  also  fixes  the  exact  date  of  the  offense  charged 
against  him,  it  is  error  for  the  court  to  instruct  that  the  time  of  the 
offense  is  not  material,^*  and  in  such  case  the  defendant  is  entitled 
to  an  instruction  that  in  order  to  convict  the  jury  must  find  that 
he  committed  the  oft'ense  on  the  date  selected  for  prosecution.^^ 
The  court  may  also  be  required  to  give  instructions  as  to  the  date 
of  the  offense  with  a  view  of  defining  the  duties  of  the  jury  with 
respect  to  the  matter  of  punishment.^^ 

An  instruction  that  the  jury  may  convict  on  finding  the  com- 
mission of  an  offense  at  any  time  prior  to  the  date  of  the  indict- 
ment and  within  the  period  fixed  by  the  statute  of  limitations 
should  specify  the  time  covered  by  such  statute,^'  and  such  an  in- 
struction should  confine  the  jury  to  a  date  anterior  to  the  filing  of 
the  indictment  or  information,  and  should  not  permit  conviction 
of  an  offense  committed  at  any  time  before  the  trial.^* 

Where  the  evidence  raises  an  issue  as  to  the  date  of  the  com- 

31  People  V.  Reynolds,  192  P.  343;  as  People  v.  Nichols,  124  N.  W.  25, 

People  V.   Sykes,  101  P.  20,  10  Cal.  159  Mich.  355.     See  State  v.  Clark, 

App.   67;    Imboden   v.  People,   90   P.  146  P.  1107,  27  Idaho,  4S. 
60S.  40  Colo.  142;    Ferguson  v.  State,  3  6  Clary  y    Commonwealth    173  S 

72  N.  W.  590,  52  Neb.  432,  66  Am.-St.  w    171   Vfio  kv  TT 
Eep.  512;   State  y.  Perkins,  47  A.  26S,  "        '  ^' 

70  N.  H.  330.  3  7  People  v.  Davidson,  8S  N.  E.  565, 

3  2  Robinson  v.  State,  126  N.  W.  750,  240  111.  191. 
143  Wis.  205.  3  8  Taylor  v.    State,    114   P.   62S,    5 

33  Long  y.  State,  56  Ind.  182,  26  Am.  Okl.  Cr.  183  ;    Mitchell  y.  State,  101 

Rep.  19.  P.    1100.   2   Okl.    Cr.   442;     Banks   v. 

3  4  State  V.   Moss,   131  P.  1132,   73  State,  101  P.  610,  2  Okl.  Cr.  339. 
Wash.  430. 


# 


312 


INSTRUCTIONS  TO  JURIES 


5S8 


mission  of  the  offense,  and  is  not  inconsistent  with  the  possibility 
that  limitations  have  intervened  between  such  commission  and 
the  indictment,  the  court  should  charge,^^  on  request,*"  that  unless 
the  offense  be  shown  to  have  been  committed  within  the  statutory 
limitation  a  conviction  cannot  be  had. 

§  312.  Instructions  necessary  or  proper  where  two  or  more  per- 
sons are  jointly  indicted  or  jointly  tried 
Where  two  persons  jointly  indicted  are  separately  tried,  the 
court  should  charge,  on  request,  that  the  conviction  of  one  de- 
fendant creates  no  presumption  of  the  guilt  of  the  other.*^  Where 
two  persons  are  separately  indicted  for  the  same  offense,  but  tried 
jointly,  the  court  should  charge  the  law  separately  as  to  each 
case,*^  and  where  two  or  more  persons  are  jointly  tried  for  a  crime 
the  court  should  charge  that  the  jury  are  at  liberty  to  find  one  or 
more  of  the  defendants  guilty  and  the  others  not  guilty ,^^  and  in- 
structions which  may  lead  the  jury  to  believe  that  a  conviction  of 
one  defendant,  tried  jointly  with  others,  will  require  the  conviction 
of  the  others,  are  erroneous.**    The  failure,  however,  of  the  court  to 


3  9  state  V.  Kunhi,  93  N.  W.  342,  119 
Iowa,  461. 

4  0  Thorp  V.  State,  129  S.  W.  607,  59 
Tex.  Cr.  R.  517,  29  L.  R.  A.  (N.  S.)  421. 

41  Mixon  T.  State.  51  S.  E.  580,  123 
Ga.  581,  107  Am.  St.  Rep.  149. 

4  2  Mayzone  v.  State  (Tex.  Cr.  App.) 
225  S.  W!  55. 

43  Conn.  Hayden  v.  Nott,  9  Conn. 
367. 

Ga.  Abrams  v.  State,  48  S.  E.  965, 
121  Ga.  170. 

La.  State  v.  Daniels,  38  So.  894, 
115  La.  59. 

Mo.  State  v.  James,  115  S.  W. 
994,  216  Mo.  .394:  State  v.  Vaughan, 
98  S.  W.  2,  200  Mo.  1. 

Tex.  Hampton  v.  State,  45  Tex. 
154. 

44  Ga.  Lofton  v.  State,  48  S.  E. 
908,  121  Ga.  172. 

Iowa.  State  v.  Harvey,  106  N.  W. 
Ons.  1.30  Iowa,  .394. 

Miss.  Davis  v.  State,  23  So.  770, 
941,  75  Miss.  637. 

N.  Y.  People  v.  McGrath,  5  N.  Y. 
Cr.  R.  4. 

Tex.  Maloney  v.  State,  125  S.  W. 
.36,  57  Tex.  Cr.  R.  435;  Holmes  v. 
State,  9  Tox.  App.  313. 

Instructions  objectionable  ivi th- 
in rule.     On  a  trial  of  two  persons 


on  the  charge  of  homicide,  an  instruc- 
tion that,  if  the  jury  are  satisfied  that 
"defendants  or  either  of  them  is 
guilty  of  murder,  but  have  a  reason- 
able doubt  whether  it  was  committed 
upon  express  or  implied  malice,"  they 
must  give  the  defendants  the  benefit 
of  the  doubt,  and  not  find  him  or 
them  guilty  of  a  higher  degree  than 
murder  in  the  second  degree,  is  sub- 
ject to  the  criticism  that  the  court 
combined  the  cases  of  both  persons 
and  made  the  guilt  of  one  dependent 
on  that  of  the  other.  Abbata  v.  State, 
102  S.  W.  1125,  51  Tex.  Cr.  R.  510. 

Instructions  not  improper  ivitli- 
in  rule.  Direction  that  the  jury 
could  find  any  one  or  any  two  or  all 
three  of  the  defendants  guilty,  or  that 
they  might  return  a  verdict  of  not 
guilty  as  to  all  of  them.  State  v. 
Ford,  95  S.  E.  1.54,  175  N.  C.  797. 
Where,  on  a  trial  for  homicide,  the 
court  charged  that  the  law  presumed 
that  the  defendants  were  innocent  un- 
til their  guilt  had  been  proved  beyond 
a  reasonable  doubt,  and  that  if  on 
the  whole  case  the  jury  had  a  reason- 
able doubt  of  the  guilt  of  the  defend- 
ants, or  either  of  them,  they  should 
find  them  not  guilty,  or  such  one  of 
them    not   guilty    as   to    whom   they 


589 


PARTICULAR   MATTERS   IN    CRIMINAL   CASES 


313 


charge  that  the  jury  may  find  one  or  both  of  the  defendants  guilty 
or  acquit  one  or  both  as  they  may  find  the  facts  to  be  from  the 
evidence,*^  or  to  instruct  that  the  jury  may  find  one  defendant 
guilty  and  disagree  as  to  the  other,"*^  is  not  error,  if  no  such  in- 
struction is  asked.  So,  where  the  evidence  is  practically  the  same 
as  to  each  defendant  so  tried,  and  neither  asks  for  a  severance, 
or  for  a  charge  as  to  the  circumstances  under  which  the  jury  may 
make  a  separate  finding  as  to  either  one  of  the  defendants,  the 
failure  of  the  court  to  so  charge  is  not  error.^' 


B.  Principals  and  Accessories 

§  313.     Necessity  and  propriety  of  instructions 

Where  the  evidence  tends  to  show  that  the  accused  and  others 
acted  together  in  the  commission  of  the  offense  charged,  the  court 
may,**  and  should,*^  except  in  a  prosecution  for  a  misdemeanor,^" 


might  entertain  such  doubt,  an  in- 
struction that  if  they  believed  that 
defendants,  or  either  of  them,  con- 
spired to  kill  decedent,  and  pursuant 
thereto  killed  him,  they  should  find 
them  guilty  of  murder,  was  not  open 
to  the  objection  that,  if  the  jury  be- 
lieved any  of  the  defendants  to  be 
guilty,  they  were  required  to  find  them 
all  guilty.  Bull  v.  Commonwealth,  9B 
S.  W.  811,  29  Ky.  Law  Rep.  949.  In- 
structions authorizing  conviction  of 
assault  with  intent  to  murder  if  de- 
fendants committed  certain  acts  were 
not  erroneous  as  requiring  a  joint 
conviction  or  joint  acquittal,  where 
other  instructions  authorized  sepa- 
rate or  joint  conviction  or  acquittal. 
Sellers  v.  State,  134  S.  W.  348,  61  Tex. 
Cr.  R.  140. 

4  5  People  v.  Darr,  179  111.  App.  130, 
judgment  affirmed  104  N.  E.  389,  262 
111.  202;  State  v.  James,  115  S.  W. 
994,  216  Mo.  394;  State  v.  Barnett, 
102  S.  W.  506,  203  Mo.  640! 

4  6  Morgan  v.  State,  19  N.  E.  154, 
117  Ind.  569. 

4  7  Welborn  v.  State,  42  S.  E.  773, 
116  Ga.  522. 

4  8  Ala.  Bailey  v.  State.  53  So.  296. 
390,  168  Ala.  4. 

Cal.  People  v.  Haney  (App.)  189 
P.  338 :  People  v.  Wong  Hing,  169  P. 
357,  176  Cal.  699;  People  v.  Liera,  149 
P.  1004,  27  Cal.  App.  346. 

Colo.      Reagan    v.    People,    112   P. 


785,  49  Colo.  316 ;  Van  Wyk  v.  People, 
99  P.  1009.  45  Colo.  1. 

Conn.  State  v.  Kritchman,  79  A, 
75,  84  Conn.  152. 

Ga.  Short  v.  State,  SO  S.  E.  8,  140 
Ga.  780;  Morman  v.  State,  65  S.  E. 
146,  133  Ga.  76;  Goodin  v.  State,  55 
S.  E.  503, 126  Ga.  560. 

Ky-.  Ratlift"  v.  Commonwealth,  206 
S.  W.  497,  182  Ky.  246. 

Miss.  Spight  V.  State,  83  So.  84, 
120  Miss.  752. 

Neb.  Kirk  v.  State,  172  N.  W.  527, 
103  Neb.  484. 

Okl.  Collins  V.  State,  175  P.  124, 
15  Okl.  Cr.  96. 

Or.  State  v.  Chin  Borkey,  176  P. 
195,  91  Or.  606. 

Tex.  Middle  ton  v.  State,  217  S.  W. 
1046,  86  Tex.  Cr.  R.  307 ;  Gribble  v. 
State,  210  S.  W.  215,  85  Tex.  Cr.  R. 
52,  3  A.  L.  R.  1096;  Hoecker  v.  State, 
183  S.  W.  141,  79  Tex.  Cr.  R.  78 ;  Lew- 
is v.  State,  162  S.  W.  866,  72  Tex. 
Cr.  R.  377 ;  Coggins  v.  State,  151  S. 
W.  311,  68  Tex.  Cr.  R.  266;  Cortez  v. 
State,  83  S.  W.  812,  47  Tex.  Cr.  R. 
10;  McMahon  v.  State,  81  S.  W.  296, 
46  Tex.  Cr.  R.  540;  Wingo  v.  State 
(Cr.  App.)  75  S.  W.  29;  Grimsinger 
V.  State,  69  S.  W.  583,  44  Tex.  Cr.  R. 
1;  Houston  v.  State  (Cr.  App.)  47 
S.  W.  468. 

4  9  Lake  v.  State,  184  S.  W.  213,  79 

5  0  Lott  V.  State,  127  S.  W.  191.  58 
Tex.  Cr.  R.  604. 


313 


INSTRUCTIONS   TO  JURIES 


590 


charge  on  the  law  of  prmcipals.  In  a  prosecution  as  principal  of 
one  who  did  not  actually  commit  the  crime  charged,  the  covirt 
should  instruct  that  at  the  time  of  the  commission  of  the  offense 
the  parties  must  have  been  acting  together,  each  doing  some  part 


Tex.  Cr.  R.  234;    McKni^lit  v.  State, 
156  S.  W.  11S8,  70  Tex.  Cr.  R.  470. 

Evidence  justifying  or  requir- 
ing instructions  as  to  principal 
and  accessory.  Where,  in  a  prosecu- 
tion for  robbery,  it  appeared  tliat  de- 
fendant did  not  personally  take  the 
property  from  complainant's  person, 
but  stood  by  holding  a  revolver,  an 
instruction  as  to  an  accessory  was 
properly  given.  People  v.  Deluce,  86 
N.  E.  1080,  237  111.  541,  Where  there 
is  evidence  that  defendant,  who  was 
charged  w^ith  unlawfully  branding 
cattle  not  his  own,  caused  the  cattle 
to  be  branded  by  another,  an  instruc- 
tion that  the  jury  could  find  defend- 
ant guilty,  if  he  branded  or  caused 
the  cattle  to  be  branded,  without  in- 
structing as  to  who  were  principals  in 
the  offense,  is  erroneous.  Arismendis 
v.  State,  54  S.  W.  601,  41  Tex.  Cr.  R. 
378.  In  a  prosecution  against  two 
for  burglary,  where  the  prosecuting 
witnesses  saw  only  one  person  in 
their  house,  but  there  was  evidence 
another  participated,  an  instruction 
on  accessories  is  warranted.  People 
V.  Hohimer,  111  N.  E.  599,  271  111.  515. 
In  a  prosecution  for  burglary,  evi- 
dence that  at  the  time  of  the  burglary 
defendant's  codefendant  was  in  the 
house,  and  defendant  was  standing  on 
the  outside  and  ran  away  as  the  oflQ- 
cers  approached,  was  sufficient  to  au- 
thorize a  charge  defining  a  principal. 
Tally  v.  State,  90  S.  W.  1113,  49  Tex. 
Cr.  R.  91.  Evidence  that  a  witness 
testified  that  on  approaching  the  bur- 
j,darized  house  he  heard  a  whistle, 
which  he  thought  came  from  defend- 
ant, who  was  standing  near  by,  and 
witness  thought  he  saw  another  per- 
son in  the  house.  Young  v.  State,  44 
S.  W\  835.  W^here  defendants  were 
.iointly  indicted  for  burglary  as  prin- 
cipals in  the  first  degree,  and  there 
was  evidence  that  defendants  were 
the  actual  perpetrators  of  the  offense, 
and  other  evidence  from  which  the 
jury  might  have  found  that  they 
watched  while  the  burglary  was  com- 


mitted, it  warranted  an  instruction 
on  the  subject  of  principals  in  the  sec- 
ond degree.  Lofton  v.  State,  48  S.  E. 
908,  121  Ga.  172.  In  a  prosecution  for 
burglary  of  a  saloon,  where  defendant 
testified  that  he  was  called  into  the 
place  to  have  a  drink  by  parties  en- 
gaged in  committing  the  crime,  and 
that  he  left  as  soon  as  he  understood 
the  true  condition  of  affairs,  he  had 
the  right  to  have  presented  to  the 
jury  the  law,  applicable  to  his  de- 
fense, that  he  was  not  guilty  as  a 
principal,  unless  he  aided  in  the  com- 
mission of  the  crime.  JlcPherson  v. 
State,  182  S.  W.  1114,  79  Tex.  Cr.  R. 
93.  Where  the  state's  evidence  tend- 
ed to  show  that  one  defendant  held 
the  deceased  while  the  other  defend- 
ant shot  him,  it  is  proper  to  charge 
the  law  of  principals  as  to  the  first 
defendant.  Bell  v.  State,  190  S.  W. 
732,  80  Tex.  Cr,  R.  475.  Where  the 
only  evidence  as  to  defendant's  con- 
nection with  the  offense  of  unlawfully 
killing  a  hog  was  circumstantial,  and 
the  evidence  for  the  state  tended  to 
show  a  conspiracy  on  the  part  of  de- 
fendant and  others  to  kill  hogs  be- 
longing to  a  certain  person,  it  was 
error  to  refuse  to  instruct  that  de- 
fendant was  not  chargeable  with  any- 
thing which  any  other  one  named  in 
the  indictment  may  have  done,  unless 
he  advised,  aided,  or  abetted  others  in 
the  commission  of  the  offense,  intend- 
ing at  the  time  to  aid  or  encourage 
the  commission  of  the  offense.  How- 
ser  V.  State,  23  So.  681,  117  Ala.  176. 
Where  the  evidence  tended  to  show 
that  defendant  might  have  been 
guilty  of  homicide  upon  the  theory 
that  he  personally  delivered  the  fatal 
blow,  or  that  there  was  a  conspiracy 
between  him  and  others,  in  pursuance 
of  which  one  of  his  associates  deliver- 
ed the  fatal  blow,  or  that  though 
there  was  no  such  conspiracy  and 
though  defendant  did  not  deliver  the 
fatal  blow,  yet  he  was  present,  aid- 
ing and  abetting,  it  was  error  to  re- 
fuse an  instruction  that,  if  the  jury 


591  PAETICULAR   MATTERS    IN    CRIMINAL   CASES  §  313 

in  the  execution  of  the  common  purpose.^^  Where  there  is  evi- 
de^ace  showing  that  the  defendant  was  guilty  only  as  an  accom- 
plice, the  jury  should  be  afihrmatively  instructed  that  if  the  de- 
fendant was  not  a  principal  he  cannot  be  convicted  under  an  in- 
dictment charging  him'  as  principal,^^  and  where  the  defendant  has 
admitted  subsequent  knowledge  of  the  crime  charged  against  him 
he  is  entitled  to  an  instruction  that  such  confession  is  not  evi- 
dence of  actual  participation  in  the  crime,  but  goes  only  to  show 
that  he  was  an  accessory  after  the  fact,  and  that  it  is  no  basis  for 
his  conviction  as  principal  or  active  participant.^^ 

In  a  prosecution  of  one  as  an  accomplice,  the  jury  should  be 
charged  in  some  jurisdictions  that  the  state  must  prove,  first,  the 
commission  of  the  crime  by  the  alleged  principal,  and,  second,  that 
defendant  was  an  accomplice  as  charged,  and  that  the  testimony 
of  the  alleged  principal  is  not  sufficient  to  prove  either  of  these 
facts,  but  must  be  corroborated,^  and,  in  some  jurisdictions,  where 
one  is  charged  as  accomplice  in  a  crime  the  court  should  distinctly 
instruct  that  in  order  to  convict  the  jury  must  believe  that  the  de- 
fendant was  not  present  at  the  commission  of  the  crime,  and  that  it 
was  committed  by  a  person  or  persons  who  were  advised,  command- 
ed, or  encouraged  by  the  defendant  to  commit  it,^^  although  it  is 
held  that,  where  the  evidence  conclusively  shows  the  guilt  of  the 
principal  defendant,  it  is  not  necessary  to  instruct  that  the  jury 
must  believe  him  to  be  guilty  before  they  can  convict  the  acces- 
sory.^® 

found  tliat  defendant  and  liis  asso-  Harmless  error.    Where  the  court 

ciates  acted  illegally  and  maliciously  had    charged    that,    before    the    ju- 

in  what  they  did,  yet  unless  they  were  ry     could     convict     defendant,     they 

satisfied  beyond  a  reasonable  doubt,  must  find  beyond  a  reasonable  doubt 

and  to  a  moral  certainty,  that  their  that  she  was  a  principal,   a  failure 

acts  were  done  pursuant  to  a  mutual  to  charge   that,   if   she  were  an   ac- 

agreement,   they   should   not   convict  complice  or  an  accessorj%  they  must 

defendant   unless    they   believed   be-  acquit    her,    was    without    prejudice 

yond   a   reasonable  doubt,   and  to  a  where    the    evidence    shows    that,    if 

moral   certainty,   that   defendant   in-  guilty  at  all,  she  was  guilty  as  a  prin- 

flicted  the  fatal  wound,  or  aided  and  cipal.     Harris   v.   State,   37  Tex.   Cr. 

abetted  whoever  did  inflict  it.    Liner  R.  441.  .36  S.  W.  88. 

v.  State,  27  So.  4.38,  124  Ala.  1.     Evi-  53  state  v.  Payne,  6  Wash.  563,  34 

dence  in  a  prosecution  for  obstructing  pj^^    o-^'j 

a  railroad  track,  showing  that  defend-  'si  Cone  v    Stite   ne  S    W   WO   S6 

ant  and  another  passed  the  place  of  ™       Pr   r   201         " 

the  obstruction  and  were  seen  about  * 

there  calls  for  an  instruction  on  prin-  ^^  Cone  v.  State,  216  S.  W.  190,  86 

cipals.    Clay  v.  State,  146  S.  W.  166,  Tex.  Cr.  R.  291 ;    Leeper  v.  State,  29 

65  Tex.  Cr.  R.  590.  Tex.  App.  154,  15  S.  W.  411 ;    Dugger 

01  Middleton    v.    State,   217    S.    W.  v.  State,  27  Tex.  App.  95,  10  S.  W. 

1046,  86  Tex.  Cr.  R.  307.  T63. 

5  2  Silvas  V.  State,  159  S.  W.  223,  71  ss  Gullatt  v.  State,  SO  S.  E.  340,  14 

Tex.  Cr.  R.  213.  Ga.  App.  53. 


§  313 


INSTRUCTIONS  TO  JURIES 


592 


It  is  unnecessary  to  charge  as  to  accessories,  where  the  court 
defines  a  principal,  tells  the  jury  they  can  only  convict  if  they  j^je- 
lieve  the  defendant  to  be  a  principal  as  defined,  and  then  charges 
that  if  they  have  a  reasonable  doubt  as  to  whether  the  defendant 
is  guilty  as  a  principal  as  defined  to  them  he  is  entitled  to  the 
benefit  of  the  doubt  and  should  be  acquitted.^''  Where  all  the  de- 
fendants are  principal  offenders,  the  court  may  so  charge.^* 

§  314.     Sufficiency  of  instructions 

An  instruction  which  follows  the  language  of  the  statute  in  de- 
fining a  principal  or  an  accessory  will  ordinarily  be  sufficient,^ 
and  usually  it  is  better  to  do  so.^®  In  a  proper  case  the  court  may 
call  the  attention  of  the  jury  to  a  provision  of  the  statute  that  an 
accessory  may  be  prosecuted  and  punished  as  though  he  were  the 
principal  offender.®^  In  an  instruction  defining  who  are  principals, 
the  court  should  only  quote  that  part  of  the  statute  relating  to 
principals,  omitting  the  part  not  applicable  to  principals.*'- 

In  some  jurisdictions  an  instruction  defining  accomplices  as  all- 
persons  who  participate  in  an  oft'ense  as  principals,  and  principals 
as  "all  persons  acting  together  in  the  commission  of  an  offense," 
is  sufficient.®^     An  instruction  calculated  to  give  the  jury  the  im- 


5  7  Spradling  v.  State  (Tex.  Cr. 
App.)  42  S.  W.  294. 

5  8  Gavinia  v.  State,  145  S.  W.  594, 
65  Tex.  Cr.  R.  .572:  Hernandez  v. 
State  (Tex.  Cr.  App.)  145  S.  W.  .596. 

5  9  Burnett  v.  State,  96  S.  W.  1007, 
80  Ark.  225;  State  v.  Bland,  76  P. 
780,  9  Idaho,  796 ;  People  v.  Everett, 
90  N.  E.  226,  242  111.  628;  People  v.* 
Lee,  86  N.  E.  573.  2.37  111.  272 ;  Grim- 
singer  V.  State,  69  S.  W.  583,  44  Tex. 
Cr.  R.  1. 

6  0  Clerget  v.  State,  103  S.  W.  381, 
83  Ark.  227;  State  v.  Allen.  87  P.  177, 
34  Mont.  403 ;  State  v.  Geddes,  55  P. 
919,  22  Mont.  68. 

61  State  V.  Carey,  56  A.  632,  76 
Conn.  342. 

6  2  Sapp  V.  State,  190  S.  W.  489,  80 
Tex.  Cr.  R.  363. 

6  3  Hilton  V.  State,  53  S.  W.  113,  41 
Tex.  Cr.  R.  190. 

Other  instructions  on  principal 
and  accessory  Iield  proper.  An  in- 
struction in  gciving  general  definition 
of  a  principal  which  quoted  the  stat- 
ute, to  the  effect  that  any  person  who 
advises  or  agrees  to  the  commission 
of  an  offense  and  is  present  when  it 


is  committed,  whether  or  not  he  aids 
in  the  illegal  act,  is  a  principal,  was 
not  error.  Ferguson  v.  State,  187  S. 
W.  476,  79  Tex.  Cr.  R.  641.  A  charge 
that  all  persons  are  "principals"  who 
are  guilty  of  acting  together  in  the 
commission  of  an  offense,  and  that 
the  criterion  is  did  the  parties  act  to- 
gether, was  the  act  done  in  pursuance 
of  a  common  intent  and  previously 
formed  design  in  which  the  minds  of 
all  united ;  if  so,  they  are  alike  guil- 
ty, providing  the  offense  was  actually 
committed  during  the  existence  and  in 
the  execution  of  the  common  design 
and  intent,  whether  all  were  actually 
bodily  present  when  the  offense  was 
actually  committed  or  not — sufficient- 
ly submitted  the  law  on  the  subject  of 
principals.  Lott  v.  State,  127  S.  W. 
191,  58  Tex.  Cr.  R.  604.  An  tnstruc- 
tiou  that  all  persons  are  principals 
who  acted  together  in  the  commission 
of  an  offense,  and  that  where  an  of- 
fense is  committed  by  one  or  more 
persons,  and  others  are  present,  and, 
knowing  the  unlawful  intent,  aid 
those  actually  engaged  in  the  unlaw- 
ful act,  such  persons  are  principals, 
who  may  be  prosecuted,  as  such,  fol- 


593 


PARTICULAR  MATTERS  IN   CRIMINAL  CASES 


314 


pression  that  mere  knowledge  by  one  defendant,  that  the  crime 
charged  was  in  contemplation  by  the  person  or  Persons  who  ac- 
tually committed  it  would  constitute  an  aiding  or  abetting  is  er 


lowed  by  an  instruction  that,  before 
defendant  could  be  convicted,  it  must 
be  found  beyond  a  reasonable  douDt 
that  he  was  present  "knowing  the  un- 
lawful intent  and  aided  the  persons 
committing   the   offense,"    aptly  pre- 
sents the  issue  as  to  intent.    Dowlmg 
V.  State,  140  S.  W.  224,  ^3  Tex.  Cr.  R. 
366     An  instruction  that  if  a  man  as- 
sist or  encourage  another  by  his  pres- 
ence consciously,  knowingly,  purpose- 
ly, knowing  that  the  other  person  un- 
derstands that  he  is  there  as  an  en- 
courager,  he  is  an  accomplice  though 
he  does  not  lift  a  hand  is  a  reasona- 
bly correct  exposition  of  the  law  on 
the  subject.    Eaton  a".  State,  63  So.  41, 
8  Ala.  App.  136.    Where,  in  a  prosecu- 
tion   for    drowning    accused's   infant 
child,  there  was  no  evidence  that  any 
one  could  have  been  connected  there- 
with except  accused  and  its  mother, 
and    the    evidence   strongly   rebutted 
the   theory   that  she  did   the  act,   a 
charge  that  if  the  jury  believed  be- 
vond  a  reasonable  doubt  that  the  child 
Was  drowned,  but  believed  that  accus- 
ed was  not  present  at  the  time  and 
did  not  drown  it,  or  had  a  reasonable 
doubt  thereof,  they  should  acquit,  suf- 
ficiently presented  the  question  of  lia- 
bility  of   accused   as   an   accomplice 
Gossett  V.   State,  123  S.  W.  428,  57 
Tex   Cr  R.  43.    On  a  prosecution  tor 
assault    with    intent    to    kill,    where 
there  is  evidence  that  defendant  was 
an  accessory,  an  insti-uction  that  one 
is   guiltv  as  principal  of  an  ottense 
committed  solely  by  another,  when  he 
conspired  with  the  other  to  commit 
It   and  that  the  conspiracy  need  not 
be   shown   by   positive,   but   may   be 
shown  by  circumstantial,  evidence,  is 
proper.    Elmore  v.  State,  110  Ala.  63, 
'^0  So.  323.    An  instruction  that  if  one 
of  the  defendants  made  the  felonious 
assault,  and  if  the  others  were  pres- 
ent, aiding,  and  abetting,  or  ready,  if 
necessary,   to   aid   and  abet   therein, 
they  are  equally  guilty  with  him,  is 
not  erroneous,  since  the  word  "ready 
means  prepared  in  mind,  and  disposed 
to  so  aid  and  abet.     State  v.  Gooch, 
105  Mo.  392,  16   S.  W.  892.     An  in- 
INST.TO  Juries— 38 


struction  that  the  jury  would  be  war- 
ranted in  finding  defendants  guilty  if 
they  believed  that  "the  defendants,  or 
either  of  them,  the  other  being  present 
and  abetting,"  did  willfully,  etc.,  shoot 
deceased,  is  not  ground  for  reversal, 
as  requiring  a  conviction  of  both  de- 
fendants if  a  conviction  of  one  was 
had      State  v.  Taylor,  134  Mo.  109, 
35  S    W    92.     In  a  trial  for  murder, 
an  instruction  that  if  defendant  was 
present  for  the  purpose  of  actual  as- 
sistance as  the  circumstances  might 
demand,   and   the  principal   was  en- 
couraged to  take  the  life  of  the  d^ 
ceased  by  the  presence  of  defendant, 
then  defendant  aided  and  abetted  in 
the  killing  of  the  deceased,  is  proper- 
ly given.    Singleton  v.  State,  10b  Ala. 
49   17  So.  327.    Where,  on  a  prosecu- 
tion for  larceny,  there  is  evidence  that 
others  were  present  when  the  crime 
was  committed,  who  might  have  acted 
in  concert  with  defendant,  it  is  prop- 
er to  instruct  the  jury  to  convict  it 
they  find  that  the  offense  was  com- 
mitted, and  the  opportunity  was  such 
as  to  point  to  the  defendant,  as  the 
sole  perpetrator,   or   the  perpetrator 
with  others,  with  whom  she  acted  in 
concert.     Territory  v.  De  Gutman,  8 
N.  M.  92,  42  P.  68.    The  charge,  in  a 
prosecution    for    larceny,    that    any 
participation   in  a   general  felonious 
plan,  if  there  is  such  a  plan  and  there 
be  actual  or  constructive  presence,  will 
make  one  a  principal,  is   not  error, 
when  joined  with  a  charge  that,  to  be 
convicted  of  larceny  as  a  principal, 
one  must  be  actually  or  constiiictive- 
ly  present,  and  that  previous  consent 
or  procurement  of  the  taking  and  car- 
rying away,  or  subsequent  reception, 
of  the  thing  stolen,  will  not  make  one 
a  principal.     Baldwin  v.  State,  35  So. 
2'>0   46  Fla.  115.    Where,  on  a  prose- 
cution for  theft  of  hogs,  the  defense 
was  that  defendant  was  not  connected 
with  the  original  theft  of  the  prop- 
erty, a  charge  by  the  court,  after  de- 
fining   "principals,"    that    defendant 
must  be  acquitted  unless  the  evidence 
satisfied  the  jury  that  defendant  took 
the  hogs,  or  that  some  other  person 


§  314 


INSTRUCTIONS  TO  JURIES 


594 


roneous.®*  In  some  jurisdictions  an  instruction  which  authorizes 
the  jury  to  convict  the  defendant  as  a  principal  if  he  acted  with 
others  in  the  commission  of  the  offense  charged,  and  the  act  was 
done  in  pursuance  of  a  common  intent,  whether  the  defendant  was 
in  fact  actually  present,  is  erroneous,  as  authorizing  a  conviction 
as  a  principal  on  facts  which  make  the  defendant  guilty  only  as 
an  accomplice.®^ 

The  acts  necessary  to  constitute  one  an  aider  and  abettor  of  an 
offense  cannot  well  be  embodied  in  an  instruction  without  mis- 
leading the  jury,  and  accordingly  it  is  the  better  practice  simply  to 
instruct  the  jury  that  a  party  aiding  and  abetting  the  commission 
of  an  offense  is  guilty.*^® 

C.  Grade  or  Dkgre:e  of  OffknsS 

§  315.     Necessity  and  propriety  in  general 

Where  the  offense  charged  is  one  that  admits  of  degrees,  and 
the  evidence  justifies  it,  an  instruction  looking  to  the  conviction  of 
defendant  of  a  lower  grade  of  offense  than  that  charged  in  the  in- 
dictment, but  necessarily  included  in  it,  is  proper,®'  and  should  be 


took  the  hogs,  and  that  defendant  was 
so  connected  with  such  taking  as 
would  make  him  a  "principal,"  as  be- 
fore defined,  is  sufficient.  Tucker  v. 
State  (Tex.  Cr.  App.)  23  S.  W.  682. 

Instructions  on  principal  and 
accessory  held  improper.  In  a 
prosecution  for  hog  theft,  where  it 
appeared  that  the  hogs  were  taken 
from  their  accustomed  range,  so  that 
whoever  took  them,  by  driving  them 
or  reducing  them  to  actual  possession, 
was  guilty  as  an  original  taker,  and 
any  one  who  had  connection  with  the 
hogs  subsequent  to  such  taking  was 
not  a  principal,  but  there  was  no  evi- 
dence showing  how  the  hogs  disap- 
peared from  the  range,  or  who  took 
them,  and  it  was  sought  by  circum- 
stantial evidence  to  connect  accused 
and  another  with  the  possession  of 
the  hogs,  though  they  were  never  seen 
in  accused's  possession,  a  charge  that 
all  persons  are  principals  who  are 
guilty  of  acting  together  in  the  com- 
mission of  an  offense,  and  that  if  the 
jury  believed  that  one  or  more  of  the 
hogs  in  question  were  fraudulently 
taken  as  charged,  and  that  accused, 
with   one  or  more  others,   acted   to- 


gether in  such  taking,  accused  would 
be  a  principal,  and  that  by  acting  to- 
gether was  meant  that  accused  was 
present,  and  that  the  persons  acted  in 
concert  towai'ds  the  accomplishment 
of  a  common  purpose,  one  performing 
one  part  and  another  another  part  in 
aid  of  its  accomplishment  at  the  time 
of  its  perpetration,  was  erroneous,  as 
permitting  accused  to  be  convicted  as 
principal,  whether  he  participated  in 
the  original  taking  or  not.  McClure 
V.  State,  128  S.  W.  386,  59  Tex.  Cr. 
R.  287. 

6  4  Clem  V.  State,  33  Ind.  418;  State 
V.  Bartlett,  105  N.  W.  59,  128  Iowa, 
518;  True  v.  Commonwealth,  90  Ky. 
651,  14  S.  W.  684;  State  v.  Cox,  65 
Mo.  29. 

6  5  Silvas  v.  State,  159  S.  W.  223,  71 
Tex.  Cr.  R.  213. 

6  6  Smith  v.  Commonwealth,  4  Ky. 
Law  Rep.  (abstract)  353. 

6  7  Ark.  Pickett  v.  State,  121  S.  W. 
732,  91  Ark.  570. 

Mo.  State  v.  Schieller,  130  Mo. 
510,  32  S.  W.  976;  State  v.  Musick, 
101  Mo.  260,  14  S.  W.  212. 

N«b.  McConnell  v.  State,  110  N. 
W.  666,  77  Neb.  773. 


595 


PARTICULAR   MATTERS   IN   CRIMINAL   CASES 


§315 


given^*    on    request.^''      The    above    rule    applies    where    the    trial 
court  has  a  reasonable  doubt  about  the -propriety  of  such  an  in- 


Utab.  People  v.  Tliiede,  11  Utah, 
241.  3'J  Pac.  SSI. 

Wyo.  Nicholson  v.  State,  106  P. 
929,  18  Wyo.  298. 

6  8  Ariz.  Stokes  v.  Territory,  127 
P.  742,  14  Ariz.  242. 

Cal.  People  v.  Wilson,  156  P.  377, 
29  Cal.  App.  563. 

Ga.  Weldon  v.  State,  94  S.  E.  326, 
21  Ga.  App.  330;  Griffin  v.  State,  89 
S.  E.  537,  18  Ga.  App.  462;  Tanner 
V.  State,  88  S.  E.  554,  145  Ga.  71; 
McGuffie  V.  State,  17  Ga.-  497. 

Iowa.  State  V.  Thompson,  103  N. 
W.  377,  127  Iowa,  440 ;  State  v.  Des- 
mond, SO  N.  W.  214,  109  Iowa,  72. 

Kan.  State  v.  Bloom,  136  P.  951, 
91  Kan.  156 ;  State  v.  Franklin,  77  P. 
588,  69  Kan.  798. 

La.  State  v.  Wright,  28  So.  909, 
104  La.  44. 

Minn.  State  v.  Brinkman,  175  N. 
W.  1006,  145  Minn.  18. 

Mo.  State  V.  Barham,  82  Mo.  67 ; 
State  V.  Tate,  12  Mo.  App.  327;  State 
V.  Robinson,  73  Mo.  306;  State  v. 
Bryant,  55  Mo.  75;  State  v.  Wyatt, 
50  Mo.  309. 

N.  M.  Territory  v.  Nichols,  3  N.  M. 
76,  2  P.  78. 

N.  Y.  People  v.  Young,  88  N.  Y. 
S.  1063,  96  App.  Div.  33 ;  Fitzgerrold 
V.  People,  37  N.  Y.  413. 

N.  C.  State  v.  Merrick,  88  S.  E. 
501,  171  N.  C.  788. 

Ohio.  Hagan  v.  State,  10  Ohia  St. 
459. 

Okl.  Newby  v.  State  (Okl.  Cr. 
App.)  188  P.  124:  Kent  v.  State,  126 
P.  1040,  8  Okl.  Cr.  ISS. 

Or.  State  V.  Cody,  18  Or.  506,  23 
P.  891,  24  P.  895. 

Tenn.  Jones  v.  State,  161  S.  W. 
1016,  128  Tenn.  493 ;  Nelson  v.  State, 
2  Swan,  237. 

Tex.  Jones  v.  State,  216  S.  W.  884, 
86  Tex.  Cr.  R.  371;  Wood  v.  State, 
150  S.  W.  780,  68  Tex.  Cr.  R.  58 ;  Joy 
V.  State,  123  S.  W.  584,  57  Tex.  Cr. 
R.  93 ;  Cockerell  v.  State,  32  Tex.  Cr. 
R.  585.  25  S.  W.  421;  McPhail  v. 
State,  10  Tex.  App.  128;  Gatlin  v. 
State,  5  Tex.  App.  531 :  Taliaferro  v. 
State,  40  Tex.  523  ;  Pefferling  v.  State, 
40  Tex.   486;    Marshall  v.   State,   40 


Tex.  200;  Hudson  v.  State,  40  Tex. 
12. 

Wis.  Weisenbaeh  v.  State,  119  N. 
W.  843,  138  Wis.  152. 

Instructions  lield  necessary  un- 
der rule.  On  trial  of  an  indictment 
for  burglary  and  larceny,  under  a 
statute  providing  that,  where  a  per- 
son committing  burglary  also  commits 
a  larceny,  he  may  be  prosecuted  for 
both  in  the  same  indictment,  and,  if 
convicted,  shall  be  imprisoned  in  the 
penitentiary,  in  addition  to  the  pun- 
ishment prescribed  for  burglary,  not 
less  than  two  nor  more  than  five  years 
for  the  larceny,  the  court  should  in- 
struct the  jury  that  they  might  con- 
vict of  burglary  and  acquit  of  larceny 
or  acquit  of  the  former  and  convict 
of  the  latter,  or  convict  or  acquit  of 
both.  State  v.  Brinkley,  47  S.  W.  793, 
140  Mo.  37. 

Conviction  of  first  and  second 
offenses  as  misdemeanors.  In  a 
prosecution  for  a  felony  under  a  stat- 
ute which  also  defines  first  and  second 
offenses  as  misdemeanors  with  differ- 
ent penalties  attached,  defendant  may 
be  acquitted  of  felony  but  convicted 
for  a  first  or  second  offense,  and  in- 
structions should  be  given  thereon,, 
especially  when  evidence  as  to  former 
offense  is  more  doubtful  than  as  to 
principal  offense  charged.  Wozniak 
v.  State,  174  N.  W.  298,  103  Neb.  749. 

Joint  trial  of  tit^o  defendants. 
In  a  joint  trial  for  murder,  it  is  the 
duty  of  the  judge,  if  convinced  that 
either  prisoner  is  guilty  of  a  less  of- 
fense than  that  charged,  to  so  instruct 
the  jury,  without  regard  to  its  effect 

GO  Ark.  Roberson  v.  State,  160  S. 
W.  214,  109  Ark.  420 ;  Collins  v.  State, 
143   S.  W.  1075,  102  Ark.  180. 

Kan.  State  v.  McAnarney,  79  P. 
137.  70  Kan.  679. 

N.  Y.  Foster  v.  People,  50  N.  Y. 
598. 

Okl.  Ex  parte  Wills,  148  P.  10G9. 
12  Okl.  Cr.  596 ;  Moody  v.  State,  148- 
P.  1055,  11  Okl.  Cr.  471. 

Tex.  Hemanus  v.  State,  7  Tex. 
App.  372. 


§  315  INSTRUCTIONS  TO  JURIES  596 

struction,''®  and  slight  evidence  that  the  offense  committed  may 
have  been  of  a  lower  degree  than  the  one  charged  will  make  it 
proper  or  necessary  for  the  court  to  charge  the  law  of  such  inferior 
offense.'^^  The  unsupported  evidence  of  the  accused  will  be  suffi- 
cient for  that  purpose.'^  Such  an  instruction  should  be  given,  un- 
less the  evidence  positively  excludes  any  inference  that  an  inferior 
degree  of  the  crime  charged  was  committed,  and  to  require  such 
submission  the  defendant  need  not  show  facts  justifying  the  conclu- 
sion that  the  lesser  crime  was  committed.'^  It  is  only  whef"e  the 
court  may  hold  as  a  matter  of  law  that  the  offense,  if  any,  of  which 
the  defendant  is  guilty  is  the  highest  possible  degree  of  the  offense 
charged,  that  included  offenses  need  not  be  submitted,'*  and  an 
instruction  that  withdraws  from  the  jury  the  consideration  ot  ele- 
ments in  the  case  tending  to  reduce  the  degree  of  the  crime  charg- 
ed is  reversible  error.'^^  Instructions  permitting  the  jury  to  bring 
in  a  verdict  of  guilty  of  the  particular  grade  of  offense  for  which  the 
defendant  is  on  trial,  on  finding  him  guilty  of  a  higher  grade,  are 
erroneous.'® 

In  most  jurisdictions  in  the  absence  of  a  request  so  to  do,  the 
general  rule  is  that  it  is  not  error  for  the  court  to  fail  to  instruct 
as  to  the  various  degrees  of  the  crime  charged  and  as  to  the  con- 
ditions of  proof  under  which  they  may  convict  of  a  lesser  degree." 

iipon    the   other   prisoner.      State   v.  Tex.  Or.  R.  318;    Parker  v.  State,  3 

Pratt,  88  N.  C.  639.  S.  W.  100,  22  Tex.  App.  105. 

Instructions  held  improper  nn-  7  7  Ark.     Adcock  v.  State,  83  S.  W. 

der   rule.     In  a  prosecution  for  as-  318,   73  Ark.  625,   626;    Hamilton  v. 

sault  with  intent  to  murder,  where,  State,  36  S.  W.  1054,  62  Ark.  543. 

under  the  information  and  evidence,  Ariz.    Ward  v.  TerritoiT,  64  P.  441, 

the  defendant  could  have  been  con-  7  Ariz.  241,  3  Ann.  Cas.  137. 

victed  of  an  assault  likely  to  produce  Cal.     People  v.  Modina,  79  P.  842, 

great  bodily  injury,  it  was  error  to  146 'Cal.  142;    People  v.  Clark,  79  P. 

charge   that   he   could   only   be   con-  434,    145    Cal.    727;     People   v.    Bai- 

victed  of  assault  with  intent  to  com-  ley,  76   P.  49,  142   Cal.  434;    People 

mit  murder,   or  of  a  simple  assault.  v.   Arnold,  48   P.   803,   116   Cal.   682; 

People  v.  Watson,  57  P.  1071,  125  Cal.  People  v.  Barney,  47  P.  41,  114  Cal. 

342.  554;    People  v.  McNutt,  93  Cal.  658, 

7  0  State  v.  McGowan,  93  P.  552,  36  29  P.  243. 

Mont.  422.  Colo.     Ray  v.  People,  167  P.  954, 

71  State  V.  Clark,  77  P.  287,  69  Kan.  63  Colo.  376  ;    Miller  v.  People,  46  P. 

576 ;   State  v.  Patterson,  52  Kan.  335,  ill,  23  Colo.  95. 

34  P.  784.  Fla.     Cross  v.  State,  74  So.  593,  73 

7  2  State  v.  Clark,  77  P.  287,  69  Kan.  Fla.  530 ;    Lindsey  v.  State,  43  So.  87, 

576.  53  Fla.  56;    Copeland  v.  State,  26  So. 

7  3  State  v.   Gottstein,    191   P.   766,  319,  41  Fla.  320.     Compare  Johnson 

111  Wash.  600.  V.  State,  43  So.  779,  53  Fla.  45. 

7  4  State  V.  Dimmitt,  169  N.  W.  137.  Ga.     Tyson  v.  State,  97  S.  E.  458, 

184  Iowa,  870.  23  Ga.  App.  20 ;    Green  v.   State,  97 

7  5  Dolan  V.  State,  44  Neb.  643.  62  N.  S.  E.  201,  22  Ga.  App.  793. 

W.  1090.  Idaho.     State  v.  White,  61  P.  517, 

7  6  Ix)max  V.  State,  43  S.  W.  92,  38  7  Idaho,  150. 


597 


PARTICULAR   MATTERS  IN   CRIMINAL  CASES 


§315 


In  some  jurisdictions,  however,  the  duty  of  the  court  to  so  instruct 
exists,  irrespective  of  whether  the  (defendant  requests  such  an  in- 
struction or  not.'*  In  Missouri,  under  a  recent  statute  requiring 
the  court  to  instruct  upon  all  questions  of  law  necessary  for  the 
information  of  the  jury,  the  court  should,  whether  so  requested  or 
not,  in  a  proper  case,  instruct  upon  minor  offenses.'^  In  Georgia 
it  is  held  that  while,  if  the  issue  of  included  offenses  is  presented 
merely  by  the  statement  of  the  defendant,  it  will-  not  be  error  to 
fail  to  charge  thereon  in  the  absence  of  a  request,*®  the  rule  is 
otherwise  where  the  issue  is  presented  by  the  evidence.*^ 


111.  People  V.  Rozanski,  109  N.  E. 
711.  26S  111.  607. 

Ind.  Barnett  v.  State,  100  Ind. 
171;    McClary  v.  State.  75  Ind.  200. 

Ind.  T.  Roper  v.  United  States, 
104  S.  W.  584,  7  Ind.  T.  185,  rehearing 
denied  97  P.  1022,  1  Okl.  Cr.  712. 

Kan.  State  v.  Ewing.  17.3  P.  927. 
103  Kan.  399 :  State  v.  Truskett.  118 
P.  1047,  85  Kan.  804;  State  v.  New- 
ton, 87  P.  757,  74  Kan.  561. 

Iia.  State  V.  Marqueze,  45  La.  Ann." 
41,  12  So.  128. 

Mich.  People  v.  Ezzo,  104  Mich. 
341.  62  N.  W.  407. 

Minn.  State  v.  Gaularpp,  174  N. 
W.  445,  144  Minn.  86. 

Neb.  Curtis  v.  State,  150  N.  W. 
264.  97  Neb.  397 ;  Krause  v.  State,  129 
N.  W.  1020,  88  Neb.  473,  Ann.  Cas. 
1912B,  736;  McConnell  v.  State,  110 
N.  W.  666.  77  Neb.  773;  Barr  v. 
State,  63  N.  W.  856,  45  Neb.  458; 
Thurman  v.  State,  32  Neb.  224,  49  N. 
W.  338. 

N.  Y.  People  V.  .Jordan,  109  N.  Y. 
S.  840,  125  App.  Div.  522 ;  MeKee  v. 
People,  34  How.  Prac.  230. 

Ohio.  State  v.  McCoy,  103  N.  E. 
136.  88  Ohio  St.  447. 

Or.  State  v.  Reyner,  91  P.  301, 
50  Or.  224. 

S.  C.  State  V.  Malloy,  78  S.  E.  995, 
95  S.  C.  441,  Ann.  Cas.  1915C,  1053. 
.indcment  affirmed  Malloy  v.  State  of 
South  Carolina,  35  S.  Ct.  507,  237  U. 
S.  180.  59  L.  Ed.  90.5. 

S.  D.  State  v.  Frazer,  121  N.  W. 
790,  23  S.  D.  .304;  State  v.  Sutterfield, 
119  N.  W.  548.  22  S.  D.  584 ;  State  v. 
Horn,  111  N.  W.  552,  21  S.  D.  237. 

Tex.  Patten  v.  State,  209  S.  W. 
664,  84  Tex.  Cr.  R.  584. 

Vt.  State  V,  Haulon,  62  Vt.  334. 
19  A.  773. 


'Wash.  State  v.  Parsons.  87  P.  349. 
44  Wash.  299,  7  L.  R.  A.  (N.  S.)  566, 
120  Am.  St.  Rep.  1003,  12  Ann.  Cas. 
61. 

Wis.  Wei.senbach  v.  State,  119  N. 
W.  843.  138  Wis.  152 ;  Cupps  v.  State, 
97  N.  W.  210,  120  Wis.  504.  102  Am. 
St.  Rep.  996,  rehearing  denied  9S  N, 
W.  546,  120  Wis.  504,  102  Am.  St.  Rep. 
996. 

7  8  N.  M.  Territory  v.  Nichols,  3  N. 
M.  76.  2  P.  78. 

N.  C.  State  v.  Merrick,  88  S.  E. 
501.  171  N.  C.  788. 

Okl.  Steeley  v.  State  (Cr.  App.) 
187  P.  821;  Palmer  v.  State  (Cr. 
App.)  187  P.  502 ;  Kent  v.  State,  126 
P.  1040.  8  Okl.  Cr.  188;  Atchison  v. 
State,  105  P.  387,  3  Okl.  Cr.  295 :  Can- 
non V.  Territory,  99  P.  622,  1  Okl.  Cr. 
600. 

Contra,  State  v.  Davidson,  90  S.  E. 
688,  172  N.  C.  944. 

7  9  State  V.  Hbag,  134  S.  W.  509,  232 
INIo.  308 ;  State  v.  Turlington.  102  Mn. 
642.  15  S.  W.  141. 

s"  High  tower  v.  State,  101  S.  E. 
918.  24  Ga.  App.  701;  Mulling  v. 
Statp.  89  S.  E.  221,  IS  Ga.  App.  205. 
conforming  to  answer  to  certified 
questions  88  S.  E.  575.  145  Ga.  .36; 
Pollard  V.  State,  86  S.  E.  1096.  144  Ga. 
229;  Roberts  v.  State,  84  S.  E.  122, 
143  Gfi.  71 ;  Harris  v.  State,  83  S.  E. 
514.  142  Ga.  627;  Hawkins  v.  State, 
80  9..  E.  711.  141  Ga.  212 ;  McLaugh- 
lin V.  State,  80  S.  E.  a31.  141  Ga.  132 ; 
Helms  V.  State,  72  S.  E.  246,  136  Ga. 
709;  Cargile  v.  State,  70  S.  E.  873, 
1.36  Ga.  55 ;  Richards  v.  State,  70  S. 
E.  808,  136  Ga.  67 :  Johnson  v.  State, 
60  S.  E.  813,  4  Ga.  App.  .59:  Baker 
V.  State,  .36  S.  E.  607.  Ill  Ga.  141. 

81  Tanner  v.  State,  88  S.  E.  554,  145 


315 


INSTRUCTIONS  TO  JURIES 


598 


In  some  jurisdictions  it  is  held  that,  while  it  is  ordinarily  true 
that  a  mere  failure  to  instruct. on  a  lesser  included  offense  consti- 
tutes simply  a  nondirection,  and  is  not  ground  for  reversal,  in  the 
absence  of  a  request  for  such  an  instruction,  an  exception  to  this 
rule  exists  in  prosecutions  for  murder,  and  in  such  jurisdictions, 
in  a  murder  case  the  court  should,  on  its  own  motion,  instruct  on 
include'd  oft'enses.*^ 

§  316.     Pleadings  and  evidence  to  sustain 

Instructions  upon  the  different  degrees  or  grades  of  an  offense 
involved  in  a  criminal  proceeding  should  be  based  upon  the  in- 
dictment, and,  if  a  nolle  prosequi  has  been  entered  upon  a  count 
therein  charging  a  particular  grade  of  the  offense,  it  is  error  to 
give  an  instruction  upon  such  grade.*^ 

While  the  law  of  each  degree  of  the  crime  charged  which  the 
evidence  tends  to  prove  should  be  given  to  the  jury,  if  the  evi- 
dence only  tends  to  prove  the  higher  degree,  or  does  not  tend  to 
prove  an  offense  included  in  that  charged,  the  court  is  not  required 
to  instruct  on  a  lower  degree,  or  on  included  offenses,**  and  if  a 


Ga.  71:  Kimball  v.  State,  37  S.  E. 
SS6,  112  Ga.  541. 

82  state  V.  O'Connor,  44  So.  265,  119 
La.  464;  State  v.  Thomas,  23  So. 
250,  50  La.  Ann.  148 ;  Kraus  v.  State, 
169  N.  W.   3,   102   Neb.   690. 

8  3  Sorio  V.  Stnte,  22  Tex.  App.  633, 
3  S.  W.  784. 

84  Ark.  Carlton  v.  State,  161  S. 
W.  145,   109  Ark.   516. 

Cal.  People  v.  Wright,  93  Cal.  564, 
29  P.  240;  People  v.  Turley,  50  Cal. 
469. 

Colo.  Sevilla  v.  People,  177  P. 
135,  65  Colo.  437. 

Ga.  Livingston  v.  State,  97  S.  E. 
<S54,  148  Ga.  6S6 ;  Lindsey  v.  State, 
88  S.  E.  202.  145  Ga.  9;  Wade  v. 
State,  75  S.  E.  494,  11  Ga.  App.  411 : 
Gibson  x.  State.  72  S.  E.  944,  10  Ga. 
App.  117;  Robinson  v.  State,  84  Ga. 
074,  11  S.  E.  544;  Boyd  v.  State,  17 
Ga.  194. 

111.  People  V.  Moore,  114  N,  E. 
906,  276  111.  392. 

Iowa.  State  v.  Newcomber,  174  N. 
W.  255;  State  v.  Leete,  174  N.  W, 
253,  187  Iowa,  305;  State  v.  Luther, 
129  X.  W.  801.  1.50  Iowa,  1.58;  State 
V.  Dean,  126  N.  W.  692,  148  Iowa, 
566;  State  v.  Atkins,  97  'N.  W.  996, 
122  Iowa,  161 ;    State  v.  Sherman.  77 


N.  W.  461,  106  Iowa,  684:  State  v. 
Tippet,  94  Iowa,  646,  63  N.  W.  445. 

Kan.  State  v.  Sparks,  99  P.  1130, 
79  Kan.  548 ;  State  v.  Mowry,  37  Kan. 
369.  15  P.  282. 

Ky.  Wattles  v.  Commonwealth, 
215  S.  W.  291,  185  Ky.  486;  Klette 
V.  Commonwealth,  177  S.  W.  258,  165 
Ky.  430. 

La.  State  v.  Kemp,  45  So.  283,  120 
La.  378;  State  v.  Fruge,  31  So.  323, 
106  La.  694. 

Mich.  People  v.  De  Meaux,  160  N. 
W.  634,  194  Mich.  18;  People  v.  Ez- 
zo.  104  Mich.  341,  62  N.  W.  407;  Peo"- 
ple  V.  Fuhrmann,  103  Mich.  593,  61 
N.  W.  865;  People  v.  Repke,  103 
Mich.  4.59,  61  N.  W.  861. 

Minn.  State  v.  Damuth,  160  N.  W. 
196.   135  Minn.   76. 

Miss.  Skates  v.  State.  04  Miss. 
044,  1  So.  843.  60  Am.  Rep.  70 ;  Vir- 
gil V.  State,  63  Miss.  317. 

Mo.  State  V.  Dipley,  147  S.  W. 
111.  242  Mo.  461 ;  State  v.  Colvin,  126 
S.  W.  448,  226  Mo.  446 ;  State  v.  Mc- 
Caffery,  125  S.  W.  468,  225  Mo.  617; 
State  V.  Xieuhaus,  117  S.  W.  73,  217 
Mo.  332;  State  v.  .Johnson.  129  IVIo. 
26,  31  S.  W.  339 ;  State  v.  Woods,  124 
Mo.  412,  27  S.  W.  1114 ;  State  v.  Ma- 
loney,   118  Mo.  112,  23  S.   W.   1084; 


599 


PARTICULAR   MATTERS   IN    CRIMINAL   CASES 


316 


minor  offense  is  not  necessarily  included  within  the  terms  of  the 
greater  offense  as  set  forth  in  the  indictment,  the  court  may  prop- 
erly refuse  to  give  in  charge  to  the  jury  the  law  applicable  to  the 
minor  offense.*^  Where  the  evidence  shows  that  the  defendant  is 
either  guilty  of  the  offense  charged  or  innocent  the  court  may  so 
instruct,^*^  and  is  not  required  to  instruct  on  lower  grades  of  the 
offense,  or  on  included  offenses.*' 


State  V.  Wilson,  88  Mo.  13 ;  State  v. 
Stoeckli,  71  Mo.  559;  State  v.  Kil- 
sore,  70  Mo.  546;  State  v.  Lane,  64 
Mo.  319, 

Mont.  State  v.  Karri,  149  P.  956, 
51  Mont.  157,  L.  R.  A.  1916F,  90. 

Neb.  Thompson  v.  State,  122  N, 
W.  986,  85  Neb.  244 ;  Strong  v.  State, 
88  N.  W.  772,  63  Neb.  440. 

Nev.  State  v.  Enlvbouse,  160  P. 
23,   40   Nev.   1. 

N.  Y.  People  v.  Travis,  157  N.  T. 
S.  577,  172  App.  Div.  959. 

Okl.  Nail  V.  State  (Cr.  App.)  192 
P.  592 ;  RhoafTes  v.  State,  184  P.  913, 
16  Okl.  Cr.  446 ;  Inklebarger  v.  State, 
127  P.  707,  8  Okl.  Cr.  316 ;  Fooshee  v. 
State,  108  P.  554.  3  Okl.  Cr.  666; 
Territory  v.  Gatliff,  37  P.  809,  2  Okl. 
523. 

Or.  State  v.  Megorden,  88  P.  306, 
49  Or.  259.  14  Ann.  Cas.  130. 

Tenn.  Good  v.  State.  1  Lea,  293; 
Ray  V.  State,  3  Heisk.  379. 

Tex.  Hooper  v.  State,  160  S.  W. 
1187,  72  Tex.  Cr.  R.  82 ;  Irhy  v.  State, 
155  S.  W.  ,543,  69  Tex.  Cr.  R.  619; 
Hardin  v.  State,  103  S.  W.  401.  51 
Tex.  Cr.  R.  559 ;  Hartley  v.  State,  71 
S.  W.  603;  Stiener  v.  State,  .33  Tex. 
Cr.  R.  291,  26  S.  W.  214;  Hodge  v. 
State  (Cr.  App.)  26  S.  W.  69;  Nevland 
V.  State,  13  Tex.  App.  536;  Winn  v. 
State,  5  Tex.  App.  621;  Gatlin  v. 
State,  5  Tex.  App.  531 ;  Sims  v.  State, 
4  Tex.  App.  144. 

Wash.  State  v.  Murphy,  172  P. 
544,  101  Wash.  425;  State  v.  Rov- 
nolds,  162  P.  358,  94  Wash.  270; 
State  V.  Copeland,  119  P.  607,  66 
Wash.  243;  State  v.  Kruger,  111  P. 
769,  60  Wash.  542 ;  State  v.  MePhail, 
81  P.  683,  39  Wash.  199. 

Wis.  Dillon  v.  State,  119  N.  W. 
352,  137  Wis.  655,  16  Ann.  Cas.  913. 

Offense  not  divided  into  degrees. 
Where,  under  a  statute,  there  are  de- 


grees of  crime,  and  the  jury  are 
charged  with  the  duty  of  finding  the 
degree,  it  is  proper  for  the  court  to  in- 
struct in  respect  to  the  acts  necessa- 
ry to  constitute  the  crime  in  each  de- 
gree ;  )>ut,  where  the  offense  charged 
is  not  divided  into  degrees,  the  court 
is  not  required  to  charge  as  to  an  of- 
fense that  might  be  included  in  the 
charge  made,  but  which  the  evidence 
would  not  warrant.  State  v.  Kapel- 
ino.  108  N.  W.  335,  20  S.  D.  591. 

8  5  Lind'sey  v.  State,  43  So.  87,  53 
Fla.  56. 

8  6  Wilder  v.  State,  96  S.  E.  325,  148 
Ga.  270;  State  v.  Nelson,  97  N.  W. 
652,  91  Minn.  143;  State  v.  Moyni- 
han.  106  A.  S17,  93  N.  J.  Law.  253; 
State  V.  Cox,  110  N.  C.  503.  14  S.  E. 
688 ;  State  v.  Sanders,  103  N.  W.  419, 
14  N.  D.  203. 

8  7  Ala.  Miller  v.  State,  40  So.  47, 
145  Ala.  677:  Braham  v.  State,  38 
So.  919,  143  Ala.  28. 

Ark.  Rogers  v.  State,  206  S.  W. 
152,  136  Ark.  161. 

Cal.  People  v.  Tugwell,  163  P. 
508,  32  Cal.  App.  520 ;  People  v.  Rog- 
ers.  126  P.   143,   163   Cal.   476. 

Ga.  Todd  v.  State,  97  S.  E.  668,, 
148  Ga.  634;  Brookius  v.  State,  28 
S.  E.  77,  100  Ga.  321. 

Iowa.  State  v.  Ralston,  116  N.  W. 
1058,  139  Iowa,  44;  State  v.  Akin,  91 
Iowa,  50,  62  N.  W.  667 ;  State  v.  Jor- 
dan, 87  Iowa,  86,  54  N.  W.  63. 

Mo.  State  v.  Stenzel,  220  S.  W. 
882. 

Mont.  State  v.  McDonald,  149  P. 
279,  51  Mont.  1. 

N.  Y.  People  v.  Chapman,  121  N. 
E.  381,  224  N.  Y.  463. 

Okl.  Leseney  v.  State,  163  P.  956, 
13  Okl.  Cr.  247. 

Tex.  Marshbanks  v.  State,  192  S. 
W.  246,  SO  Tex.  Cr.  R.  507;  Greer  v. 
State  (Tex.  Cr.  App.)  65  S.  W.  1075; 


317 


INSTRUCTIONS  TO  JURIES 


600 


§317.     Sufficiency  of  instructions 

The  mode  and  extent  of  submitting  to  the  jury  the  several  de- 
grees of  crime  included  in  the  indictment  must,  like  other  duties 
of  the  court,  rest  largely  in  its  discretion.^^  An  instruction  that 
the  jury  may  convict  of  either  of  two  degrees  of  the  crime  charged, 
defining  them,*®  or  requiring  them  to  specify  in  their  verdict  the 
degree  of  the  offense,^®  sufficiently  states  the  power  and  duty  of 
the  jury  to  ascertain  such  degree,  in  the  absence  of  a  request  for 
further  instructions.  Instructions  on  this  head  should  be  so  fram- 
ed as  not  to  give  the  jury  the  impression  that  they  must  convict 
the  defendant  of  the  lower  degree,  although  they  may  believe  he  is 
not  guilty  of  any  offense.®* 


Darlington  v.  State,  50  S.  W.  375,  40 
Tex.  Cr.   R.  333. 

Wash.  State  v.  Palmer,  176  P. 
547,  104  Wash.  396. 

Wyo.  Ross  V.  State,  93  P.  299,  16 
Wvo.  285.  rehearing  denied  94  P.  217, 
16"  Wyo.  285. 

8  8  state  V.  Ck)nley,  39  Me.  78. 

8  9  State  V.  Broadbent,  48  P.  775,  19 
Mont.  467. 

9  0  Commonwealth  v.  Sheets,  46  A. 
753,  197  Pa.  69. 

Duty  on  convicting  of  minor  de- 
gree of  offense  charged,  to  acquit  of 
higher  degree,  see  post,  §  389. 

91  Smith  V.  Commonwealth,  55  S. 
W.  718,  108  Ky.  53,  21  Ky.  Law  Rep. 
1470;  Beaudien  v.  State,  8  Ohio  St. 
634 ;   Greta  v.  State,  9  Tex.  App.  429. 

Instructions  held  not  objection- 
able under  rule.  Where,  after 
charging  that  there  was  a  presump- 
tion of  innocence  In  favor  of  defend- 
ant as  to  each  and  every  element  of 
the  offense,  and  that  the  jury  must 
acquit  unless  the  state  established  by 
the  evidence  the  existence  of  each 
and  every  element  of  the  offense,  and 
defendant's  guilt  thereof  beyond  all 
reasonable  doubt,  the  court  charged 
that,  in  passing  on  the  question  as  to 
what  degree  of  homicide  defendant 
was  guilty  of,  if  they  had  a  reason- 
able doubt  as  to  whether  it  should 
be  a  higher  or  lower  grade  they 
should  give  him  the  benefit  of  the 
doubt,  and  return  a  vei'dict  of  guilty 
of  the  lower  offense  rather  than  the 


higher,  provided  they  had  a  reason- 
able doubt,  and  immediately  after  it 
was  charged  that  they  could  not  con- 
vict of  any  degree  of  homicide  if  they 
had  a  reasonable  doubt  of  defendant's 
guilt;  and  then,  at  defendant's  re- 
quest, it  was  charged  that  it  was 
their  duty  to  either  acquit  defendant, 
or  find  him  guilty  of  the  lowest  de- 
gree of  homicide  submitted  with 
which  you  can  reasonably  reconcile 
the  facts  admitted  or  established,  it 
was  held  that  the  charge  did  not  tend 
to  mislead  the  jury  to  believe  that, 
if  they  had  a  reasonable  doubt  as  to 
the  existence  of  either  of  two  grades 
of  offense,  they  should  convict  of  the 
lesser.  Ryan  v.  State,  92  N.  W.  271, 
115  Wis.  488.  Where  the  court  cor- 
rectly instructs  the  jury  as  to  mur- 
der in  the  first  and  second  degrees, 
and  then  proceeds  to  instruct  them 
as  to  manslaughter  and  self-defense, 
and  says,  "if  you  believe  beyond  a 
reasonable  doubt"  that  defendant  kill- 
ed deceased  under  the  circumstances 
constituting  manslaughter,  "you  will 
find  him  guilty  of  that  crime,"  the 
charge  is  not  open  to  the  objection 
that  it  requires  the  jury  to  find  be- 
yond a  reasonable  doubt  that  defend- 
ant is  guilty  of  manslaughter,  as  be- 
tween the  crimes  of  murder  and  man- 
slaughter, but  the  evident  meaning 
of  the  charge  is  that  manslaughter 
must  be  proved  beyond  a  reasonable 
doubt,  or  defendant  acquitted  on  the 
ground  of  self-defense.  Pitts  v.  State, 
29  Tex.  App.  374,  16  S.  W.  189. 


801  INSTRUCTIONS   ON   DEFENSES  IN   CRIMINAL  CASES  §  318 

CHAPTER  XXVI 
INSTRUCTIONS  ON  DEFENSES  IN  CRIMINAL  CASES 

A.     Defenses  in  General 

§  318.    Necessity  of  instructions. 

319.  Disparagement  of  defense. 

320.  Application  of  doctrine  of  reasonable  doubt  to  defenses. 

B.     Insanity  as  Defense  to  Criminal  Accusation 

321.  Necessity  of  instructions. 

322.  Propriety  and  sufficiency  of  instructions  in  general. 

323.  Inability  to  distinguish  between  right  and  wrong. 

324.  Inability  to  refrain  from  criminal  act. 

325.  Insanity  from  use  of  liquor  or  drugs. 
.  326.  Partial  insanity. 

327.  Emotional  insanity. 

328.  Presumption  as  to  sanity  and  burden  of  proof  or  suflSciency  of  evi- 

dence to  support  defense. 

329.  Presumption  of  continuance  of  insanity. 

C.     Effect  of  Intoxication  of  Accused  as  Beabing  on  Guilt  oe 

Punishment 

330.  Necessity  and  propriety  of  instructions  in  general. 

331.  Drunkenness  as  excuse  for  crime. 

D.    Insteuctions  on  Alibi 

332.  Necessity  of  instructions. 

333.  Rule  where  issue  of  alibi  not  raised. 

334.  Sufficiency  of  evidence  to  authorize  or  require  instructions  on  alibi. 

335.  Propriety  and  sufficiency  of  instructions  on  alibi. 

336.  Propriety  of  instructions  on  burden  of  proof. 

337.  Propriety  and  sufficiency  of  instructions  as  to  time. 

338.  Propriety  and  sufficiency  of  instructions  as  to  place. 

339.  Disparagement  of  defense  of  alibi. 

340.  Effect  of  failure  to  prove  alibi. 

A.  De)i?e;nse;s  ijt  Genijrai, 

§  318.     Necessity  of  instructions 

Where  there  is  evidence  in  a  criminal  case  reasonably  raising 
a  defensive  issue,  the  defendant  is  entitled  to  instructions  affirma- 
tively presenting  such  issue. ^    Such  rule  applies  to  evidence  tend- 

1  Tex.    Key  v.  State,  161  S.  W.  130,  Wis.     Koscak  v.  State,  152  N.  W. 

72  Tex.  Cr.  R.  129 ;    Jones  v.  State,  181,  160  Wis.  255. 

153    S.   W.   310,   69  Tex.   Cr.    R.  216;  Failure    to    charge   affirmatively 

Swinger  v.   State,  102  S.  W.  114,  51  on  one  of  two  defenses.    Where  cir- 

Tex.  Cr.  R.  397  ;    Tankersley  v.  State,  cumstautial  evidence  alone  was  relied 

101  S.  W.  '.):)T,   51  Tex.  Cr.  R.  224;  on  to  show  that  accused  killed  dece- 

Stanton  v.  State  (Cr.  App.)  29  S.  W.  dent,    and   accused   proved   an   alibi, 

476.  and  showed  that  a  third  person  com- 


§  319  INSTRUCTIONS  TO  JURIES  602 

ing  to  extenuate,  mitigate,  or  excuse  the  crime  charged,^  and  if 
there  is  some  evidence  tending  to  support  a  defense  set  up,  an  in- 
struction thereon  should  be  given  on  request,  although  such  evi- 
dence may  be  of  slight  weight,^  and  the  defendant  may  be  entitled 
to  an  instruction  on  a  theory  of  a  defense  developed  by  evidence 
inconsistent  with  his  own  testimony.* 

§  319.     Disparagement  of  defense 

It  is  improper  for  the  judge  to  make  statements  calculated  to 
cast  suspicion  upon  any  defense  which  is  recognized  by  the  law 
as  legitimate,  and  which  the  defendant  is  apparently  making  in 
good  faith.^ 

§  320.     Application  of  doctrine  of  reasonable  doubt  to  defenses 

Rule  as  to  defense  of  insanity,  see  post,  §  328. 
Rule  as  to  defense  of  alibi,  see  post,  §  336. 

In  most  jurisdictions  a  defendant  in  a  criminal  case,  who  admits 
the  act  charged  against  him  as  a  crime,  but  sets  up  some  defense 
thereto,  is  entitled  to  an  acquittal  if  the  proof  ofifered  by  him  in 
support  of  such  defense,  when  taken  in  connection  with  all  the 
other  evidence  in  the  case,  is  sufficient  to  raise  a  reasonable  doubt 
of  his  guilt,  in  the  minds  of  the  jury,  and  the  court  should  so 
charge,®  and  it  is  error  to  charge  that,  where  the  state  has  made 
out  a  prima  facie  case,  the  defendant  must  prove  facts  relied  upon 
by  him  as  a  defense  by  a  preponderance  of  the  evidence,'  or  to 
the  reasonable  satisfaction  of  the  jury,*  or  be3^ond  a  reasonable 

mitted    the    offense,    the    failure    to  that  if,   on  consideration   of  all  the 

charge  affirmatively   that  if  another  evidence,  there  remained  a  reasonable 

committed  the  offense,  or  if  there  was  doubt  as  to  whether  the  killing  was  in 

reasonable    doubt    thereof,    the    jury  self-defense,  the  jury   should  acquit, 

should  acquit,  was  erroneous,  though  was  properly  refused,  since  under  the 

the  court  charged  on  reasonable  doubt,  plea    of   self-defense    the   burden    of 

alibi,    and    circumstantial    evidence,  proof  was  on  defendant,  and  unless 

Wheeler  v.  State,  121  S.  W.  166,  56  the  jury  was  satisfied  from  the  evi- 

Tex.  Cr.  R.  547.  dence  that  the  plea  was  sustained,  the 

2  Kelley  v.  State,  185  S.  W.  874,  79  defense  failed ;  a  reasonable  doubt 
Tex.  Cr.  R.  402.  lieing  insufficient.     Lawson  v.   State, 

3  Ladwig  V.  State.  51  S.  W.  390,  40  46  So.  259,  155  Ala.  44. 

Tex.  Cr.  R.  585 ;    State  v.  Manns,  48  7  Howell  v.  State,  85  N.  W.  289,  61 

W.  Va.  480,  37  S.  E.  613.  Neb.  391 :    Real  v.  State,  152  P.  808, 

4  State  V.  Baker,  172  S.  W.  350.  262  12  Okl.  Cr.  157 ;  Cowherd  v.  State, 
Mo.  689,  following  State  v.  Bidstrup,  120  P.  1021,  7  Okl.  Cr.  1;  Mitchell  v. 
140  S.  W.  904.  237  Mo.  273.  State,  117  P.  650,  6  Okl.  Cr.  622 ;    See 

5  Aszman  v.  State,  24  N.  E.  123,  People  v.  Perini.  94  Cal.  573,  29  P. 
123  Ind.  347,  8  L.  R.  A.  33.  1027. 

6  People  V.  Bushton,  80  Cal.  160,  22  s  Dent  v.  State,  105  Ala.  14,  17  So. 
P.  127;  State  v.  Rogers.  163  P.  912.  94;  Boykin  v.  People,  22  Colo.  496. 
30  Idaho,  259 ;  State  v.  Crean,  43  45  P.  419 :  Appleton  v.  State,  171  111. 
Mont.  47,  114  P.  003;  Frazier  v.  State,  473.  49  X.  E.  708 ;  Davis  v.  State,  113 
100  S.  W.  94,  117  Tenn.  430.  P.  220,  4  Okl.   Cr.  508. 

Contrary     rule.       An     instniction  In  Missouri  such  an  instruction  is 


603 


INSTRUCTIONS  ON   DEFENSES   IN  CRIMINAL  CASES 


321 


doubt,"  it  being-  enough  to  sustain  a  defense  if  by  any  evidence  a 
reasonable  doubt  is  raised  in  the  minds  of  the  jury  of  any  essen- 
tial element  of  the  charge  against  the  defendant,^**  and  where  the 
court  submits  the  issue  of  self-defense  the  court  should  in  some 
jurisdictions,  instruct,  on  request,  that  the  burden  is  on  the  state 
to  show  beyond  a  reasonable  doubt  that  the  defendant  was  not 
acting  in  self-defense.^^  It  is  not  improper,  however,  in  some  ju- 
risdictions, to  charge  in  a  homicide  case  that  the  burden  is  on 
the  defendant  to  establish  his  plea  of  self-defense,  if  the  court  also 
charges  that,  to  convict,  the  state  must,  on  the  whole  case,  show 
the  guilt  of  the  accused  beyond  a  reasonable  doubt.-^^ 

B.  Insanity  as  Defense  to  Criminal  Accusation 

§  321.     Necessity  of  instructions 

In  a  criminal  prosecution,  in  which  there  is  some  evidence  to 
support  such  a  plea,  it  is  the  duty  of  the  court  to  instruct  on  the 


proper,  where  the  usual  instruction  as 
to  reasonable  doubt  upon  the  whole 
case  is  given.  State  v.  Jones,  78  Mo. 
278.     See  State  v.  Hill.  69  Mo.  451. 

9  Cal.  People  v.  Miller,  154  P.  468, 
171   Cal.  649. 

Ind.  Clark  v.  State.  64  N.  E.  589, 
159  Ind.  60. 

Ky.  Bi£;gs  v.  Commonwealth,  169 
S.  W.  525.  159  Ky.  836. 

Okl.  Brown  v.  State,  167  P.  762, 
14  Okl.  Cr.  115;  Smith  v.  State.  159 
P.  668,  12  Old.  Cr.  489;  McGill  v. 
State,  129  P.  75,  8  Okl.  Cr.  500. 

Tenn.  Hamilton  v.  State,  37  S.  W. 
194.  97  Tenn.  452. 

Tex.  Davis  v.  State,  175  S.  W. 
1073,  76  Tex.  Cr.  R.  502;  Jacobs  v. 
State,  115  S.  W.  581,  55  Tex.  Cr.  R. 
149;  Steel  v.  State,  113  S.  W.  15,  54 
Tex.  Cr.  R.  388. 

Instructions  not  improper  ivith- 
in  rule.  An  instruction,  in  a  prose- 
ciition  for  murder,  that  if  the  jury 
found  that  a  third  person  had  killed 
deceased  they  should  acquit  defend- 
ant, was  not  erroneous  as  requiring 
an  affirmative  finding  instead  of  a 
reasonable  doubt  whether  a  third  per- 
son killed  defendant,  when  it  was 
given  in  connection  with  a  charge 
that,  if  the  jury  had  a  reasonable 
doubt  whether  defendant  cut  deceas- 
ed,   they    should    acquit.      Adams   v. 


State,  93  S.  W.  116,  48  Tex.  Cr.  R. 
452.  An  instruction,  on  a  trial  for 
theft  of  a  horse,  that  if  the  jury  be- 
lieve that  defendant  thought  it  was 
his,  or  if  they  have  a  reasonable 
doubt  on  the  point,  they  should  ac- 
quit, does  not  require  proof  of  such 
defense  beyond  a  reasonable  doubt. 
McGowan  v.  State  (Tex.  Cr.  App.) 
37  S.  W.  750.  A  charge,  in  a  prose- 
cution for  horse  theft,  that  if  the 
jury  found  "from  the  evidence,  be- 
yond a  reasonable  doubt,  that  the 
horse  mentioned  in  the  indictment 
had  been  stolen,  *  *  *  ^nd  that 
recently  thereafter  the  defendant  was 
found  in  possession  of  said  horse." 
etc.,  was  not  objectionable,  as  requir- 
ing accused  to  prove  the  account  he 
gave  of  his  possession  beyond  a  rea- 
sonable doubt.  Landreth  v.  State,  70 
S.  W.  758,  44  Tex.  Cr.  R.  239. 

1 0  Zipperian  v.  People,  79  P.  1018, 
33  Colo.  134;  Lane  v.  State,  44  Fla. 
105,  32  So.  896;  State  v.  Lundhigh, 
164  P.  690,  30  Idaho,  365;  Vann  v. 
State,  77  S.  W.  813,  45  Tex.  Qr.  R. 
434.  108  Am.  St.  Rep.  961. 

11  State  V.  Williams,  97  N.  W.  992, 
122    Iowa,    115. 

12  State  V.  Jones,  60  A.  396,  71  N. 
J.  Law,  543 ;  State  v.  Stockman,  64 
S.  E.  595,  82  S.  C.  388,  129  Am.  St. 
Rep.  888. 


321 


INSTRUCTIONS  TO  JURIES 


604 


subject  of  insanity  as  a  defense.*^  Such  a  charge  should  be  given, 
where  there  is  conflicting  evidence  as  to  the  mental  unsoundness  of 
the  accused  at  the  time  of  the  crime  alleged,  not  caused  by  volun- 
tary intoxication,  and  which  is  not  merely  "moral  insanity,"  or 
an  "irresistible  impulse."  ^* 

The  issue  of  the  defendant's  mental  unsoundness  at  the  time  of 
the  commission  of  the  crime  alleged  should  be  submitted  to  the 
jury,  although  the  evidence  tending  to  show  his  mental  inca- 
pacity to  commit  a  criminal  act  is  weak  as  compared  with  the 
evidence  tending  to  show  his  sanity ;  ^^  but,  where  there  is  no 
evidence  tending  to  show  the  insanity  of  the  accused,  instruc- 
tions assuming  that  his  mental  condition  is  an  issue  in  the  case 
are  properly  refused.^^     The  mere  fact  that  defendant  frequently 


13  Fla.  Cochran  v.  State,  61  So. 
187.  65  Fla.  91. 

Ga.  Carter  v.  State,  58  S.  E.  532, 
2  Ga.  App.  254. 

ni.  People  V.  Penman,  110  N.  E. 
894,  271  111.  82. 

Ky.  Maulding  v.  Commonwealth. 
189  S.  W.  251,  172  Ky.  370. 

Mich.  People  v.  Muste.  100  N.  W. 
455,  137  Mich.  216. 

Okl.  Snodgrass  v.  State.  175  P. 
129.  15  Okl.  Cr.  117;  Litchfield  v. 
State,  126  P.  707,  8  Okl.  Cr.  164,  45 
L.  R.  A.  (N.  S.)  153. 

Tex.  Holland  v.  State,  192  S.  W. 
1070,  80  Tex.  Cr.  R.  637;  Berry  v. 
State,  125  S.  W.  580,  58  Tex.  Cr.  R. 
291. 

W.  Va.  State  v.  Alie,  96  S.  E. 
1011,  82  W.  Va.  601. 

Mental  incapacity  cansed  by 
drug.  Where  a  witness  testifies  that 
he  gave  defendant  a  certain  amount 
of  morphine,  which  failed  to  put  him 
to  sleep,  shortly  before  the  homicide 
was  committed,  and  two  physicians 
testify  that  the  amount  given  was  an 
overdose,  whose  effect  would  be  to 
produce  wildness  and  insanity  until 
sleep  should  intervene,  it  is  error  to 
refuse  to  charge  that  the  jury  should 
acquit  if  they  believe  that  defendant, 
at  the  time  of  the  homicide,  was  in 
a  state  of  mind  that  rendered  him 
incapable  of  comprehending  the  real 
character  of  his  act,  and  that  this  in- 
capacity was  the  result  of  an  overdose 
of  a  drug  he  had  taken.  State  v.  Rip- 
py,  104  N.  C.  752,  10  S.  E.  259. 

1*  Cochran  v.  State,  61  So.  187,  65 
Fla.  91. 


15  State  V.  Newman,  47  P.  881,  57 
Kan.  705. 

16  Ala.  Johnson  v.  State,  53  So. 
769,  169  Ala.  10. 

Ark.  Duncan  v.  State,  162  S.  W. 
573.    110  Ark.   523. 

Conn.  State  v.  Buonomo,  87  A. 
977.  87  Coun.  285. 

Ga.  Adams  v.  State,  63  S.  E.  703, 
117  Ga.  302. 

111.  Dovle  V.  People,  147  111.  394, 
35  X.  E.  372. 

Ind.  T.  Binvon  v.  United  States, 
76  S.  W.  265,  4  Ind.  T.  642. 

Ky.  Bast  V.  Commonwealth,  99  S. 
W.  978,  124  Ky.  747 ;  Bishop  v.  Com- 
monwealth, 109  Ky.  558,  60  S.  W.  190 ; 
Buckhannon  v.  Commonwealth,  86  Ky. 
110.  5  S.  W.  358. 

Mo.  State  v.  Brown,  79  S.  W.  1111, 
181  Mo.  192. 

Mont.  State  v.  Kuum,  178  P.  288, 
55  Mont.  436. 

Nev.  State  V.  Hartley,  22  Nev.  842, 
40  P.  372,  28  L.  R.  A.  33. 

Tex.  Cook  V.  State,  160  S.  W.  465, 
71  Tex.  Cr.  R.  532:  Coffey  v.  State, 
131  S.  W.  216,  60  Tex.  Cr.  B.  73. 

Evidence  not  calling  for  instruc- 
tions on  issue  of  insanity.  In  a 
prosecution  for  burglary,  where  the 
only  witness  as  to  defendant's  insan- 
ity testified  that  he  had  examined  and 
treated  defendant  after  he  had  been 
brought  back  from  the  penitentiary, 
that  he  was  acquainted  with  defend- 
ant's mother  and  family,  that  he 
would  not  say  defendant  was  insane, 
but  that  he  was  never  mentally  very 
bright,  that  he  was  a  degenerate 
mentally    and    morally,    that    many 


605 


INSTRUCTIONS  ON  DEFENSES  IN  CRIMINAL  CASES 


322 


became  intoxicated  is  not  sufficient  to  warrant  an  instruction  sub- 
mitting the  question  of  his  insanity.^'  So  an  instruction  on  per- 
manent insanity  is  properly  refused  where  the  evidence  only  tends 
to  show  temporary  insanity  from  the  use  of  liquor  or  drugs/*  and 
where  the  evidence  as  to  insanity  is  such  as  to  warrant  the  jury 
in  not  giving  it  much  consideration  failure  to  instruct  thereon  is 
not  error,  in  the  absence  of  a  request.^'* 

§  322.     Propriety  and  sufficiency  of  instructions  in  general 

The  trial  court  should  not  disparage  or  ridicule  the  defense  of 
insanitv,-*  and  it  is  not  proper,  in  some  jurisdictions,  to  caution  the 
jury  that  the  evidence  in  support  of  such  a  defense  should  be  care- 
fully scrutinized  and  considered,  to  the  end  that  parties  charged 
with  crime  may  not  make  use  of  the  plea  of  insanity  to  defeat 
the  attainment  of  justice.^i  In  other  jurisdictions  an  instruction 
that  the   jury  must  examine  the  defense  of  insanity  with  great 


criminals  were  liiiown  as  degenerates 
who  were  held  accountable  and  able 
to  distin?;uish  right  from  wrong,  that 
he  did  not  think  defendant  so  mental- 
ly incapacitated  or  of  such  unsound 
mind  that  he  would  be  able  to  plan 
and  accomplish  the  burglarizing  of  a 
store  and  think  it  was  not  wrong,  and 
that  he  thought  defendant  could  dis- 
tinguish right  from  wrong,  refusal  to 
give  a  special  charge  submitting  the 
Issue  of  insanity  was  not  error, 
Mitchell  V.  State,  106  S.  W.  124,  52 
Tex.  Cr.  R.  37.  Upon  a  trial  for  mur- 
der, evidence  of  conduct  of  the  accus- 
ed towards  his  wife,  which  might  be 
readily  accounted  for  as  the  result  of 
rage  "and  excitement  produced  by 
knowledge  of  his  wife's  infidelity  and 
by  the  free  use  of  intoxicants,  does 
not  call  for  a  charge  on  the  law  of 
insanity.  McConnell  v.  State,  22  Tex. 
App.  354,  3  S.  W.  699,  58  Am.  Kep. 
647. 

Merest  shadoiv  of  evidence  of  in- 
sanity. A  requested  instruction  as 
to  the  insanity  of  the  accused  is  prop- 
erly refused  where  there  is  only  the 
merest  shadow  of  evidence  that  such 
accused  was  not  of  sound  mind,  and 
the  judge  has  instructed  the  jury  that 
the  burden  of  proof  is  on  the  govern- 
ment to  prove  sanity  beyond  a  reason- 
able doubt,  and  told  the  jury  to  con- 
sider all  the  evidence,  including  the 
bearing  of  the  prisoner  and  the  man- 
ner of  his  own  testimony,  and  stated 


the  evidence  relied  upon  by  him.  Bat- 
tle V.  United  States.  28  S.  Ct.  422,  200 
U.  S.  36,  52  L.  Ed.  670,  affirming  judg- 
ment United  States  v.  Battle  (C.  C. 
Ga.)  154  F.  540. 

Epileptic  fits.  Evidence  that  de- 
fendant was  subject  to  epileptic  fits 
will  not  justify  an  instruction  that,  if 
the  jury  believe  her  faculties  were  so 
impaired  that  she  could  not  recognize 
the  deceased,  a  police  officer  in  uni- 
form, they  should  acquit.  State  v. 
Hayes,  16*  Mo.  App.  560. 

17  State  V.  Brown,  79  S.  W.  1111, 
181  Mo.  192. 

isKinslow  V.  State,  109  S.  W.  524. 
85  Ark.  514. 

19  Gate  V.  State,  114  N.  W.  942,  SO 
Neb.  611. 

2  0  People  V.  Holmes,  69  N.  W.  501, 
111  Mich.  364;  State  v.  Crowe,  102  P. 
579,  39  Mont.  174.  18  Ann.  Cas.  643 ; 
State  V.  Barry,  92  N.  W.  809,  11  N. 
D.  428 ;  Sharkey  v.  State,  2  O.  C.  D. 
443,  4  Ohio  Cir.  Ct.  R.  101 ;  Common- 
wealth V.  Tompkins,  108  A.  350,  265 
Pa.  97. 

21  State  V.  Shuff,  72  P.  664,  9  Idaho, 
115;  Aszman  v.  State,  123  Ind.  347, 
24  N.  E.  123,  8  L.  R.  A.  33,  disapprov- 
ing Sawyer  v.  State,  35  Ind.  80. 

In  Indiana  earlier  cases  (Sawyer  v. 
State,  35  Ind.  SO;  Sanders  v.  State, 
94  Ind.  147)  not  in  hai-mony  with  the 
rule  of  the  text  have  been  disap- 
proved. 


§  322  INSTRUCTIONS   TO  JURIES  606 

care  lest  an  ingenious  counterfeit  of  mental  disease  shall  furnish 
immunity  to  the  guilty  has  been  sustained,--  or  at  least  held  not 
reversible  error.~^  Whether  a  plea  of  insanity  is  consistent  with 
a  plea  of  self-defense  in  a  homicide  case  is  a  question  for  the  jury, 
and  the  court  should  not  tell  them  that  they  are  not  inconsistent.^* 

The  propriety  of  instructions  on  what  is  the  legal  test  of  ac- 
countability for  the  act  charged  as  a  criminal  offense  depends  upon 
the  rule  prevailing  in  the  particular  jurisdiction.-^  Instructions 
on  insanity  should  be  as  brief  and  simple  as  it  is  possible  to  make 
them.  Even  if  it  were  possible  to  do  so,  the  court  should  not  in- 
struct on  every  phase  or  manifestation  of  insanity.^® 

Care  should  be  observed  to  state  the  rule  governing  accounta- 
bility to  the  law  rather  than  to  attempt  to  define  insanity,  or  any 
of  the  recognized  forms  of  mental  disease,  and  the  instructions 
should  be  framed  in  plain  and  comprehensive  terms,  consistent 
with  approved  scientific  determinations,-^  and  in  some  jurisdic- 
tions instructions  on  insanity  as  a  defense  should  be  restricted 
to  a  definition  of  insanity  as  any  weakness  or  defect  of  the  mind 
rendering  it  incapable  of  entertaining,  in  the  particular  instance, 
the  criminal  intent,  supplemented  by  the  comment  that  criminal 
responsibility  is  to  be  determined  solely  by  the  capacity  of  the 
defendant  to  conceive  and  entertain  the  intent  to  commit  the  par- 
ticular crime  charged.^* 

The  presence  of  intelligence  is  not  an  absolute  test  of  sanity, 
and  an  instruction  is  erroneous  which  sets  up  the  power  to  delib- 
erate, premeditate,  and  design  as  such  a  test.-^  In  some  jurisdic- 
tions the  rule  is  that  it  is  purely  a  question  of  fact  whether  there 
is  a  mental  disease  of  a  character  that  will  excuse  the  commission 
of  the  act  alleged  as  an  offense,  and  that  no  legal  rules  or  tests 
should  be  declared  by  the  court  as  a  guide  to  the  jury  in  determin- 
ing whether  or  not  the  defense  of  insanity  in  any  given  case  shall 
avail  the  accused.^® 

2  2Braham  v.  State,  38  So.  919.  143  87  Conn.  5;    Starke  v.  State,  37  So. 

Aln.  28 :   People  v.  Bundy,  145  P.  537,  850.  49  Fla.  41 ;    State  v.  Porter,  111 

168  Cal.    777;    People  v.  Donlan.  67  S.  W.  529,  213  Mo.  43,  127  Am.   St. 

P.  761.  135  Cal.  489:    People  v.  Allen-  Rep.  589. 

fler.    48    P.    1014,    117    Cal.    81.      See  2  6  state    v.    Keerl,    75    P.    362,    29 

T'nited  States  v.  Chisolm  (C.  C.  Ala.)  Mont,  50s,  lOl  Am.  St.  Rep.  579. 

■^^2,^'  ^^^'        a.  ■      lOT  r»    0-1     OQ  27  Oldham   v.    People,   158   P.    14S. 

23  People  V.    Stem,   137  P.    2(1,  23       ^.,   p  ,       .^„  ^ 

Cal.  App.  108;    People  v.  Nihell,  77  ^-^^r^,  •,     "^^     ^      ,     „r    „     „,„     „^ 
P   916  144  Cal  200  28  state    v.    Keerl,    75    P.    362,    29 

"sW-krhrouch  V.   State,  162  P.  678,  ^^^^^-  ^^8,  101  Am.  St.  Rep.  579. 
13  Okl.  Cr.  140.  29  Bennett  v.  State,  57  Wis.  69,  14 

Contra,   State  v.  Wade,  61  S.  W.  N.  W.  912,  46  Am.  Rep.  26. 
800,  101  Mo.  441.  30  state  v.  Jones,  50  N.  H.  369,  9 

2  5peoi)le  V.  Barthleman,  52  P.  112,  Am.  Rep.  242;    State  v.  Pike,  49  N. 

120  Cal.  7 ;    State  v.  Saxon,  86  A.  590.  H.  399,  6  Am.  Rep.  533. 


607 


INSTRUCTIONS  ON  DEFENSES  IN   CRIMINAL  CASES 


§  323 


Where  the  statutory  dehnition  of  "insane  persons"'  contains 
some  words  of  indefinite  significance,  it  is  proper  for  the  court  to 
refuse  to  submit  such  definition  to  the  jury  as  being  likely  to 
confuse   them.^^ 

§  323.     Inability  to  distinguish  between  right  and  wrong 

In  most  jurisdictions  it  is  proper  and  sufficient  to  charge  that 
to  establish  the  defense  of  insanity  it  must  be  proved  that  at  the 
time  of  committing  the  act  in  question  the  defendant  was  labor- 
ing under  such  a  defect  of  reason  as  not  to  know  the  nature  and 
quality  of  the  act  he  was  doing,  or,  if  he  did  know  it,  that  he  did 
not  know  it  was  wrong.^^     In  these  jurisdictions  it  is  proper  to 


31  Goodwin  v.  State,  96  Ind.  550. 

3  2  Davis  V.  State,  32  So.  822,  44 
Fla.  32;  State  v.  Mui-ray,  11  Or.  413, 
5  P.  55 ;  Tubb  v.  State,  117  S.  W.  858, 
55  Tex.  Cr.  R.  606;  Giebel  v.  State, 
28  Tex.  App.  151,  12  S.  W.  591. 

Illustrations  of  sufficient  in- 
structions on  such  defense.  A 
charge  that,  if  one  have  indulged  his 
passions  or  blunted  his  moral  sense 
so  that  he  can  commit  crime  without 
remorse,  and  fails  to  see  its  heinous- 
ness  as  persons  of  purer  morals  and 
more  restrained  passions  see  it,  this 
does  not  make  him  insane.  If  he 
have  sufficient  capacity  to  discern 
right  and  wrong  as  to  the  particular 
act  in  question,  if  he  has  knowledge 
and  consciousness  that  the  act  he  is 
doing  is  wrong,  and  would  desei've 
punishment,  he  is  of  sound  mind  and 
memory,  so  as  to  be  subject  to  punish- 
ment. Loyd  V.  State,  45  Ga.  57.  An 
instruction  that  a  person  in  posses- 
sion of  a  sound  mind  who  commits 
an  act  under  the  impulse  of  passion  or 
revenge,  which  may  temporarily  de- 
throne reason,  or  for  the  time  being 
control  his  will,  cannot  be  shielded 
from  the  consequences  of  his  act,  was 
not  error  for  failure  to  assume  that 
a  person  might  become  instantly  in- 
sane so  as  to  be  unable  to  distinguish 
the  character  of  his  act,  or  right  from 
wrong.  State  v.  Fleming,  106  P.  305, 
17  Idaho,  471.  Upon  a  trial  for  mur- 
der, that  insanity  is  "such  a  pervert- 
ed and  deranged  condition  of  the  men- 
tal and  moral  faculties  as  to  render 
one  incapable  of  distinguishing  be- 
tween right  and  wrong,  making  him 
unconscious,  at  times,  of  the  act  he  is 


about  to  commit."  State  v.  Rede- 
meier,  8  Mo.  App.  1.  On  a  trial  for 
malicious  shooting,  where  the  defense 
was  insanity,  after  correct  instruc- 
tions on  the  law  of  insanity,  an  in- 
struction that  "the  law  requires  some- 
thing more  than  occasional  oddity  or 
hypochondria  to  exempt  the  perpetra- 
tor of  an  offense  from  its  punishment" 
is  not  erroneous.  Hawe  v.  State,  11 
Neb.  537,  10  N.  W.  452,  38  Am.  Rep. 
375.  An  instruction  that,  if  at  the 
time  defendant  killed  his  wife,  he  was 
insane,  laboring  under  such  a  defect 
of  reason  and  derangement  of  mind 
as  not  to  know  and  comprehend  the 
nature,  quality,  and  consequences  of 
the  act  he  was  doing,  and  unable  to 
distinguish  between  right  and  wrong, 
he  must  be  acquitted,  and  the  insanity 
must  be  proved,  beyond  a  reasonable 
doubt,  to  be  such  that  at  the  time  he 
labored  under  a  diseased  etate  of 
mind,  so  excessive  as  to  overwhelm 
his  reason,  conscience,  and  judgment, 
is  sufficient,  where  there  is  evidence 
of  insanity  as  the  result  of  delirium 
tremens.  State  v.  Zorn,  22  Or.  591, 
30  P.  317. 

Illustrations  of  defective  in- 
structions on  this  defense.  An  in- 
struction to  the  effect  that,  if  the  jury 
find  that  the  defendant  was  insane  at 
the  time  of  committing  a  crime,  they 
should  find  him  not  guiltj',  without 
regard  to  the  degi-ee  of  insanity. 
People  V.  Best,  39  Cal.  690.  A  charge 
that,  "if  j'ou  find  that  the  defendant 
is  subject  to  fits  of  insanity,  he  may 
not  inaptly  be  called  an  insane  man." 
Fogarty  v.  State,  80  Ga.  450,  5  S.  E. 
782.     A  charge  that,  "though  a  total 


§324 


INSTRUCTIONS  TO  JURIES 


608 


instruct  that,  if  at  the  time  of  committing-  the  alleged  criminal 
act  the  defendant  was  capable  of  judging  whether  the  act  was 
righf  or  wrong,  he  is  responsible  for  it,  but  that,  if  he  was  unable 
to  distinguish  between  right  and  wrong  with  respect  to  such  act, 
he  should  be  acquitted. ^^  So  a  correct  statement  of  the  law  on  this 
defense  in  some  jurisdictions  is  contained  in  an  instruction  that 
insanity  is  such  a  perverted  condition  of  the  mental  and  moral  facul- 
ties as  renders  a  person  incapable  of  distinguishing  between  right 
and  wrong,  or  unconscious  at  the  time  of  the  nature  of  the  act  he 
is  committing.** 

§  324.     Inability  to  refrain  from  criminal  act 

In  some  jurisdictions  it  is  proper  to  instruct  that,  to  excuse  de- 
fendant on  the  ground  of  insanity,  the  jury  must  find  that  at  the 
time  of  the  commission  of  the  alleged  offense  he  was  without 
sufficient  reason  to  know  what  he  was  doing,  or  had  not  sufficient 
reason  to  know  right  from  wrong,  or  that,  as  a  result  of  mental 
unsoundness  he  had  not  then  sufficient  will  power  to  govern  his 
actions  by  reason  of  an  insane  impulse,  which  he  could  not  re- 
sist or  control,*^  and,  in  some  jurisdictions,  where  the  evidence 


want  of  responsibility  on  account  of 
insanity  be  not  shown,  yet  if  the  pris- 
oner's mind  was  so  far  affected  as  to 
render  him  incapable  of  a  deliberate, 
premeditated  assault  with  intent  to 
murder,  he  cannot  be  convicted." 
Fogarty  v.  State,  80  Ga.  450,  5  S.  E. 
782.  An  instruction  that  the  fact  that 
ancestors  of  a  person  had  been  insane 
did  not  of  itself  prove  him  insane,  and 
that,  in  l^e  absence  of  preponderating 
evidence  of  insanity  at  the  time  of 
the  killing,  it  could  not  be  justified 
on  that  plea.  State  v.  Simms,  68  Mo. 
305.  An  instruction  that  if  the  jury 
believed  that  at  the  time  of  the  kill- 
ing defendant  was  capable  of  know- 
ing that,  if  he  shot  deceased  not  in 
self-defense,  he  was  committing  an 
offense  against  the  law  of  the  land,  it 
will  not  matter  what  the  jury  believe 
was  the  moral  conception  of  defend- 
ant of  the  act  at  the  time,  is  errone- 
ous, as  declaring  that  one  not  having 
the  capacity  to  distinguish  between 
right  and  wrong  is  criminally  re- 
sponsible. Kearney  v.  State,  68  Miss. 
233,  S  So.  292.  An  instruction  asked 
by  defendant  that  "there  are  but  two 
classes  of  persons  under  the  law, 
*     *     *     those  of  sound  and  unsound 


mind,  and  a  person  of  unsound  mind 
cannot  be  held  responsible  for  crime ; 
*  *  *  the  law  makes  no  distinction 
in  degrees  of  unsoundness  of  mind," 
without  any  explanation  of  what  con- 
stitutes insanity,  is  misleading,  and 
properly  refused.  Grubb  v.  State,  117 
Ind.  277,  20  N.  E.  725.  It  was  proper, 
in  a  murder  case,  to  refuse  to  charge 
that  "if,  in  consequence  of  some  dis- 
ease, the  defendant  had  not  sufficient 
use  of  his  reason  to  control  the  pas- 
sions which  prompted  the  act,"  the 
jui^y  must  acquit,  since  the  request 
excluded  the  question  as  to  capacity 
to  distinguish  between  right  and 
wrong.    People  v.  Mills,  98  N.  T.  176. 

33  Bothwell  V.  State,  99  N.  W.  669, 
71  Neb.  747;  Hart  v.  State,  14  Neb. 
572.  16  N.  W.  905 ;  Territory  v.  Cat- 
ton,  5  Utah,  451,  16  P.  902. 

3  4  Brown  v.  State.  (Ga.  App.)  107 
S.  E.  173 ;  Oborn  v.  State,  126  N.  W. 
737,  143  Wis.  249. 

35  Thompson  v.  Commonwealth,  1.59 
S.  W.  829,  155  Ky.  .333. 

Requirement  that  inability  to 
distingrnish  betxreen  rigbt  and 
•wrong  and  inability  to  refrain 
from  doing  criminal  act  should 
exist  concurrently.     In  a  criminal 


609  INSTRUCTIONS  ON  DEFENSES  IN  CRIMINAL  CASES  §  324 

tends  to  show  partial  insanity  or  paranoia,  instructions  on  this 
subject  which  fail  to  include  the  element  of  insane  inability  to  re- 
sist wrong  are  defective ;  ^^  and  where  the  only  rational  infer- 
ence from  the  evidence  is  that  the  defendant,  at  the  time  of  the 
commission  of  the  alleged  criminal  act,  was  suffering  from  mental 
disease  which  was  the  efficient  cause  of  the  act,  the  court  should 
charge,  on  request,  in  addition  to  an  instruction  that  if  one  has 
reason  sufficient  to  distinguish  between  right  and  wrong  in  rela- 
tion to  a  particular  act  about  to  be  committed  he  is  criminally  re- 
sponsible, the  exception  to  such  general  rule  that  one  must  have 
intelligence  enough  to  form  the  criminal  intent,  and  that  if  his 
mental  faculties  are  so  deficient  that  he  has  no  will,  no  conscience 
or  controlling  mental  power,  or  if  through  the  overwhelming 
power  of  mental  disease  the  intellectual  power  is  for  the  time  ob- 
literated, end  such  mental  disease  is  the  efficient  cause  of  the  act 
alleged  to  constitute  the  criminal  offense,  he  is  not  to  be  held  le- 
gally responsible.^' 

Ill  some  jurisdictions,  an  instruction  which  submits  to  the  jury 
both  the  right  and  wrong  test,  and  the  test  of  irresistible  impulse, 
is  not  objectionable,  because  it  does  not  submit  the  question 
whether  the  accused  had  sufficient  mental  capacity  to  know  right 
from  wrong  with  reference  to  the  specific  offense  charged.^*  A 
charge  on  irresistible  impulse  is  not  required  where  the  o'nly  evi- 
dence of  such  impulse  is  the  testimony  of  the  defendant,  which 
shows  that  his  act  must  have  been  the  result  of  unconsciousness 
or  delirium,  since  the  doctrine  of  irresistible  impulse  implies 
knowledge  of  right  and  wrong  in  some  degree.^^ 

In  jurisdictions  where  the  doctrine  of  irresistible  impulse  ob- 
tains, an  instruction  that,  if  defendant  was  in  consequence  of  his 
insanity  brought  up  to  such  a  "frenzy"  as  rendered  him  incapable 

prosecution,  where  there  was  a  ques-  titled  to  acquittal  if  any  one  of  such 

tion  as  to  the  sanity  of  accused  at  the  conditions  existed.     State  v.  Kelley, 

time  he  committed  the  act,  and  the  52  A.  434,  74  Vt.  278. 

instructions  were  on  the  theory  that  a  3  6  Hankins  v.  State,  201  S.  W.  &32, 

person  may  be  unable  to  refrain  from  133  Ark.  38,  L.  R.  A.  1913D,  784  ;   Bell 

committing  an  act  though  knowing  it  v.  State,  180  S.  W.  186,  120  Ark.  530; 

to  be  wrong,  an  instruction  to  acquit  People  v.  Lowhone,  126  N.  E.  620,  292 

if  the  jury  found  that,  at  the  time  he  m.  32. 

committed  the  act  defendant  was  not  I,  Wilson  v.  State,  70  S.  E.  1128,  9 

able  to  distmguish  right  from  wrong,  q^^    ^pp    274 

and    had    no    understanding    of    the  #^          '        A 

character  and  consequences  of  his  act  .^n^^^^^^r^o^^^^^  ^'     ^^^^'  ^^  ^^' 

and  power  of  will  to  abstain  from  it,  ^"'  "*  ^-     •  '^- 

was  erroneous  because  requiring  the  3  8  Thompson  v.  Commonwealth,  159 

three    mental    conditions    to    concur-  S.  W.  829,  155  Ky.  333. 

rently  exist,  when  under  the  theory  so  state  v.  Peel,  59  P.  169,  23  Mont. 

of  the  instructions  defendant  was  en-  358,  75  Am.  St.  Rep.  529. 

InST.TO  J  CJBIES— 39 


§324 


INSTRUCTIONS   TO  JURIES 


610 


and  unable  to  control  his  movements,  he  would  not  be  legally 
responsible  for  his  acts,  has  been  held  misleading,  since  there  are 
conditions  of  insanity  depriving  the  w^ill  of  its  normal  governing 
power  which  do  not  amount  to  "frenzy"  in  the  ordinary  accepta- 
tion of  the  term.*" 

On  the  other  hand,  an  instruction  which  omits  as  an  essential 
condition  to  irresponsibility  because  of  inability  to  refrain  from 
doing  a  criminal  act  the  fact  that  such  inability  has  resulted  solely 
from  mental  disease  is  defective,'*^  and  it  is  proper  to  call  the  at- 
tention of  the  jury  to  the  distinction  between  an  act  committed 
by  reason  of  insanity  which  has  destroyed  will  power  and  an  act 
committed  as  a  result  of  uncontrolled  passion  not  resulting  from 
disease,'*^  and  to  refuse  instructions  which  do  not  distinguish  be- 
tween irresistible  impulse  arising  from  insanity  and  from  passion 
or  revenge.*^  • 

In  many  jurisdictions  the  doctrine  of  inability  to  refrain  from 
committing  a  particular  act,  although  recognizing  its  criminality, 
as  a  test  of  insanity,  is  not  accepted,  and  in  such  jurisdictions  it 
is,  of  course,  proper  to  refuse  an  instruction  embodying  such 
test." 

§  325.     Insanity  from  use  of  liquor  or  drugs 

The  decisions  recognize  a  distinction  between  temporary  in- 
sanity from  the  recent  voluntary  use  of  intoxicants,  drunkenness 
produced  from  that  source,  and  delirium  tremens,  or  the  settled 


40  Territory  v.  Kennedy,  110  P.  854, 
15  N.  M.  556. 

Coiitra,Williams  v.  State,  50  Ark. 
511,  9  S.  W.  5. 

41  Smith  V.  State,  62  So.  184,  182 
Ala.  38. 

4  2  Commonwealth  v.  Van  Horn.  41 
A.  469.  188  Pa.  143;  Flanders  v. 
State,  1.56  P.  39,  24  Wyo.  81,  rehearing 
denied  156  P.  1121,  24  Wyo.  81. 

Instructions  on  irresistible  im- 
pulse held  proper.  An  instruction 
that  "mental  unsoundness  must  be 
the  result  of  a  disease,  and  not  the  re- 
sult of  his  having  allowed  his  pas- 
sions to  run  until  they  have  become 
uncontrollable."  People  v.  Durfee,  62 
Mich.  487,  29  N.  W.  109.  A  charge 
that,  for  insanity  to  excuse  homicide, 
defendant  should  have  been  unable  to 
distinguish,  in  respect  of  the  crime, 
between  right  and  wrong,  or  that,  if 
conscious  of  the  act  and  its  conse- 
quences, he  must  have  been,  by  reason 


of  insanity,  wrought  up  to  a  frenzy, 
rendering  him  incapable  of  control- 
ling his  actions,  and  that,  if  reason 
Avas  dethroned  temporarily  by  pas- 
sion, defendant  could  not  thereby  be 
shielded  from  the  consecpiences  of  his 
crime.  Williams  v.  State,  50  Ark.  511, 
9  S.  W.  5.  Accused  cannot  cornplain 
of  a  charge  that  "frenzy  arising  sole- 
ly from  the  passions  of  auger  and 
jealousy,  no  matter  how  furious,  is 
not  insanitv."  Guetig  v.  State,  66 
Ind.  94,  32  Am.  Rep.  99. 

4  3  Boiling  v.  State,  54  Ark.  588,  16 
S.  W.  658;  State  v.  Hassing,  118  P. 
195,  60  Or.  81;  Commonwealth  v. 
Eckerd,  34  A.  305,  174  Pa.  137. 

4  4  People  V.  Barthleman,  52  P.  112, 
120  Cal.  7 ;  State  v.  Mowry,  37  Kan. 
369,  15  P.  282;  State  v.  Knight,  50 
A.  276,  95  Me.  467,  55  L.  R.  A.  373; 
Walker  v.  People,  26  Hun  (N,  Y.)  67. 
See  W^alker  v.  People,  88  N.  Y.  81; 
Snodgrass  v.  State,  175  P.  129,  15 
Okl.  Cr.  117. 


(511  INSTRUCTIONS   ON   DEFENSES  IN   CRIMINAL   CASES  §  326 

insanity  which  is  the  result  of  long-continued  use  of  such  intoxi- 
cants, the  latter  phase  of  insanity  being  a  complete  defense  to 
an  accusation  of  crime,  and  when  the  evidence  in  the  case  tends 
to  show  such  a  fixed  or  settled  insanity  the  court  should  specially 
charge  thereon;  a  charge  on  insanity  in  the  usual  form  not  being 
sufficient."*^ 

Where  the  statute  allows  temporary  insanity  induced  by  the 
recent  voluntary  use  of  intoxicating  liquor  to  be  shown  in  mitiga- 
tion of  the  penalty  for  the  offense  charged,  it  is  the  imperative 
duty  of  the  court,  where  the  evidence  furnishes  a  sufficient  predi- 
cate, so  to  instruct;*^  and  where  the  evidence  presents  the  issue, 
the  court  should  instruct  on  insanity  from  the  use  of  narcotics, 
although  an  instruction  on  intoxication  produced  by  ardent  spir- 
its,*' or  a  charge  on  the  general  issue  of  insanity,**  has  been  given. 

§  326.     Partial  insanity 

In  some  jurisdictions  it  is  held  that  while  the  trial  court  may, 
if  it  sees  fit,  recognize  monomania,  or  so-called  partial  insanity, 
as  distinguished  from  general  insanity,  when  instructing  the  jury 
in  a  criminal  case  involving  that  form  of  mental  derangement  as 
a  defense,  it  is  not  imperative  that  it  should  do  so,  and  that  if  the 
proper  tests  of  criminal  responsibility  are  stated  the  substantial 
rights  of  the  accused  are  sufficiently  protected.*^  In  other  juris- 
dictions the  rule  is  that,  where  evidence  is  introduced  tending  to 
support  the  defense  of  partial  insanity,  the  charge  should  specifi- 
cally treat  thereof,  and  not  stop  with  merely  submitting  the  usual 
test  of  ability  to  distinguish  between  right  and  wrong.^<*  It  is 
proper  to  charge  with  respect  to  such  a  defense  that,  when  partial 
insanity  or  insane  delusion  or  hallucination  is  relied  on  to  avert 

45  Duke  V.  State,  134  S.  W.  705,  61  affected    by    habits    of    intoxication. 

Tex.  Cv.  R.  441;    Erwin  v.  State,  10  Wagner  v.  State,  116  Ind.  181,  IS  N. 

Tex.  App.  700.  E.  833. 

Instructions  lield  properly  giv-  4o  Lawrence  v.  State.  157  S.  W.  480, 

em.     A  charge  that  mental  incapacity  70  Tex.  Cr.  R.  506;    Id..  143  S.  W. 

produced   by   voluntary   intoxication,  63G,  65  Tex.  Cr.  R.  93;  Miller  v.  State, 

temporarily  existing  when  the  offense  105  S.  W.  502,  52  Tex.  Cr.  R.  72 ;  Hier.- 

was    committed,    is    no    excuse    for  holzer  v.  State.  S3  S.  W.  836.  47  Tex. 

crime,  but  where  the  habit  of  intoxi-  Cr.  R.  199 ;    Edwards  v.  State  (Tex. 

cation,  though  voluntary,  has  so  af-  Cr.  App.)  54  S.  W.  589. 

fected  defendant's  mind  that  he  was  47  q^^.^  ^^  State.  SO  S.  W.  525,  47 

incapable  at  the  time  of  acting  from  rp^^  Qj.  jj  '^28,  122  Am.  St.  Rep.  682. 

motive,  or  distinguishing  right  from  '  t,   '  .   '    ~  ^^.V^  01  o   wr   r-',o  ar 

wrong,  he  will  not  be  held  accounta-  *'  burton  J-  State,  81  S.  W.  .42,  46 

ble   for   an   act   committed   while  in  ^^^-  *^^-  ^-    *^'^' 

such    condition,    was    properly    given  4o  state  v.   Moore,   102  P.  475,   SO 

where     there     was     evidence     that,  Kan.  232. 

though  defendant  was  sober  when  the  ^^  Looney   v.    State,   10  Tex.   App. 

offense  was  committed,  his  mind  was  520,  38  Am.  Rep.  646. 


327 


INSTRUCTIONS  TO  JURIES 


612 


criminal  responsibility,  it  must  be  made  to  appear  that  the  crime 
charged  was  the  offspring  of  such  insanity,  and  not  the  result  of 
sane  reasoning  and  natural  motives.^^ 

§  327.     Emotional  insanity 

It  is  proper  to  charge  that  the  law  rejects  the  doctrine  of  emo- 
tional insanity,  which  begins  on  the  eve  of  the  criminal  act  and 
leaves  off  when  it  is  committed,^^  and  a  refusal  to  charge  the  jury 
on  emotional  insanity  is  not  error,  where  the  insanity,  if  any  ex- 


51  People  V.  Griffith,  80  P.  68,  146 
Cal.  339. 

Instructions  on  partial  insanity" 
held  proper.  An  instruction,  in  a 
trial  for  murder,  that  if  the  prisoner, 
though  he  labored  under  partial  in- 
sanity or  delusion,  understood  the  na- 
ture of  his  act,  and  knew  it  was 
wrong,  and  had  mental  power  suffi- 
cient to  apply  that  knowledge  to  his 
own  case,  and  knew  that  if  he  did  the 
act,  he  would  do  wrong  and  receive 
punishment,  and  that,  if  the  act  was 
contrary  to  the  dictates  of  justice  and 
right  and  injurious  to  others,  he 
would  be  responsible,  and  that  the 
law  is  that,  whether  insanity  be  gen- 
eral or  partial,  the  degree  must  be  so 
great  as  to  have  taken  from  accused 
the  freedom  of  moral  action.  Com- 
monwealth V.  Lewis,  71  A.  18,  222  Pa. 
302.  An  instruction  that  a  delusion 
must  be  of  such  a  character  that,  if 
things  were  as  the  defendant  imagin- 
ed them  to  be,  they  would  justify  the 
act  springing  from  the  delusion. 
Thurman  v.  State,  32  Neb.  224,  49  N. 
W.  338.  A  charge  that,  "although  the 
accused  may  be  laboring  under  par- 
tial insanity,  if  he  still  understands 
the  nature  and  character  of  his  act 
and  its  consequences,  and  has  a 
knowledge  that  it  is  wrong  and  crim- 
inal, and  a  mental  power  sufficient  to 
apply  that  knowledge  to  his  own  case, 
and  to  know  that  if  he  does  the  act  he 
will  do  wrong  and  receive  punish- 
ment, and  possess  withal  a  will  suffi- 
cient to  restrain  the  impulse  that  may 
arise  from  a  diseased  mind,  such  par- 
tial insanity  is  not  sufficient  to  ex- 
empt him  from  responsibility  to  the 
law  for  his  crime."  Dejarnette  v. 
Commonwealth,  75  Va.  867.     On  the 


trial  of  an  indictment  for  murder, 
where  insanity  is  pleaded,  an  instruc- 
tion to  the  jury  that  "the  alleged  in- 
sanity and  the  alleged  crime  must  be 
connected,  the  one  with  the  other, 
and  the  latter  be  the  offspring  of  the 
former,  in  order  to  have  the  effect  of 
rightfully  declaring  one  irresponsible 
for  his  acts,"  is  correct,  where  there 
is  no  evidence  tending  to  show  that 
the  defendant  was  insane  on  all  sub- 
jects, or  was  homicidally  insane. 
State  V.  Hockett,  70  Iowa,  442,  30 
N.  "W.  742.  Where  the  defense  was 
general  insanity,  and  there  was  no 
evidence  of  special  dementia,  it  was 
proper  to  charge  that  insanity  is  a  to- 
tal or  partial  impairment  of  the  intel- 
lect to  such  an  extent  that  the  person 
affected  does  not  know  the  difference 
between  right  and  wrong  as  to  the 
act  he  is  committing.  Carr  v.  State, 
96  Ga.  284,  22  S.  E.  .570. 

Use  of  word  "delusion."  In  an 
instruction,  the  use  of  the  word  "de- 
lusion" is  not  gi'ound  for  reversal, 
where  the  evidence,  and  the  connec- 
tion in  which  it  w^as  used,  show  clear- 
ly that  by  it  was  intended  insanity 
on  a  particular  subject.  People  v. 
Schmitt,  106  Cal.  48,  39  P.  204. 

Instructions  lield  misleading. 
A  charge  to  the  jury  that  "if  they  be- 
lieve from  the  evidence  that  the  de- 
fendant committed  the  crime  'in  a  fit 
of  mania,'  or  'while  laboring  under 
an  insane  delusion,'  defendant  is  not 
responsible,  and  they  must  acquit." 
tends  to  mislead.  Gunter  v.  State,  83 
Ala.  96,  3  So.  600. 

5  2  People  V.  Kernaghan,  72  Cal.  609, 
14  P.  566;  Genz  v.  State,  58  N.  J. 
Law,  482,  34  A.  816. 


613  INSTRUCTIONS  ON  DEFENSES  IN   CRIMINAL  CASES  §  328 

isted,  was  simply  such  as  rendered  the  accused  incapable  of  know- 
ing that  his  acts  in  question  were  wrong.^^ 

§  328.  Presumption  as  to  sanity  and  burden  of  proof  or  suffi- 
ciency of  evidence  to  support  defense 

The  burden  of  overthrowing  the  presumption  of  sanity  and  of 
showing  insanity  is  upon  the  person  who  alleges  it ;  but,  if  evi- 
dence is  given  tending  to  establish  insanity,  then  the  general  ques- 
tion is  presented  to  the  court  and  jury  whether  the  alleged  crim- 
inal act  was  committed  by  a  person  responsible  for  his  acts,  and 
upon  this  question  the  presumption  of  sanity  and  the  evidence 
are  all  to  be  considered,  the  prosecutor  holding  the  affirmative, 
and  if  a  reasonable  doubt  exists  as  to  whether  the  prisoner  is  sane 
or  not,  he  is  entitled  to  the  benefit  of  the  doubt  and  to  an  acquit- 
tal. This  principle  may  be  stated  in  a  variety  of  language.  There 
is  no  rigid  rule  prescribing  the  particular  terms  to  be  employed 
if  the  substance  of  the  principle  is  preserved.^ 

It  is  proper  to  charge  that  the  law  presumes  a  man  to  be  sane,*^^ 
where  appropriate  instructions  are  given  with  respect  to  the 
burden  of  proof  in  case  evidence  is  introduced  tending  to  show 
insanity,^®  and  it  is  proper  to  refuse  to  charge  that  the  state  must 
affirmatively  establish  as  part  of  its  case  that  the  defendant  was 

Instructions          held          proper.  siBrotlierton   v.   People,   75  N.   Y. 

Whore,  on  a  trial  for  murder,  defend-  159. 

ant  requested  a  charge  that  "insanity  ^'>  State  v.  Clevenger,  56  S.  W.  107S, 

produced  by  jealousy  or  anger,  if  it  156  Mo.  190. 

incapacitates  the  subject  from  know-  Instructions  held  proper  within 
ing  right  from  wrong,  would  be  a  de-  rule.  An  instruction  that  the  \a,w 
fense,"  it  was  held  that  the  coiu-t,  presumes  every  man  sane  until  the 
on  assenting  to  the  request,  proper-  contrary  is  shown,  and  that  before  de- 
ly  charged  that,  "if  there  is  any  such  fendant  could  be  excused  of  a  homi- 
thing  as  insanity  produced  by  jeal-  cide  for  insanity  the  jury  must  be- 
ousy  or  revenge  or  wrath,  *  *  *  lieve  from  the  evidence  that  defend- 
If  there  is  any  genuine  insanity  pro-  ant  at  the  time  of  the  killing  was 
duced  by  any  cause,  then,  so  far  as  without  sufficient  reason  to  know 
affecting  the  prisoner,  it  is  the  same  what  he  was  doing,  or  that,  as  the 
as  any  other  kind  of  insanity.  The  result  of  mental  unsoundness,  he  had 
heat  of  passion,  and  feeling  produced  not  then  sufficient  will  power  to  gov- 
by  motives  of  anger,  hatred,  or  re-  ern  his  action  by  reason  of  some  in- 
venge,  is  not  insanity.  The  law  holds  sane  impulse  which  he  could  not  re- 
the  doer  of  the  act,  under  such  con-  sist  or  control,  was  not  objectionable 
ditions,  responsible  for  the  crime,  be-  as  placing  the  burden  of  proof  of  in- 
cause  a  large  share  of  homicides  com-  sanity  on  accused.  Mathley  v.  Com- 
mitted are  occasioned  by  just  sucTi  monwealtb,  86  S.  W.  OSS,  120  Ky. 
motives  as  these."  People  v.  Foy,  138  389,  27  Ky.  Law  Rep.  785. 
N,  Y.  664,  34  N.  E.  396.  so  Shellenberger  v.  State,  156  N.  W. 

5  3  Hurst  v.  State,  46  S.  W.  635,  40  777,  99  Neb.  370;  Massengale  v.  State, 

Tex.  Cr.  R.  378.  24  Tex.  App.  181,  6  S.  W.  35. 


328 


INSTRUCTIONS  TO  JURIES 


614 


and  is  sane.*'  Where  there  is  evidence  in  support  of  such  a  de- 
fense, the  accused  is  entitled  to  an  instruction  that  positive  or  di- 
rect testimony  is  not  required  to  establish  insanity,  and  that  it  is 
not  necessary  to  make  out  such  defense  beyond  a  reasonable 
doubt.^* 

In  some  jurisdictions  it  is  proper  to  charge  that  the  burden  i3? 
upon  the  accused  to  establish  a  defense  of  insanity  by  a  prepon- 
derance of  the  evidence,^^  and  in  such  jurisdictions  it  is  not  im- 
proper to  instruct  that  the  defendant  must  prove  such  insanity  to 
the  satisfaction,  or  the  reasonable  satisfaction,  of  the  jury,*'®  or  that 
it  must  be  clearly  proved,^^  or  must  be  proved  to  a  reasonable  cer- 
tainty, if  the  jury  are  distinctly  informed  that  a  preponderance  of 
the  evidence  is  all  that  is  requisite  to  produce  such  certainty,^^ 
and  it  is  proper  to  refuse  an  instruction  requiring  an  acquittal  of 
the  defendant  if  the  evidence  leaves  in  the  minds  of  the  jury  any 
reasonable  doubt  of  his  sanity.*'^  On  the  other  hand,  it  is  proper 
to  instruct  that,  while  the  burden  of  proof  is  on  the  accused  to 

5  7  People  V.  Garbutt,  17  Mich.  9,  97 
Am.  Dec.  162. 

5  8  State  V.  Porter,  111  S.  W.  529, 
213  Mo.  43,  127  Am.  St.  Rep.  589. 

Instructions  held  proper.  An  in- 
struction that  "in  order  to  establish 
insanity,  it  is  not  necessary  that  the 
proofs  shall  be  direct  and  positive, 
but  it  may  be  shown  by  such  facts 
and  circumstances  as  convince  the 
mind  of  its  existence  the  same  as  any 
other  fact ;  but,  when  the  claim  set 
up  as  a  defense  is  unusual,  unnatural, 
and  out  of  the  ordinary  course  of 
affairs,  you  are  not  required  to  take 
the  same  for  granted,  upon  slight  evi- 
dence, nor  should  you  so  find,  except 
upon  evidence  of  a  reliable  character, 
and  which  satisfies  you  that  the  de- 
fense has  been  made  out."  State  v. 
Hockett,  70  Iowa,  442,  30  N.  W.  742. 

5  9  State  v.  Thiele,  94  N.  W.  256, 
119  Iowa,  659;  State  v.  Novak,  79  N. 
W.  465,  109  Iowa,  717;  Clawson  v. 
State,  36  A.  886,  .59  N.  J.  Law,  434. 

Instructions  held  proper  within 
rule.  In  prosecution  for  selling  in- 
toxicating liquor,  instruction  that  to 
establish  defense  of  insanity  accused 
must  show  by  preponderance  of  evi- 
dence that  at  time  of  sale  he  was  in- 
sane to  such  extent  as  to  render  him 
incapable  of  distinguishing  right  froti 
wron?  in  respect  to  sale  of  Jlquor,  and 
that  the  mere  fact  that  he  was  drunk 


would  not  excuse  him,  was  not  erro- 
neous. Carty  v.  State,  204  S.  W.  207, 
135  Ark.  169. 

6  0  State  V.  Lyons,  37  So.  890,  113 
La.  959;  State  v.  Palmer,  61  S.  W. 
651,  161  Mo.  152 ;  State  v.  Duestrow, 
137  Mo.  44,  38  S.  W.  554,  39  S.  W. 
266 ;  Hite  v.  Commonwealth,  31  S.  E. 
895,  96  Va.  489. 

Requirement  that  jury  "must 
"be  satisfied."  An  instruction  on  trial 
for  murder,  where  the  defense  is  in- 
sanity, that  the  jury  "must  be  satis- 
fied" that  the  defendant  was  insane 
when  he  committed  the  act,  is  proper, 
as  calling  the  attention  to  the  distinc- 
tion between  the  degree  of  proof  re- 
quired of  the  prisoner  on  that  point, 
and  the  requirement  that  the  state 
should  prove  the  prisoner's  guilt  be- 
yond a  reasonable  doubt.  Common- 
wealth V.  Kilpatrick,  53  A.  774,  204 
Pa.  218. 

61  Smith  V.  State,  19  Tex.  App.  95. 

6  2  Minder  v.  State,  39  S.  E.  284, 
113  Ga.  772,  afiirmed  22  S.  Ct.  224, 
183  U.  S.  559,  46  L.  Ed.  328. 

63  James  v.  State,  69  So.  569,  193 
Ala.  55,  Ann.  Cas.  1918B,  119:  Porter 
v.  State,  37  So.  81,  140  Ala.  87 ;  State 
V.  Soper,  49  S.  W.  1007,  148  Mo.  217 ; 
State  V.  Overton,  88  A.  689,  85  N.  J. 
Law,  287;  State  v.  Herron,  71  A,  274, 
77  N.  J.  Law,  523. 


615 


INSTRUCTIONS  ON  DEFENSES  IN   CRIMINAL   CASES 


328 


show  that  he  was  insane  at  the  time  of  the  commission  of  the  acts 
charged  against  him  as  an  offense,  he  cannot  be  convicted  if  the 
jury  have  a  reasonable  doubt  of  his  sanity.**^ 

An  instruction  is  erroneous  which  requires  an  accused  to  es- 
tablish a  defense  of  insanity  beyond  a  reasonable  doubt,*'^  or  which 
requires  more  than  a  preponderance  of  the  evidence  to  sustain 
such  a  plea,"^  and  where  an  instruction  is  given  that  the  burden 
is  on  the  defendant  to  clearly  prove  such  a  defense  by  a  prepon- 
derance of  the  evidence  the  court  should  explain  that  this  does 
not  mean  that  he  must  prove  his  insanity  beyond  a  reasonable 
doubt.^' 

In  some  jurisdictions  it  is  error  to  charge  that  such  a  defense 
must  be  made  out  by  a  preponderance  of  the  evidence,®*  it  being 
sufficient,  as  heretofore  stated,  to  entitle  the  defendant  to  an  ac- 
quittal, if  upon  the  whole  evidence  the  jury  have  a  reasonable 
doubt  of  the  sanity  of  the  defendant  or  of  his  mental  competency 
to  distinguish  between  right  and  wrong  and  to  understand  the 
nature  of  the  act  charged  at  the  time  of  its  commission,®^  and  in- 
structions are  objectionable  which  do  not  clearly  state  this  rule 
to  the  jury/"  or  which  deprive  the  accused  of  the  benefit  of  any 


64  Matheson  v.  United  States,  33  S. 
Ct.  355,  227  U.  S.  540,  57  L.  Ed.  631. 

65  Smith  V.  State,  62  So.  184,  182 
Ala.  38. 

6  6  People  V.  Wells,  78  P.  470,  145 
Cal.  138 ;  Kelcli  v.  State,  45  N.  E.  6, 
55  Ohio  St.  146.  39  L.  R.  A.  737,  60 
Am.  St.  Rep.  680 ;  Commonwealth  v. 
Lee,  75  A.  411,  226  Pa.  283.  See  Peo- 
ple V.  Zentgraf  (Cal.  App.)  193  P.  274. 

6  7  Stanfield  v.  State,  94  S.  W.  1057, 
50  Tex.  Cr.  R.  69;  McCullough  v. 
State,  94  S.  W.  1056,  50  Tex.  Cr.  R. 
132. 

68  Gei-man  v.  United  States  (C.  C. 
A.  Ky.)  120  F.  666,  57  C.  C.  A.  128; 
State  V.  Shuff,  72  P.  664,  9  Idaho,  115. 

Instxnctions  not  improper  Tidth- 
in  rule.  Where,  in  a  prosecution  for 
homicide,  the  court  charged  that  a 
complete  purpose  or  design  to  kill 
must  be  shown,  and  that  the  burden 
of  proof  was  on  the  commonwealth  to 
satisfy  the  jury  beyond  a  reasonable 
doubt  that  defendant  was  legally  re- 
sponsible at  the  time,  or  was  sane, 
and  that  in  order  to  constitute  a 
crime  a  porson  must  hdve  intelligence 
and  capacity  enough  to  have  a  crim- 
inal intent  and  puriMJse,  and  if  his 


reason  and  mental  powers  are  either 
so  deficient  that  he  has  no  will,  no 
conscience  or  controlling  mental  pow- 
er, or  if,  through  the  overwhelming 
evidence  of  mental  disease,  his  intel- 
lectual power  is  for  the  time  obliter- 
ated, he  is  not  punishable  for  crim- 
inal acts,  a  subsequent  instruction  re- 
quiring that  it  must  be  proved  to  the 
satisfaction  of  the  jury  that  the  mind 
of  accused  was  in  a  diseased  and  un- 
sound state  at  the  time  of  the  killing, 
etc.,  was  not  subject  to  exception  as 
placing  on  defendant  the  burden  of 
proving  by  a  preponderance  of  the 
evidence  that  he  was  mentally  irre- 
sponsible. Commonwealth  v.  John- 
son, 74  N.  E.  939.  ISS  Mass.  382. 

6  9  State  V.  Shuff,  72  P.  604,  9  Idaho, 
115. 

7  0  State  V.  Crowe,  102  P,  579,  39 
Mont.  174,  IS  Ann.  Cas.  643;  Revoir 
v.  State,  82  Wis.  295,  52  N.  W.  84. 

Reasonable  doubt.  The  instruc- 
tion that  it  is  for  the  jury  to  say 
whether  the  evidence  as  a  whole  con- 
vinces them  of  defendant's  insanity, 
or  raises  in  their  minds  a  reasonable 
doubt  as  to  his  insanity,  is  objection- 
able because  of  its  alternative  form; 


§  329  INSTRUCTIONS  TO  JURIES  616 

evidence  which  merely  creates  a  reasonable  doubt  as  to  his  san- 
ity.'^ An  instruction  on  the  capacity  of  the  defendant  to  commit 
the  crime  alleged  should  not  restrict  the  jury  to  evidence  which 
relates  to  the  commission  of  the  offense  and  subsequent  events.'^ 

§  329.     Presumption  of  continuance  of  insanity 

In  order  to  justify  an  instruction  that,  if  the  defendant  has 
shown  that  he  was  insane  at  any  time  before  the  commission  of 
the  alleged  offense,  the  jury  will  presume  that  he  was  insane  at 
the  time  of  the  act  alleged  to  constitute  such  offense,  there  must 
be  some  evidence  tending  to  show  his  general  insanity,  as  dis- 
tinguished from  mere  temporary  aberration,'^  and  it  is  proper  to 
instruct  that,  if  the  defendant  is  shown  to  have  been  permanently 
insane  before  the  commission  of  the  crime  charged,  the  presump- 
tion would  be  that  such  insanity  continued  and  existed  at  the 
time  of  the  offense,  but  that  by  "permanently  insane"  is  meant 
insanity  not  due  to  a  temporary  cause,  such  as  delirium  tremens, 
fever,  or  the  like.'* 


C.    Ei^FEcT  OF  Intoxication  oif  Accused  as  Bearing  on  Guilt  or 

Punishment 

§  330.     Necessity  and  propriety  of  instructions  in  general 

Where  there  is  evidence  that  an  act  for  which  one  is  criminally 
prosecuted  was  committed  by  him  while  intoxicated,  it  is  proper 

the  only  matter  for  the  jui-y's  deter-  minds  of  the  jury.     People  v.  Nino, 

mination  being  whether  the  evidence  149  X.  Y.  317,  43  N.  E.  853. 

as  a  whole  raises  a  reasonable  doubt  '^~  Bell  v.  State,  91  Ga.  15,  16  S.  E. 

of  defendant's  sanity.    State  v.  Crowe,  207. 

102  P.  579,  39  Mont.  174,  18  Ann.  Cas.  ^s  People  v.  Francis,  38  Cal.  183. 

643.  Instructions    held    sufficient    on 

71  Pribble  v.  People,  112  P.  220,  49  presumption  of  continuance  of  in- 

Colo.  210.  sanity.     A  charge  that  insanity  of  a 

Instructions  lield  improper  permanent  nature,  when  once  shown 
within  rule.  Where  the  sole  defense  to  exist,  is  presumed  to  continue  until 
was  insanity,  an  instruction  that,  to  the  contrary  appears,  but,  where  de- 
establish  a  defense  on  the  ground  of  lirium  tremens  is  relied  on,  the  de- 
insanity,  it  must  be  clearly  proved  lirium  must  exist  when  the  act  was 
that,  at  the  time  of  committing  the  committed,  as  this  is  a  mere  transient 
act,  the  party  accused  was  laboring  dei'angement  of  the  mind,  and  there 
under  a  defect  of  reason  from  disease  is  no  presumption  of  its  recurrence 
of  the  mind,  is  erroneous,  in  that  it  is  from  antecedent  fits,  is  correct ;  nor 
calculated  to  mislead  the  jury  as  to  is  it  rendered  inapplicable  by  medical 
the  evidence  necessary  to  put  the  bur-  testimony  that  delirium  tremens 
den  of  proof  as  to  sanity  on  the  prose-  weakens  the  mind.  Wagner  v.  State, 
cution,  and  as  to  the  effect  of  a  rea-  116  Ind.  181,  18  N.  E.  833. 
sonable  doubt,  regarding  defendant's  7  4  Kellogg  v.  United  States  (C.  C. 
sanity,  which  may  be  created  in  the  A.  Tenn.)  103  F.  200,  43  O.  C.  A,  179. 


617 


INSTRUCTIONS  ON   DEFENSES  IN   CRIMINAL  CASES 


§  330 


to  instruct,''^  and  the  court  should  instruct,''®  on  the  law  as  to 
drunkennes's,  and  that  such  intoxication  is  a  matter  to  be  consid- 
ered by  the  jury  as  bearing  upon  the  state  of  the  defendant's jiiind, 
and  therefore  as  evidence  upon  the  question  of  his  intent;''  and  ^ 
while  it  is  held  in  one  jurisdiction  that  it  is  seldom,  if  ever,  the 
duty  of  the  court  to  go  further  and  instruct  that  the  jury  may, 
from  the  intoxication  alone,  infer  the  absence  of  any  intent  to 
commit  the  specific  ofifense  charged  and  the  consequent  mnocence 
of  the  defendant,'^  and  in  another  jurisdiction  it  has  been  held  that 
the  fact  of  drunkenness  should  not  be  singled  out  from  the  other 
evidence  bearing  on  intent  and  malice,''^  the  weight  of  authority 
supports  the  rule  that  in  a  proper  case  the  court  may  be  required 
to  instruct  that  if  such  ijitoxication  was  of  such  a  character  as  to 
render  the  defendant  incapable  of  forming  an  intent  to  commit  the 
crime  alleged  he  should  be  acquitted.««     If  there  was  intoxicatioii 

quences  or  result  of  his  act.  State 
V.  Kapelino,  lOS  N.  W.  335,  20  S.  D. 
591.  An  instrnction  that  while  vol- 
untary drunlcenness,  of  itself,  cannot 
avail  as  a  defense  to  a  charge  of 
murder  in  the  first  dearree,  yet  it 
should  he  considered  on  the  question 
of  whether  defendant  committed  the 
act  with  deliberation  and  premedita- 
tion, in  connection  with  all  the  other 
facts,  in  determining  the  degree  of 
guilt,  properly  covers  the  question  of 
intent.  State  v.  Zorn,  22  Or.  591,  30 
P.  317. 

7  8  State  V.  White,  14  Kan.  538. 

7  9  Nichols  V.  Commonwealth,  11 
Bush.    (Ky.)  575. 

so  Ala.  Cranberry  v.  State,  62  So. 
52,  182  Ala.  4. 

Ark.  Chowning  v.  State,  121  S.  W. 
735,  91  Ark.   503,   18   Ann.   Cas.  529. 

Fla.  Garner  v.  State,  9  So.  835, 
28  Fla.  113.  29  Am.   St.  Rep.  232. 

111.  People  v.  Wright,  123  N.  E. 
64,  287  111.  580. 

Iowa.  State  v.  Steffens,  89  N.  W. 
974,  116  Iowa,  227 ;  State  v.  Desmond, 
SO  N.  W.  214,  109  Iowa,  72. 

Neb.  Kraus  v.  State,  1G9  N.  W.  3, 
102  Neb.  690. 

N.  Y.  Rogers  v.  People,  3  Parker, 
Cr.  R.  632. 

See  State  v.  Pasnau,  92  N.  W.  682, 
lis  Iowa,  501;  People  v.  Haley,  12 
N.   W.  671,  48  Mich.  495. 

Instx'uctions  insufficient  wdtliin. 
rule.     On   a   trial  for  shooting  with. 


7  5  Ark.  White  v.  State,  86  S.  W. 
296,  174  Ark.  491. 

111.  P.leich  V.  People,  81  N.  E.  36, 
227  111.  80.  ^ 

Mo.     State  V.  Murray,  193  S.  W. 

""dr.  State  V.  Morris,  163  P.  567,  83 
Or.  429. 

Pa.  Commonwealth  v,  Ault,  10 
Pa.  Super.  Ct.  651. 

Tex.  Upchurch  v.  State  (Cr.  App.) 
39  S.  W.  371.  ^^  ^^    ^ 

7  6  People  V.  Van  Zandt,  120  N.  E. 
725,   224  N.   Y.  354. 

7  7  Ala.  Chatham  v.  State,  92  Ala. 
47,  9  So.  607. 

Cal.     People  v.  HiU,  55  P.  692,  123 

Cal.   47. 

Kan.     State  v.  White,  14  Kan.  538. 

Ky.  Hayes  v.  Commonwealth,  188 
S.  W.  415,  171  Ky.  291. 

N.  Y.  People  v.  Mills,  3  N.  Y.  Cr. 
R.  184:  Rodgers  v.  People,  15  How. 
Prac.  557. 

Vt.  State  V.  Turley,  88  A.  562,  87 
Vt.  163. 

See  Nichols  v.  State,  8  Ohio  St.  435. 

Instructions  held  sufficient  on 
question  of  intent.  In  a  prosecu- 
tion for  assault  with  a  dangerous 
weapon,  the  court  properly  instruct- 
ed the  jury  on  the  law  of  intoxication 
in  the  language  of  the  statute,  and 
that  it  was  for  the  jury  to  determine 
whether  defendant's  mind  was  in 
such  condition  that  he  knew  right 
from   wrong   or   the    probable    conse- 


§  330  INSTRUCTIONS  TO  JURIES  618 

of  the  accused  to  any  extent  at  the  time  of  the  commission  of  the 
alleged  offense,  he  is  entitled  to  have  the  jury  pass  upon  the  effect 
thereof  upon  the  question  of  intent,  and  it  is  error  to  instruct  that 
the  intoxication  must  be  such  that  defendant  could  not  form  a 
criminal  intent  in  order  to  be  considered  on  the  question  of  pur- 
pose, motive,  or  intent.*^ 

Where  the  accused  is  entitled  to  a  charge  on  intoxication,  he 
may  demand  a  distinctive  instruction  thereon,  disassociated  from 
a  charge  as  to  the  effect  of  drugs.^'' 

A  request  to  charge  upon  a  general  assumption  that  drunken- 
ness, whether  producing  insensibility  or  not,  will  reduce  the 
grade  of  the  offense,  is  bad,^^  and  the  evidence  may  be  such  as 
to  make  it  proper  to  refuse  instructions  on  the  effect  of  intoxi- 
cation which  ignore  the  consideration  whether  the  defendant  made 
himself  drunk  for  the  purpose  of  doing  the  alleged  criminal  act, 
or  whether  he  availed  himself  of  a  drunken  condition  to  do  such 
act.** 

It  is  not  reversible  error  to  charge  that  evidence  of  drunken- 
ness on  the  part  of  the  accused  should  be  received  with  caution,*^ 
although  it  is  better  to  omit  such  a  charge.^® 

Instructions  as  to  the  effect  of  drunkenness  as  bearing  upon  the 
question  of  a  criminal  intent  must  be  based  upon  the  evidence.*^ 

intent  to  kill  and  murder  an  instruc-  Colo.     Ryan  v.  People,  114  P.  306, 

tion  that  drunkenness,  nnless  defend-  50  Colo.  90,  Ann.  Cas.  1912B,  12.32. 

ant   became    drunk    for    the   purpose  Kan.     State   v.   Guthridge,    129   P. 

of  committing  the  offense  he  is   ac-  1143,  88  Kan.  846. 

cused  of,  is  a  palliation  or  excuse  for  Ky.     Hayes  v.  Commonwealth,  188 

the  commission  of  it  when  defendant  S.  W.  415,   171   Ky.   291. 

is  so  drunk  at  the  time  of  the  com-  Mo.     State    v.    Church,    98    S.    W. 

mission  as  to  be  unable  to  know  what  36,  199  Mo.  605;    State  v.  Kiley,  100 

he  is  doing,  was  properly  refused  as  Mo.  493,  13  S.  W.  1063. 

not  being  explicit  enough,  in  that  it  N.  M.     State  v.  Orfanakis,  159  P. 

did  not  explain  when  It  is  that  intox-  674,  22  N.  M.  107. 

ication  is  a  defense  to  crime.    State  v.  N.     Y.     Lanergan     v.     People,     50 

Wilson,   49   So.   986,   124  La.   82.  Barb.  266. 

81  People  V.  Gerdvine,  104  X,  E.  Tex.  Berry  v.  State,  80  S.  W.  630, 
129.   210  X.   Y.   184.  46  Tex.  Cr.  R,  420;    Wright  v.  State, 

82  Barton  v.  State,  81  S.  W.  742,  40  S.  W.  491,  37  Tex.  Cr.  R.  627 ; 
46  Tex.   Cr.  R.  493.          '  Leeper  v.  State,  29  Tex.  App.  63,  14 

8  3  Walker   v.   State,  91   Ala.   76,   9  S.  W.  398. 

So.  87.  Evidence  sufficient  to  justify  in- 

84  State  V.  Kole,  32  S.  E.  892,  124  struction.     WTaere  it  is  shown  that 

N.  C.  816 ;    State  v.  Dilliard,  53  S.  E.  the  defendant  said  that  he  was  drunk 

117,  59  W.  Va.  197.  when  he  committed  the  homicide,  and 

8  5  People  V.  Ferris,  55  Cal.  588.  another  witness  testifies  that  he  act- 

86  People  V.  Nihell,  77  P.  916,  144  ed  as  though  he  had  been  drinking, 

Cal.  200.  it  is  proper  to  instruct  the  jury  as  to 

■iKo'  t^^'o-^^""'^^  ^"  ^^^^^'  4'*  ^^-  ^^1'  the  law  in  regard  to  homicide  com- 
152  Ala.  25.  mitted   during  intoxication,   although 


619 


INSTRUCTIONS  ON  DEFENSES  IN   CRIMINAL  CASES 


331 


Thus  an  instruction  that,  if  defendant  voluntarily  became  intoxi- 
cated to  better  nerve  himself  to  do  the  alleged  criminal  act,  such 
drunkenness  would  not  constitute  an  excuse,  will  constitute  cause 
for  reversal,  where  there  is  no  evidence  in  support  thereof,^*  and 
the  court  is  not  required  to  state  specifically  any  of  the  exceptions 
to  the  rule  that  drunkenness  does  not  excuse  or  extenuate  crime, 
in  the  absence  of  any  evidence  on  which  to  base  such  ^  state- 
ment.8»  Ordinarily  a  charge  upon  the  effect  of  the  intoxication 
of  the  defendant  is  not  required,  in  the  absence  of  a  request  there- 
for.»« 

§  331.     Drunkenness  as  excuse  for  crime 

While  in  some  jurisdictions  it  is  proper  fo  charge  that  voluntary 
intoxication  is  no  excuse  for  the  commission  of  a  crime,»i  and  m 
some  jurisdictions,  under  statutory  provisions,  that  such  drunken- 
ness can  be  considered  only  in  mitigation  of  the  penalty,  ^  in 
other  jurisdictions  such  an  instruction,  without  qualification,  will 
constitute  reversible  error,  if  an  intent  is  a  necessary  element  of 
the  crime  charged.^^ 


most  of  the  witnesses  testify  that  de- 
fendant was  sober.  Jamison  v.  Peo- 
ple, 145  111.  357,  34  N.  E.  486. 

8  8  Clark  V.  State,  49  N.  W.  367,  32 
Neb.  246. 

8  9  state  V.  Guthridge,  129  P.  1143, 
88  Kan.  846. 

9  0  Thomas  v.  State,  91  Ga.  204,  18 
S    E    305. 

'siHanvey  v.  State,  68  Ga.  612; 
State  V.  Woodward,  90  S.  W.  90,  191 
Mo.  617;  State  v.  Marriner,  108  A. 
306,  93  N.  J.  Law,  273;  Murphy  v. 
State  (Tex.  Cr.  App.)  40  S.  W.  978; 
White  V.  State  (Tex.  Cr.  App.)  30  S. 
W.  556.  See  Crew  v.  State  (Tex.  Cr. 
App.)  23  S.  W.  14. 

Drunkenness  set  up  to  slio\«r 
physical  inability.  When  drunken- 
ness is  set  up,  not  as  an  excuse  for  an 
admitted  act,  but  to  show  physical  in- 
ability to  do  the  act  at  all,  it  is  prop- 
er to  charge  that,  while  drunkenness 
is  no  excuse  for  crime,  it  is  a  fact 
which  may  be  proved  to  throw  light 
on  other  facts  or  circumstances  in 
the  case.  Jenkins  v.  State,  93  Ga. 
1,   18   S.   E.   992. 

02  Stoudenmire  v.  State,  125  S.  W. 
399,  58  Tex.  Cr.  R.  258. 

0  3  Garner  v.  State,  28  Fla.  113,  9 
So.  835,  29  Am.   St.  Rep.  232;    Peo- 


ple V.  Jones,  105  N.  E.  744,  263  111. 
564;  GoUiher  v.  Commonwealth,  2 
Duv.  (Ky.)  163,  87  Am.  Dec.  493; 
Latimer  v.  State,  76  N.  W.  207,  55 
Neb.  609,  70  Am.  St.  Rep.  403.  See 
Cook  V.  State,  35  So.  665,  46  Fla.  20. 
Instructions  lield  not  improper 
within  rule.  Where,  on  an  indict- 
ment for  murder,  there  was  evidence 
that  defendant  was  in  some  degree 
intoxicated,  and  the  jury  were  in- 
structed that  if  they  believed  he  was 
frenzied  from  the  use  of  liquor,  so 
that  he  was  incapable  of  knowing 
what  he  was  doing,  they  would  be 
justified  in  acquitting  him,  and  that 
they  were  to  take  all  the  circumstanc- 
es together,  and  see  whether  he  had 
acted  with  deliberation,  and  no  more 
definite  instruction  was  asked  for  de- 
fend'ant,  it  was  held  that  there  was 
no  eri-or  in  further  charging  that 
"drunkenness  is  no  excuse  for  crime." 
Cross  v.  State,  55  Wis.  201,  12  N.  W. 
425. 

Absence  of  evidence  of  intoxica- 
tion. Where  the  evidence  fails  to 
show  that  defendant  was  intoxicated 
at  the  time  of  the  h_omicide,  it  is  er- 
ror to  instruct  the  jury  that  "volun- 
tary intoxication  furnishes  no  ex- 
cuse for  a  crime  committed  under  its 


§  331 


INSTRUCTIONS  TO  JURIES 


620 


In  one  jurisdiction  an  instruction  on  voluntary  intoxication  as 
furnishing  no  excuse  for  crime  should  contain  the  phrase  "when 
ssane  and  responsible."  ^* 

D.  Instructions  on  Alibi 

§  332.     Necessity  of  instructions 

The  general  rule  is  that,  where  there  is  evidence  in  a  criminal 
case  tending  to  support  an  alibi,  the  court  should,  on  request,  in- 
struct on  such  issue,^^  and  that  it  will  be  reversible  error  not  to 
so  instruct.^  Where  the  question  of  alibi  is  bound  up  with  an- 
other issue,  so  that  they  are  virtually  the  same  defense,  it  is  not 
necessary,  however,  to  instruct  separately  on  such  issues,^'  and 
where  the  evidence  is  largely  circumstantial  instructions  covering 
the  law  of  circumstantial  evidence  and  the  question  of  alibi  gen- 
erally may  be  sufficient.^^ 

In  some  jurisdictions  the  court  is  not  required  to  instruct  on 
alibi  as  an  independent  issue,®^  it  being  sufficient  to  charge  that 


influences,  even  if  the  intoxication  is 
so  extreme  as  to  make  the  author  of 
the  crime  unconscious  of  what  he  is 
is  doing,  or  to  create  a  temporary  in- 
sanity." jSIoutag  V.  People,  141  111. 
75,  30  N.  E.  337. 

Drunkenness  not  set  up  as  ex- 
cuse. Where  drvmkenness  was  not 
set  up  as  an  excuse  for  the  homicide, 
but  as  the  contributing  cause  of  an 
accident  which  resulted  in  the  death, 
it  was  error  to  instruct  absti'actly 
that  drunkenness  is  not  an  excuse 
for  the  commission  of  a  crime.  State 
V.  Cross,  42  W.  Ta.  253,  24  S.  E.  996. 

0*  People  V.  Trebilcox,  86  P.  684, 
149  Cal.  307. 

9  5  Ala.  McKissack  v.  State,  75  So. 
701,  16  Ala.  App.  109. 

Conn.  State  v.  Brauneis,  79  A. 
70,  84  Conn.  222. 

Ga.  Montford  v.  State,  87  S.  E. 
797.  144  Ga.  582;  Holland  v.  State, 
86  S.  E.  739,  17  Ga.  App.  311 ;  Calla- 
han V.  State,  81  S.  E.  380,  14  Ga.  App. 
442. 

Iowa.  State  v.  Porter,  38  N.  "W. 
514,  74   Iowa,  623. 

Mich.  People  v.  Coston,  153  N.  W. 
831,   187   Mich.   538. 

Tex.  Burkhalter  v.  State,  184  S. 
W.  221,  79  Tex.  Cr.  R.  336;    Schaper 


V.  State,  122  S.  W.  257,  57  Tex.  Cr. 
R.  201;  Ballentine  v.  State,  107  S. 
W.  546,  52  Tex.  Cr.  R.  369;  Harper 
V.  State  (Cr.  App.)  98  S.  W.  8.S9; 
Rountree  v.  State  (Cr.  App.)  55  S.  W. 
827:  Smith  v.  State  (Cr.  App.)  50  S. 
^Y.  362.  denying  rehearing  (Cr.  App.) 

49  S.   W.  583. 

Wash.     State  v.  King,  97  P.   247, 

50  Wash.  312.  16  Ann.  Cas.  322. 
Wis.     Abaly  v.    State,   158   N.  W. 

308,  163  Wis.  609. 

0  0  Ala.  Burton  v.  State,  107  Ala. 
108,    18   So.   284. 

Ind.     Binns  v.   State,  46  Ind.  311. 

Kan.  State  v.  Conway,  55  Kan. 
323.  40  P.  661. 

N.  C.  State  v.  Byers,  SO  N.  C. 
426. 

Tenn.  Wiley  v.  State,  5  Baxt. 
662 ;    Davis  v.  State,  Id.  612. 

Tex.  Tittle  v.  State,  35  Tex.  Cr. 
R.  96,  .31  S.  W.  677;  Anderson  v. 
State,  34  Tex.  Cr.  R.  546,  31  S.  W. 
673. 

0  7  Dale  v.  State,  88  Ga.  552,  15  S. 
E.  287. 

9  8  Marshall  v.  State,  37  Tex.  Cr. 
R.  450,  36  S.  W.  86. 

0  0  State  v.  Powers,  47  A.  830,  72 
Vt.  168 ;  Jenkins  v.  State,  134  P.  260, 
22  Wyo.  34,  rehearing  denied  135  P. 


G21 


INSTRUCTIONS  ON  DEFENSES  IN  CRIMINAL  CASES 


§332 


if  there  is  any  reasonable  doubt  of  the  guilt  of  the  defendant  on 
the  whole  evidence  he  is  entitled  to  an  acquittal,'^  and  after  the 
court  has  properly  charged  as  to  the  burden  of  proof  where  the 
evidence  is  circumstantial  it  need  not  further  charge  that  the  bur- 
den is  upon  the  state  to  prove  the  presence  of  the  defendant  at  the 
scene  of  the  crime  beyond  a  reasonable  doubt.~  An  instruction 
on  the  efifect  of  evidence  of  -an  alibi  as  raising  a  reasonable  doubt 
of  the  guilt  of  the  defendant  is  properly  refused,  where  the  court 
has  already  sufficiently  charged  on  the  subject  of  reasonable 
doubt.3 

Ordinarily  the  failure  of  the  court  to  charge  on  an  alleged  alibi 
will  not  be  error,  in  the  absence  of  a  request  for  an  instruction  on 
such  subject;*  it  being  held  that  where  no  such  request  is  made 
the  defense  of  alibi  is  sufficiently  embraced  in  a  general  charge 
on  the  presumption  of  innocence  or  reasonable  doubt.^  In  juris- 
dictions, however,  where  the  court  is  required  to  instruct  the  jury 
on  all  questions  of  law  arising  in  the  case,  an  instruction  on  the 
subject  of  alibi  must  be  given,  whether  requested  by  the  defend- 
ant or  not,  if  the  evidence  raises  the  issue.® 

In  Georgia  the  rule  is  that  where  alibi  is  the  main  defense,'  or 
the  accused   submits   evidence  on  the  trial  which,  if  credible,  is 


749.  22  Wyo.  34.  See  State  v.  Reed, 
62  Iowa,  40,  17  N.  W.  150. 

1  Wollace  V.  Commonwealth,  220  S. 
W.  lOni.  187  Kv.  775 ;  State  v.  Shroy- 
er.  104  Mo.  441,  16  S.  W.  286,  24  Am. 
St.  Rep.  344. 

Compare  State  V.  Edwards,  109 
Mo.  315,  19  S.  W.  91 ;  State  v.  Kelly, 
16  Mo.  App.  213. 

2, Tonkins  v.  State,  134  P.  260,  22 
Wyo.  34.  rehearing  denied  135  P. 
749,   22   Wyo.   34. 

■■'•  Benton  v.  State,  94  S.  W.  688,  78 
Ark.  284;  Gibbs  v.  State,  1  Tex.  App. 
12. 

Contra,  Fleming  v.  State,  136  Ind. 
149,  36  IN.  E.  154. 

4  111.  People  V.  Bolik,  89  N.  B. 
700,  241  111.  394. 

Iowa.  State  v.  Lightfoot,  78  N.  W. 
41.  107  Iowa,  344. 

Kan.  State  v.  Woods,  185  P.  21, 
105  Kan.  554. 

Neb.  Bloom  v.  State,  146  N.  W. 
965.  95  Neb.  710;  Heidelbaugh  v. 
State,   113    N.   W.   145,   79   Neb.    499. 

Tex.  Fowler  v.  State,  148  S.  W. 
576,  66  Tex.  Or.  R.  500;  Jones  v. 
State,  143  S.  W.  621,  64  Tex.  Cr.  R. 


510;  Manlding  v.  State,  108  S.  W. 
11S2,  53  Tex.  Cr.  R.  220;  Lyon  v. 
State  (Cr.  App.)  34  S.  W.  947 ;  Rider 
V  State,  26  Tex.  App.  334,  9  S.  W. 
688. 

Sufficiency  of  request  for  in- 
struction. Where  the  defendant  tes- 
tifies that  he  was  not  present  at  the 
place  where  the  crime  was  commit- 
ted, the  failure  to  instruct  as  to  the 
effect  of  an  alibi  is  erroneous ;  the 
attention  of  the  court  being  called 
thereto  by  the  allegation  that  the  in- 
structions given  "do  not  cover  the 
M'hole  law  of  the  case."  State  v.  Kop- 
lan,  66  S.  W.  967,  167  Mo.  298. 

5  State  V.  Sutton,  70  Iowa,  268,  30 
N.  W.  567 ;  Myers  v.  State,  144  S.  W. 
1134,  65  Tex.  Cr.  R.  448. 

6  State  V.  Taylor,  118  Mo.  153,  24 
S.  W.  449. 

Compare  State  v.  Doekery,  147  S. 
W.  976,  243  Mo.  592. 

Contra,  State  v.  Bond,  90  S.  W. 
830.  191  Mo.  555. 

7  Holland  v.  State,  86  S.  E.  739,  17 
Ga.  App.  311;  Hobbs  v.  State,  68  S. 
E.  515.  8  Ga.  App.  53;  Duggan  v. 
State,  59  S.  E.  846,  3  Ga.  App.  332. 


§   333  INSTRUCTIONS  TO  JUEIES  622 

sufficient  to  sustain  his  defense  of  alibi,  the  court  should  of  its  own 
motion  charge  thereon,*  but  where  the  defendant  does  not  pro- 
duce sufficient  evidence  to  establish  such  defense,  and  the  evidence 
is  nof  close  on  the  issue,  the  court  need  not  instruct  thereon  with- 
out a  request  so  to  do ;  ^  this  rule  applying  where  the  issue  is 
raised  only  by  the  prisoner's  statement.^" 

§  333.     Rule  where  issue  of  alibi  not  raised 

Where  the  issue  of  an  alibi  is  not  raised  by  the  pleadings  and 
evidence,  the  court  need  not,-^^  and  should  not,*^  give  an  instruc- 
tion on  alibi,  and  it  is  erroneous  to  instruct  that  the  defendant  re- 
lies upon  proof  of  an  alibi. ^^  Thus,  where  the  defendant  simply 
denies  any  participation  in  the  crime  alleged  in  the  indictment,  it 
is  error  to  instruct  as  to  the  defense  of  an  alibi  and  that  such  de- 
fense merely  tends  to  cast  a  reasonable  doubt  on  the  case  made  by 
the  state.^* 

§  334.     Sufficiency  of   evidence  to   authorize   or   require   instruc- 
tions on  alibi 

Evidence  in  support  of  the  defense  of  alibi  must  be  of  clear  and 
probative  value,  in  order  to  require  or  authorize  the  court  to 
charge  upon  the  law  of  alibi,  especially  in  the  absence  of  a  re- 
quest therefor,^^  and  the  mere  fact  that  the  unsworn  statement  of 
the  defendant  presents  the  issue  of  alibi  does  not  necessitate  an 
instruction  on  such  issue,  in  the  absence  of  a  request  therefor.^® 

To  entitle  a  defendant  to  an  instruction  on  alibi,  the  evidence 
must  show  that  at  the  time  of  the  commission  of  crime  he  was  at 
a  place  so  far  away  or  under  such  circumstances  that  he  could  not 
with  ordinary  exertion  have  reached  the  scene  of  the  crime  in  timic 

8  Shfirpe  Y.  State,  100  S.  E.  -567,  149  n  Morris  v.  State,  27  So.  336,  124 

Ga,  472.  Ala.  44 :    Johnson  v.  State  (Tex.  Cr. 

9Rnrhonr   v    State    90    S     E     7S'>  '^I^r>-^    ^'"^    '^^    ^'-    ^^^ '     Benavides    v. 

o/no     A^^    "ii       iSiiiriL.  \.    i?tltr  State    (Tex.   Cr.  App.)  61   S.  W.   125. 

?S     S     F'%f'o3"GT\vv     400-'  -People  y.   Darr,   104   N.   E.   389, 

^^it'hetf  v.'|'ate:'90''s.   R '492''?8  ^62  111.  202.   affirming  judgment   179 

„       ,         ^or-.    TXT ^    cif„f^    Qo  o  111-    Apn.    1.30;     State    v.    Bosworth. 

Ga.  App.  737;    Moore  v.  State,  86  S.  -,^9  x   w    ^81    170  Towi    3^9-    Afitrh- 

of~;  ^t%  T?^  am  11  r^o  rlf,.  ell  v.  State,  159  S.  W.  1073,  71  Tex. 
V    State,    i5   S.  E    491    11   Ga.  App  ^  g 

417;    Coney  V.  State    .5  S^  E.  445    11 

Ga.  App^  415 ;    Paulk  v.  State     rO  S.  ,3                                      ^_  ^            90 

E.    ;iO,    8    Ga.    App.    704 ;     Smith    v.  -j.  .     „„^                    ' 

State,  05  S.  E.  300,  6  Ga.  App.  577.  ^f;  people  v.  Lukos^us,  89  N.  E.  749, 

loSheffeld  V.    State.  83  S.   E.  871,  242  111.  101. 

15  Ga.  App.  514;    Reed  v.   State.  83  1  s  Throckmorton  v.  State,  97  S.  E. 

S.  B  674.  15  Ga.  App.  435;    Bnmdage  664,  23  Ga.   App.   112. 

V.   State,  81   S.   E.  384,   14   Ga.   App.  ic  Young  v.  State,  54  S.  E.  82,  125 

460;    Watsrm  v.  State,  71  S.  E.  122,  Ga.  584;    Murphy  v.  State,  45  S.  E. 

1.36   Ga.   2.36.  609,  118  Ga.  780. 


G23 


INSTRUCTIONS   ON  DEFENSES   IN   CRIMINAL  CASES 


335 


to  have  participated  in  it.^'^  To  require  such  an  instruction  it  is 
not  necessary  that  there  should  be  direct  evidence  of  an  alibi/* 
or  that  the  defendant  should  testify  in  so  many  words  that  at 
the  time  of  the  commission  of  the  crime  he  was  at  a  place  other 
than  where  it  was  alleged  to  have  been  committed.^^ 

The  mere  denial  by  the  defendant  that  he  was  at  the  place 
where  the  crime  was  committed  will  not  necessarily  make  it  in- 
cumbent on  the  court  to  give  such  an  instruction,-"  but  the  court 
should  so  instruct  on  request,  if  he  swears  that  he  was  at  another 
place  at  the  time  of  the  alleged  crime,"i  and  so  where  the  state 
introduces  the  testimony  of  the  defendant  on  a  former  trial  in  sup- 
port of  the  defense  of  alibi.''^ 

§  335.     Propriety  and  sufficiency  of  instructions  on  alibi 

In  some  jurisdictions  an  instruction  on  the  defense  of  alibi 
should  state  the  elements  thereof ,~=^  that  the  jury  should  consider 
all  the  evidence  on  the  issue  whether  introduced  by  the  state  or 


17  Cal.  People  v.  Charles,  99  P. 
383,  9  Cal.  App.  338. 

Iowa.  State  v.  Seymour,  94  Iowa, 
G99,  63  N.  W.  661. 

Mo.  State  v.  Bond,  90  S.  W.  830, 
191  Mo.  553. 

Okl.  Barbe  v.  Territory,  86  P.  61, 
16  Okl.  562. 

Tex.  Funk  v.  State,  208  S.  W. 
509,  84  Tex.  Cr.  R.  402:  Woods  v. 
State,  188  S.  W.  980,  80  Tex.  Cr.  R. 
73;  Click  v.  State,  155  S.  W.  270; 
Russell  V.  State,  Id. ;  Thornton  v. 
Slate,  Id.;  Caples  v.  State,  155  S. 
W.  267,  69  Tex.  Cr.  R.  394 ;  Johnson 
V.  State,  120  S.  W.  1000.  56  Tex.  Cr. 
R.  540;  Underwood  v.  State.  117  S. 
W.  809,  55  Tex.  Cr.  R.  601 ;  Delaney 
V.  State,  90  S.  W.  642,  48  Tex.  Cr.  R. 
594. 

Evidence  of  alibi  insufficient  to 
require  an  instruction  thereon. 
The  fact  that  defendant,  charged  with 
a  homicide  occurring  in  a  free  fight, 
was  present  during  the  fight,  but  fled 
therefrom  during  the  fight  does  not 
authorize  an  instruction  as  to  alibi. 
Jackson  v.  State  (Tex.  Cr.  App.)  67 
S.  W.  497.  In  a  prosecution  for  bur- 
glary the  accused  having  admitted 
that  15  minutes  prior  to  the  time  a 
person  was  detected  attempting  to 
rifle  a  safe  in  a  mill  building  he  was 
in  close  proximity  thereto,  and  one 
witness  having  identified  him  as  the 


guilty  party,  it  was  not  prejudicial 
after  charging,  as  to  the  burden  of 
proof,  the  presumption  of  innocence, 
and  the  reasonable  doubt,  to  refuse  to 
specifically  instruct  as  to  the  defense 
of  alibi,  though  accused  testified  at  the 
precise  time  the  burglary  was  com- 
mitted he  was  about  20  rods  distant 
from  the  building.  Schultz  v.  State, 
130  N.  W.  105,  88  Neb.  613,  34  L.  R. 
A.  (X.  S.)  243. 

18  Sapp  V.  State  (Tex.  Cr.  App.)  77 
S.  W.  456. 

Evidence  to  sliowr  defendant's 
presence  at  scene  of  crime  entire- 
ly circumstantial.  Though  defend- 
ant, charged  with  robbery,  introduced 
no  affirmative  evidence  to  prove  an 
alibi,  it  was  proper  to  instruct  the  ju- 
ry on  the  law  of  alibi,  where  the  evi- 
dence to  show  defendant's  presence 
at  the  robbery  was  all  circumstantial. 
Tabor  v.  State,  107  S.  W.  1116,  52 
Tex.  Cr.  R.  387. 

19  Padron'  v.  State,  55  S.  W.  827, 
41  Tex.  Cr.  R.  548. 

20  Byas  v.  State,  51  S.  W.  923,  41 
Tex.  Cr.  R.  51,  96  Am.  St.  Rep.  762. 

21  Wilson  V.  State,  51  S.  W.  916,  41 
Tex.  Cr.  R.  115. 

2  2  Davis  V.  State.  152  S.  W.  1094, 
68  Tex.  Cr.  R.  400. 

2  3  Collins  V.  State,  70  So.  995,  14 
Ala.  App.  54. 


335 


INSTRUCTIONS  TO  JURIES 


624 


the  defendant,^*  that  the  defense  of  alibi  is  as  proper  as  any  other, 
that  if  the  jury  have  a  reasonable  doubt  as  to  whether  the  defend- 
ant was  at  a  place  other  than  where  the  crime  is  alleged  to  have 
been  committed  at  the  time  it  was  committed  they  should  give 
him  the  benefit  of  the  doubt,  and  that  he  need  not  prove  such  alibi 
by  a  preponderance  of  the  evidence.^^ 

An  otherwise  sufficient  instruction  on  alibi  is  not  rendered  im- 
proper, however,  by  the  failure  to  include  the  statement  that  an 
alibi  is  a  legitimate  defense,-^  and  in  other  jurisdictions  it  is  suffi- 
cient to  charge  in  substance  that,  if  the  evidence  raises  a  reason- 
able doubt  in  the  minds  of  the  jury  as  to  the  presence  of  the  de- 
fendant at  the  scene  of  the  crime  at  the  time  of  its  commission, 
they  should  acquit  him.-''     Thus  an  instruction  that  it  would  be 


2  4  Thompson  v.  State,  117  P.  216,  6 
Okl.  Cr.  50;  Jenkins  v.  State,  134  P. 
260,  22  Wyo.  34,  rehearing  denied  135 
P.  749,  22  Wyo.  34. 

Instructions  held  proper  TOitliin 
rule.  An  instruction  that  one  of 
the  defenses  interposed  is  an  alibi — 
that  is,  that  defendant  was  in  another 
place  when  the  crime  was  committed 
— and  that  the  evidence  must  be  such 
as  to  show  that,  at  the  very  time  of 
the  commission  of  the  crime,  the  ac- 
cused was  at  another  place,  so  that 
he  could  not,  with  ordinary  exertion, 
have  reached  the  place  where  the 
crime  was  committed,  and  that  in 
considering  this  question  the  jury 
should  consider  the  whole  of  the  evi- 
dence, and  then,  if  they  have  any  rea- 
sonable doubt  of  the  guilt  of  accused, 
should  acquit,  is  sufficient.  Buck  v. 
Territory,  98  P.  1017,  1  Okl.  Cr.  517. 

2  5  Burns  v.  State,  79  N.  E.  929,  75 
Ohio  St.  407. 

Instructions  lield  sufficient.  In- 
structions that  jury  should  acquit  if 
they  believed  that  defendant  was  not 
present  when  the  crime  was  commit- 
ted, and  that  the  burden  of  proving 
his  presence  at  the  time  and  place  be- 
yond a  reasonable  doubt  was  on  the 
state.  State  v.  King,  165  P.  065,  101 
Kan.  189. 

2B  State  V.  Sepult,  81  Iowa,  40,  46 
N.  W.  748 ;  State  v.  Anglin  (Mo.)  222 
S.  W.  776. 

2  7  U.  S.  (C.  O.  A.  Tenn.)  McCool 
V.  U.  S.,  263  F.  55. 

Cal.  People  v.  Winters,  57  P.  1067, 
125  Cal.  325. 


ria.    Blackwell  v.  State,  86  So.  224. 

Mich..  People  v.  Resh,  107  Mich. 
251,  65  N.  W.  99. 

Mo.  State  v.  Anglin,  222  S.  W. 
770;  State  v.  Bonner,  168  S.  W.  591, 
259  Mo.  342  ;  State  v.  Brown,  153  S.  W. 
1027,  247  Mo.  715;  State  v.  Shelton. 
122  S.  W.  732,  223  Mo.  118 ;  State  v. 
Adair,  61  S.  W.  187,  160  Mo.  391. 

Mont.  State  v.  Spotted  Hawk,  55 
P.    1026,  22   Mont.   33. 

Tex.  Ellis  V.  State,  154  S.  W.  1010. 
69  Tex.  Cr.  R.  468 ;  Clay  v.  State,  146 
S.  W.  166,  65  Tex.  Cr.  R.  590 ;  McCoy 
V.  State,  120  S.  W.  858.  56  Tex.  Cr. 
R.  551 ;  Fox  v.  State,  109  S.  W.  370, 
53  Tex.  Cr.  R.  150;  Tinsley  v.  State, 
106  S.  W.  347,  52  Tex.  Cr.  R.  91 ;  Vil- 
lereal  v.  State  (Cr.  App.)  61  S.  W. 
715;  Stevens  v.  State,  59  S.  W.  545, 
42  Tex.  Cr.  R.  154 ;  Gutirrez  v.  State 
(Cr.  App.)  59  S.  W.  274;  Pink  v. 
State,  48  S.  W.  171,  40  Tex.  Cr.  R.  23. 

See  State  v.  Taylor,  134  Mo.  109,  35 
S.  W.  92. 

Instructions  held  sufficient  ivith- 
in  rule.  An  instruction  that  it  was 
incumbent  on  defendants  to  establish 
the  claim  that  they  were  elsewhere 
at  the  time  of  the  murder  by,  a  pre- 
ponderance of  the  evidence,  but  not 
beyond  a  reasonable  doubt,  and  "if, 
therefore,  after  consideration  of  all 
the  evidence  in  the  case,  *  *  * 
you  have  a  reasonable  doubt  as  to 
whether  the  defendants  were  at  the 
place  where  the  crime  was  commit- 
ted, or  were  in  some  other  locality, 
*  *  *  you  shall  give  the  defend- 
ants the  benefit  of  that  doubt,   and 


625 


INSTRUCTIONS  ON   DEFENSES  IN  CRIMINAL  CASES 


335 


find  them  not  guilty,"  imposes  on  the 
prosecution  the  obligation  to  demon- 
strate beyond  a  reasonable  doubt  that 
defendants  were  at  the  place  of  the 
killing,  and  gives  them  the  benefit  of 
their  testimony  to  create  m  the  mmds 
of  the  jurv  a  reasonable  doubt  as  to 
their  presence  at  the  place     Borrego 
V.  Territory,  46  P.  349.  8  N.  M    446, 
affirmed  Same  v.  Cunmngham,  17  b. 
Ct    18'^    164  U.  S.  612,  41  L.  Ed.  5(2. 
A  charge  that  if  the  testimony  as  to 
the   alibi   was   sufficient   to    raise    a 
reasonable    doubt    as    to   defendants 
presence  at  the  place  and  time  charg- 
ed, or  as  to  his  participation  m  the 
murder,   the  defendant  must  be  dis- 
charged, given  in  connection  with  in- 
structions  on   reasonable   doubt   and 
presumption  of   innocence.      State  v. 
Kritchman.   79  A.   75,  §4  Co^^.  152. 
An  instruction  that  defendant  had  in- 
terposed an  alibi,  that  is,  that  even 
if  the  crime  was  committed  as  charg- 
ed  he  was  at  the  time  at  a  different 
place,  and  was  not  and  could  not  have 
been    the   person   who    committed   it, 
and  that,  if  tlae  evidence  left  a  rea- 
sonable doubt  as  to  his  presence  at 
the  place  where  the  offense  was  com- 
mitted at  the  time  of  the  fommission 
thereof  to  find  him  not  guilty.     State 
V    Hillebrand,  225  S.  W.  1006.     In  a 
criminal    case,    where    defendant    at- 
tempted to  show  an  alibi,  an  instruc- 
tion that  such  defense  "is  as  legiti- 
mate and  valid  as  any  other  defense, 
*     *     *     nor  is  the  defendant  bound 
to  establish  this  defense  beyond  a  rea- 
sonable doubt,  and  if,  from  the  ^yhole 
evidence,  you  have  a  reasonable  doubt 
of  his  presence  at  the  commission  of 
the  offense,  as  before  explained,  you 

INST.TO  JtJEIES— 40 


must   give   him    the   benefit   of   that 
doubt,  and  acquit,"  is  sufficient  y  ex- 
plicit to  show  defendant's  rights  un- 
der that  defense.     State  v.   Bryant, 
134  Mo.  246,  35   S.  W.  597      An  in- 
struction "among  other  defenses  set 
up  by  defendant  is  what  ^^^  known  m 
legal  phraseology  as  an    alibi  ,    that 
is   that  if  the  offense  was  committed 
as  alleged,  and  defendant  was  at  an^- 
other    and    different    place     * 
at  the  time  of  the  commission  there- 
of  and  therefore  was  not,  and  could 
uo't  have  been,  the  person  who  com- 
mitted the  crime.     Kow,  if  the  evi- 
dence raises  in  your  mind  a  reasona- 
ble doubt  as  to  the  presence  of  de- 
fendant  at   the  place  where  the  of- 
fense was  committed,  if  any  such  was 
committed,  at  the  time  of  the  com- 
mission thereof,  you  will  give  defend- 
ant   the    benefit    of    such    doubt   and 
acquit  him"— was  proper.    O'Hara  v. 
State,  124  S.  W.  9.5,  57  Tex.Cr.  R. 
577      An  instruction  that  if,  in  view 
of  all  the  evidence,  the  jury  have  a 
reasonable  doubt  as  to   whether  de- 
fendants  were  in   some   other  place 
when  the  crime  was  committed,  they 
should   be   given   the   benefit   of   the 
doubt,  and  acquitted;    that  they  are 
not   required    to   prove   an   alibi   be- 
yond  a   reasonable   doubt   to  be   en- 
titled   to    an    acquittal;     l<ut    it    is 
enough  if  the  evidence  raises  a  rea- 
sonable doubt  of  their  presence  at  the 
time  of  the  commission  of  the  cnme. 
is  correct.     State  v.  Hassan,  128  ^. 
W.  960,  149  Iowa,  518. 

2  8  Commonwealth  v.  De  Palma,  110 

*-,f|utf v^'worthen.  100  N.  W.  3?,0. 
124  Iowa,  408 ;    State  v.  Standley,  76 


335 


INSTRUCTIONS   TO  JURIES 


626 


up,  and  that  the  jury  should  acquit  him  if  his  evidence  raises  a 
reasonable  doubt  as  to  his  complicity  in  the  offense  charged,  gives 
him  the  full  benefit  of  the  evidence  relating  to  such  defense.^* 

It  is  proper  to  instruct  on  behalf  of  the  state  that  if,  after  con- 
sidering all  the  facts  and  circumstances  in  evidence,  the  jury  have 
no  reasonable  doubt  of  the  presence  of  the  defendant  at  the  time 
and  place  of  the  commission  of  the  crime,  then  the  defense  of 
alibi  has  not  been  made  out.^^ 

§  336.     Propriety  of  instructions  on  burden  of  proof 

In  the  majority  of  jurisdictions  instructions  which  place  the 
burden  on  the  defendant  to  establish  an  alibi  by  a  preponderance 
of  the  evidence  are  erroneous.^^  In  some  jurisdictions,  however, 
the  rule  is  that  an  alibi  as  a  distinct  issue  must  be  shown  by  pre- 
ponderance of  the  evidence,  and  accordingly  a  charge  that,  when 


Iowa,  215,  40  N.  W.  815;  State  v. 
Ardoin,  22  So.  620,  49  La.  Ann.  1145, 
62  Am.  St.  Rep.  678. 

Instructions  proper  'witliin  rule. 

An  instruction  tliat  accused  was  not 
required  to  prove  tlie  defense  of  alibi 
beyond  a  reasonable  doubt,  but  was 
entitled  to  an  acquittal  if  the  evi- 
dence raised  a;  reasonable  doubt  of 
defendant's  presence  at  the  time  and 
place  of  the  commission  of  the  crime 
charged,  etc.,  sufHciently  directed  the 
.iury  to  take  into  account  the  evi- 
dence relating  to  alibi  in  determining 
whether  they  were  satisfied  beyond 
a  reasonable  doubt  on  all  the  evidence 
as  to  defendant's  guilt.  State  v. 
Thomas,  109  N.  W.  900,  135  Iowa,  717, 
writ  of  error  dismissed  Thomas  v. 
State  of  Iowa,  28  S.  Ct.  487,  209  U.  S. 
258,  52  L.  Ed.  782.  In  a  criminal  trial 
an  instruction  that  the  burden  was 
on  defendant  to  establish  an  alibi  by 
a  preponderance  of  the  evidence,  but 
that  if  the  entire  evidence,  including 
"the  defense  of  alibi"  raised  a  rea- 
sonable doubt  as  to  defendant's  guilt 
he  should  be  acquitted,  was  not  re- 
versible error  as  leading  the  jury  to 
understand  that  before  defendant 
could  have  advantage  from  the  evi- 
dence tending  to  prove  an  alibi,  he 
must  have  established  such  defense  by 
a  preponderance  of  the  evidence  on 
that  subject;  the  court  having  obvi- 
ously inadvertently  used  the  word 
"defense"  for  "evidence."  State  v. 
Nugent,  111  N.  W.  927,  134  Iowa,  237. 


An  instruction  that  a  defense  of  alibi, 
to  be  entitled  to  consideration,  must 
show  that  at  the  very  time  of  the 
commission  of  the  crime  the  accused 
was  at  another  place,  so  far  away 
that  he  could  not,  with  ordinary  ex- 
ertion, have  reached  the  place  where 
the  crime  was  committed  to  have 
participated  in  it.  and  stating  that 
thei  jury  should  consider  tlie  whole 
of  the  evidence,  both  as  to  the  alibi 
and  that  relating  to  other  facts  in 
the  case,  and,  if  it  entertained  any 
reasonable  doubt,  should  acquit,  does' 
not  place  the  burden  of  proof  on  the 
defendant.  Tucker  v.  Territorj',  87 
P.  307,  17  Okl.  56. 

3  0  State  V.  Miller.  56  S.  W.  907,  156 
Mo.  76. 

31  Aneals  v.  People,  134  III.  401.  25 
N.  E.  1022. 

32  Ariz.  Barton  v.  Territory  of 
Arizona,  85  P.  730.  10  Ariz.  68. 

Cal.  People  v.  Hoosier,  142  P.  514, 
24  Cal.  App.  746;  People  v.  Morris, 
84  P.  463,  3  Cal.  App.  1. 

N.  Y.  People  v.  Montlake,  172  N. 
T.  S.  102,  184  App.  Div.  578. 

Ohio.  Burns  v.  State,  79  N.  E.  929, 
75  Ohio  St.  407. 

Okl.  Shoemaker  v.  Territory,  4 
Okr.  118.  43  P.  1059. 

Or.  State  v.  Chee  Gong,  19  P.  607, 
16  Or.  534. 

Tex.  Avres  v.  State,  21  Tex.  App. 
399,  17  S.  W.  253. 

See  People  v.  Tarm  Poi,  S6i  Cal. 
225,  24  P.  998. 


627 


INSTRUCTIONS  ON   DEFENSES   IN   CRIMINAL   CASES 


§  336 


a  defendant  attempts  to  prove  an  alibi,  the  burden  is  on  him  to 
prove  it  successfully,  or  by  a  preponderance  of  the  evidence,  is 
not  improper,^^  if  in  connection  \vith  such  an  instruction  the  jury 
is  charged  that  any  evidence  of  alibi  should  be  considered  in  con- 
nection w^ith  all  the  other  evidence  in  the  case,  and  if,  upon  the 
evidence  as  a  w^hole,  there  is  a  reasonable  doubt  of  guilt,  the  de- 
fendant should  be  acquitted.^* 

The  better  doctrine  is  that,  where  .the  people  have  made  a  prima 
facie  case  and  the  defendant  relies  on  the  defense  of  alibi,  the  bur- 
den is  on  him  to  prove  it,  not  beyond  a  reasonable  doubt,  nor  by 
a  preponderance  of  the  evidence,  but  by  such  evidence  and  to  such 
a  degree  of  certainty  as  will,  when  the  whole  evidence  is  consid- 
ered create  and  leave  in  the  mind  of  the  jury  a  reasonable  doubt 


33  Parham  v.  State,  42  So.  1,  147 
Ala.  57 ;  Pelluin  v.  State,  89  Ala.  28, 
8  So.  83 ;  Belcher  v.  State  (Ga.  App.) 
103  S.  E.  852;  Jones  v.  State,  60  S. 
E.  840,  130  Ga.  274.  See  State  v. 
O'Brien,  175  N.  W.  769,  188  Iowa,  165. 

Proof  to  reasonable  satisfaction 
of  jury.  In  a  prosecution  for  rape, 
a  charge  that  the  burden  was  on  ac- 
cused to  prove  an  alle,sed  aliln  to 
the  reasonable  satisfaction  of  the 
jury  was  proper,  and  could  not  be 
construed  to  mean  that  the  accused 
had  to  prove  the  alibi  beyond  a  rea- 
sonable doubt.  Rvals  v.  State,  54  S. 
E.  168,  125  Ga.  266. 

Instructions  requiring  too  higli 
a  degree  of  proof.  An  instruction 
that  "the  burden  of  proof  was  on  de- 
fendant to  establish  his  alibi,  and 
that  it  must  be  done  to  your  satis- 
faction." Prince  v.  State,  100  Ala. 
144,  14  So.  409.  46  Am.  St.  Rep.  28. 
On  a  defense  of  alibi,  it  is  error  to 
charge  that,  because  it  is  usually 
made  out  by  members  of  the  family 
of  the  accused,  t^e  law  says  it  must 
be  made  out  very  clearly  and  satis- 
factorily (that  is,  that  the  proof  must 
be  pretty  positive) ;  that  it  must  be 
such  proof  as  will  carry  conviction  to 
your  minds,  and  which  should,  pre- 
ponderate and  fix  pretty  thoroughly 
the  place  that  the  defendants  allege 
themselves  to  be;  that  the  evidence 
must  establish  pretty  thoroughly  that 
they  were  at  the  identical  place  that 
they  allege  they  were  on  the  night 
that  the  crime  was  committed.    Com- 


monwealth V.  Gutshall,  22  Pa.  Super. 
Ct.  269. 

Proof  beyond  reasonable  doubt. 

An  instruction  requiring  the  defend- 
ant to  establish  the  defense  of  alibi 
to  the  exclusion  of  a  reasonable  doubt 
is  erroneous.  Evans  v.  State,  79  S. 
E.  916,  13  Ga.  App.  700. 

34  Ark.  Rayburn  v.  State,  63  S. 
W.  356,  69  Ark.  177. 

Ga.  McDonald  v.  State,  94  S.  E. 
262,  21  Ga.  App.  125 ;  Eidson  v.  State, 
94  S.  E.  73,  21  Ga.  App.  244 ;  Moody 
V.  State,  86  S.  E.  285. 17  Ga.  App.  121 ; 
Raysor  v.  State,  63  S.  E.  786,  132  Ga. 
237  ;  Henderson  v.  State,  48  S.  B.  167, 
120  Ga.  504. 

Iowa.  State  V.  Thomas,  109  N.  W. 
900.  135  Iowa,  717;  State  v.  Hogan. 
88  N.  W.  1074,  115  Iowa,  455 ;  State 
V.  McGarry,  83  N.  W.  718,  111  Iowa. 
709 ;  State  v.  Maher,  74  Iowa,  82,  37 
N.  W.  5 ;    Id.,  74  Iowa,  77,  37  N.  W.  2. 

Pa.  Rudy  V.  Commonwealth,  128 
Pa.  500,  18  A.  344,  24  Wkly.  Notes 
Cas.  502. 

Vt.  State  V.  Ward,  61  Vt.  153,  17 
A.  483. 

In  Georgia,  it  is  held  that  such  a 
charge  will  not  be  necessary,  especial- 
ly in  the  absence  of  a  request  there- 
for, if  the  court  has  correctly  charg- 
ed on  reasonable  doubt  as  applicable 
to  all  the  evidence  and  the  statement 
of  the  defendant  Tooke  v.  State 
(Ga.  App.)  102  S.  E.  905;  Bass  v. 
State,  57  S.  E.  1054,  1  Ga.  App.  728, 
790. 


§  336 


INSTRUCTIONS  TO  JURIES 


628 


of  his  guilt  of  the  crime  charged,^^  and  an  instruction  which,  in 
effect,  enunciates  this  rule  is  proper,^^  while  instructions  impos- 
ing a  greater  burden  are  erroneous,^' 

An  instruction  that,  if  the  jury  believe  the  defendant  to  have 
been  at  some  place  other  than  that  where  the  crime  was  committed 
at  the  time  of  its  commission,  they  should  acquit  him,  is  generally 
held  erroneous,  as  placing  the  burden  of  proof  upon  the  defend- 
ant,^^ although  in  some  jurisdictions  it  is  not  objectionable  if  the 
court  properly  charges  the  doctrine  of  reasonable  doubt  as  appli- 
cable to  the  whole  case.^® 

§  337.     Propriety  and  sufficiency  of  instructions  as  to  time 

Alibi  is  not  a  substantive  defense,  but  the  burden  of  proof  is 
upon  the  state  to  show  that  the  defendant  was  at  the  scene  of  the 
crime  at  the  time  of  its  commission.*"  If  the  evidence  of  an  alibi 
renders  it  very  improbable  that  the  defendant  was  present  at  the 
scene  of  the  crime,  it  may  be  considered  by  the  jury  for  what  it 
is  worth.^i  It  is  therefore  misleading  and  erroneous  to  charge 
that  it  is  essential  to  the  satisfactory  proof  of  an  alibi  that  the 
evidence  in  support  of  it  should  cover  the  whole  of  the  time  of 
the  transaction  in  question,  or  so  much  thereof  as  to  render  it  im- 


3  5  state  V.  Ward,  173  P.  497,  31 
Idaho,  419 ;  State  v.  Bogris,  26  Idaho, 
.587,  144  P.  789  ;  Mullins  v.  People,  110 
111.  42;  State  v.  Thornton,  73  N.  W. 
196,  10  S.  D.  349.  41  L.  R.  A.  530.  See 
Morris  v.  State  (Ark.)  224  S.  W.  724 ; 
Barnhart  v.  State,  177  N.  W.  820,  104 
Neb.  529. 

Instructions  not  improper  as 
placing  burden  of  proof  on  defend- 
ant. It  is  not  error  to  charge  that 
an  alibi  is  a  good  defense,  if  proved  to 
the  satisfaction  of  the  .iury,  and  such 
a  charge  does  not  convey  an  intima- 
tion that  the  burden  of  iiroving  it 
rests  upon  the  prisoner.  State  v. 
Starnes,  94  N.  C.  973. 

Instructions  on  burden  of  proof 
held  proper  in  connection  ^vith. 
otber  instructions.  An  instruction 
that  an  alibi  is  a  good  defense  if  prov- 
en, was  not  erroneous  where  the  .iury 
were  directed  in  the  same  connection 
that,  if  they  had  a  reasonable  doubt 
as  to  defendant's  presence,  they  must 
acquit.  State  v.  Price,  55  Kan.  610, 
40  P.  1001 ;  State  v.  McGinnis,  59  S. 
W.  83,  158  Mo.  105.  Where  the  jury 
were  instructed  to  find  for  defendant, 


unless  the  state  proved  everything  es- 
sential to  the  establishment  of  the 
charge  to  the  exclusion  of  a  reason- 
able doubt,  it  was  not  error  to  charge, 
immediately  afterwards,  that  "the 
burden  rests  upon  the  commonwealth 
to  make  out  its  case,  *  *  *  to  the 
exclusion  of  a  reasonable  doubt,  but, 
where  the  accused  *  *  *  at- 
tempts to  prove  an  alibi,  *  *  * 
the  burden  of  proving  the  alibi  rests 
upon  him."  Thompson  v.  Common- 
wealth, 88  Va.  45,  13  S.  E.  304. 

3  6Ackerson  v.  People,  124  111.  563, 

16  N.  E.  847 ;  MuUins  v.  People,  110 
111.  42. 

37  Thompson  v.  State,  117  P.  216,  6 
Okl.  Cr.  50. 

3  8  People  V.  Fong  Ah  Sing,  64  Cal. 
253,  28  P.  233;  Henderson  v.  State, 
101  S.  W.  245,  51  Tex.  Cr.  R.  193; 
Bennett  v.   State,  30  Tex.  App.  341, 

17  S.  W.  545. 

39  State  V.  Johnson,  91  Mo.  439,  3 
S.  W.  868. 

40  Gawn  v.  State,  13  Ohio  Cir.  Ct. 
R.  116,  7  O.  C.  D.  19. 

41  Ford  V.  State,  47  S.  W.  703,  101 
Tenn.  454. 


INSTRUCTIONS  ON  DEFENSES  IN   CRIMINAL  CASES 


§  337 


629 

possible  for  the  defendant  to  have  committed  the  crime ;«  such 
an  instruction  shifting  the  burden  of  proof  from  the  state  to  the  de- 
fendant«  and  violating  the  rule  that  the  defendant  is  entitled  to 
an  acquittal  if  the  whole  evidence  generates  a  reasonable  doubt  as 

to  his  guilt.**  .,  ,     r       1      J  r     J     4. 

So  it  is  error  to  charge  that,  if  it  was  possible  for  the  defendant 
to  have  been  at  either  the  place  of  the  crime  or  the  place  where 
he  claimed  to  be  at  the  time  of  its  commission,  the  evidence  ot 
alibi  is  of  no  value  whatever.*^  It  is  not  error,  however,  to  in- 
struct that  evidence  of  an  alibi,  to  be  satisfactory,  must  account 
for  his  whereabouts  during  the  whole  of  the  period  m  question, 
where  the  court  also  instructs  that,  if  the  jury  have  any  reasonable 
doubt  as  to  whether  the  defendant  was  present  at  the  scene  of  the 
crime  they  should  acquit.*«  Where  the  witnesses  for  the  state 
have  fixed  the  date  of  the  crime  within  a  few  days,  it  is  error  tor 
the  court  to  charge  that  the  exact  date  of  the  ofiense  is  imma- 
terial   and  that  it  is  sufficient  to  support  a  conviction  if  the  evi- 


42  Dobv  V.  State,  74  So.  724,  15  Ala. 
App.  59l';  McAnally  v.  State,  74  Ala. 
9-  Wisdom  v.  People,  11  Colo.  170, 
17  P.  519 ;  Briggs  v.  People,  76  N.  E. 
499  219  111.  330;  Gawn  v.  State,  13 
Ohio  CTr.  Ct.  R.  116,  7  O.  0.  D.  19. 

Bight  of  jury  to  consider  incom- 
plete proof  of  alibi.  The  jury 
should  not  be  told  not  to  consider  any 
evidence  on  the  subject  of  an  alibi, 
■unless  it  covers  the  whole  period  of 
time  during  which  the  offense  was 
committed.  Hasliins  v.  State  (Ark.) 
230  S.  W.  5. 

4  3  Pollard  V.  State,  53  Miss.  410,  24 
Am.  Rep.  703. 

44  Beavers  v.  State,  103  Ala.  36,  15 
So.  616;  Allbritton  v.  State,  94  Ala. 
76,  10  So.  426. 

45  Ford  V.  State,  47  S.  W.  703,  101 
Tenn.  454. 

Effect  of  use  of  terms  "possi- 
ble" and  "impossible."  Where,  in 
a  murder  case,  the  court  charged  that 
time,  as  far  as  the  question  of  an 
alibi  is  concerned,  is  very  material, 
and  the  jury  should  remember  all  ev- 
ery witness  had  stated  in  regard  to 
that  question,  and  determine  whether 
it  was  possible  for  defendant,  under 
all  the  circumstances,  to  leave  the 
bouse  of  D.,  and  go  to  the  house  of 


deceased,  and  fire  the  fatal  shot  at 
the  time  it  was  fired;  that  if,  from 
all  the  circumstances,  it  was  impos- 
sible for  defendant  to  do  so,  then  the 
alibi  was  made  out,  and  was  a  com- 
plete defense,  but,  if  it  was  possible 
for  defendant  to  leave  the  house  of 
D.,  go  to  the  house  of  deceased,  and 
fire  the  fatal  shot,  the  evidence  failed 
to  establish  the  alibi,  it  was  held  that 
the  use  of  the  terms  "possible"  and 
"impossible"  was  erroneous,  as  they 
were  too  strong  in  the  connection  in 
which  they  were  used.  Snell  v.  State, 
50  Ind.  5i6. 

4  6  People  V.  Worden,  45  P.  844,  113 
Cal.  569;  Barr  v.  People,  71  P.  392, 
30  Colo.  522. 

Exact  time  of  commission  of  of- 
fense not  shown.  On  the  trial  of 
a  criminal  cause,  where  evidence  has 
been  introduced  tending  to  show  that 
the  defendant  was  at  a  place  other 
than  the  place  where  the  crime  was 
committed,  at  the  time  of  its  com- 
mission, but  where  the  exact  time  of 
the  commission  of  the  crime  is  not 
shown,  but  it  is  shown  to  have  been 
committed  during  a  night,  or  part  of 
a  night,  it  is  right  to  instruct  the 
jury  that  evidence  of  an  alibi  must 
cover  the  whole  of  such  time.  West 
V.  State,  48  Ind.  483. 


§   338  INSTRUCTIONS   TO  JURIES  630 

deuce  shows  that  the  defendant  committed  the  crime  at  any  time 
within  the  period  of  limitations.*'' 

§  338.     Propriety  and  sufBciency  of  instructions  as  to  place 

The  distance  between  the  place  where  the  defendant  claims  to 
have  been  at  the  time  of  the  commission  of  the  crime  of  which  he 
is  accused  and  the  place  where  the  crime  was  committed  is  not 
the  controlling  element  of  an  alibi,  and  the  general  rule  is  that 
it  is  error  to  instruct  that,  satisfactorily  to  establish  his  defense  of 
alibi,  it  must  appear  that  such  distance  was  so  great  as  to  pre- 
clude the  possibility  that  defendant  could  have  been  at  the  scene 
of  the  crime.**  While  it  may  not  be  impossible  for  the  defendant 
to  have  been  present  at  the  place  of  the  crime,  it  may  be  highly 
improbable,  and  this  the  jury  should  be  allowed  to  take  into  ac- 
count.'*^ In  some  jurisdictions,  however,  in  some  cases,  under  the 
terms  of  a  statute,  it  is  not  improper  to  instruct  that  in  order  to 
make  out  the  defense  of  alibi  the  evidence  must  satisfy  the  jury 
that  the  accused  was  at  a  place  where  it  was  impossible  for  him 
to  have  committed  the  crime.^**  An  instruction  that,  if  the  accused 
Avas  not  so  far  away  from  the  place  where  the  crime  was  commit- 
ted but  that  he  could  with  ordinary  exertion  have  reached  such 
place,  the  jury  may  consider  such  fact,  is  not  improper,  as  allow- 
ing the  jury  to  infer  that  the  defendant  would  be  presumed  to 
have  been  at  such  place  at  the  time  of  the  commission  of  the  of- 
fense if  he  could  by  ordinary  exertion  have  reached  it.^^ 

47  state  V.  Kins,  97  P.  247,  50  Wash.  v.  Bntler,  G7  Iowa.  643,  25  N.  W.  843. 
312,  16  Ann.  Cas.  .322.  Where    the    evidence    tends   to   show 

48  Peyton  v.  State,  74  N.  W.  597,  an  alibi,  it  is  not  error  to  instruct 
54  Neb.  188.  that  the  evidence  tended  to  show  tliat 

Instructions  held  proper  -within  the   defendant  was,    when   the   crime 

rule,     Wliere   on   an   indictment   for  was  being  committed,  at  sncli  a  dis- 

larceny,   defendant   set   up   an   alibi,  tant  and  different  place  that  he  could 

and  the  court  instructed  that,  "if  he  not    have    participated    in    its    com- 

has  shown  that  at  the  time  of  the  lar-  mission,  and  that  they  should  acquit 

ceny  he  was  at  such  distance  from  the  unless  the  evidence  satisfied  them  be- 

scene  that  he  could  not  have  partic-  yond  a  reasonable  doubt  that  he  was 

ipated  in  the  commission  of  the  crime.  present  when  the  crime  was  commit- 

this  will   overcome  any  presumption  ted.     Nightingale  v.   State,  87  N.  W. 

of  guilt  which  would  arise  from  the  158,  62  Neb.  371. 

fact  of  his  having  possession  of  the  * 9  West  v.  State,  48  Ind.  483. 

property,"  it  was  held  that  the  giving  so  McCool  v.  U.  S.  (O.  C.  A.  Tenn.) 

of  this  instruction  does  not  warrant  263  F.  ,55 ;    Field  v.    State,  55   S.   E. 

a   new    trial    on   the   ground    that   it  502,  126  Ga.  571 ;    Harris  v.  State,  47 

conveys   the  idea  that  the  establish-  S.  E.  520,  120  Ga.  167;     Simpson  v. 

ment  of  the  alibi  depends,  not  upon  State,  78  Ga.  91. 

absence   from  the  locus  in  quo,   but  ci  State  v.  Burton,  67  P.  1097,  27 

upon  the  distance  therefrom.     State  Wash.  528. 


631 


INSTRUCTIONS   ON   DEFENSES  IN   CRIMINAL  CASES 


§  339 


§  339.     Disparagement  of  defense  of  alibi 

Evidence  of  an  alibi  is  to  be  subjected  to  the  same  test  as  any 
other  evidence  of  a  material  fact,^-  and  the  general  rule  is  that 
an  instruction  tending  to  cast  suspicion  on  such  evidence  or  to 
disparage  the  defense  of  an  alibi  is  erroneous.^^  Thus  it  is  error 
to  instruct,  without  any  accompanying  explanation  or  qualifica- 
tion, that  the  defense  of  alibi  is  to  be  weighed  with  great  caution, 
because  it  is  a  defense  easily  fabricated  and  often  attempted  by 
contrivance  and  perjury.^*  It  is,  however,  proper  in  some  juris- 
dictions to  advise  the  jury  to  scan  the  evidence  of  an  alibi  with 
care  and  attention,^^  and  call  attention  to  the  fact  that  such  a  de- 
fense is  more  easy  to  build  than  some  others,^*'  such  an  instruc- 


V.  State,  56  Ind.  378. 

Binns  v.  State,  46  Ind.  311. 
People  V.  Pearsall,  50  Mich. 
W.  98. 
Simmons  v.  State,  61  Miss. 


5  2  Sater 
5  3  Ind. 
Micli. 

233,  15  N. 

Miss. 
243. 

Mo.     State  v.   Crowell,  50   S.    W. 
893,  149  Mo.  391.  73  Am.  St.  Rep.  402. 

N.   Y.     People  v.   Kelly,  35   Hun, 
295 

dr.  State  v.  Chee  Gong,  16  Or. 
534,  19  P.  607. 

S.  C.  State  V.  Danelly,  107  S.  E. 
149. 

Tex.    Walker  v.  State,  37  Tex.  366. 

Instructions  held  not  objection- 
able within  rule.  An  instruction 
that  the  defendant  has  introduced 
evidence  tending  to  establish  "what 
is  known  as  an  alibi."  Rownd  v. 
State,  140  N.  W.  790,  93  Neb.  427. 
Where,  on  a  prosecution  for  homicide, 
the  court  charged  that  if  the  plea 
of  an  alibi  was  not  interposed  in  good 
faith,  or  the  evidence  to  sustain  it 
was  simulated,  it  was  a  discrediting 
circumstance,  which  the  jury  could 
consider,  with  the  other  evidence,  in 
determining  the  guilt  or  innocence  of 
the  defendant,  it  was  held  that  al- 
though the  reference  to  the  plea  of 
an  alibi,  there  being  no  such  separate 
plea  in  the  case,  was  inapt,  the  in- 
struction, when  applied  to  the  de- 
fense of  an  alibi  which  was  sought  to 
be  proved  under  the  general  issue, 
was  proper.  Tatum  v.  State,  31  So. 
369,  131  Ala.  32.  An  instruction  that 
a  preliminary  question  for  the  jury  is 
whether  defendant  has  proven  an  ali- 


bi, that  such  defense,  if  established, 
is  decisive  of  the  case,  and  that,  if 
the  jury  think  it  is  sustained  by  the 
evidence,  they  need  investigate  no 
further,  is  not  erroneous,  as  intimat- 
ing that  such  defense  is  doubtful  or 
untrue.  Hufe  v.  State,  91  Ga.  5,  16 
S.  E.  99. 

5  4  Dawson  v.  State,  62  Miss.  241; 
Nelms  v.  State,  58  Miss.  362. 

Similar  instrnctions  held  er- 
roneous. A  charge  that  the  defense 
of  alibi  is.  liable  to  great  abuse,  grow- 
ing out  of  the  ease  with  which  it  may 
be  fabricated,  and  the  difficulty  with 
which  such  fabrication  can  be  detect- 
ed." Albin  V.  State,  63  Ind.  598.  It 
is  error  for  the  court  to  advise  the 
jury  that  the  defense  of  alibi  is  one 
"easily  fabricated,  that  it  has  occa- 
sionally been  successfully  fabricated, 
and  that  the  temptation  to  resort  to 
it  as  a  spurious  defense  is  very  great, 
especiallv  in  cases  of  importance." 
Henry  v.  State,  70  N.  W.  924,  51  Neb. 
149,  66  Am.  St.  Rep.  450. 

ssprovo  V.  State,  55  Ala.  222; 
People  V.  Carson  (Cal.  App.)  192  P. 
318 ;  State  v.  Worthen,  100  N.  W.  330, 
124  Iowa,  408;  People  v.  Tice,  73  N. 
W.  108,  115  Mich.  219,  69  Am.  St. 
Rep.  560. 

5«  U.  S.  (C.  O.  A.  Okl.)  Fielder  v. 
United  States,  227  F.  832,  142  C.  C. 
A.  356. 

Cal.  People  v.  Levine,  85  Cal.  39, 
24  P.  631;  People  v.  Lee  Gam,  69 
Cal.  552,  11  P.  183 ;  People  v.  Wong 
Ah  Foo,  69  Cal.  180,  10  P.  375. 

Iowa.     State  v.  Cartwright,  174  N, 


340 


INSTRUCTIONS  TO  JURIES 


63^ 


tion  not  being  reg-arded  as  discrediting  the  testimony  of  the  de- 
fendant,®' and  it  is  not  error  to  characterize  an  alibi  as  a  defense."* 

§  340.     Effect  of  failure  to  prove  alibi 

In  some  jurisdictions  it  is  not  improper  for  the  court  to  tell 
the  jury  that  an  unsuccessful  attempt  of  the  defendant  to  prove 
an  alibi  is  a  circumstance  to  be  weighed  against  him  in  connection 
with  the  other  evidence,®*  and  it  is  not  error  to  refuse  to  charge 
the  negative  of  such  proposition.^*  But  an  instruction  that,  if  the 
defendant  fails  to  establish  his  defense  of  alibi  by  a  preponder- 
ance of  the  evidence,  he  will  not  be  entitled  to  have  the  evidence  in 
support  of  such  defense  considered  as  a  basis  of  a  reasonable  doubt, 
is  erroneous,^!  and  it  is  error  to  charge  that  an  unsuccessful  at- 
tempt to  prove  an  alibi  is  a  circumstance  of  great  weight  against 
the  defendant,®^  or  to  instruct  that  the  omission  of  a  defendant  to 
account  for  his  whereabouts  is  of  a  "conclusive  character"  against 
the  defendant  ;^^  and  it  is  error  to  instruct  that  a  failure  to  prove 
an  alibi  implies  an  admission  of  the  truth  and  relevancy  of  the 


W.  586,  188  Iowa,  579:  State  v.  New- 
comber,  174  N.  W.  255;  State  v. 
Leete,  174  N.  W.  253,  187  Iowa,  305 ; 
State  V.  Rowland,  72  Iowa,  327,  33  N. 
W.  137. 

5  7  People  V.  Portenga,  96  N.  W.  17, 
134  Mich.  247. 

5  8  State  V.  Hale,  56  S.  W.  881,  150 
Mo.  102:  McVev  v.  State,  77  N.  W. 
1111.  57  Neb.  471. 

5  9  Ala.  Bell  v.  State,  86  So.  139. 
17  Ala.  App.  399;  Wiley  v.  State,  65 
So.  204.  10  Ala.  App.  249;  Wray  v. 
State.  .57  So.  144,  2  Ala.  App.  1.39; 
Crittenden  v.  State,  32  So.  273.  134 
Ala.  145 ;  Jackson  v.  State,  23  So.  47, 
117  Ala.  155. 

Pa.  Commonwealth  v.  McMahon, 
145  Pa.  413,  22  A.  971. 

Vt.  State  V.  Hier,  63  A.  877,  78 
Vt.  488. 

Instructions  held  proper  ivitli- 
in  rule.  An  instruction  that  the 
introduction  of  false  evidence  of  an 
alibi  constituted  a  circumstance 
against  defendant,  and  was  an  infer- 
ential admission  of  guilt,  but  not 
conclusive,  that  the  fact  that  he  had 
been  guilty  of  introducing  it  should 
be  established  b6yond  all  question, 
and  that,  if  the  evidence  of  such  fact 
was   doubtful,   no   weight   should  be 


given  it,  was  correct.  State  v.  Ward, 
61  Vt.  153,  17  A.  483.  Where  the 
court  charged  that  if  defendant  at- 
tempts to  prove  an  alibi,  and  fails, 
it  is  a  circumstance  for  the  jury  to 
consider,  and,  as  the  Supreme  Court 
has  said,  they  should  carefully  scru- 
tinize the  evidence  because  of  its 
liability  to  abuse,  and  that  by  scru- 
tinizing he  meant  them  to  study  care- 
fully, examine,  and  cautiously  receive 
the  evidence.!  it  was  held  that  this 
charge  was  not  error,  it  not  indicating 
that  failure  to  prove  an  alibi  was  any 
evidence  of  guilt,  and,  considered  as 
a  whole,  it  could  not  have  been  mis- 
leading. State  v.  Rochelle,  72  S.  E. 
481,  156  N.  C.  641. 

6  0  State  V.  Callahan,  111  P.  445, 
83   Kan.  448. 

61  State  V.  McGarry,  83  N.  W.  718, 
111  Iowa,  709 ;  Turner  v.  Common- 
wealth. 86  Pa.  54,  27  Am.  Rep.   683. 

62  Allbritton  v.  State,  94  Ala.  76, 
10  So.  426;  People  v.  Malaspina,  57 
Cal.  628. 

63  Gordon  v.  People,  33  N.  Y.  501. 
Fabricated      alibi      as      positive 

proof  of  guilt.  A  charge  that,  if 
defendant  fabricated  his  alibi,  the 
jury  have  a  right  to  consider  that  as 


633 


INSTRUCTIONS  ON  DEFENSES  IN  CRIMINAL  CASES 


§340 


facts  alleged  by  the  state,*'*  and  in  some  jurisdictions  it  is  im- 
proper to  tell  the  jury  that  such  a  failure  may  be  considered  as  a 
circumstance  proving  guilt,  since  the  burden  is  on  the  state 
throughout,  and  the  defendant  is  not  bound  to  explain  anything-^^ 


positive  proof  of  guilt,  is  calculated 
to  mislead  the  jury  to  suppose  that 
in  that  event  they  are  bound  to  con- 
vict, whereas  a  fabricated  alibi  is 
merely    a    criminative   circumstance, 


and  not  conclusive.    State  v.  Manning, 
52  A.  1033,  74  Vt.  449. 

64  State  V.  Collins,  20  Iowa,  85. 

65  Parker   v.    State,   136   Ind.   284, 
35  N.  E.  1105. 


341  INSTRUCTIONS   TO  JURIES  634 


CHAPTER  XXVII 

INSTRUCTIONS   BEARING   ON   RELIEF  AWARDED   OR   PUNISHMENT 

INFLICTED 

A.     Measure  of  Damages  and  Amount  of  Recovery  in  Civil  Cases 

§  341.  Necessity  and  sufficiency  of  instructions  in  general. 

342.  Use  of  words  expressive  of  obligation. 

343.  Remote  or  speculative  damages. 

344.  Personal  injuries  aggravating  prior  diseased  condition. 

345.  Duty  of  plaintiff  to  mitigate  damages. 

346.  Permitting  double  recovery. 

347.  Pain  and  suffering. 

348.  Future  pain  and  suffering. 

349.  Loss  of  earnings  and  impairment  of  earning  capacity. 

350.  Exemplary  damages. 

351.  Calling  attention  to  ad  damnum. 

352.  Effect,  as  evidence,  of  mortality  and  annuity  tables. 
358.  Confining  jury  to  evidence. 

B.     Punishment  in  Criminal  Cases 

354.  Necessity  and  propriety  of  instructions  in  general. 

355.  Rule  as  to  instructions  wjiere  jury  has  some  power  with  respect  to 

fixing  punishment. 

356.  Recommendation  to  mercy  or  of  mitigation  of  punishment. 

A.  Measure  of  Damages  and  Amount  of  Recovery  in  Civil 

Cases 

§  341.     Necessity  and  sufficiency  of  instructions  in  general. 

When  the  law  provides  a  definite  measure  of  damages,^  or  when 
a  reasonably  safe  standard  is  afforded  by  the  circumstances  of  the 
particular  case  by  which  the  compensation  can  be  measured,^  the 
general  rule  is  that  it  is  the  duty  of  the  court,  in  the  discharg'e  of 
its  function,  to  lay  down  the  rules  of  law  applicable  to  the  case, 
either  on  its  own  motion  or  on  request,  to  instruct  the  jury  as  to 
the  measure  of  damages  and  the  various  elements  entering  into  the 
amount  of  recovery,^  not  necessarily  in  such  terms  that  the  amount 

1  Creighton    v.    Campbell,    149    P.  Md.     Western  Maryland  R.  Co.  v. 
448,  27  Colo.  App.  120 ;    Omaha  Coal,  Martin,  73  A.  267,  110  Md.  554. 
Coke  &  Lime  Co.  v.  Fay,  37  Neb.  GS,  Neb.     Carpenter    v.    City    of    Red 
55  N.  W.  211.  Cloud,  89  N.  W.  637,  64  Neb.  126. 

2  Parsons  v.  Missouri  Pac.  Ry.  Co.,  Pa.  Burns  v.  Pennsylvania  R. 
94  Mo.  2S6.  6  S.  W.  464.  Co.,  S2  A.  246,  233  Pa.  304,  Ann.  Cas. 

:'Ariz.     Curry  v.  Windsor,  194  P.  191 3B,    Sll. 

&58.  Tex.     Southern     Traction     Co.     v. 

Colo.     NorOiern  Colorado  Irr.   Co.  Owens    (Civ.    App.)    198    S.    W.    150; 

v.   Renter,   186  P.  286,   67  Colo.   483.  Mis^^ouri,  K.  &  T.  Ry.  Co.  of  Texas  v. 

Ga.     Central  of  Georgia  Ry,  Co.  v.  Lightfoot,  106  S.  W.  395,  48  Tex.  Civ. 

Hughes,  50  S.  E.  770,  127  Ga.  593.  App.  120;    Houston  &  T.  C.  R.  Co.  v. 


fi35 


RELIEF   AWARDED   OR   PUNISHMENT   INFLICTED 


341 


can  be  exactly  determined,  but  so  as  to  define  the  reasonable  lim- 
its within  which  the  calculations  are  to  be  computed;*  this  rule  ap- 
plying whether  the  action  is  for  personal  injuries,^  for  injuries  to 
property,^  or  for  breach  of  contract,' 


Buchanan,  84  S.  W.  1073,  38  Tex. 
Civ.  A  pp.  165. 

In  Missouri  instructions  are  not 
erroneous  because  they  leave  the  case 
without  charges  on  the  measure  of 
damages,  since  in  a  civil  action  it  is 
not  compulsory  to  give  instructions. 
Lathrop  v.  Quincy,  O.  &  K.  C.  Ry. 
Co.,  115  S.  W.  493,  135  Mo.  App.  16. 

Omission  to  instruct  as  to  in- 
juries not  permanent.  Where 
there  was  an  issue  whether  personal 
injuries  were  permanent  or  tempora- 
lly, an  instruction  as  to  measure 
of  damages  where  injury  was  per- 
manent, omitting  to  instruct  as  to 
injuries  not  permanent,  even  without 
proper  request,  would  be  cause  for 
reversal.  Seaboard  Air  Line  Ry.  v. 
Brewton    (Ga.  App.)  102  S.  E.  920. 

Recovery  on  quantum  meruit. 
In  an  action  on  quantum  meruit  to 
determine  the  value  of  services  ren- 
dered to  defendants'  aged  and  infirm 
testator,  a  charge  that  the  law  would 
import  a  promise  to  pay  the  reason- 
able value  of  the  services  rendered 
furnished  a  sufficient  guide  to  the 
measiire  of  recoveiy  under  the  evi- 
dence, in  the  absence  of  any  reqiiest 
for  more  specific  instructions.  Mend- 
or  V.  Patterson  (Ga.  App.)  103  S.  E. 
95. 

Interest  as  element  of  recovery. 
Where  the  prevailing  party  to  an  ac- 
tion is  entitled  to  any  interest,  it  is 
error  for  the  court  to  fail  to  instruct 
the  jury  respecting  the  rate  of  in- 
terest that  it  may  assess  in  its  ver- 
dict. Kimball  v.  Lanning,  165  N.  W. 
S90.  102  Neb.  63. 

Effect  of  statute  requiring 
court  to  charge  only  as  to  tlie 
law.  Under  a  statute  requiring  the 
court  to  charge  the  jui-y  only  as  to 
the  law  of  the  case,  failure  of  the 
court  to  instruct  as  to  the  law  of  the 
case  is  error,  and  a  court,  in  a  i^erson- 
al  injui-y  action,  which  merely  charg- 
es tiiat  it  cannot  determine  the  sum  to 
be  allowed,  but  that  is  entirely  for  the 


jury,  without  pointing  out  the  ele- 
ments on  which  a  rc<;overy  may  be 
had,  does  not  comply  with  the  statute, 
especially  where  there  is  a  proper  re- 
quested charge  on  the  measure  of 
damages.  Jagerisliey  v.  Detroit  Unit- 
ed Ry.,  128  N.  W.  726,  163  Mich.  631. 

4  Parsons  v.  Missouri  Pac.  Ry.  Co., 
94  Mo.  286,  6  S.  W.  464. 

5  Ala.  Southern  Ry.  Co.  v.  Coch- 
ran, 42   So.  100,   149  Ala.  673. 

Ga.  Central  of  Georgia  Ry.  Co.  v. 
Hill,  94  S.  E.  50,  21  Ga.  App.  231. 

Idaho.  Holt  v.  Spokane  P.  Rv. 
Co.,  35  P.  39,  3  Idaho  (Hash.)  703. 

111.  Boggs  V.  Iowa  Cent.  Rv.  Co.. 
187  111.  App.  621 ;  Gallagher  v.  Singer 
Sewing  Mach.  Co.,  177  111.  App.  198 ; 
Chicago,  E.  &  L.  S.  Ry.  Co.  v.  Ada- 
micb,  33  111.  App.  412. 

Ky.  Weil  v.  Hagan,  170  S.  W.  618, 
161  Ky.  292. 

Mo.  Hawes  v.  Kansas  City  Stock- 
yards Co.,  103  Mo.  60,  15  S.  W.  751. 

Okl.  Ft.  Smith  &  W.  R.  Co.  v. 
Green,  156  P.  349,  56  Okl.  585. 

Pa.  Burns  v.  Pennsylvania  R.  Co., 
82  A.  246,  233  Pa.  304,  Ann.  Cas. 
1913B,  811. 

Tenn.  Citizens'  St.  R.  Co.  v.  Bur- 
ke, 40  S.  W.  1085,  98  Tenn.  650. 

Tex.  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Head    (App.)  15  S.  W.  504. 

6Ky.  Adams  &  Sullivan  v.  Sen- 
gel,  197  S.  W.  974,  177  Ky.  535,  7  A. 
D.  R.  268 ;  Southern  Ry.  in  Kentucky 
V.  Kentucky  Grocery  Co.,  178  S.  W, 
1162,  166  Ky.  94. 

Md.  Pettit  V.  Commissioners  of 
Wicomico  County,  90  A.  993;  123  Md. 
128,  Ann.  Cas.  1916C,  .35. 

Mo.  Badgley  v.  City  of  St.  Louis, 
50  S.  W.  817,  149  Mo.  122. 

Tex.  Quanah,  A.  &  P.  Ry.  Co.  v. 
Price  (Civ.  App.)  192  S.  W.  805. 

Wyo.  Hatch  Bros.  Co.  v.  Black, 
165  P.  518,  25  Wyo.  109. 

7  Ala.  Howard  v.  Taylor,  90  Ala. 
241,  S  So.  36. 

Ga.  Southern  Ry.  Co.  v.  O'Bryan, 
37  S.  E.  161,  112  Ga.  127. 


341 


INSTRUCTIONS  TO  JURIES 


636 


Thus  an  instruction  authorizing  the  jury  to  find  for  the  plaintiff 
in  such  sum  as  they  believe  from  the  evidence  will  equal  the  dam- 
age sustained  by  him,*  or  in  such  sum  as  will  fairly  compensate  him 
for  his  injury,^  or  that  the  jury  should  render  a  verdict  for  such 
damages  as  appears  from  all  the  evidence  to  be  just/"  will  ordina- 
rily be  too  general.  In  one  case  it  is  said  that  appellate  courts 
steadily  set  their  faces  against  the  practice  of  issuing  a  roving  com- 
mission to  juries  to  establish  their  own  standards  of  damages  in 
place  of  those  defined  by  the  rules  of  law.-^^ 

The  use  of  the  abbreviation  "etc.,"  in  a  charge  enumerating  the 
items  of  damage  recoverable  for  personal  injuries,  is  erroneous  as 
practically  giving  the  jury  unlimited  scope  in  the  assessment  of 
damages.^'^  In  an  action  of  trespass  it  is  error  to  say,  as  to  com- 
pensatory damages,  that  the  amount  is  not  fixed  by  law,  but  is  left 
to  the  sound  judgment  and  the  discretion  of  the  jury.^^  Even  in 
those  actions  in  which  the  amount  of  recovery  depends  upon  the 
sound  discretion  of  the  jury,  as  in  actions  for  libel,  the  court  should, 
so  far  as  it  can,  prevent  the  jury  from  acting  upon  improper  the- 
ories of  what  should  be  regarded  in  estimating  the  elements  which 


lU.  Newman  v.  Tishenor,  107  111. 
App.  58;  Comstock  v.  Price,  103  111. 
App.  19. 

Kan.  Jenkins  v.  Kirtley,  79  P. 
671,  70  Kan.  801 ;  Union  Pac.  Ry.  Co. 
V.  Sliook,  3  Kan.  App.  710,  44  P.  685. 

Ky.  Miles  v.  Miller,  12  Bush,  134 ; 
Alsop  V.  Adams,  7  Ky.  Law  Rep.  (ab- 
stract) 746. 

La.  Varillat  v.  New  Orleans  &  C. 
R.  Co.,  10  La.  Ann.  88. 

Md.  Baltimore  &  O.  R.  Co.  v. 
Carr,  71  Md.   135,  17  A.  1052. 

Mich.  Howe  v.  North,  69  Mich. 
272.  37  N.  W.  213. 

Mo.  Rhodes  V.  Holladay-Klotz 
Tvand  &  Lumber  Co.,  105  Mo.  App. 
279,  79  S.  W.  1145 ;  Haystler  v.  Owen, 
61  Mo.  270;  Matney  v.  Gregg  Bros. 
Grain  Co.,  19  Mo.  App.  107. 

N.  C.  C.  B.  Coles  &  Sons  Co.  v. 
Standard  Lumber  Co.,  63  S.  E.  736. 
150  N.  C.  183. 

Pa.  Otis  Elevator  Co.  v.  Flanders 
Realty  Co.,  90  A.  624,  244  Pa.  186; 
McCloskey  v.  Bell's  Gap  R.  Co.,  356 
Pa.  2.^4,  27  A.  246 ;  Sanderson  v.  Penn- 
sylvania Coal  Co.,  102  Pa.  370;  Erie 
City  Iron  Works  v.  Barber,  102  Pa. 


156;  Schofield  v,  Simpson,  6  Leg. 
Gaz.  70. 

Tex.  Glasscock  v.  Shell,  57  Tex. 
215. 

8  Elswick  V.  Ramey,  163  S.  W.  751, 
157  Ky.  639. 

3  Lexington  Ry.  Co.  v.  Herring,  97 
S.  W.  1127,  30  Ky.  Law  Rep.  269. 

10  Trabing  v.  California  Nav.  & 
Imp.  Co.,  53  P.  644,  121  Cal.  137; 
Union  Pac.  Ry.  Co.  v.  Shook,  3  Kan. 
App.  710,  44  P.  685. 

11  Camp  v.  Wabash  R.  Co.,  68  S..  W. 
96.  94  Mo.  App.  272. 

Instructions  not  improper  -with- 
in rule.  An  instruction  that  the  ju- 
ry will  assess  plaintiff's  damages  at 
such  a  sum  as  they  believe  from  the 
evidence  will  reasonably  compensate 
him  for  the  injuries  sustained,  wheth- 
er temporary  or  permanent,  if  any,  as 
shown  by  the  evidence,  together  with 
all  the  facts  and  circumstances  de- 
tailed in  the  evidence.  Hurst  v.  Chi- 
cago, B.  &  Q.  R.  Co.,  219  S.  W.  566, 
2S0  Mo.  566,  10  A.  L.  R.  174. 

12  Lodwick  Lumber  Co.  v.  Taylor, 
87  S.  W.  358,  39  Tex.  Civ.  App.  302. 

13  Steele  v.  Davis,  75  Ind.  191. 


637  RELIEF   AWARDED   OR   PUNISHMENT   INFLICTED  §  341 

go  to  make  up  the  injury  to  be  redressed.^**  The  court  is  not  ex- 
cused from  instructing  on  the  measure  of  damages  by  the  fact  that 
the  jury  find  the  facts  specially. ^^ 

Where  the  court  has  properly  instructed  the  jury  as  to  the  mat- 
ters they  are  to  consider  in  assessing  the  damages,  it  need  not 
specially  instruct  against  considering  other  matters  which,  although 
in  evidence  are  not  proper  elements  of  damage,^®  and  where  the 
court  lays  down  the  proper  measure  or  rule  of  damages  it  is  not 
obliged  to  formulate  a  particular  method  of  computation  for  the 
jury  to  pursue  in  estimating  the  damages  of  plaintifTt,^'  at  least 
without  request.-^*  In  jurisdictions  where  the  rule  of  comparative 
negligence  prevails,  it  is  held  not  to  be  error  to  fail  to  state  that  any 
damages  recovered  are  to  be  diminished  in  proportion  to  the  con- 
tributory negligence  of  the  plaintiff,  if  the  jury  find  him  to  be  neg- 
ligent, unless  a  request  for  such  a  declaration  is  made.^* 

In  an  action  for  personal  injuries,  the  instruction  should  be  so 
framed  as  not  to  permit  recovery  for  permanent  injuries  unless  it 
is  reasonably  certain  that  the  injuries  will  be  permanent.^**-  An  in- 
struction that,  if  the  jury  are  satisfied  from  the  evidence  that  the 
plaintiff  has  sustained  permanent  injuries  they  may  allow  perma- 
nent damages  does  not  violate  this  rule.^^  Where  it  is  sought  to 
recover  permanent  damages,  the  instructions  should  not  permit  the 
jury  to  get  the  impression  that  damages  are  to  be  allowed  on  the 
basis  of  the  expectancy  of  life  of  the  plaintiff  before  he  was  in- 
jured.^^ 

Instructions  should  not  be  so  framed  as  to  suggest  that  it  will 
be  difficult  to  make  adequate  compensation  for  plaintiff's  loss  or 
injury.^^  Thus  it  is  improper  to  instruct  that,  if  the  jury  should 
find  for  plaintiff,  they  shall  bring  in  such  damages  as  "will  make 
him  whole  in  dollars  as  far  as  possible."  ^* 

Instructions  with  respect  to  damages  should  be  predicated  upon 
the  hypothesis  that  certain  facts  are  found,  or  that  the  jury  find 
for  one  party  or  the  other.^® 

14  Detroit  Daily  Post  Co.  v.  Mc-  20  McBride  v.  St.  Paul  City  Ry. 
Arthur,  16  Mich.  447.  Co.,  7-5  N.  W.  231.  72  IMinn.  291. 

15  Western  Union  Tel.  Co.  v.  New-  21  Kenyon  v.  City  of  Mondovi,  73 
house.  6  Ind.  App.  422,  33  N.  E.  800.  N,  W.  314,  98  Wis.  50. 

16  Powell  V.  Augusta  &  S.  R.  Co.,  22  Howell  v.  Lansing  City  Electric 
77  Ga.  192,  3  S.  E.  757.  Ry.  Co.,  99  N.  W.  406.  136  Mich.  432. 

17  Reeks  V.  Seattle  Electric  Co.,  104  23  Whitehead  v.  Pittsburg  Rys.  Co., 
P.  126,  54  Wash.  609.  79  A.  240,  230  Pa.  79. 

isKyd  V.   Coolv,  76  N.  W.  524,  56  24  Quinard  v.  Knapp,  Stout  &  Co., 

Neb.  71,  71  Am.  St.  Rep.  661.  70  N.  W.  671,  95  Wis.  482. 

19  Lindsey  Wagon  Co.  v.  Nix,  67  So.  25  Cannon  v.  Lewis,  18  Mont.  402, 

459,  108  Miss.  814.  45  P.  572. 


t^ 


§  342  INSTRUCTIONS  TO  JURIES  638 

§  342.     Use  of  words  expressive  of  obligation 

It  is  proper  to  tell  the  jury  that  it  is  their  duty,  in  case  they 
find  for  the  plaintiff,  to  assess  his  compensatory  damages  at  such 
amount  as  the  evidence  shows  will  reimburse  him  for  his  injuries,-^ 
or  that  they  "should"  take  certain  elements  into  consideration  in 
assessing  such  damages.-'  Thus,  where  the  evidence  presents  the 
issue,  the  court  should  tell  the  jury,  not  that  they  may  take  into 
consideration,  in  awarding  damages,  future  pain  and  suffering  which 
they  should  find,  to  a  reasonable  certainty,  the  plaintiff  will  sus- 
tain in  consequence  of  his  injury,  but  that  they  are  bound  to  do 
so.~*  So  where,  in  an  action  for  personal  injuries,  recoverable  dam- 
ages include  injuries  to  the  feelings,  the  jury  should  be  made  to 
understand  that  compensation  therefor  is  a  matter  of  right,  not  a 
matter  within  their  discretion."-'^ 

§  343.     Remote  or  speculative  damages. 

An  instruction  as  to  the  measure  of  damages  should  confine  the 
compensation  to  be  awarded  to  injuries  which  are  the  proximate 
result  of  the  act  of  defendant,^®  and  a  general  instruction  that  the 
plaintiff  is  only  entitled  to  such  damages  as  naturally  and  directly 
result  from  the  wrongful  acts  alleged  may  not,  in  all  cases,  be  suf- 
ficient.^^ Under  this  rule  it  is  error  to  instruct  that  the  jury  may 
award  such  damages  as  they  feel  the  plaintiff  is  entitled  to.^^ 

Where  there  is  testimony  as  to  speculative  and  possible  conse- 
quences of  the  act  of  defendant  of  which  complaint  is  made,  the 
jury  should  be  instructed  not  to  consider  such  evidence,  except  so 
far  as  it  shows  probable  results  of  the  injury  in  question,^^  and 
an  instruction  that  the  jury  cannot  base  their  award  upon  evidence 
which  is  speculative  merely  as  to  the  amount  of  damages  suft'ered 
by  plaintiff  should  point  out  clearly  what  the  testimony  is  which 
the  jury  should  disregard  as  speculative.^^  But,  where  only  proxi- 
es City  of  Salem  v.  Webster.  61  so  Birmingrham  Rv.  Light  &  Power 
N.  E.  323,  192  111.  369 ;  Illinois  Cent.  Co.  v.  Moore,  56  So.  593,  2  Ala.  App. 
R.  Co.  V.  Cole,  74  So.  766,  113  Miss.  499;  Conlon  v.  Chicago  Great  West- 
S96.  eru  Ry.  Co.,  1.39  111.  App.  5.^5 ;  Etz- 
Contra,  Chicago  &  N.  W.  Ry.  Co  korn  v.  City  of  Oelweiu,  120  N.  W. 
V.  Chisholm,  79  111.  584.                              636,  142  Iowa,  107,  19  Ann.  Cas.  999. 

27  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  „ 

Collins.   71   S.   W.   560,   31   Tex.   Civ.      ,   '' ?l^*^i^°^  ^-   ^^^^^^°'  ^^^  ^-  '^^^' 
App.  70;    Galveston,  H.  &  S.  A.  Ry.      ^b  Utah,  5iy. 

Co.  V.  Jenkins,  69  S.  W.  233,  29  Tex.  3  2  Fries   v.   American    Lead   Pencil 

Civ.  App.  440.  Co.,  75  P.  164,  141  Cal.  610. 

xt'w^'^.VT  7oo  w^^'^oo-^   ^°''''''   ^^  s3Brininstool   v.    Michigan    United 

ou'n   !      \         -o  ^^■.^'-  o.    XT     w       Rys-  Co.,  121  N.  W.  728,  157  Mich.  172. 
2  9  Gatzow    v.    Buening,    81    N.    W.         •'  ' 

1003,  106  Wis.  1,  49  L.  R.  A.  475,  80  3  4  Curtis   v.    Curtis,   96   N.    W.    32, 

Am.  St.  Rep.  1.  134  Mich.  220. 


639 


RELIEF   AWARDED   OR   PUNISHMENT  INFLICTED 


346 


mate  damages  are  alleged  and  sought  to  be  proven,  it  is  mislead- 
ing to  charge  that  remote  and  speculative  damages  cannot  be  re- 
covered."^^ 

§  344.     Personal  injuries  aggravating  prior  diseased  condition 

In  a  proper  case  the  jury  should  be  informed  as  to  the  effect  up- 
on the  measure  of  damages  for  personal  injuries  of  the  existence, 
prior  to  the  injury,  of  some  disease  or  disability  of  the  plaintiff,^** 
and  told  that  the  damages  must  be  limited  to  such  as  are  the  nat- 
ural and  proximate  result  of  the  negligence  of  defendant.^' 

§  345.     Duty  of  plaintiff  to  mitigate  damages 

In  a  proper  case  the  jury  should  be  informed  as  to  the  rule  of 
avoidable  consequences.^*  An  instruction  as  to  the  duty  of  the 
plaintiff  to  mitigate  damages  should  be  so  framed  as  not  to  pre- 
vent him  from  recovering  for  damages  which  he  could  not  have 
avoided  by  the  exercise  of  reasonable  care.^^ 

§  346.     Permitting  double  recovery 

Care  must  be  taken  in  framing  instructions  not  to  permit  a  dou- 
ble recovery  for  a  single  loss.***  Within  this  rule  an  instruction 
that,  if  the  jury  find  for  the  plaintiff,  they  may  allow  such  sum 
as  will  reasonably  compensate  him  for  the  injury  sustained,' if  any, 
and  that  if  the  injuries  are  permanent  they  may  find  "in  addition" 
such  sum  as  will  be  a  fair  compensation  for  his  diminished  ca- 


3  5  Tennessee  &  C.  R.  Co.  v.  Dan- 
fortli,  112  Ala.  80,  20  So.  502. 

36  Tavlor  Coal  Co.  v.  Miller,  1S2 
S.  W.  020,  168  Ivy.  719. 

3  7  City  of  Rock  Island  v.  Starkey, 
59  'N.  E.  971,  189  111.  515. 

3  8  Ga.  Central  of  Georgia  Rv.  Co. 
V.  ]\Iadden,  69  S.  E.  165,  135  Ga.  205, 
31  L.  R.  A.  (N.  S.)  813,  21  Ann.  Cas. 
1077 ;  Akridse  v.  Atlanta  &  W.  P.  R. 
Co.,  90  Ga.  2.32,  16  S.  E.  81. 

Iowa.  AVhite  v.  Chicago  &  N.  W. 
Ry.  Co.,  124  N.  W.  309,  145  Iowa,  408. 

Ky.  Louisville  &  N.  R.  Co.  v.  Ben- 
nett, 209  S.  W.  3.58,  183  Ky.  445; 
Louisville  &  N.  R.  Co.  v.  Mount.  101 
S.  W.  1182,  125  Ky.  593. 

Neb.  Swift  &  Co.  v.  Bleise,  89  N. 
W.  310,  63  Neb.  739,  57  L.  R.  A.  147. 

"Wash.  Harvey  v.  Tacoma  Ry.  & 
Power  Co.,  116  P.  644,  64  Wash.  143. 

3  9  Chicago  &  E.  R.  Co.  v.  Meech, 
45  N.  E.  290,  163  111.  305 ;  Donada  v. 
Power    (Tex.    Civ.   App.)    184    S.    W. 


793:  Galveston,  H.  &  S.  A.  Ry.  Co. 
V.  Kurtz  (Tex.  Civ.  App.)  147  S.  W. 
658. 

40  Ga.  Western  &  A.  R.  Co.  v. 
Smith,  88  S.  E.  983.  145  Ga.  276: 
Southern  Ry.  Co.  v.  Jordan,  59  S.  E. 
802.  129  Ga.  665. 

Ky.  Forgy  v.  Rutledge,  180  S.  W. 
90,  167  Ky.  182;  Louisville  &  N.  R. 
Co.  V.  Moore,  150  S.  W.  849,  150  Ky. 
692. 

Md.  John  Cowan,  Inc.,  v.  Meyer, 
94  A.  18.  125  Md.  450. 

Mo.  Laycock  v.  United  Rys.  Co. 
of  St.  Louis   (App.)  227  S.  W.  883. 

Tex.  Hugging  v.  Carey,  194  S.  W. 
1.33,  108  Tex.  358;  Gulf,  C.  &  S.  F. 
Ry,  Co.  V.  Davis  (Civ.  App.)  139  S. 
W.  674;  Chicago,  R.  I.  &  G.  Ry.  Co. 
v.  De  Bord,  132  S.  W.  845,  62  Tex. 
Civ.  App.  302;  Houston  &  T.  C.  R. 
Co.  v.  Maxwell,  128  S.  W.  160,  61 
Tex.  Civ.  App.  SO;  Stamford  Oil 
Mill  Co.  V.  Barnes,  119  S.  W.  872,  55 


§  347  INSTRUCTIONS  TO  JURIES  640 

pacity  to  labor,  is  erroneous."  So  it  is  improper  to  direct  the  as-, 
sessment  of  damages  at  such  sum  as  will  fairly  compensate  plaintiff 
for  the  impairment  of  his  health,  for  the  physical  injury  he  suf- 
fered, for  such  physical  and  mental  suffering  as  resulted,  for  the 
expenses  of  medical  treatment,  and  for  the  impairment  of  his  abil- 
ity to  earn  a  living.*^  On  the  other  hand,  an  instruction  is  not 
objectionable  as  allowing  a  double  recovery,  which,  in  an  action 
for  personal  injuries,  states  that  the  plaintiff  is  entitled  to  recover 
such  damages  as  he  may  have  sustained  from  such  injuries,  and 
then  enumerates  the  elements  of  damage  which  may  be  taken  into 
consideration;**  nor  is  an  instruction  erroneous  under  this  rule 
which  tells  the  jury  that  they  should  take  into  consideration  the 
physical  and  mental  suffering  of  plaintiff  endured  up  to  the  time 
of  trial,  such  mental  and  physical  suffering  as  it  is  reasonably 
probable  he  will  endure  in  the  future,  and  impaired  or  diminished 
future  earning  capacity  reasonably  consequent  upon  his  injury 
after  the  attainment  of  his  majority.**  An  instruction  that  the 
jury  will  take  into  account  the  mental  and  physical  pain,  if  any, 
suffered  by  plaintiff  up  to  the  time  of  the  trial,  and  that  will  be 
suffered  by  him  in,  the  future,  if  any,  as  a  result  of  the  injuries 
sued  for,  the  earning  capacity  lost  by  him  on  account  of  such 
injuries,  if  any,  and  the  impairment  of  his  ability  to  earn  money  in 
the  future,  if  any,  on  account  of  such  injuries,  does  not  permit  a 
double  recovery ;  *^  neither  does  an  instruction  that  a  plaintiff  is 
entitled  to  recover  such  sum  as  will  fully  compensate  him  for  the 
loss  of  an  eye  and  the  disadvantage,  disfigurement,  and  inconven- 
ience it  is  reasonably  certain  will  result  from  such  loss;*^  nor  does 
an  instruction  permitting  the  jury  to  assess  such  damages  as  will 
compensate  the  plaintiff  for  his  injury,  together  with  loss  of  earn- 
ings and  earning  capacity.*' 

§  347.     Pain  and  suffering 

It  is  not  improper  to  instruct  that  the  law  does  not  lay  down 
any  fixed  rule  by  which  to  ascertain  damages  for  pain  and  mental 
distress;  that  being  left  to  the  sound  judgment  of  the  jury.** 

Tex.  Civ.  App.  420;    Houston,  E.  &  44  Jnclustrial  Lumber  Co.  v.  Bivens, 

W.  T.  Ry.  Co.  V.  Adams,  98  S.  W.  222,  105  S.  W.  831,  47  Tex.  Civ.  App.  396. 

44  Tex.  Civ.  App.  288.  4  5  Receivers  of  Kirby  Lumber  Co. 

41  St.  rx)uis   S.  W.  Ry.  Co.  v.  Smith  v.  Llovd,  126  S.  W.  319,  59  Tex.  Civ. 

(Tex.   Civ.  App.)   63   S.   W.  1064.  App.  489. 

4  2  Galveston,  H  &  S.  A.  Ry.  Co.  v.  46  ELocking  v.  Windsor  Spring  Co., 

Perry,  82  S.  W.  343,  36  Tex.  Civ.  App.  Ill  N.  W.  685,  131  Wis.  532. 

414.  4  7  Garner    v.    Kansas    City    Bridge 

43  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Brown,  Co.  (Mo.  App.)  194  S.  W.  82. 

40  S.  W.  608,  16  Tex.  Civ.  App.  93.  4  8  Ala.     Benoit  Coal  Mining  Co.  v. 


641 


RELIEF  AWARDED   OR  PUNISHMENT  INFLICTED 


348 


§  348.     Future  pain  and  suffering 

Instructions  with  respect  to  recovery  for  future  physical  suffer- 
ing<  should  be  so  framed  as  to  limit  the  jury  to  such  pain  as  is 
reasonably  certain  to  occur,  and  not  permit  them  to  enter  the  field 
of  speculation.**^  An  instruction  authorizing  recovery  for  pain 
which  the  plaintiff  "may"  suffer  in  the  future  is  erroneous,^  un- 
less the  injuries  of  plaintiff"  are  indisputably  permanent,  as  in  the 
case  of  the  loss  of  bodily  members,  in  which  event  such  a  form 
of  instruction  cannot  be  prejudicial,^^  or  unless  the  context  shows 
that  the  word  "may"  is  used  in  the  sense  of  "shall"  or  "must,"  ^" 
or  that  it  is  used  to  imply  reasonable  probability -or  reasonable  cer- 
tainty.®^ Permitting  the  recovery  of  compensation  for  pain  and  suf- 
fering which  the  evidence  shows  is  "reasonably  probable"  to  result 
to  plaintiff  in  the  future  is  error  in  some  jurisdictions.^  On  the  oth- 
er hand,  an  instruction  limiting  recovery  for  future  pain  to  such  as 


Faught,  77  So.  695,  201  Ala.  169 ;  Bir- 
mingliam  Ry.  Ldght  &  Power  Co.  v. 
Humphries,  54  So.  613,  171  Ala.  291. 

Cal.  Wiley  v.  Young,  174  P.  316, 
178   Cal.   68L 

Ga.  Southern  Bell  Tel.  &  Tel.  Co. 
V.  .Jordan,  87  Ga.  69,  13  S.  E.  202. 

111.  Springfield  Consol.  Ry.  Co.  v. 
Hoeffner,  51  ^.  E.  884,  175  111.  634. 

Tex.  St.  Louis  S.  W.  Ry.  Co.  v. 
Freedman,  46  S.  W.  101,  18  Tex.  Civ. 
App.  553. 

4  9  Cal.  Saylor  v.  Taylor  (App.) 
183  P.  843,  845. 

Fla.  Grainger  v.  Puller,  72  So. 
462,  72  Fla.  57. 

Iowa.  Williams  v.  Clarke  Coun- 
tj'.  120  N.  W.  306,  143  Iowa,  328. 

Kan.  Chicago  G.  W.  Ky.  Co.  V. 
Bailey,  59  P.  659,  9  Kan.  App.  207, 

Mass.  Pullen  v.  Boston  Elevated 
Ry.  Co.,  94  N.  E.  469,  20S  Mass.  356. 

Mo.  Hufford  v.  Metropolitan  St. 
Ry.  Co.,  109  S.  W.  1062,  130  Mo.  App. 
63S. 

N.  D.  York  V.  General  Utilities 
Corp.,  170  N.  W.  312,  41  N.  D.  137. 

Ohio.  Toledo  Rys.  &  Light  Co.  v. 
Pru.-?,  7  Ohio  App.  412. 

Okl.  Midland  Valley  R.  Co.  v.  Bil- 
liard,  148  P.   1001,  46  Okl.   ,391. 

R.  I.  Greenhalch  v.  Barber,  104 
A.  769. 

Tex.  Ft.  Worth  &  D.  C.  Ry.  Co.  v. 
Taylor  (Civ.  App.)  162  S.  W.  967. 

Wis.  Howard  v.  Beldenville  Lum- 
ber Co.,  108  N.  W.  48,  129  Wis.  98. 
Inst.to  Juries — 41 


60  U.  S.  (C.  C.  A.  Mo.)  Chicago, 
M.  &  St.  P.  Ry.  Co.  v.  Lindeman,  143 
F.  946,  75  C.  C.  A.  18. 

CaJ.  Jlelone  v.  Sierra  R.  R.  Co., 
151  Cal.  116,  91  P.  522. 

Iowa.  Escher  v.  Carroll  Countv, 
141  N.  W.  38,  159  Iowa,  627 ;  Ford  v. 
City  of  Des  Moines,  75  N.  W.  630, 
106  Iowa,  94. 

Mo.  Ballard  v.  Kansas  City,  86  S. 
W.  479,  110  Mo.  App.  391;  Schwend 
V.  St.  Louis  Transit  Co.,  105  Mo.  App. 
534,  SO  S.  W.  40. 

Wis.  Hardy  v.  Milwaukee  St.  Ry. 
Co.,  89  Wis.  183,  61  N.  W.  771. 

Contra,  Galveston,  H.  &  S.  A.  Rv. 
Co.  V.  Smith  (Tex.  Civ.  App.)  93  S.  W. 
184. 

siWoodworth  v.  Iowa  Cent.  Ry. 
Co.,  149  N.  W.  522,  170  Iowa,  697. 

5  2  Varner  v.  State  (Ga.  App.)  108 
S.  E.  80;  O'Keefe  v.  United  Rys. 
Co.,  101  S.  W.  1144,  124  Mo.  App.  613  ; 
Caplin  V.  St.  Louis  Transit  Co.,  89 
S.  W.  .338,  114  Mo.  App.  256. 

5  3  Muncie  Pulp  Co.  v.  Hacker,  76  N. 
E.  770,  37  Ind.  App.  194 ;  Mississippi 
Cent.  R.  Co.  v.  Lott,  80  So.  277,  118 
Miss.  816;  Halley  v.  St.  Joseph  Ry. 
Light  Heat  &  Power  Co.,  91  S.  W. 
163,  115  Mo.  App.  652;  Robertson  v. 
Hammond  Packing  Co.,  91  S.  W.  161, 
115  Mo.  App.  520;  Reynolds  v.  St. 
Louis  Transit  Co.,  88  S.  W.  50,  189 
Mo.  408,  107  Am.  St.  Rep.  360. 

5  4Richman  v.  San  Francisco,  N.  & 
C.  Ry.,  181  P.  769,  180  Cal.  454. 


§    348  INSTRUCTIONS   TO  JURIES  642 

the  jury  find  from  the  evidence  the  plaintiff  will  suffer  is  not  ob- 
jectionable within  this  rule.^^  So  it  is  proper  to  instruct  that  the 
jury  are  to  take  into  consideration  pain  and  suffering  reasonably 
certain  to  be  endured  in  the  future,  if  any,  as  a  result  of  the  in- 
jury complained  of,^^  or  pain  which  plaintiff  "may  certainly  suffer'^ 
in  the  future.^'''  So  an  instruction  authorizing  recovery  for  such 
suffering  as  the  jury  may  believe  the  plaintiff  in  all  "probability" 
will  endure  in  the  future  is  not  improper,^  and  an  instruction  au- 
thorizing recovery  for  suffering  and  pain  which  the  jury  think 
probable  from  the  evidence  the  plaintiff  will  experience  in  the  fu- 
ture is  not  erroneous. ^^ 

So  an  instruction  permitting  recovery  for  future  pain  and  suife'r- 
ing  which  the  plaintiff  "may"  endure  as  the  ordinary  and  actual 
result  and  as  a  consequence  of  the  injury  sued  for  lias  been  sus- 
tained,^* and  it  is  held  that  there  is  no  substantial  difference  be- 
tween the  phrases  "may  reasonably  and  probably  suffer"  and  "will 
reasonably  and  probably  suffer."  ®^  An  instruction  that,  if  the 
jury  should  find  that  the  plaintiff  is  entitled  to  recover,  they  may 
take  into  consideration  in  making  up  their  verdict  the  probable 
amount  of  pain,  the  probable  loss  of  time,  and  the  probable  amount 
of  expense  he  would  suffer  in  the  future  on  account  of  his  inju- 
ries, has  been  construed  to  mean  that  these  things  are  to  be  taken 
into  consideration,  if  the  jury  should  find  by  a  fair  preponderance 
of  the  evidence  that  the  plaintiff  would  suffer  pain  and  would  be 

5  5  111.     Chicago  &  M.  Electric  Ry.  e?  Du  Val  v.  Boos  Bros.  Cafeteria 

Co.  V.  Ullrich,  72  N.  E.  815,  213  111.  Co.  (Cal.  App.)  187  P.  767. 

170.  "Without    conjecture."      An    in- 

lowa.     Parks  v.  Town  of  Laurens,  struction  that  the  plaintiff  can  recover 

133  N.  W.  1054,  153  Iowa,  567 :  West-  for  pain  and  suffering  which  the  evi- 
ercamp  v.  Brooks,  88  N.  W.  372,  115  denee,  without  conjecture  shows  that 
Iowa,  159.  lis  will  sustain  in  the  future  is  not 

Ky.    Louisville  &  N   R    Co   v   Roe       subject  to  criticism,  as  permitting  the 

134  S   W  437  142  Ky  456  '      ^^^^  ^^  enter  the  field  of  speculation. 
Mo.     King'  V.    City   of"  St.    Louis,      ^g'^^'  ^^^^^^^   Pennsylvania  Co.  v. 

157  S.  W.  498,  250  Mo.  501;   Lackland  ^irVelbornl:  Metropolitan  St.  Ry. 

^.  ^OT^^^m"  ST\     ^  ^s  ^    '  ^'  Co.,  156  S.  W.  778,  170  Mo.  App.  351. 

W    '    Tn-      :  ^PP.;,^"^-  ,^  ^.    ^  50  Harris  v.  Brown's  Bay  Logging 

VTis.     Kliegel  v.  Aitken,  69  Ts.  W.  qq    ^qq  p  -j^go  gj  ^j^gh  g 

67,  94  Wis.  432,  35  L.  R.  A.  249,  59  eo  Kirkham  V.  Wheeler-Osgood  Co., 

Am.  bt.  Rep.  901.  SI  P    §69,  39  Wash.  415,  4  Ann.  Cas. 

See  Scally  v.  W.  T.  Garratt  &  Co.,  532. 
104  P.  325,  11  Cal.  App.  138;    Ander-  ei  St.   Louis   Southwestei-n   Ry.  Co. 

son  v.  Hurley-Mason  Co..  121  P.  815,  of  Texas  v.  Garber  (Tex.  Civ.  App.) 

67  Wash.  342,  Ann.  Cas.  1913D,  148.  108  S.  W.  742. 

56  Wiley  V.  Young,  174  P.  316,  178  See  Central  Texas  &  N.  W.  Ry.  Co. 

Cal.  681:    Fuller  v.  Illinois  Cent.  R.  v.   Gibson  (Tex.  Civ.  App.)  83   S.  W. 

Co.,  173  N.  W.  137,  186  Iowa,  686.  862. 


643  RELIEF   AWARDED   OR   PUXISHMEXT   INFLICTED  §  349 

subject  to  loss  of  time  and  expenditures  in  the  future  on  account 
of  his  injuries,  and,  so  construed,  is  proper.''^ 

§  349.     Loss  of  earnings  and  impairment  of  earning  capacity 

The  rule  for  ascertaining  the  sum  to  be  awarded  as  damages  for 
future  impairment  of  earning  capacity  is  one  of  law,  which  the  jury 
cannot  be  presumed  to  know,  and  the  court,  therefore,  should  care- 
fully instruct  thereon,  where  the  pleadings  and  evidence  authorize 
such  an  instruction.^^ 

Instructions  upon  diminished  earning  capacity  may  be  predicated 
upon  evidence  that  the  plaintifif  had  some  earning  capacity  at  the 
time  of  his  injurv,  without  evidence  of  the  amount  he  was  earning 
at  that  time.«-'  It  is  proper  to  instruct  that,  if  the  power  of  plain- 
iff  to  earn  money  in  the  future  has  been  impaired  by  his  injury,  he 
should  be  awarded  such  sums  as  will  compensate  him  for  such 
loss  of  power.^^  An  instruction  that  the  plaintiff  may  recover  any 
loss  of  earnings  he  "may"  sufter  in  the  future  as  the  direct  and  rea- 
sonable result  of  his  injuries  sufficiently  requires  proof  that  loss 
of  future  earnings  is  reasonably  certain  to  occur.*'*' 

An  instruction  permitting  plaintiff  to  recover  concurrently  for 
loss  of  time  and  impairment  of  his  earning  power  is  reversible  er- 
ror.*'' It  may  be  the  duty  of  the  court  to  call  the  attention  of  the 
jury  to  the  fact  that  the  earning  capacity  of  plaintiff  will  decrease 
in  his  declining  years.^»  . 

An  instruction  that  the  expectancy  of  life  of  plaintiff  may  be 
considered  in  assessing  damages  for  loss  of  earning  capacity  should 
limit  the  jury  to  finding  the  present  worth  of  his  earnings."'-'  In 
instructing  as  to  the  present  value  of  the  gross  amount  which  the 
jury  may  find  to  fairly  represent  loss  of  the  plaintiff  in  earning 
capacity,  the  court  should  be  careful  to  avoid  inaccuracy  of  ex- 
pression calculated  to  confuse  the  jury/"  and  the  jury  should  have 
such  guidance  as  will  give  them  an  intelligent  understanding  of 

6  2  Gallamore  v.  City  of  Olympia,  75  go  Dean  v.  St.  Louis  Transit  Co.,  99 

P    978   34  Wash    379  S.  W.  33,  121  Mo.  App.  3<9. 

'63  Alabama  Northern  R.  Co.  v.  Meth-  gt  Louisville  &  N.  R.  Co    v.  Kirby, 

vin     64    So.    175,    9    Ala.    App.    519;  191  S.  W.  113,  173  Ky.  399. 

BourS  V.  Butte  Electric  &  Power  Co.,  cs  Western  &  A   R   Co.  y    Roberts, 

83  P   470   33  Mont.  267;   Missouri,  K.  86  S.  E.  9.33,  144  Ga.  250;    Tennessee 

&   T    Ry    Co.   of  Texas  v.   Beasley,  G.  &  A.  R.  Co.  v.  Neely  (Ga.  App.) 

155  S.  W.  183,  106  Tex.  160.  103  S.  E   177. 

64  Southern  Bell  Tel.  &  Tel.  Co.  v.  6  9  Williams   v.    Clark   County,   120 

Shamo^  77  S.  E.  312,  12  Ga.  App.  463.  N.   W.  306,   143  Iowa,  328. 

6  5Trice   V    Northern    Electric   Ry.  ^o  Macon  Ry.  &  Light  Co.  v.  Mason, 

Co.,  142  P.  91,  IGS  Cal.  173.  51  S.  E.  569,  123  Ga.  77o. 


§  349  INSTRUCTIONS  TO  JURIES  644 

what  "present  worth"  means.'^  While,  however,  the  attention  of 
the  jury  may  well  be  directed  to  their  duty  to  allow  only  the  present 
worth  of  future  earnings  lost  because  of  the  injury  sued  for,'^  the 
omission  to  specifically  so  instruct  in  the  absence  of  a  request  there- 
for, will  not  constitute  error,  if  the  instructions  given  do  not  pre- 
clude the  jury  from  so  estimating  such  loss.'^ 

If,  in  an  action  for  personal  injuries,  there  is  no  testimony  show- 
ing the  earning  capacity  of  plaintiff,  or  how  much  it  has  been  dimin- 
ished by  the  injury,  or  his  expectancy  of  life,  the  defendant  will 
be  entitled  to  an  instruction,  on  request,  that  the  jury  cannot  guess 
at  any  loss  of  earning  capacity,  and  that  damages  therefor  cannot 
be  awarded.'* 

§  350.     Exemplary  damages 

Where  plaintiff's  evidence,  however  slight,  presents  the  question, 
the  court  should  instruct  on  punitive  damages,'^  and  in  most  ju- 
risdictions the  rule  is  that,  if  there  be  evidence  tending  to  show 
aggravation,  the  jury  may  and  should  be  instructed  first  as  to 
actual  compensation,  and  then  told  the  circumstances  under  which 
exemplary  damages  may  be  awarded,"^  and  that,  if  the  act  of  the 
defendant  was  prompted  by  malice,  or  was  attended  by  circum- 
stances of  outrage  or  insult,  they  may  find  additional  damages,  not 
in  all  exceeding  the  amount  claimed.''^ 

The  jury  should  be  further  given  rules  to  guide  them  in  deter- 
mining the  amount  of  such  damages,'''*  and  should  be  told  that,  in 
ascertaining  the  amount,  they  are  to  look  to  the  evidence,  and  are 
not  to  exceed  the  amount  claimed  in  the  complaint,''^*  although  it 

71  Pauza  V.  Lehigh  Valley  Coal  Co.,  Pa.     Keil  v.  Chartiers  Gas  Co.,  19 

80  A.  1126,  231  Pa.  577.  A.  78,  131  Pa.  466,  17  Am.   St.  Rep. 

7  2  Greenway  v.  Taylor  County,  122  823. 
N.  W.  943,  144  Iowa,  332.  Tex.    King  v.  Sassaman  (Civ.  App.) 

73  Greenway  v.  Taylor  County,  122  54  g.  W.  304:  Beeman  St.  Clair  Co. 
N.  W.  943,  144  Iowa,  332.  v.  Caradine  (Civ.  App.)  34  S.  W.  980; 

74  Pierce  v.  C.  H.  Bidwell  Thresher  Galveston.  H.  &  S.  A.  Ry.  Co.  v.  Dun- 
Co.,  116  N.  W.  1104,  1.53  Mich.  323.  lavy    56  Tex.  256 

75  Mobile  &  O  R.  Co.  V  Reeves  80  ^.^^  Haberman  v.  Gasser,  SO  N. 
^-  ^^471,  20  Ky.  Law  Rep    22o6  ^   ^q-   ^^^  ^.     ^g 

7  6  Ky.     Neelv  v.  Strong,  217  S.  W.  ^^      '         _       .„.„    ^  „     ^        ^^ 

898.  186  Ky.  540.  ''  Wormald  v^  Hill,  4  Ky.  Law  Rep. 

Mich.    Baumierv.Autiau,65]Nrich.  J?^'^  ^'l^,^,  ^-  ^^^^"^V^  "^^  ^^^' 

31.  31  N.  W.  888.  2o5  Pa.  617;    Greeney  v.  Pennsylvania 

Minn.      Sneve   v.   Lunder,   110  N.  Water   Co.,   29   Pa.    Super    Ct.    136; 

W.  99.  100  Minn.  5:    Seeman  v.  Fee-  ^"^'^^^^^^^i^/l,^  ^:^^-  ^^'  ^°-  ^-  ^n- 

ney,  19  Minn.  79  (Gil.  54).  dorwood,  64  Tex.  463. 

Mo.    Clarli  V.  Fairley,  30  Mo.  App.  7  s  Coleman  v.  Pepper,  49   So.  310, 

3,35.  159  Ala.  310. 

Okl.     Atchison,  T.  &  S.  F.  R.  Co.  79  Foster  v.  Pitts,  38  S.  W.  1114,  63 

v.  Chanil)erhun,  46  P.  499,  4  Okl.  542.  Ark.  387. 


G45  RELIEF  AWARDED   OR  PUNISHMENT  INFLICTED  §  350 

is  held  that,  in  a  proper  case,  an  instruction  that  the  jury  may  find 
punitive  damages  in  such  sum  as  they  "see  fit,"  or  "deem  proper," 
not  exceeding  the  amount  sued  for,  is  not  erroneous.*" 

The  court  may  instruct  as  to  both  actual  and  exemplary  dam- 
ages in  one  instruction.*^  In  one  jurisdiction  it  is  considered  in- 
correct to  separate  what  is  called  actual  from  what  is  called  exem- 
plary damage,  and  here  the  proper  form  of  instruction  is  that,  if  the 
jury  find  the  defendant  has  been  malicious,  the  rule  of  damages 
will  be  more  liberal,  and  that,  instead  of  awarding  damages  only 
for  those  matters  which  are  capable  of  exact  pecuniary  valuation, 
they  may  take  into  consideration  all  the  circumstances  of  aggrava- 
tion— the  insults,  offended  feelings,  degradation  and  so  on — and 
endeavor  according  to  their  best  judgment,  to  award  such  damages 
by  way  of  compensation  or  indemnity,  as  the  plaintiff,  on  the  whole, 
ought  to  receive  and  the  defendant  ought  to  pay.*~  In  other  ju- 
risdictions, it  is  considered  better  practice  to  submit  the  two  classes 
of  damages  in  separate  instructions ;  **  the  matter  of  such  separate 
submission,  however,  resting  in  the  sound  discretion  of  the  trial 
court.** 

In  most  jurisdictions  the  rule  is  that  the  jury  should  not  be  1  Id 
that  it  is  their  duty  to  assess  exemplary  damages ;  *^  the  proper 
instruction  being  that  they  may  award  them  in  their  discretion,  not 
exceeding  the  amount  claimed  in  the  complaint.*®  In  South  Car- 
olina, however,  it  is  proper  to  tell  the  jury  that,  while  they  have  a 
discretion  in  fixing  the  amount  which  shall  be  awarded  by  way  of 
exemplary  damages,  they  have  no  discretion  to  refuse  to  award  any 
exemplary  damages,  if  a  case  is  made  which  in  law  justifies  such 
damages.*''^ 

8  0  Yazoo  &  M.  V.  R.  Co.  v.  Williams,  N.  C.    Hodges  v.  Hall,  89  S.  E.  802. 

39  So.  489,  87  Miss.  344.  172  N.  C.  29. 

"  ^l""^   ^-    ^''"*^'   ^^   ^-   ^^^'   ^^  Tenn.     Ferguson   v.  Moore,  39   S. 

-^  ;          T.     ,        =r^  T.T  X,  .r^  oo  W.  341,  98  Tenn.  342. 

S2  Bixby  v.  Dunlap,  56  N.  H.  456,  22 

Am    Rep.  475.  "^'  "^^^     Duckworth  v.  Stalnaker, 

83  Zeliff  V.  Jennings,  61  Tex.  458.  69  S.  E.  850,  68  W.  Va.  197 ;    Fink  v. 

8  4  Cottle  V.  Johnson,  102  S.  E.  769,  Thomas,  66  S.  E.  650,  66  W.  Va.  487, 

179  N.  C.  426.  19  ^"Q  Cas.  571. 

8  5  111.     Pisa  V.  Holy,  114  111.  App.  Wis.      Marlatt  v.   Western    Union 

6;    City  of  Salem  v.  Webster,  95  111.  Telegraph   Co.,   167   N.   W.   263,    167 

App.   120.  Wis.  176. 

Iowa.    White  V.  International  Text-  o^th-     •/-.j.i-o/-.          xt      t. 

Book  Co.,  146  N.  W.  829,  164  Iowa,  .  i,"if ''^  ^t?,^^^. ^"^  ^%I-  ^Tl' 
PQo  ins,  89  S.  W.  530,  121  Ivy.  526,  1  L.  K. 

Ky.      Louisville    &    N.    R.    Co.    v.       ^  ^^^  •?;>  f  ^^/23  -Am.  St^Rep.  205; 

Cottengim,  104  S.  W.  280,  31  Ky.  Law  ^^"To   ,rf^   w   4?o  o'V    ^  Y  roT 

Rep.  871,  13  L.  R.  A.  (N.  S.)  624.  ^y-  ^^^'  ^^  S.  T\ .  429,  2  L.  R.  A.  694. 

Mo.    Nicholson  v.  Rogers,  129  Mo.  8  7  Wilcox  v.   Southern  Ry.  Co.,  74 

136,  31  S.  W.  260.  S.  E.  122,  91  S.  C.  71. 


§  350  INSTRUCTIONS   TO  JURIES  646 

An  instruction  that  the  jury  "may"  award  punitive  damages  is 
not  improper  as  an  absolute  direction,**  and  the  court  may  instruct, 
in  a  proper  case  that,  if  they  believe  the  evidence  produced  estab- 
lishes certain  facts,  then  there  was  as  a  matter  of  law  gross  and 
wanton  negligence,  or  that  certain  results  would  follow  which 
would  warrant  the  jury  in  awarding  such  damages.*^  x^n  instruc- 
tion with  respect  to  the  consideration  by  the  jury  of  the  wealth 
of  defendant  in  estimating  exemplary  damages  should  say  that  the 
jury  "may"  not  that  they  "should,"  consider  such  circumstance.^** 

Instructions  on  exemplary  damages  must  be  based  on  the  plead- 
ings and  evidence,  and  where  the  complaint  is  framed  on  the  the- 
ory of  compensation  only  it  is  error  to  instruct  that  exemplary 
damages  on  any  theory  may  be  awarded.^^  So,  in  the  absence  of 
evidence  that  defendant  acted  either  willfully,  wantonly,  or  reck- 
lessly, it  is  error  to  instruct  on  exemplary  damages,^^  except  that 
the  court  should  charge,  on  request,  that  such  damages  cannot  be 
recovered.^^ 

Where  a  plaintiff  fails  to  recover  actual  damages,^*  or  the  jury 
has  found  only  actual  damages,^^  the  defendant  cannot  complain 
of  the  refusal  of  the  court  to  instruct  as  to  exemplary  damages. 

§  351.     Calling  attention' to  ad  damnum 

While  there  are  decisions  that  it  is  not  good  practice  to  men- 
tion the  ad  damnum  in  the  instructions,"®  the  general  rule  is  that 
an  instruction  referring  to  the  amount  sued  for,  or  limiting  the 
right  of  recovery  to  the  amount  claimed  in  the  declaration,  is  not 
error,^'''  unless  the  instruction  is  so  worded  as  to  suggest  giving 

8  8  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  A.  1125,  102  Md.   595;    Trimmier  v. 

V.  Ackerman,  146  S.  W.  1113,  14S  Ky.  Atlanta  &  C.  A.  L.  Ry.  Co.,  62  S.  E. 

435.  209,  81  S.  C.  203. 

8  0  Illinois  Cent.  R'.  Co.  v.  Cole,  74  oi  Myers  v.  Wright,  44  Iowa,  SS. 
So.  766,  113  Mi.ss.  S96.  95  Texas   &    P.    Ry.    Co.    v.    Watts 

9  0  Thomas  v.  Williams,  121  N.  W.  (Tex.)  18  S.  W.  312." 

■^^^'  B^.  Y^^'  1^7"        ^    0-.    AT       A  ^^  Illinois  Cent.  R.  Co.  v.  Hicks.  122 

91  Welsh  V.   Stewart,  31  Mo.   App.      j^^   j^^^   3^9.    g^.^^  ^  ^o.  v.  Griffin. 

.    T,      1         x^-  1,  1     -.-T  r.   CC1    on      109  111.  App.  414;    North  Chicago  St. 
r.  ?  r^^'^oa''-  ^^^^,«^^'  i'T  ^-r^^^'^f       R.  Co.  V.  Burgess,  94  111.  App.  337. 
Cal.  App.  29;  Western  Union  Tel.  Co.  ^         '  Jr  .-, 

V.  Jackson,  49  So.  737,  95  Miss.  471;  ^  ''^^*-     ??^Pf?^^^,  ^-   ^''^'^^^^o^ 

Lewis  V.  Jannon-Poulo,  70  Mo.  App.  So.  60,  1<0  Ala.  6o9,  Ann.  Cas.  1912D, 

325;    Stephenson  v.    Brown,  147  Pa.  §63. 

300,  23  A.  443.  Ark.     St.  Louis,  I.  M.  &  S.  Ry.  Co. 

93  Columbus  &  W.  Ry.  Co.  v.  Bridges,  v.  Boyles.  95  S.  W.  783,  78  Ark.  374. 

86  Ala.  448,  5  So.  864,  11  Am.  St.  Rep.  D.  C.     District  of  Columbia  v.  Dur- 

58;  Alabama  G.  S.  R.  Co.  v.  Arnold.  84  yee,  29  App.  D.  C.  327,  10  Ann.  Cas. 

Ala.  1.59,  4  So.  359.  5  Am.  St.  Rep.  3.54 ;  675. 

Wormald  v.  Hill.  4  Ky.  Law  Rep.  723  :  111.     Calumet  Electric  St.  Ry.  Co. 

Baltimore  Belt  R.   Co.  v.   Sattler,  02  v.    Van   Pelt,  50  N.   E.   678,   173   111. 


647 


RELIEF  AWARDED   OR   PUNISHMENT   INFLICTED 


OOZ 


the  amount  so  named,^*  and  it  may  be  error  not  to  limit  the  re- 
covery to  the  amount  claimed  in  the  complaint.®^  The  giving  of 
such  a  direction  in  each  of  a  series  of  instructions  has  been  held 
ground  for  reversal,  as  laying  undue  stress  upon  the  amount 
claimed,^ 

§  352.     Effect,  as  evidence,  of  moirtality  and  annuity  tables 

The  court  should  instruct  as  to  the  use  of  the  annuity  table, 
where  the  evidence  tends  to  show  that  the  injuries  of  plaintiff 
will  permanently  affect  his  earning  capacity.^  Instructions  as  to 
mortality  or  annuity  tables  are  inappropriate,  unless  there  is  some 
evidence  as  to  the  value  of  the  services  of  plaintiff  or  his  capacity 
to  earn  money ,^  and  if  the  evidence  is  conflicting  as  to  whether 
the  injuries  of  plaintiff'  are  permanent  an  instruction  as  to  such 
tables  should  inform  the  jury  that  they  are  not  to  be  used  unless 
the  injury  is  permanent.* 

When  mortality  tables  are  introduced  in  evidence,  it  is  the  duty 
of  the  court  carefully  to  guard  the  effect  to  be  given  them  by  the 


70  ;  Pioneer  Fire-Proofing  Co.  v.  Clif- 
ford, 135  111.  App.  417. 

Ind.  Baltimore  &  O.  S.  W.  E.  Co. 
V.  Cavanaugh,  71  N.  E.  239,  35  Ind. 
App.  32. 

Mo.  Salmons  v.  St.  Joseph  &  G.  I. 
Rv.  Co.,  197  S.  W.  35,  271  Mo.  395. 

N.  C.  Patillo  V.  Camp  Mfg.  Co.,  98 
S.  E.  323,  177  N.  C.  156 :  Bradley  v. 
Same,  98  S.  E.  318,  177  N.  C.  153. 

Tex.  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Funk,  92  S.  W.  1032,  42  Tex.  Civ. 
App.  490. 

Va.  Chesapeake  &  O.  Ry.  Co.  v. 
Carnahan,  86  S.  E.  863,  118  Va.  40, 
iudgment  aflirmed  36  S.  Ct.  594,  241 
"U.  S.  241,  60  L.  Ed.  979;  Southern 
Ry.  Co.  V.  Grubbs,  80  S.  E.  749,  115 
Ya.  876. 

9  8  111.  Triggs  V.  Mclntvre.  74  N. 
E.  400,  215  111.  369 ;  Central  Ry.  Co. 
V.  Bannister,  62  N.  E.  864,  195  111.  48. 

Kan.  Root  v,  Cudahy  Packing  Co., 
147  P.  69,  94  Kan.  3.39. 

Okl.  Seay  v.  Plunkett,  145  P.  496, 
44  Okl.  794. 

Tex.  El  Paso  Electric  Ry.  Co.  v. 
Kelly  (Civ.  App.)  109  S.  W.  415 ;  Wil- 
lis V.  McNeill,  57  Tex.  465. 

Instructions  Iield  not  improper 
within  rule.  Where  an  instruction, 
after  enumerating  the  elements  of 
damages  which  might  be  considered 


by  the  jury  if  they  found  for  plain- 
tiff, charged  that  the  jury  might  al- 
low plaintiff  such  sum  as  in  their 
judgment,  under  the  evidence  and  in- 
structions, would  be  fair  compensa- 
tion for  the  injury  plaintiff  had  sus- 
tained or  would  sustain,  if  any,  so 
far  as  such  damages  and  injuries' 
were  claimed  and  alleged  in  the  first 
count  of  the  declaration  and  shown 
by  the  evidence,  etc.,  it  was  not  ob- 
jectionable as  improperly  calling  the 
attention  of  the  jury  to  the  amount  of 
the  ad  damnum  of  the  declaration. 
Illinois  Cent.  R.  Co.  v.  Heath,  81  N. 
E.  1022,  228  111.  312,  affirming  judg- 
ment 129  111.  App.  143. 

9  9  Charle's  City  Plow'  &  Mfg.  Co.  v. 
Jones,  71  Iowa,  234,  32  N.  W.  280; 
Blue  Grass  Traction  Co.  v.  Ingles, 
131  S.  W.  278,  140  Ky.  488 ;  Cumber- 
land &  O.  R.  Co.  V.  Wood,  7  Ky.  Law 
Rep,  (ahstract)  520;  Harmon  v.  Dick- 
erson  (Mo.  App.)  184  S.  W.  139 ;  Beggs 
V.  Shelton,  155  S.  W.  885,  173  Mo. 
App.  127. 

1  Lake  Shore  &  M.  S.  Ry.  Co.  v. 
May,  33  111.  App.  366. 

2  Western  &  A.  Ry.  Co.  v.  Knight, 
83  S.  E.  943,  142  Ga.  801. 

3  Atlanta,  K.  &  N.  Ry.  Co.  v.  Gar- 
diner, 49  S.  E.  818.  122  Ga.  82. 

4  Western  &  A.  R.  Co.  v.  Smith,  88 
S.  E.  983,  145  Ga.  276. 


§    352  INSTRUCTIONS  TO  JURIES  648 

jury.  Unless  this  is  done  in  a  very  pointed  and  direct  way  by  the 
court,  the  jury  may  be  misled  as  to  the  value  and  weight  to  be  at- 
tached to  this  character  of  evidence.^  The  court  should  instruct 
that  mortality  tables  are  not  to  be  accepted  as  establishing  the 
expectancy  of  the  life  of  the  injured  party,  but  only  as  an  aid  in 
arriving  at  what  that  expectancy  might  be,  in  view  of  all  the 
conditions  surrounding  the  particular  life  in  question,^  and  where 
reference  is  made  to  the  expectancy  of  life  as  stated  in  mortality 
tables  the  court  should  explain  that  such  tables  indicate  only  the 
expectancy  for  perfectly  sound  and  healthy  lives,  or  the  duration 
of  life  of  healthy  persons  who  are  insurable  risks.'  An  instruc- 
tion with  respect  to  the  effect  of  mortality  tables  is  sufficient  which 
states  that  the  result  set  forth  in  such  tables  is  not  to  be  taken  as 
a  fact  in  the  case,  but  only  as  an  aid  in  arriving  at  what  may  be 
the  continuation  of  life,  and  that  the  duration  of  life  depends  large- 
ly upon  the  health,  habits,  and  conduct  of  the  particular  person 
involved.^ 

Where,  in  a  proper  case,  the  court  tells  the  jury  that  they  may 
use  the  mortality  tables,  it  should  also  inform  them  how  to  es- 
timate the  damage  after  ascertaining  the  expectancy  of  the  plain- 
tiff,^ and  the  court  should,  on  request,  instruct  the  jury  that  the 
table  does  not  show  the  duration  of  ability  to  earn  money,  and 
that  it  is  to  be  considered  with  other  proof  for  what  it  may  be 
worth,  considering  the  state  of  health  of  plaintiff,  in  determining 
the  probable  duration  of  his  capacity  to  earn  money .^^ 

§  353.     Confining  jury  to  evidence 

The  jury  should  be  informed  that  they  are  to  be  governed  by 
the  evidence   in  assessing  damages,"  and  it  is  error  to  tell  the 

5  Panza  v.  Lehigh  Valley  Coal  Co.,  S.  W.  944,  113  Ark.  1,  Ann.  Cas. 
80  A.  1126,  231  Pa.  577.  1916C,  503 ;    St.  Louis.  I.  M.  &  S.  Ry. 

6  Cornell  v.  Great  Northern  Ry.  Co.,  Co.  v.  Steed.  151  S.  W.  257,  105  Ark. 
187  P.  902,  57  Mont.  177:    Pauza  v.  205. 

Lehigh  Valley  Coal  Co.,  80  A.  1126,  Idaho.     Holt  v.  Spokane  &  P.  Ry. 

231   Pa.   577;    Rundle  v.   Slate  Belt  Co.,  35  P.  39,  3  Idaho.  703. 

Electric   St.  Ry.   Co.,  33   Pa.    Super.  111.     Cleveland,  C.  C.  &  St.  L.  Ry. 

Ct.  233.  Co.  V.  Jenkins,  51  n!  E.  811,  174  111. 

7  Denman  v.  Johnston,  85  Mich.  387,  398,  62  L.  R.  A.  922.  66  Am.  St.  Rep. 
48  N.  W.  565.  296 ;    Threlkeld  v.  Norwodowski.  202 

8  Iseminger  v.  York  Haven  Water  HI.  App.  599;  Presley  v.  Kinlock- 
&  Power  Co.,  59  A.  64,  209  Pa.  615.  Bloomington    Tel.   Co.,    158  111.    App. 

9  Southern  Ry.  Co.  v.  O'Bryan,  45  220 ;  Illinois  Cent.  R.  Co.  v.  Farrell, 
S.  E.  1000,  119  Ga.  147.  86  111.  App.  436;    East  St.  Louis  &  C. 

10  Illinois  Cent.  R.  Co.  v.  Hou chins,       Ry.  Co.  v.  Frazier,  19  111.  App.  92. 

89  S.  W.  530,  121  Ky.  526,  1  L.  R.  A.  Ky.     Louisville  &  N.  R.  Co.  v.  Ash- 

(N.  S.)  375,  123  Am.  St.  Rep.  205.  ley,  183  S.  W.  921,  169  Ky.  330,  L.  R. 

11  Ark.     Weigel  v.  McCloskey,  166       A.  1916E,  763. 


649  RELIEF  AWARDED   OR  PUNISHMENT  INFLICTED  §  353 

jury  that  they  are  the  sole  judges  of  the  amount  of  damages  which 
plaintiff  should  recover,  without  also  instructing  that  the  dam- 
ages must  be  estimated  from  the  evidence. -^^  An  instruction  that 
the  jury  are  to  assess  such  damages  as  in  their  judgment  under 
the  evidence  a  party  is  entitled  to  is  not  erroneous  under  this 
rule/*  and  an  instruction  is  not  erroneous  which  tells  the  jury 
that  in  making  an  estimate  of  damages  they  shall  base  their  judg- 
ment upon-  the  evidence  in  the  case,  bringing  to  bear  or  such  evi- 
dence their  general  knowledge  and  experience  which  they  are  sup- 
posed to  possess  in  common  with  the  generality  of  mankind.^* 
In  some  jurisdictions  a  charge  on  the  measure  of  damages  will 
not  be  erroneous,  because  it  does  not  expressly  refer  to  the  evi- 
dence,^' and  a  defendant  is  not  prejudiced  by  an  instruction  which 
states  the  correct  elements  of  damage  of  which  there  is  evidence, 
although  it  does  not  restrict  the  consideration  of  the  jury  to  the 
evidence. ^^ 

Where  the  evidence  does  not  disclose  any  ciefinite  damages,  the 
court  should  instruct  the  jury  to  find  for  the  plaintiff  in  nominal 
damages  only,^' 

An  instruction  on  damages,  should  limit  the  jury  to  a  considera- 
tion of  the  facts  and  circumstances  in  evidence  bearing  upon  the 
question  of  damages,^*  and  an  instruction  directing  the  jury,  in 
determining  the  amount  of  damages,  to  take  into  consideration 
all  the  facts  and  circumstances  before  them,  is  reversible  error 
where  the  damages  found  are  very  high  and  apparently  excessive.-^' 
Such  an  instruction,  however,  is  not  a  cause  for  reversal,  if  there 
is  nothing  in  the  evidence,  not  relating  to  damages,  which  might 
have  influenced  the  jury  to  the  detriment  of  the  defeated  party  in 
fixing  the  amount  of  their  verdict.^**  An  instruction  which  limits 
the  jury  to  the  consideration  of  the  facts  and  circumstances  at- 
tending the  injury  sued  for  is  proper.^* 

12  Martin  v.  Johnson,  89  111.  537;  Leonard,  96  N.  E.  485,  48  Ind.  App. 
Girdner  t.  Taylor,  6  Heisk.  (Tenn.)  642;  Knoefel  v.  Atkins,  81  N.  E.  600, 
244.  40  Ind.   App.  428;    May  v.   Chicago, 

13  Calumet  R.  Ry.  Co.  v.  Moore,  124  B.  &  Q.  R.  Co.  (Tex.  Civ.  App)  225 
Til.  329,  15  N.  E.  764.  S.  W.  660. 

li  Springfield  Consol.  Ry.  Co.  v.  H.  19  Levitan  v   Chicago  Citv  Rv   Cn 

Hoeffner,  51  N.  E.  884,  175  111.  634.  9^0  tii    Ann    441                   ^     ^'        ' 

m  Thomas   Madden.    Son   &   Co.   v.  ^^"  ■^"-  ^^'^'-  ^*^- 

Wilcox,  91  N.  E.  933,  174  Ind.  6-57.  ^"^  Chicago  City  Ry.  Co.  v.  Sheehan, 

16  Vandalia  Coal  Co,  v.  Yemm,  92  HO  111-  -^PP-  492;    City  of  Chicago  v. 

N.  E.  49,  94  N.  E.  881,  175  Ind.  524.  I>avie.s,  110  III.  App.  427 ;    West  Chi- 

iT  Morrison  v.  Yancey,  23  Mo.  App.  t'ago  St.  R.  Co.  v.  Dougherty,  110  111. 

670.  App.  204. 

18  Kingan    v.    Gleason,    101    N.    E.  21  Malloy  v.   City  of  Chicago    169 

1027,  55  Ind.  App.   684;    Mesker  v.  111.  App.  593. 


354 


INSTRUCTIONS   TO   JURIES 


650 


B.  Punishme;nt  in  Criminal  Cases 

§  354.     Necessity  and  propriety  of  instructions  in  general 

The  question  of  the  extent  of  the  punishment  of  the  defendant 
in  a  criminal  case  in  the  event  of  his  conviction  is  usually  within 
the  province  of  the  court,  and  a  matter  with  which  the  jury  has 
nothing  to  do,~^  and  where  this  is  the  case  the  court  need  not  in- 
struct as  to  the  penalty  to  be  imposed  in  case  of  conviction,-- 
this  rule  applying  to  an  instruction  as  to  the  proper  course  of  the 
jury  in  case  they  cannot  agree  upon  the  punishment  to  be  inflicted 
upon  a  convicted  defendant,^*  and  it  is  not  error  in  such  a  case  to 
tell  the  jury  that  the  matter  of  punishment  is  exclusively  for  the 
court  to  determine,^^  such  an  instruction  not  being  objectionable, 
as  presenting  to  the  jury  only  the  question  of  the  guilt  of  the  de- 
fendant and  not  of  his  innocence.-^ 

Under  ordinary  circumstances  it  is  not  improper,  however,  to 
inform  the  jury  what  the  penalty  is  for  the  ofifense  of  which  the 
defendant  is  accused,-'  and  that,  in  reading  a  statute  as  an  ac- 
curate and  concise  way  of  defining  the  offense  for  which  a  de- 
fendant is  being  tried,  the  judge  necessarily  informs  the  jury  what 


2  2Norris  v.  State,  74  So.  394,  15 
Ala.  App.  567  ;  State  v.  Ausplund.  167 
P.  1019.  86  Or.  121.  judgment  affirmed 
on  rehearing  171  P.  395,  87  Or.  649. 

23  ria.  Eggart  v.  State,  25  So.  144, 
40  Fla.  527. 

Idaho.  State  v,  Altwatter,  157  P. 
256,  29  Idaho,  107. 

Ind.  Currier  v.  State,  60  -N.  E. 
1023,  157  Ind.  114. 

Iowa.  State  v.  O'Meara,  177  N.  W. 
563. 

Kam.  State  v.  Bell,  193  P.  373,  107 
Kan.  707. 

Mo.  State  V.  Ragsdale,  59  Mo. 
App.  590. 

Neb.  Edwards  v.  State,  95  N.  W. 
1038,  69  Neb.  386,  5  Ann.  Cas.  312; 
Ford  V.  State,  46  Neb.  390,  64  N.  W. 
1082. 

N.  M.  State  v.  Ellison,  144  P.  10, 
19  N.  M.  428. 

N.  Y.  People  v.  Jordan,  109  N.  Y. 
S.  840,  125  App.  Div.  .522. 

Okl.  Colbert  v.  State,  113  P.  558, 
4  Okl.  Cr.  500. 

Or.  State  v.  Garrison,  117  P.  657, 
59  Or.  440;    State  v.  Daley,  103  P. 


502,  54  Or.  514.  rehearing  denied  104 
P.  1.  54  Or.  -514. 

Utah.  State  v.  Inlow,  141  P.  530. 
44  Utah,  485,  Ann.  Cas.  1917A.   741. 

24  Brown  v.  State,  72  Miss.  997,  17 
So.  278. 

2  5  Iowa.  State  v.  Powers,  163  N. 
W.  402,  180  Iowa,  693. 

Ky.  Caudill  v.  Commonwealth, 
159  S.  W.  1149,  155  Ky.  578. 

Mo.  State  v.  Howard,  118  Mo.  127, 
24  S.  W.  41 ;  State  v.  Avery,  113  Mo. 
475,  21  S.  W.  193. 

Neb.  Clarev  v.  State,  85  N.  W. 
897,  61  Neb.  688. 

Pa.  Commonwealth  v.  Martin,  34 
Pa.  Super.  Ct.  451. 

2  6  Williams  v.  People,  63  N.  E.  681. 
196  111.  173. 

2  7  State  V.  Tourex,  71  P.  203.  .30 
Wash.  611. 

In  Wisconsin  the  communir'ation 
to  the  jury  of  the  penalties  for  the 
crime  charged  is  not  considered  good 
practice,  although  the  court  does  not 
go  so  far  as  to  hold  that  it  is  neces- 
sarily a  ground  for  reversal.  Bliss  v. 
State,  94  N.  W.  325,  117  Wis.  596. 


G51 


RELIEF   AWARDED   OR   PUNISHMENT   INFLICTED 


§  355 


the  penalty  is,  does  not  constitute  error,  this  being  merely  an  in- 
cidental result  of  the  definition.^s 

Where  the  court  determines  the  place  of  confinement  of  the 
prisoner,  it  is  error  to  tell  the  jury  that  if  he  should  be  found 
guilty  he  should  be  committed  to  one  institution  rather  than  an- 
other,2»  ^nj  i-i-ie  jury  should  not  be  reminded  of  the  discretionary 
powers  of  the  court  in  fixing  punishment.^o 

§  355.     Rule  as  to  instructions  where  jury  has  some  power  with 
respect  to  fixing  punishment 

Where  the  jury  has  certain  powers  and  duties  with  respect  to 
determining  the  punishment  of  a  convicted  defendant,  they  should 
be  told  what  such  powers  are  and  fully  instructed  as  to  their  du- 
ties.^i  or  as  to  the  effect  of  their  failure  to  exercise  their  powers,^- 
and  the  court  may  give  such  a  charge  in  the  absence  of  any  re- 
quest therefor  by  the  defendant.^^  Thus  where,  under  the  law 
relating  to  suspended  sentences,  the  jury  are  authorized  to  con- 
sider whether  the  accused  has  borne  a  good  reputation  m  deter- 
mining whether,  in  case  of  conviction  sentence  shall  be  suspended. 


2  8  Commonwealth  v,  Harris,  168 
Pa.  619,  32  A.  92,  36  Wtly.  Notes  Gas. 
343 

29  State  V.  McGee,  110  S.  W.  699, 
212  Mo.  95. 

30  Abney  v.  State,  86  So.  341,  123 
Miss.  546. 

31  Ind.  T.  Reynolds  v.  United 
States,  103  S.  W.  762,  7  Ind.  T.  51. 

Iowa.  State  v.  Wilson,  141  N.  W. 
337,  157  Iowa,  698. 

Ky.  Blair  v.  Commonwealth,  7 
Bush,  227. 

La.     State  v.  Obregon,  10  La.  Ann. 

799 

Okl.  Colbert  v.  State,  113  P.  561, 
4  Okl.  Cr.  487;  Vickers  v.  United 
States,  98  P.  467,  1  Okl.  Cr.  452. 

Tex.  Graham  v.  State,  163  S.  W. 
726,  73  Tex.  Cr.  R.  28;  Duncan  v. 
State,  29  Tex.  App.  141,  15  S.  W.  407 ; 
Washington  v.  State,  28  Tex.  App. 
411,  13  S.  W.  606;  Buford  v.  State, 
44  Tex.  525;  Cesure  v.  State,  1  Tex. 
App.  19. 

Instructions  held  insuflaciemt 
within  rule.  Under  the  statute 
which  provides  that,  if  the  penalty 
for  a  misdemeanor  be  a  fine,  "it  shall 
be  in  the  discretion  of  the  jury  fixing 
the  amount  of  the  flue  to  say  in  its 
verdict  whether,  if  the  fine  and  costs 


are  not  immediately  paid  or  replev- 
ied, he  shall  work  at  hard  labor  in 
lien  of  imprisonment  for  nonpayment 
of  the  fine,"  it  is  not  sufficient  for  the 
court  in  instructing  the  jury  to  tell 
them  that  if  they  find  the  defendant 
guilty  they  may,  in  their  discretion, 
say  that  he  shall  work  at  hard  labor 
until  the  fine  and  costs  shall  bo  paid, 
but  it  is  the  duty  of  the  court  to  in- 
struct the  jury  as  to  the  nature  and 
meaning  of  the  statute.  James  v. 
Commonwealth,  16  Ky.  Law  Rep.  (ab- 
stract) 271. 

Instrnctions  held  not  insuffi- 
cient within  rule.  An  instruction 
that  the  jury,  on  finding  defendant 
guilty,  should  assess  his  punishment 
at  iinprisonment  in  the  penitentiary 
for  a  term  of  not  less  than  two  years 
or  more  than  seven  years,  or  by  im- 
prisonment in  the  county  jail  not  ex- 
ceeding three  months,  was  not  mis- 
leading, for  failing  to  designate  the 
minimum  punishment  by  imprison- 
ment in  the  county  jail.  State  v. 
Rose,  76  S.  W.  1003,  178  Mo.  25. 

3  2  Walton  V.  State,  57  Miss.  533. 

3  3  Raml.o  v.  State,  162  P.  449,  13 
Okl.  Cr.  119. 

Compare  Chandler  v.  State,  105  P. 
375,  3  Okl.  Cr.  254.  rehearing  denied 
107  P.  735,  3  Okl.  Cr.  254. 


§  355 


INSTRUCTIONS  TO  JURIES 


652 


it  is  proper  for  the  court  to  so  instruct,  as  otherwise  the  jury- 
would  not  be  aware  of  this  phase  of  the  law.^*  An  instruction, 
however,  embodying  a  statutory  provision  giving  the  right  to  the 
jury  to  fix  the  punishment  under  certain  conditions,  may  be  prop- 
erly refused,  in  the  absence  of  any  evidence  of  the  existence  of 
such  conditions. ^^ 

In  some  jurisdictions,  in  the  absence  of  a  request  therefor,  it 
will  usually  not  be  error  to  fail  to  give  instructions  as  to  the  pen- 
alty,^^  and  tJie  court  may  pronounce  judgment  upon  a  general 
verdict  of  guilty.^'  In  other  jurisdictions,  instructions  relating  to 
punishment  should  be  given,  although  not  requested.^* 

Where  the  jury  in  a  criminal  case  are  vested  with  the  power, 
in  case  of  a  verdict  of  guilty,  to  fix  the  punishment  of  defendant,^® 
or  have  a  discretion  as  to  which  of  two  or  more  modes  of  punish- 
ment shall  be  imposed,^"  any  instruction  which  in  any  way  tends 


3  4  Gimert  v.  State,  209  S.  W.  658, 
84  Tex.  Cr.  R.  616. 

3  5  People  V.  Elgar,  178  P.  168,  39 
Cal.  App.  78. 

3  6  Cason  V.  State,  99  S.  E.  61,  23 
Ga.  App.  540. 

3  7  Tudor  V.  State,  167  P.  341,  14 
Okl.  Cr.  67. 

3  8  State  V.  Chadwick,  174  S.  W. 
1144,  131  Tenn.  354. 

3  9  Rollings  V,  State,  34  So.  349,  136 
Ala.  126;  Leech  v.  Waugh.  24  111.  228; 
Martin  v.  State,  24  Tex.  61. 

4  0  Ala.  Bibb  v.  State,  84  Ala.  13, 
4  So.  275;  Skains  v.  State,  21  Ala. 
218 

Cal.  People  v.  Ross,  66  P.  229,  134 
Cal.  256. 

Ind.  Caiger  v.  State,  58  N.  E. 
1036,  155  Ind.  646;  Roberts  v.  State, 
12  N.  E.  500,  111  Ind.  340. 

Ky.  Adams  v.  Commonwealtb,  175 
S.  W.  10,  104  Ky.  148;  Day  v.  Com- 
monwealth, 96  S.  W.  510,  29  Ky.  Law 
Rep.  816. 

lia.  State  V.  Melvin,  11  La.  Ann. 
535. 

Miss.  Mathison  v.  State,  40  So. 
801.  87  Miss.  739. 

Mo.  State  V.  Milligan,  70  S.  W. 
473,  170  Mo.  215;  State  v.  Gilbreath, 
130  Mo.  500,  32  S,  W.  1023. 

N.  D.  State  v.  Peltier,  129  N.  W. 
451,  21  N.  D.  188;  State  v.  Noah,  124 
N.  W.  1121,  20  N.  D.  281. 

Okl.  Williams  v.  State,  124  P.  330, 
7  Okl.  Cr.  529. 


Tex.  Petteway  v.  State,  36  Tex. 
Cr.  R.  97,  35  S.  W.  646;  Prinzel  v. 
State,  35  Tex.  Cr.  R.  274,  33  S.  W. 
350;  Hargrove  v.  State,  33  Tex.  Cr. 
R.  165,  25  S.  W.  967;  Sanchez  v.  State, 
21  S.  W.  364,  31  Tex.  Cr.  R.  484; 
Washington  v.  State,  28  Tex.  App. 
411,  13  S.  W.  606;  Irvin  v.  State,  25 
Tex.  App.  5S8,  8  S.  W.  681 ;  Longenot- 
ti  V.  State,  22  Tex.  App.  61,  2  S.  W. 
620. 

Instructions  held  erroneous 
■within  rule.  An  instruction,  in  a 
prosecution  for  homicide,  that,  if  the 
jury  found  accused  guilty,  it  was  no 
more  their  moral  duty  under  the  law 
to  hang  him  than  to  sentence  him  to 
the  penitentiary.  Thomas  v.  State, 
43  So.  371,  150  Ala.  31.  A  charge,  in 
a  capital  case,  that  cases  of  murder 
were  fearfully  numerous  in  the  city ; 
that  a  conviction  on  a  charge  of  mur- 
der had  ceased  to  be  a  cause  of  excite- 
ment, and  had  become  a  common  af- 
fair of  almost  daily  occurrence ;  that 
confinement  in  the  state  penitentiary 
for  life  was  no  adequate  punishment 
for  the  crime  of  murder;  that  juries 
had  no  right  to  qualify  their  verdict, 
unless  there  were  mitigating  circum- 
stances ;  that  convicts  in  the  peniten- 
tiary seldom  served  out  their  term 
when  confined  there  for  life;  that  a 
late  govenaor  of  this  state  had  par- 
doned almost  everybody,  and  that 
convicts  were  always  in  the  hope 
that,  after  a  few  years,   they  could 


653 


RELIEF  AWARDED   OR   PUNISHMENT  INFLICTED 


355 


to  swerve  the  judgment  of  the  jury  or  to  limit  its  discretion  in 
the  exercise  of  such  power  will  be  erroneous,  and  it  is  proper  to 
refuse  to  instruct  the  jury  as  to  how  they  shall  exercise  such  a 
discretion.*^  It  has  been  held,  however,  in  one  jurisdiction,  al- 
though not  without  dissent,  that  a  statute  authorizing  the  jury, 
on  rendering  a  verdict  of  guilty  in  a  capital  case,  to  dispense  with 
the  death  penalty,  does  not  prevent  the  court  from  admonishing 
the  jury  as  to  the  circumstances  under  which  it  will  be  proper  to 
reduce  the  punishment  to  life  imprisonment.*^ 

Where  the  punishment  provided  for  an  offense  is  a  fine  or  im- 
prisonment, it  is  error  to  tell  the  jury  that  they  may  assess  a  fine 
and  imprisonment ;  *^  and,  conversely,  where  the  statute  provides 
that  there  may  be  both  fine  and  imprisonment,  it  is  error  to  in- 
struct that  the  penalty  may  be  either  fine  or  imprisonment.** 

Where  a  verdict  of  guilty  in  a  capital  case  carries  the  death 
penalty,  unless  the  jury  qualify  their  verdict  by  saying  that  capi- 
tal punishment  shall  not  be  inflicted,  instructions  calculated  to  lead 
the  jury  to  think  that,  in  the  absence  of  such  a  qualification,  the 
court  will  have  discretion  to  impose  life  imprisonment,  are  er- 
roneous.*^ 


appeal  to  a  clement  executive ;  that 
none  but  capital  punishment  would 
put  a  stop  to  the  practice,  now  com- 
mon, of  men  and  women  killing;  and 
that  he  [the  judge],  on  a  late  visit  to 
the  penitentiary,  had  been  told  by 
parties  sentenced  by  him  that  they 
hoped  in  a  short  time  to  come  out. 
State  V.  Melvin,  11  La.  Ann.  535.  An 
instruction  that  if  there  are  circum- 
stances in  the  case  which  would  justi- 
fy a  recommendation  of  life  imprison- 
ment in  case  of  a  verdict  of  murder 
in  the  first  degree,  the  jury  could 
make  such  recommendation.  State  v. 
Romeo,  128  P.  530,  42  Utah,  46.  An  in- 
struction that,  if  the  jury  have  a  rea- 
sonable doubt  of  defendant's  guilt, 
they  must  acquit,  and  not  resolve  the 
doubt  by  a  mitigation  of  the  punish- 
ment, is  error,  as  tending  to  influence 
the  jury  to  inflict  the  death  penalty, 
rather  than  milder  punishment. 
Johnson  v.  State,  27  Tex.  App.  163,  11 
S.  W.  106. 

Instructions  not  improper  with- 
in rule.  An  instruction  to  the  effect 
that  it  is  immaterial  from  what 
source  malice  springs  does  not  inter- 


fere with  or  abridge  "the  prerogative 
of  the  jury  to  recommend  imprison- 
ment for  life."  Perry  v.  State,  30  S. 
E.  903,  102  Ga.  365.  A  charge  that, 
if  defendant  were  found  guilty,  the 
punishment  should  be  assessed  at  im- 
prisonment in  the  penitentiary  be- 
tween 2  and  12  years,  provided  that, 
if  defendant  were  found  not  more 
than  16  years  old,  and  his  punish- 
ment by  imprisonment  assessed  at  5 
years  or  less,  he  might  be  confined  in 
the  house  of  correction  or  reforma- 
tory instead  of  the  penitentiary, 
properly  submitted  the  discretionary 
powers  of  the  jury.    Rocha  v.  State, 

41  S.  W.  611,  38  Tex.  Cr.  R.  69. 

41  People  V.  Kamaunu,  110  Cal.  609, 

42  P.  1090. 

42  Winston  v.  United  States,  13 
App.  D.  C.  157;  Smith  v.  United 
States,  13  App.  D.  C.  155 ;  Strather  v. 
United  States,  13  App.  D.  C.  132. 

4  3  Ball  V,  Commonwealth,  99  S.  W. 
326,  30  Ky.  Law  Rep.  600. 

4  4  Moody  V.  State,  30  Tex.  App.  422, 
18  S.  W.  94. 

4  5  Parker  v.  State,  161  P.  552,  24 
Wyo.  491. 


§  355  INSTRUCTIONS  TO  JURIES  "   654 

Where  the  court  instructs,  at  the  request  of  the  defendant,  that 
the  jury  may  assess  the  punishment,  it  should  also  instruct  that 
in  case  they  find  the  defendant  guilty,  and  fail  to  agree  upon  the 
punishment,  they  shall  so  state  in  their  verdict.*^  The  trial  court 
has  no  authority  to  give  instructions  permitting  the  jury  to  fix 
a  punishment  other  than  that  provided  by  the  statute.*'^  An  in- 
struction that  the  prosecuting  attorney  is  not  insisting  on  the  ex- 
treme penalty  attached  to  the  offetnse  charged,  or  that  he  is  only 
asking  for  a  fine  or  imprisonment,  is  improper.** 

It  is  not  proper,  in  some  jurisdictions,  to  tell  the  jury  that  their 
verdict  under  certain  circumstances  can  be  changed  by  the  court 
in  its  discretion,  as  this  tends  to  lessen  the  responsibility  of  the 
jury.*®  But  in  other  jurisdictions  it  is  not  error  to  inform  the 
jury  as  the  power  of  the  board  of  pardons  with  respect  to  lessen- 
ing the  punishment  that  may  accompany  a  verdict  of  guilty,^* 
and  in  such  jurisdictions  it  is  not  improper  to  tell  the  jury,  in  a 
prosecution  for  a  capital  ofifense,  that  if  they  award  life  imprison- 
ment the  board  of  pardons  may  set  their  sentence  at  nought.-''^ 

§  356.     Recommendation  to  mercy  or  of  mitigation  of  punishment 

It  is  proper  to  instruct  the  jury  as  to  the  effect  upon  the  pun- 
ishment of  a  convicted  defendant  of  any  recommendation  to  mercy 
which  they  may  make ;  ^^  such  an  instruction  not  being  erroneous, 
as  tending  to  induce  a  compromise  verdict.^^ 

Ordinarily,  in  the  absence  of  a  request  therefor,  an  instruction 
that  the  jury  in  case  of  conviction  may  recommend  the  defendant 
to  mercy  is  not  necessary,^  and  there  are  decisions  that  the  court 
is  not  bound  in  a  capital  case  to  instruct,  unless  so  requested,  that 
the  jury,  in  case  of  conviction,  may  avert  the  infliction  of  the  death 
penalty  by  recommending  life  imprisonment.^^     In  other  jurisdic- 

4flOelke  V.  State,  133  P.  1140,  10  54  Webster  v.  State,  36  So.  584,  47 

Okl.  Cr.  49.  Fla.    108 ;     Milton    v.    State,    24    So. 

47  Beck  V.  State,  166  P.  753,  14  Okl.  60,  40  Fla.  251;    State  v.  Adams,  47 

Cr.  3.  S.  E.  676,  68  S.  C.  421;   State  v.  Dod- 

4  8  Love  V.  State,  158  S.  W.  532,  71  son,  16  S.  C.  453;  Honey cutt  v.  State, 
Tex.  Cr.  R.  259.  8  Baxt.  (Tenn.)  371. 

40  State  V.  Noah,  124  N.  W.  1121,  ss  Keech    v.    State,    15    Fla.    591; 

20  N.  D.  281.  State  v.  Beatty,  41  S.  E.  434,  51  W. 

5  0  state  V.  Rombolo,  99  A.  434,  89       Va.  232. 

N.  J.  Law,  565.  Sufficiency    of    request.     It    was 

51  State  V.  Garrigan,  108  A.  315,  93  error,  in  a  murder  case,  to  refuse  to 

N.  J.  Law,  268.  instruct  that  the  jury  might  punish 

5  2  Lovett  V.  State,  30  Fla.  142,  11  murder  in  the  first  degree  with  either 

So.  550,  17  L.  R.  A.  705 ;   State  v.  Car-  death  or  confinement  in  the  peniten- 

rigan,  108  A.  315.  93  N.  J.  Law.  268.  tiary,    though    the    request    was    not 

'^^  ^i^o^'"^  '^^  State,  89  Ga.  807,  15  made  until   after  the  jury   had   an- 

S.  E.  743.  nounced  its  simple  verdict  of  guilty. 


655  RELIEF  AWARDED   OR  PUNISHMENT  INFLICTED  §  356 

tions  the  rule  is  that,  where  a  recommendation  to  mercy  makes  a 
lighter  punishment  obligatory  under  the  statute,  the  court  must 
charge  that  the  jury  have  the  right  to  recommend  to  mercy, 
whether  so  requested  or  not.^ 

Where  the  statute  provides  that  the  jury  may  recommend  that 
a  convicted  defendant  shall  be  punished  as  for  a  misdemeanor, 
which  recommendation  shall  be  effectual,  if  approved  by  the  court, 
the  jury  should  be  informed  of  such  provision,^'  and  under  such 
a  statute  the  court  may^  and  should  instruct,  whether  with  or 
without  request,^'^  that  the  recommendation  of  the  jury  will  not 
be  effective  unless  it  has  the  approval  of  the  court,  and  the  omis- 
sion of  the  court  to  instruct  the  jury  as  to  their  right  to  make  a 
recommendation  which  may,  in  the  discretion  of  the  court,  lessen 
the  punishment,  is  reversible  error,  where,  in  the  absence  of  such 
a   recommendation,    only    the   highest   penalty    can    be    imposed.*'** 

Where  a  recommendation  to  mercy  can  have  no  effect  upon 
the  sentence  of  the  court,  it  is  error  to  simply  tell  the  jury  that 
they  can  indorse  on  their  verdict  such  a  recommendation,  without 
telling  them  of  its  ineffectiveness.*'!  But  where  the  court  has 
correctly  informed  the  jury  as  to  their  right  to  recommend  mercy 
and  as  to  the  eft'ect  of  such  recommendation,  it  is  not  the  duty 
of  the  court  to  call  the  attention  of  the  jury  to  a  statutory  provi- 
sion that  the  board  of  pardons  shall  not  be  at  liberty  to  recom- 
mend a  convict  for  pardon,  except  upon  proof  of  his  innocence 
beyond  a  reasonable  doubt.^^ 

and  though,  before  the  jury  went  out,  State.  5.3  S.  E.  SOS,  125  Ga.  4,  5  Ann. 

the  court  suggested  to  counsel  for  de-  Cas.  310. 

fendant  that  it  give  that  instruction,  eo  Calton  v.  Utah,  130  U.  S.  83,  9 

and   counsel  stated  that  it  was  not  S.  Ct.  435,  32  L.  Ed.  870. 

necessary    at    that    time.      State    v.  si  Hackett  v.  People,  8  Colo.  390, 

Cobbs,  40  W.  Va.  718,  22  S.  E.  310.  8  P.  574. 

5  6  Harris  v.  State,  59  Ga.  635.  Warning  jury  tliat  recommen- 
5  7  Ledford  v.  State,  91  S.  E.  924.  dation  will  not  relieve  defendant 
19  Ga.  App.  610;  Glover  v.  State,  67  from  imprisonment.  Where,  in  a 
S.  E.  687,  7  Ga.  App.  628 ;  Taylor  v.  trial  for  assault  with  intent  to  kill. 
State,  35  S.  E.  161,  110  Ga.  1.50 ;  John-  the  jury  ask  if  they  can  recommend 
son  V.  State,  25  S.  E.  940,  100  Ga.  78.  to  mercy,  and  defendant  requests  a 
58  Benton  v.  State.  71  S.  E.  8,  9  Ga.  charge  that,  notwithstanding  any  rec- 
App.  291;  Green  v.  State,  71  Ga.  487.  ommendation  to  mercy,  the  punish- 
es Winder  v.  State,  88  S.  E.  1003,  ment  would  still  require  confinement 
18  Ga.  App.  67 ;  Braxley  v.  State,  in  the  penitentiary,  the  court  suffl- 
86  S.  E.  425,  17  Ga.  App.  196;  ciently  charges  them  by  reading  the 
Bragg  V.  State,  83  S.  E.  274,  15  Ga.  statute  providing  that  the  court  shall 
App.  368 ;  Frazier  v.  State,  S3  S.  E.  determine  the  punishment,  paying  due 
273, 15  Ga.  App.  365;  Taylor  v.  State,  respect  to  any  recommendation  which 
81  S.  E.  372,  14  Ga.  App.  492  ;  Echols  the  jury  may  make.  Fogarty  v.  State, 
V.  State,  34  S.  E.  1038,  109  Ga.  508.  80  Ga.  450,  5  S.  E.  782. 

Contra,  Gaskins  v.   State.  76  S.  E.  02  state  v.  Schiller,  70  N.  E.  505, 

777,   12   Ga.  App.  97;     Lingerfelt  V.  70  Ohio  St.  1. 


356 


INSTRUCTIONS  TO  JURIES 


656 


Instructions  should  not  in  an}^  way  embarrass  or  limit  the  jury- 
in  the  exercise  of  their  power  to  recommend  a  mitigation  of  pun- 
ishment.^^ An  instruction  is  therefore  erroneous  which  tends  to 
influence  the  exercise  by  the  jury  of  discretion  given  to  it  by  a 
statute  to  recommend  imprisonment  for  life  upon  a  conviction  of 


63  Ga.  Duncan  v.  State,  80  S.  E. 
317,  141  Ga.  4 ;  Cohen  v.  State,  42  S. 
E.  781,  116  Ga.  573;  Hill  v.  State,  72 
Ga.  131. 

S.  C.  State  V.  Bethune,  67  S.  E. 
466,  86  S.  C.  143. 

Tex.  Morris  v.  State,  198  S.  W. 
141,  82  Tex.  Cr.  R.  13. 

Utah.  State  v.  Newhinney,  134  P. 
632,  43  Utah,  135,  L.  R.  A.  1916D,  590, 
Ann.  Gas.  1916C,  537;  State  v. 
Thorne,  126  P.  286,  41  Utah,  414,  Ann. 
Gas.  1915D,  90;  State  v.  Thorne,  117 
P.  58,  39  Utah,  208. 

liimitation  of  discretion  of  jury 
by  state  of  evidence.  Under  the 
Ohio  statute,  in  determining  whether 
to  recommend  mercy,  the  jui-y  should 
be  guided  by  the  evidence  or  lack  of 
evidence,  as  the  case  may  be  as  dis- 
closed upon  the  trial,  and  an  instruc- 
tion to  this  effect  is  proper.  Howell 
V.  State,  131  N.  E.  706;  Rehfeld  v. 
State,  131  N.  E.  712. 

Instructions  lield  not  erroneous 
within  rule.  In  a  prosecution  for 
murder,  the  remarks  of  a  trial  judge, 
containing  a  mere  warning  for  thor- 
ough consideration  of  the  facts  and 
circumstances  by  the  jury,  before  rec- 
ommending the  defendant  to  the 
mercy  of  the  court,  are  not  prejudi- 
cial. State  V.  Bates,  69  S.  E.  1075,  87 
S.  C.  431.  An  instruction  that,  "if 
you  think  this  is  a  case  in  which  you 
would  be  justified  in  recommending  a 
life  imprisonment  in  the  event  of  your 
finding  the  defendant  guilty,  you  have 
a  right  to  make  such  recommenda- 
tion, as  it  is  for  you  to  say,  in  the 
event  of  your  finding  the  defendant 
guilty,  whether  the  facts  and  circum- 
stances in  this  case  warrant  you  in 
making  such  recommendation.  It  is 
all  a  question  for  you,  under  the  law 
and  the  evidence" — is  not  ground  for 
a  new  trial,  but  it  would  be  better  to 
omit  the  words  "justified"  and  "war- 
rant," and  to  substitute  in  theu:  stead 


language  leaving  the  jury  free  to  dis- 
pose of  the  question  of  recommending 
or  not  recommending  life  imprison- 
ment, without  any  intimation  from 
the  bench  as  to  what  should  control 
or  influence  them  in  reaching  a  con- 
clusion upon  this  matter.  Cyrus  v. 
State,  29  S.  E.  917,  102  Ga.  616.  A 
charge  on  a  trial  for  murder  that  it 
was  within  the  province  of  the  jury, 
if  they  found  defendant  guilty,  to  rec- 
ommend that  he  be  punished  by  im- 
pi-isonment  for  life,  that  there  was  no 
rule  by  which  they  were  to  be  guided 
in  making  the  recommendation,  and 
that  it  was  entirely  for  their  deter- 
mination, is  not  open  to  the  criticism 
that  it  was  calculated  to  prejudice 
the  jury  and  prevent  them  from  rec- 
ommending that  defendant  be  punish- 
ed by  imprisonment.  Thomas  v. 
State,  59  S.  E.  246,  129  Ga.  419.  A 
conviction  for  keeping  a  tippling 
house  open  on  Sunday  will  not  be 
reversed  merely  because  the  judge 
told  the  jHry  that  the  case  was  one 
not  punishable  by  confinement  in  the 
penitentiary,  and  not  one  where  they 
would  be  authorized  to  recommend  to 
mercy,  as  the  charge  did  not  forbid 
the  jury  to  make  the  recommenda- 
tion. Hussey  v.  State,  69  Ga.  54. 
Where,  in  a  murder  case,  the  court 
chai'ged  that,  if  they  found  defendant 
guilty  of  murder,  they  might  recom- 
mend that  he  be  punished  by  impris- 
onment, and  if  they  so  recommended, 
that  had  to  be  the  penalty;  that,  if 
they  failed  to  recommend,  defendant 
might  be  hung,  or,  if  they  recommend- 
ed that  he  be  imprisoned  for  Life,  then 
that  was  the  penalty  fixed  by  law ; 
and  that  it  was  a  matter  entirely  with 
them,  and  of  which  they  had  absolute 
control,  it  was  held  that  it  was  not 
error  to  also  charge  "that  the  jury 
have  nothing  to  do  with  the  conse- 
quences of  the  verdict."  Marshall  v. 
State,  74  Ga.  26. 


657  RELIEF  AWARDED   OR  PUNISHMENT  INFLICTED  §  356 

murder  in  the  first  degree.®*  An  instruction  that  the  responsi- 
bility is  on  the  jury  to  recommend  or  forbear  to  recommend  im- 
prisonment for  life,  in  place  of  death,  and  that  to  do  what  they 
think  right  and  proper  in  that  regard  rests  with  them  and  their 
consciences  is  proper,®^  and  an  instruction  that,  while  it  is  always 
competent  for  the  jury  to  recommend  to  mercy,  it  is  not  incum- 
bent on  the  judge  to  observe  such  recommendation,  is  not  erro- 
neous, as  an  intimation  that  the  case  against  the  accused  is  a  bad 


one.®*' 

Instructions  with  regard  to  the  power  of  the  jury  to  recommend 
a  convicted  defendant  to  mercy  should  ordinarily  follow  the  lan- 
guage of  the  statute.®' 

64  State  V.  Martin,  106  A.  385,  92  se  state  v.  Jones,  54  S.  E,  1017,  74 

N.  J.  Law,  436.  S.  C.  456. 

6  5  Fry  V.  State,  81  Ga.  645,  8  S.  E.  67  Newton  v.  State,  21  Fla.  53. 

308. 

iNST.TO  Juries — 42 


357 


INSTRUCTIONS   TO   JURIES 


658 


CHAPTER  XXVIII 

DEFINITION  OR  EXPLANATION  OF  TERMS 

§  357.     Propriety  and  necessity  of  defining  terms  having  a  technical  or  legal 
meaning. 

358.  Necessity  of  defining  offense  of  which  defendant  is  accused. 

359.  Necessity  of  definition  of  legal  phrases  in  common  use. 

360.  Defining  words  of  witness. 

361.  Necessity    of   defining   ordinary   words   having   no   special    technical 

meaning. 

362.  Necessity  of  request  for  definition. 

363.  Effect  of  failure  to  give  definition. 

364.  SuQicieucy  of  definition  or  explanation  of  terms. 

365.  Sufiiciency  of  definition  of  criminal  offense. 

§  357.  Propriety  and  necessity  of  defining  terms  having  a  tech- 
nical or  legal  meaning 
Where  technical  or  legal  terms  are  used  in  an  instruction,  or 
where  ordinary  words  having  a  technical  or  legal  meaning  in  the 
connection  in  which  they  are  used  are  so  included  in  a  charge,  the 
court  may^  and  should,  at  least  upon  request,^  define  such  words 
and  phrases,  and  requests  for  instruction  which  contain  words  or 


X  Wickwire  v.  Webster  City  Savings 
Bank,  133  N.  W.  100,  153  Iowa,  225; 
International  &  G.  N.  R.  Co.  v.  Cruse- 
turner.  98  S.  W.  428,  44  Tex.  Civ. 
App.  ISl. 

2  Ala.  Chambers  v.  Morris  (Sup.) 
42  So.  549. 

Ga.  Holmes  v.  Clisby,  48  S.  E.  934, 
121  Ga.  241,  104  Am.  St.  Rep.  103; 
Roberts  v.  State,  40  S.  E.  297,  114 
Ga.  450. 

ni.  People  V.  Blevins,  96  N.  B.  214, 
251  111.  381,  Ann.  Cas.  1912C.  451; 
llayner  v.  People,  72  N.  E.  792.  213 
111.  142;  Moshier  v.  Kitchell,  87  111. 
18 ;  Chicago  &  A.  R.  Co.  v.  Pelligreen. 
05  111.  App.  333. 

Iowa.  Long  v.  Ottumwa  Ry.  & 
Licht  Co.,  142  N.  W.  1008;  State  v. 
McKinnon,  138  N.  W.  523,  158  Iowa, 
619. 

Ky.  W.  G.  Duncan  Coal  Co.  v. 
Thompson's  Adm'r.  102  S.  W.  11.39, 
157  Ky.  .304 :  Romans  v.  McGiunis, 
160  S.  W.  928,  156  Kv.  205;  Taylor 
v.  Commonwealth,  75  S.  W.  244,  119 
Ky.  731,  25  Ky.  Law  Rep.  374;  Mc- 
Arthur  v.  City  of  Davton,  42  S,  W. 
343,  19  Ky.  Law  Rep.  882. 


Micli.  Derham  v.  Derham,  83  N. 
W.  1005,  125  Mich.  109. 

Mo.  MuUenix  v.  Briant  (App.)  198 
S.  W.  90;  Strother  v.  MetropoHtan 
St.  Ry.  Co.  (App.)  183  S.  W.  657; 
Beggs  V.  Shelton,  155  S.  W.  885,  173 
Mo.  App.  127 ;  E.  R.  Darlington  Lum- 
ber Co.  V.  Pottinger,  147  S.  W.  179, 
165  Mo.  App.  442. 

Mont.  First  Xat.  Bank  v.  Carroll, 
88  P.   1012,  35  Mont.  302. 

Ohio.  Jordan  v.  State.  13  Ohio  Cir. 
Ct.  R.  471,  7  O.  C.  D.  1.33. 

Or.  State  V.  Hogg,  129  P.  115,  64 
Or.  57. 

Pa.  Commonwealth  v.  Ronello,  96 
A.  826,  251  Pa.  329;  Yanosh  v.  Earley, 
67  Pa.  Super.  Ct.  585. 

Tex.  Hightower  v.  State,  165  S.  W. 
184,  73  Tex.  Cr.  R.  258;  Davis  v. 
Hardwick,  94  S.  W.  359,  43  Tex.  Civ. 
App.  71 ;  Swain  v.  State,  86  S.  W.  .335, 
48  Tex.  Ci".  R.  98 ;  Vann  v.  State.  77  S. 
W.  813,  45  Tex.  Cr.  R.  431,  108  Am. 
St.  Rep.  961;  Matthews  v.  Boydstun 
(Civ.  App.)  31  S.  W.  814;  Jolly  v. 
State,  19  Tex.  App.  76;  Goode  v. 
State,  16  Tex.  App.  411. 


659 


DEFINITION    OR    EXPLANATION    OF    TERMS 


§357 


phrases  of  such  description  without  defining  them  are  properly 
refused.^  It  is  error  to  use  words  in  a  charge  in  a  different  sense 
from  the  popular  one  without  explanation.*  That  some  of  the 
jury  may  be  able  to  understand  technical  terms  used  will  not  dis- 
pense with  the  necessity  of  their  definition.^  Thus  it  is  proper, 
or  may  be  necessary,  to  define  the  words  "actual  notice,"  ^  "ac- 
tual possession,"'  "abandonment,"*  "accident,"^  "adequate 
cause,"  1"  "apparent  authority,"'  ^^  "approved"  in  certain  connec- 
tions,^- "arbitrary  prices,"*^  "cooling  time/'^*  "constructive  pos- 
session," ^^  "corpus  delicti,"  i«  "crossing,"  i'  "deliberately,"  ^^ 
"deliberation  and  premeditation,"^^  "delivery,"  ^o  "extraordinary 
flood,"  21   "heat   of   passion," -^    "implied    malice," -^    "independent 


3  Thomas  v.  Presbrey,  5  App.  D.  C. 
217;  Wilson  v.  Danville  Collieries 
Coal  Co.,  106  N.  E.  191,  264  111.  143, 
affirming  judgment  184  111.  App.  180; 
Momence  Stone  Co.  v.  Turrell,  68  N.  E. 
1078,  205  111.  515,  affirming  judgment 
106  111.  App.  160;  Quirk  v.  Bradley 
Contracting  Co.  (Sup.)  161  N.  Y.  S. 
296,  97  Misc.  Rep.  368. 

4Mullins  V.  Cottrell,  41  Miss.  291. 

5  State  V.  Clark,  47  S.  E.  36,  134  N. 
C.  698. 

6  Ware  v.  Senders,  120  111.  App.  209. 

7  Mayes  v.  Kenton,  64  S.  W.  728,  23 
Ky.  Law  Rep.  1052. 

8  Union  Scale  Co.  v.  Iowa  Ma- 
chinery &  Supply  Co.,  113  N.  W.  762, 
136  Iowa,  171. 

9  Barnett  &  Record  Co.  v.  Schlapka, 
70  N.  B.  343,  208  111.  426,  atBrming 
judgment  110  111.  App.  672  ;  Ebert  v. 
Metropolitan  St.  Ry.  Co.,  160  S.  W. 
34,  174  Mo.  App.  45. 

In  Illinois  an  instruction  has  been 
held  not  erroneous  in  failing  to  define 
the  term  "accident"  employed  therein. 
Larsen  v.  Chicago  Union  Traction  Co., 
131  111.  App.  286. 

10  Robinson  v.  State,  156  S.  W.  212, 
70  Tex.  Cr.  R.  81 ;  Beckham  v.  State 
(Tex.  Cr.  App.)  69  S.  W.  534. 

11  Emerson  -  Brantingham  Imple- 
ment Co.  V.  Roquemore  (Tex.  Civ. 
App.)  214  S.  W.  679. 

12  Pace  V.  Cochran,  86  S.  E.  934, 
144  Ga.  261. 

13  Kansas  City,  N.  &  Ft.  S.  R.  Co. 
V.  Dawloy,  50  Mo.  App.  480. 

1*  Kannmacher  v.  State,  101  S.  W. 
238,  51  Tex.  Cr.  R.  118. 


15  People  V.  Csontos,  114  N.  E.  123, 

275  111.  402. 

ic  People  V.  Frey,  131  P.  127,  165 
Cal.    140. 

17  Texas  &  N.  O.  R.  Co.  v.  Harring- 
ton (Tex.  Civ.  App.)  209  S.  W.  685. 

18  State  V.  Garrett,  207  S.  W.  784, 

276  Mo.  302 ;  Holt  v.  State,  89  S.  W. 
838,  48  Tex.  Cr.  R.  559;  Mahon  v. 
State,  79  S.  W.  28,  46  Tex.  Cr.  R.  234. 

i»  State  V.  Foster.  41  S.  E.  284,  130 
N.  C.  666,  89  Am.  St.  Rep.  876. 

Defining  wrords  separately. 
Though  the  words  "premeditated"  and 
"deliberation"  have  not  exactly  the 
same  meaning,  if  an  instruction  on 
murder  in  the  first  degree  is  in  words 
which  express  both  ideas,  and  fully 
explain  them  to  the  jui-y,  it  is  correct, 
though  the  court  may  not  define  each 
word  separately.  State  v.  Exum,  50 
S.  E.  283,  138  N.  C.  599. 

2  0  Archambeau  v.  Edmunson,  171  P. 
186,  87  Or.  476. 

Omission  to  define  not  ground 
for  new  trial.  Mere  failure  of  the 
court,  in  instructing  the  jury,  to  give 
the  definitions  of  such  words  as  "de- 
livery" and  "delivered,"  is  not  cause 
for  a  new  trial.  Cordele  Sash,  Dcx)r 
&  Lumber  Co.  v.  Wilson  Lumber  Co., 
58  S.  K  860,  129  Ga.  290. 

21  Sloss-Sheffield  Steel  &  Iron  Co. 
V.  Mitchell,  52  So.  69,  167  Ala.  220. 

2  2  State  V.  Skaggs,  60  S.  W.  1048, 
159  Mo.  581 ;  State  v.  Reed,  154  Mo. 
122,  55  S.  W.  278:  State  v.  Strong, 
153  Mo.  548,  55  S.  W.  78. 

Compare  State  v.  Rose,  44  S.  W. 
329,  142  Mo.  418. 

2  3  Connell  v.  State,  81  S.  W.  74G,  46 
Tex.  Cr.  R.  259. 


357 


INSTRUCTIONS   TO  JURIES 


660 


contractor/'  ^*  "inherent  vice,"  ^^  "intervening  cause,"  ^^  "last 
clear  chance,"  ^'  "malice,"  ^*  "nuisance,"  ^^  "prescription,"  3» 
"probable  cause,"  ^^  "prompt  and  proper  treatment,"  ^~  "propor- 
tionate to  the  pecuniary  injury,"  ^^  "reasonable,"^*  "requirements 
of  the  law,"  ^^  "residence,"  *®  "satisfied,"  ^'  "unavoidable  acci- 
dent," ^^  "undue  influence,"  ^9  "value  in  money,"*"  "warranty,"" 
"willful,"  or  "willfully,"*^  "without  just  cause,"  *»  ^nd  "wrongful 
and  without  justifiable  cause."** 


2  4  Overhouser  v.  American  Cereal 
Co.,  105  N.  W.  11.3,  12S  Iowa,  580. 

2  5  Ft.  Worth  &  D.  C.  Ry.  Co.  v. 
Berry  (Tex.  Civ.  App.)  170  S.  W.  125. 

26Rooney  v.  Levinson,  111  A.  794, 
95  Conn.  466. 

2  7  Rooney  v.  Levinson,  111  A.  794, 
95  Conn.  466. 

2  8  Cairns  v.  Moore,  69  So.  579.  194 
Ala.  102. 

Sufficient  definitions  of  malice. 
An  instruction  that  malice  includes 
anger,  hatred,  and  revenge,  and  every 
other  unlawful  motive,  and  denotes 
an  action  flowing  from  a  wicked  mind, 
and  that  the  malice  is  infeiTed  from 
any  deliberate  or  cool  act,  however 
sudden,  which  shows  a  malignant 
heart,  is  not  erroneous.  Parsons  v. 
People,  75  N.  E.  993.  218  111.  386.  See 
People  V.  Daniels,  34  P.  233,  4  Cal. 
Unrep.  248.  An  instruction  that  "mal- 
ice is  a  condition  of  mind  which 
shows  a  heart  regardless  of  social 
duty,  and  fatally  bent  on  mischief, 
the  existence  of  which  is  inferred 
from  acts  committed  or  words  spo- 
ken," is  correct.  Bramlette  v.  State, 
21  Tex.  App.  611,  2  S.  W.  765,  57  Am. 
■Riep.  622. 

"Malice  aforethought."  Failure 
to  define  malice  aforethought  is  not 
error  where  the  court  defines  both  ex- 
press and  implied  malice.  Hatcher  v. 
State,  65  S.  W.  97.  43  Tex.  Cr.  R.  237 ; 
Hamp.  v.  State  (Tex.  Cr.  App.)  60  S. 
W.  45;  'Bean  v.  State  (Tex.  Cr.  App.) 
51  S.  W.  946:  Moore  v.  State  (Tex. 
Cr.  App.)  50  S.  W.  355.  An  instruc- 
tion that  the  words  "with  malice,"  as 
used  in  the  instruction,  denoted  a 
wrongful  act  intentionally  done,  and 
that  the  term  "aforethought,"  as  used, 
meant  a  predetermination  to  do  the 
act,  however  suddenly  or  recently 
formed  before  the  act  was  done,  sutti- 
ciently  defined  "malice  aforethought," 


especially  when  taken  In  connection 
with  another  instruction  defining  felo- 
niously" as  meaning  to  proceed  from 
an  evil  heart  or  purpose  done  with 
the  deliberate  intention  to  commit  a 
crime,  though  the  definition  of  malice 
aforethought  did  not  require  that  the 
act  be  done  "without  legal  excuse." 
Potter  V.  Commonwealth,  134  S.  W. 
462,  142  Ky.  378. 

2  9  Kirchgraber  v.  Lloyd,  59  Mo.  App. 
59. 

3  0  Cobb  V.  Covenant  Mut.  Ben. 
As-s'n,  153  Mass.  176,  26  N.  E.  230,  10 
L.  R.  A.  666,  25  Am.  St.  Rep.  619. 

31  Atchison,  T.  &  S.  F.  Ry.  Co.  T. 
Woodson,  100  P.  633,  79  Kan.  567. 

32  Dunnagan  v.  Briggs,  154  S.  W. 
428,  170  Mo.  App.  691. 

33  Merchants'  &  Planters'  Oil  Co.  v. 
Bums,  74  S.  W.  758,  96  Tex.  573,  re- 
versing judgment  (Civ.  App.)  72  S.  W. 
626. 

3*  Coblentz  v.  Putifer,  125  P.  30,  87 
Kan.  719,  42  L.  R.  A.  (N.  S.)  298. 

35  City  of  Chicago  v.  Fields,  139  111. 
App.  250. 

36  Murray  v.  Geiser  Mfg.  Co..  99  P. 
589,  79  Kan.  326. 

37  Riggs  V.  Thorpe,  69  N.  W.  891,  67 
Minn.  217. 

8  8  Leland  v.  Empire  Engineering 
Co.,  108  A.  570.  135  Md.  208. 

39  Gwinn  v.  Hobbs,  118  N.  E.  155. 

40  McLaughlin  v.  United  Railroads 
of  San  Francisco,  147  P.  149,  169  Cal. 
494,  L.  R.  A.  1915E,  1205,  Ann.  Cas. 
1916D,  337. 

41  Flint- Walling  Mfg.  Co.  v.  Ball, 
43  Mo.  App.  504. 

4  2  Carney  v.  State,  175  S.  W.  155, 
76  Tex.  Cr.  R.  379;   Roberts  v.  State, 

43  Jordan  v.  J.  R.  Webber  Moulding 
Co.,  72  Mo.  App.  325. 

4  4  Kepley  v.  Park  Circuit  &  Realty 
Co.  (Mo.  App.)  200  S.  W.  750. 


661 


DEFINITION   OR   EXPLANATION  OF   TERMS 


§357 


Where  the  question  of  negligence  is  submitted  to  the  jury,  the 
court  is  required  in  some  jurisdictions  and  under  some  circum- 
stances to  define  the  terms  "negligence,"  "ordinary  care,"  "reason- 
able care,"  "concurrent  negligent  acts,"  etc.,*«  and  may  properly 
refuse  instructions  which  do  not  include  such  a  definition.*^  There 
is  however,  as  is  implied  in  the  foregoing  statement,  no  inflexible 
rule  that  compels  the  definition  of  such  terms  in  all  cases,      anc 


US   S.   W.   614,   65  Tex.   Cr.   R.   62; 
Dvrley  v.  State  (Tex.  Cr.  App.)  63  S. 
W.   631;    Wheeler  v.   State,  23   Tex. 
App.    598,    5    S.    W.    160;     Sparks  v. 
State,  23  Tex.  App.  447,  5  S.  W.  135. 
Sufficient  definitions.    An  instruc- 
tion that  the  term  "willful"  as  used 
in   the  indictment  signifies  "without 
reasonable  ground   for  believing  the 
act  to  be  lawful,  or  a  reckless  disre- 
gard of  the  rights  of  others,"  is  cor- 
rect.    Finney  v.  State,  29  Tex.  App. 
184,  15  S.  W.  175.     In  a  prosecution 
for  obstructing  a  public  road,  the  defi- 
nition of  "willful"  by  the  court  in  his 
charge  that  by  the  term  it  was  meant 
that  defendant  knew  at  the  time  of 
the  alleged  obstruction  that  the  road 
was  public,  and  that  the  obstruction 
was  placed,  if  it  was  obstructed,  with 
an  evil  intent.    Howard  v.  State,  216 
S.  W.  168,  86  Tex.  Cr.  R.  288.     On  a 
prosecution  for  perjury,   a   definition 
of  "willfully"  as  meaning  that  the  act 
of  the  defendant  was  done  with  an 
evil    intent    or    without    reasonable 
grounds  to  believe  the  act  to  be  lawful 
was  correct.     Clay  v.    State,  107   S. 
W.  1129,  52  Tex.  Cr.  R.  555.     Wliere 
the    instructions    defined    the    word 
"willfully"  as  meaning  with  evil  in- 
tent or  'without   reasonable   grounds 
for  believing  the  act  to  be  lawful,  it 
was  not  necessary  to  give  any  other 
instruction  defining  the  word,  nor  was 
it  necessary   to  carry   the  definition 
forward  in  each  paragraph  of  the  in- 
structions wherein  the  word  was  used. 
Haynes  v.  State,  159  S.  W.  1059,  71 
Tex.  Cr.  R.  31. 

Harmless  error.  Where,  in  a 
prosecution  for  perjury,  the  charge 
covered  all  the  elements  of  the  crime, 
and  was  that  the  statement  must  be 
willfully  and  deliberately  made,  and 
not  through  inadvertence,  mistake,  or 
during  agitation,  to  which  no  objec- 
tion was  taken  until  on  motion  for 
new   trial,  error  in  not  defining  the 


word  "willfully"  was  harmless.  Gar- 
za V.  State  (Tex.  Cr.  App.)  47  S.  W. 
983. 

45  TJ.  S.  Denver  &  R.  G.  R.  Co.  v. 
Norgate,  141  F.  247,  72  C.  C.  A.  365,  6 
L.  R.  A.  (N.  S.)  981,  5  Ann.  Cas.  448. 

Kan.  City  of  Junction  City  v. 
Blades,  1  Kan.  App.  85,  41  P.  677. 

Ky.  Chesapeake  &  O.  Ry.  Co.  v. 
Warnock's  Adm'r,  150  S.  W.  29,  150 
Ky.  74. 

Mo.  Foy  v.  United  Rys.  Co.  of  St. 
Louis,  226  S.  W.  325,  205  Mo.  App. 
521;  Gardner  v.  Metropolitan  St.  R. 
Co.,  152  S.  W.  98,  167  Mo.  App.  G05 ; 
Mather  v.  Metropolitan  St.  Ry.  Co., 
148  S.  W.  383, 166  Mo.  App:  142  ;  Ray- 
bourn  V.  Phillips,  140  S.  W.  977,  160 
Mo.  App.  534 ;  Magrane  v.  St.  Louis  & 
Suburban  Ry.  Co.,  81  S.  W.  1158,  183 
Mo.  119. 

Tex.  Cleburne  Electric  &  Gas  Co. 
V  McCov  (Civ.  App.)  149  S.  W.  534; 
Galveston,  H.  &  S.  A.  Ry.  Co.  v.  De 
Castillo  (Civ.  App.)  83  S.  W.  25. 

Wis.  Yerkes  v.  Northern  Pac  Ry. 
Co.,  88  N.  W.  33,  112  Wis.  184,  88  Am. 
St.  Rep.  961. 

46  Conev  Island  Co.  v.  Dennan  (C. 
C.  A.  Ohio)  149  F.  687,  79  C.  C.  A. 
375 :  Brilliant  Coal  Co.  v.  Barton,  81 
So.  828,  203  Ala.  38. 

"Great  degree  of  care."  An  in- 
sti-uction  that  if  plaintiff  knew  of 
the  existence  of  a  defect  in  a  street,  or 
by  ordinary  care  might  have  known 
thereof,  it  was  her  duty  while  travel- 
ing on  a  dark  night  to  use  a  great 
degree  of  care  to  avoid  the  defect,  and 
that  if  she  had  exercised  due  care  she 
would  have  prevented  the  accident, 
was  properly  refused,  because  refer- 
ring to  a  great  degree  of  care,  without 
defining  it.  Roberts  v.  City  of  Pied- 
mont. 148  S.  W.  119,  106  Mo.  App.  1. 

47  Mo.  Malone  v.  St.  Louis-San 
Francisco  Ry.  Co.,  213  S.  W.  864,  202 
Mo  App.  489;  Anderson  v.  American 
Sash  &  Door  Co.  (App.)  182  S.  W.  819  ; 


§357 


INSTRUCTIONS   TO  JURIES 


66^ 


a  definition  of  "negligence"  is  not  necessary,  where  negligence  is 
not  the  gist  of  the  action/^  nor  where  the  jury  are  practically  told 
what  facts  could  or  would  constitute  negligence."*^ 

While  the  term  "proximate  cause"  is  held  not  to  be  so  techni- 
cal as  to  make  the  failure  to  define  it  in  an  instruction  necessarily 
error,^  and  in  some  jurisdictions  the  rule  is  that  it  need  not  be 
defined,^^  in 'other  jurisdictions  a  definition  of  such  phrase  should 
ordinarily  be  given,  at  least  on  request.^'^ 

The  court  is  not  required  to  give  a  definition  which  would  be 
of  no  value  to  the  jury,^^  and  therefore  it  need  not  define  technical 
words,  if  they  are  otherwise  made  definite  and  intelligible  to  the 
jury,^*  or  where  the  evidence  is  of  such  a  character  that  the  jury 
cannot  be  misled  by  the  failure  to  define  such  terms.^^ 

§  358.     Necessity  of  defining  offense  of  which  defendant  is  ac- 
cused 

The  general  rule  is  that  in  a  criminal  prosecution  the  judge 
should  define  the  offense  charged,  stating  the  essential  elements 
thereof,  either  in  the  language  of  the  statute  or  in  appropriate 
words  of  his  own,^^  and  an  instruction  which  leaves  to  the  jury  the 


Richmond  v.  Missouri  Pac.  Ry.  Co., 
144  S.  W.  16S,  162  Mo.  App.  422; 
Main  v.  Hall.  106  S.  W.  1099,  127  Mo. 
App.  713 ;  Warder  v.  Henry,  117  Mo. 
530,  23  S.  W.  776. 

Tex.  American  Cotton  Co.  v. 
Smith,  69  S.  W.  443,  29  Tex.  Civ.  App. 
425. 

4  8  Kieselhorst  Piano  Co.  v.  Porter, 
171  S.  W.  949,  1S5  Mo.  App.  676. 

49  St.  Clair  Mineral  Springs  Co.  v. 
City  of  St.  Clair,  96  Mich.  463,  56  N. 
W.  18:  Burns  v.  United  Rys.  Co.  of 
St.  Louis.  158  S.  W.  394.  176  Mo.  App. 
330 ;  Landrum  v.  St.  Louis  &  S.  F.  R. 
Co.,  112  S.  W.  1000,  132  Mo.  App.  717. 

5  0  Kieet  V.  Southern  Illinois  Coal  & 
Coke  Co.,  197  111.  App.  243. 

61  Burk  V.  Creamery  Package  Mff?. 
Co.,  102  N.  W.  793,  126  Iowa,  730,  lOG 
Am.  St.  Rep.  377;  City  of  Louisville 
V.  Arrowsmith,  140  S.  W.  1022,  145 
Ky.  498. 

5  2  U.  S.  (C.  C.  A.  Pa.)  Delaware  & 
Hudson  Co.  v.  Ketz,  233  F.  31,  147  C. 
C.  A.  101. 

111.  Bagaini  v.  Donk  Bros.  Coal  & 
Coke  Co.,  199  111.  App.  76;  Swift  & 
Co.  v.  Rennard,  128  111.  App.  181. 

Mo.  Mitchell  v.  Violette  (App.)  203 
S.  W.  218 ;  Turnbow  v.  Dunham,  197 
S.  W.  103,  272  Mo.  53;    Mulderig  v. 


St.  Louis,  etc.,  R.  Co.,  94  S.  W.  801, 
116  Mo.  App.  655. 

Request  necessary.  Instructions 
using  the  word  "proximate"  in  refer- 
ence to  the  cause  of  injury  need  not, 
in  the  absence  of  request,  define  it;  it 
being  an  English  word  with  a  com- 
monly understood  meaning.  Wolters 
V.  Chicago  &  A.  Ry.  Co.  (Mo.  App.) 
193  S.  W.  877. 

53  Karkowski  v.  La  Salle  County 
Carbon  Coal  Co.,  93  N.  E.  780,  248  111. 
195 ;  Pitts  v.  State,  132  S.  W.  801,  60 
Tex.  Cr.  R.  524. 

5  4  Western  Union  Telegraph  Co.  v. 
Brasher,  124  S.  W.  788,  136  Kv.  485 ; 
White  v.  Madison,  83  P.  798,  16  Okl. 
212  ;  Houston,  E.  &  W.  T.  Ry.  Co.  v. 
Vinson  (Tex.  Civ.  App.)  38  S.  W.  540. 

5  5  State  V.  Jacobs,  54  S.  W.  441.  152 
Mo.  565 :  Vasquez  v.  State,  171  S.  W. 
1160,  74  Tex.  Cr.  R.  491. 

56  Ga.  Holt  V.  State,  62  S.  E.  992, 
5  Ga.  App.  184. 

Ind.  Welty  v.  State,  100  N.  E.  73,. 
ISO  Ind.  411. 

Kan.  State  v.  Lynch,  121  P.  351, 
86  Kan.  528. 

Mich.  People  v.  Prinz,  111  N.  W. 
739.  14S  Mich.  307. 

Mo.    State  v.  Reakey,  62  Mo.  40. 

Tex.     Bailey  v.  State  (Cr.  App.)  30 


6G3 


DEFINITION   OR    EXPLANATION    OF    TERMS 


§359 


determination  of  the  elements  of  the  ofifense  is  properly  refused." 
§  359.'    Necessity  of  definition  of  legal  phrases  in  common  use 

The  unexplained  use  of  the  words  "burden  of  proof"  is  not  im- 
proper/""'^ althoug-h  it  is  also  proper  to  refuse  instructions  which 
fail  to  define  such  phrase.^^  It  is  not  ordinarily  necessary  to  de- 
fine "preponderance,"  or  "preponderance  of  the  evidence,"  ^"  in  the 
absence  of  a  request  for  an  instruction  on  the  subject.®^  So  it  is 
ordinarily  not  error  to  fail  to  define  the  words  "felony"  or  "felo- 
niously," ^'  and  it  has  been  held  that  the  court  should  not  attempt 


S.  W.  6(19:  Linclley  v.  State.  S  Tex. 
App.  445 ;  Cady  v.  State,  4  Tex.  App. 
238. 

57  Whatley  v.  State,  39  So.  1014.  144 
Ala.  68. 

5  8  Holmes  v.  Protected  Home  Cir- 
cle. 204  S.  W.  202,  109  Mo.  App.  528 ; 
Steinwender  v.  Creatli,  44  -Mo.  App. 
356:  Miller  v.  Woolman-Todd  Boot  & 
Shoe  Co.,  26  Mo.  App.  57:  Stine  Oil  iK: 
Gas  Co.  V.  EJiRlish  (Tex.  Civ.  App.) 
185  S.  W.  1009. 

5S  Walsh  V.  Metropolitan  Life  Ins. 
Co.,  142  S.  W.  815,  162  Mo.  App.  546 ; 
Berger  v.  St.  Louis  Storage  &  Com- 
mission Co.,  116  S.  W.  444,  136  Mo. 
App.  36 ;  Cramer  v.  Nelson,  107  S.  W. 
450,  128  Mo.  App.  393:  Laurence  L. 
Prince  &  Co.  v.  St.  Louis  Cotton  Com- 
press Co.,  86  S.  W.  873,  112  Mo.  App. 
49;  Mackin  v.  People's  St.  Ry.  &  E. 
L.  &  P.  Co.,  45  Mo.  App.  82. 

CO  Cal.  Franklin  v.  Yisalia  Elec- 
tric K.  Co.,  131  P.  776,  21  Cal.  App. 
270. 

Del.  Wilmington  City  Ry.  Co.  v. 
Truman,  72  A.  983,  7  Penuowill,  197. 

111.  Chicago  City  Ry.  Co.  v.  Kas- 
trzewa,  141  111.  App.  10. 

Iowa.  State  V.  Richardson,  115  N. 
W.  220,  137  Iowa,  591. 

Mo.  Jones  v.  Durham,  67  S.  W. 
976,   94    Mo.    App.   51. 

Mout.  Rand  v.  Butte  Electric  Ry. 
Co.,  107  P.  87,  40  Mont.  398;  State 
V.  Felker,  71  P.  668,  27  Mont.  451. 

Okl.  City  of  Cushing  v.  Bay,  198 
P.  877. 

Tenn.  Endowment  Rank  K.  P.  v. 
Steele,  69  S.  W.  336,  108  Tenn.  624. 

Tex.  Galveston,  H.  &  S.  A.  Ry. 
Co.  V.  Blumberg  (Civ.  App.)  227  S.  W. 
734 ;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Rea- 
gan   (Civ.  App.)   34   S.   W.  796. 

Greater  weight  of  the  evidence. 


The  phrase  "greater  weight  of  the 
evidence"  is  not  so  technical  as  to  re- 
quire explanation  or  elaboration.  If 
a  party  desire  that  it  be  defined,  he 
may  ask  such  definition  by  instruc- 
tions tendered  to  the  court.  Ledford 
V.  Hartford  Fire  Ins.  Co.,  161  111. 
App.  233. 

"1  Georgia  Southern  &  F.  Ry.  Co. 
V.  Young  Inv.  Co.,  46  S.  E.  644,  119 
Ga.  513;  Schoniak  v.  St.  Paul  Fire 
&  Marine  Ins.  Co.,  104  N.  W.  1087, 
96  Minn.  299 

62  Ga.  Jordan  v.  State,  85  S.  E. 
.327,  143  Ga.  449;  Franklin  v.  State, 
S3  S.  E.  196,  15  Ga.  App.  349;  Can- 
trell  V.  State,  80  S.  E.  649,  141  Ga. 
98;  Faison  v.  State,  79  S.  E.  39,  13 
Ga.  App.  180. 

Iowa.  State  v.  Penney,  84  N.  W. 
509.  113  Iowa,  691. 

Ky.  Collier  v.  Commonwealth,  169 
S.  W.  740,  160  Ky.  338;  Metcalfe  v. 
Commonwealth,  86  S.  W.  5.34,  27  Ky. 
Law  Rep.  704;  Hutsell  v.  Common- 
wealth, 75  S.  W.  225,  25  Kv.  Law  Rep. 
262. 

Mich.  People  v.  Gregg,  135  N.  \v. 
970,   170  Jlich.   168. 

Mo.  State  v.  Rowland,  74  S.  W. 
622,  174  Mo.  373;  State  v.  Weber. 
156  Mo.  249,  56  S.  W.  729,  overruling 
State  V.  Brown,  104  Mo.  305.  16  S. 
W.  406;  State  v.  Gi-ant,  1.52  Mo.  57, 
53  S.  W.  432;  State  v.  Barton,  142 
Mo.  450,  44  S.  W.  239 ;  State  v.  Cant- 
lin,  lis  Mo.  100,  23  S.  W.  1091 ;  State 
V.  Scott,  109  Mo.  226,  19  S.  W.  89. 
•  Wash.  State  v,  Churchill,  100  P. 
309,  52  Wash.  210. 

Compare  Holland  v.  State,  60  S.  E. 
205,  3  Ga.  App.  465;  State  v.  John- 
son, 111  Mo.  578,  20  S.  W.  302,  ex- 
plaining State  V.  Brown,  104  Mo.  365, 
16    S.   W,    406,    State   v.    Hayes,    105 


§  360 


INSTRUCTIONS  TO  JURIES 


664 


to  define  the  legal  meaning  of  the  word  "discretion."  ^^  The  defi- 
nition of  "consideration"  or  "voluntary  consideration"  may  not  be 
necessary,^  and  failure  to  define  the  words  "res  gestae"  is  not  re- 
versible error.^^ 

§  360.     Defining  words  of  witness 

The  court  should  not  explain  the  meaning  of  words  as  used  in 
the  testimony  of  a  witness.®^ 

§  361.  Necessity  of  defining  ordinary  words  having  no  special 
technical  meaning 
The  meaning  of  words  and  phrases  in  common  use,  and  which 
have  no  special  technical  meaning  in  the  connection  in  which  they 
are  used,®'  or  words  which  are  plain  in  their  meaning  and  easily 
understood  by  any  one  competent  to  serve  on  a  jury,  need  not  be 


Slo.  76,  16  S.  W.  514,  24  Am.  St.  Rep. 
neo,  and  State  v.  O'Connor,  105  Mo. 
121,  16  S.  W.  510. 

Sufficient  definition.  On  a  mur- 
der trial,  the  definition  of  the  word 
"felonious"  as  meaning  "wickedl.v  and 
against  the  administration  of  the 
law;  unlawfully,"  is  correct.  State 
V.  Parker,  106  Mo.  217,  17  S.  W.  180. 

0  3  Holmes  v.  State,  119  P.  430,  6 
Okl.  Cr.  541. 

6  4  First  Nat.  Bank  v.  Garner,  118 
N.  E.  813,  187  Ind.  391,  rehearing 
denied  119  N.  E.  711,  187  Ind.  391; 
Farmers'  Bank  of  Wfst  Tx)uisville  v. 
Birk,  201  S.  W.  315,  179  Ky.  761. 

6  5  Calsky  v.  State,  39  S.  W.  362,  37 
Tex.  Cr.  R.  247. 

06  Smith  V.  Plant,  103  N.  E.  58,  216 
Mass.  91. 

67  Fla.  Danford  v.  State,  43  So. 
593.  53  Fla.  4. 

Ga.  Western  Union  Telegraph  Co, 
V.  Ford,  74  S.  E.  70,  10  Ga.  App.  606. 

111.  Henderson  v.  People,  124  111. 
607,  17  N.  E.  68,  7  Am.  St.  Rep.  391. 

Iowa.  Wegner  v.  Kelly,  165  N.  W. 
449,  182  Iowa,  259,  affirming  judg- 
ment on  rehearing  157  N.  W.  206; 
State  V.  Pell,  119  N.  W.  154,  140 
Iowa,  655;  Iowa  State  Sav.  Bank  v. 
Black,  91  Iowa,  490,  59  N.  W.  283. 

Ky.  C.  F.  Kleiderer  &  Son  v.  Al- 
dridge's  Ex'x,  170  S.  W.  23,  160  K;y. 
638;  Maysville  &  B.  S.  R.  Co.  v.  Wil- 
lis, 104  S.  W.  1016,  31  Ky.  Law  Rep. 
1249;    Louisville  &  E.  R,  Co,  v.  Vin- 


cent, 96  S.  W.  898,  29  Ky.  Law  Rep. 
1049. 

Me.     Berry  v.  Billings,  47  Me.  328. 

Mich.  Miller  v.  Beck,  35  N,  W. 
899,  68  Mich.  76. 

Mo.  Ganahl  v.  United  Rys.  Co.  of 
St.  Louis,  197  S.  W.  159,  197  Mo.  App. 
495;  Moore  v.  McCutchen  CApp.)  190 
S.  W.  350;  Morris  v.  St.  Louis  &  S. 
F.  R.  Co.,  168  S.  W.  325,  184  Mo.  App. 
65;  Clonts  v.  Laclede  Gaslight  Co., 
140  S.  W.  970,  160  Mo.  App.  456; 
State  V,  Barrington,  95  S.  W.  235,  198 
Mo,  23;  State  v,  McGuire,  91  S,  W. 
939,  193  Mo.  215;  Kischman  v.  Scott, 
166  Mo.  214,  65  S.  W.  1031;  Feary 
V.  O'Neill,  149  Mo.  467,  50  S.  W.  918, 
73  Am,  St.  Rep,  440;  Farmer  v. 
Farmer,  129  Mo.  530,  31  S.  W.  926; 
State  V.  Harkins,  100  Mo,  6G6,  13  S. 
W,  830:  Cottrill  v,  Knim,  100  Mo. 
397,  13  S.  W.  753,  18  Am.  St.  Rep. 
549;    Reeds  v.  Lee,  64  Mo.  App.  683. 

Neb.  Home  Fire  Ins.  Co.  v.  Deck- 
er, 75  N.  W.  841,  55  Neb.  346. 

N.  J.  State  V.  Rombolo,  103  A.  203, 
91  N.  J.  Law,  560, 

Tex.  Lattimore  v.  Puckett  &  Wear 
(Civ.  App.)  161  S.  W.  951;  Curring- 
ton  V.  State,  161  S.  W.  478,  72  Tex. 
Cr.  R.  143;  Blackburn  v.  State,  160 
S,  W,  687,  71  Tex.  Cr.  R.  625 ;  Clay 
V.  State,  146  S.  W.  166,  65  Tex.  Cr, 
R.  590;  Southwestern  Ry,  Co.  v. 
Bradford  (Civ.  App.)  139  S.  W.  1046 ; 
Johnson  v.  W.  H.  Goolsby  Lumber 
Co.  (Civ.  App.)  121  S.  W.  883 ;   Raley 


665 


DEFINITION   OK   EXPLANATION   OF   TERMS 


361 


defined.**  Under  this  rule  it  is  not  necessary  to  define  such  words 
as  "accommodation," «»  "accrued,"''®  "agent,"'!  "assumed  risk/'" 
"bona  fide  holder," '»  "circumstantial  evidence,"'*  "city,"'^  "co- 
habit,"'* "conspiracy,""  "contributed," '»  "control," '»  "corrobo- 
ration,"*"  "credible,"   or  "credibility,"  ^^   "cruel   or   unusual   man- 


V.  State,  105  S.  W.  342,  47  Tex.  Civ. 
App.  426;  Robinson  v.  State  (Cr. 
App.)  63  S.  W.  869;  A.  J.  Anderson 
Electric  Co.  v.   Cleburne  Water,  Ice 

6  Lighting  Co.,  57  S.  W.  575,  23  Tex. 
Civ.  App.  328;  Beard  v.  State,  53  S. 
W.  348,  41  Tex.  Cr.  R.  173 ;  Galveston, 
H.  &  S.  A.  Ry.  Co.  V.  Henning  (Tex. 
Civ.  App.)  39  S.  W.  302,  affirmed  40  S. 
W.  392.  90  Tex.  656. 

Wash.  Akin  v.  Bradley  Engineer- 
ing &  Machinery  Co.,  99  P.  1038,  51 
Wash.  658. 

6  8  Cal.  People  v.  Wong  Hing,  169 
P.  357,   176  Cal.  699. 

Colo.  West  V.  People,  156  P.  137, 
60  Colo.  488. 

Ga.  Jackson  v.  Georgia  R.  & 
Banking  Co..  67  S.  E.  898,  7  Ga.  App. 
644:    Woodall  v.  State,  66  S.  E.  619, 

7  Ga.  App.  245;  Atlanta  Baggage  & 
Cab  Co.  V.  Mizo,  61  S.  E.  844.  4  Ga. 
App.  407. 

111.  People  V.  Capello.  118  N.  E. 
927.  282  Til.  542 ;  People  v.  Anderson, 
87  N.  E.  917.  239  111.  168. 

Iowa.  State  V.  Bresee,  114  N.  W. 
45.  137  Towa,  673,  24  L.  R.  A.  (N.  S.) 
103 ;  State  v.  Bone,  87  N.  W.  507,  114 
Iowa.  537. 

Ky.  Kentucky  Utilities  Co.  v.  Mc- 
carty's Arlm'r.  186  S.  W.  150.  170  Ky. 
,543,  modifving  iudsment  1S3  S.  W. 
237,  169  Ky.  .38;  .T.  Y.  Pilcher  Mfg. 
Co.  V.  Teupe's  Ex'x.  91  S.  W.  1125, 
28  Ky.   Law  Rep.  1350. 

Mass.  Commonwealth  v.  Buckley, 
86  N.  E.  910.  200  Mass.  346,  22  L.  R. 
A.   (N.  S.)  225.  128  Am.  St.  Rep.  425. 

Mo.  State  v.  Long,  100  S.  W.  587. 
201  Mo.  664;  Boettger  v.  Scherpe  & 
Koken  Architectural  Iron  Co.,  38  S. 
W.  298,  136  Mo.  531;  Goldsmith  v. 
Wamsganz.  86  Mo.  App.  1. 

Mont.  State  v.  Lewis,  159  P.  415, 
52  Mont.  495. 

Tex.  Schramm  v.  Wolff  (Civ. 
App.)  126  S.  W.  1185;  Trinity  &  B. 
V.  Ry.  Co.  V.  Elgin,  121  S.  W.  577,  56 
Tex.   Civ.   App.    573 ;     Humphreys    v. 


State,  34  Tex.   Cr.  R.  434,  30  S.  W. 
1066. 

Vt.  Eastman  v.  Curtis,  67  Vt.  432, 
32  A.  232. 

fi9Larimore  v.  Legg,  23  Mo.  App. 
645. 

TojrcDonnell  v.  Nicholson,  67  Mo. 
App.  408. 

7 1  Harper  v.  Fidler,  105  Mo.  App. 
680,  78  S.  W.  1034. 

7  2  Corell  V.  Williams  &  Hunting 
(Iowa)  148  N.  W.  633. 

7  3  King  V.  Heilig,  203  111.  App.  117. 

In  Missouri,  however,  it  has  been 
held  that  instructions  should  employ 
plain  and  unambiguous  English,  and 
to  tell  the  jury  that  if  defendant  as- 
signed his  property  in  good  faith  and 
for  the  purpose  of  paying  or  securing 
his  bona  fide  debts,  that  the  assign- 
ment was  not  made  to  hinder,  etc., 
without  defining  the  tenns  "good 
faith"  and  "bona  fide,"  is  error.  Bow- 
les Live  Stock  Commission  Co.  v. 
Hunter.  91  Mo.  App.  .333. 

7  4  Pope  v.  Seaboard  Air  Line  Ry., 
94  S.  E.  311.  21  Ga.  App.  251. 

7  5  Stotler  v.  Chicago  &  A.  Ry.  Co.. 
98  S.  W.  .509.  200  Mo.  107. 

7  6  State  V.  Knost.  105  S.  W.  616. 
207  Mo.    18. 

7  7  Frederick  v.  Morse,  92  A.  16,  88 
Vt.  126. 

7«  Bunyan  v.  Loftus,  90  Iowa,  122, 
57  N.  W.  685. 

7  0  Texas  Electric  Ry.  v.  Stewart. 
217  S.  W.  1081. 

so  Mo.  State  v.  Daly,  109  S.  W. 
53,  r?10  Mo.  664:  Buckley  v.  State,  181 
S.  W.  729 ;  Moore  v.  State,  144  S.  W. 
598,  65  Tex.  Cr.  R.  453;  Harris  v. 
State,  144  S.  W.  232,  64  Tex.  Cr.  R. 
594 ;  Austin  v.  State,  101  S.  W.  1102, 
51  Tex.  Cr.  R.  .327;  Still  v.  State 
(Tex.  Cr.  App.)  50  S.  W.  355. 

Contra,    People   v.    Sternberg,    111 

Cr.l.  11.  43  P.  201;    State  v.  Hunter, 

80  S.  W.  955,  181  Mo.  316;    State  v. 

McLaiu,  60  S.  W.  736.  159  Mo.  340. 

M  Barber  v.  State,  142  S.  W.,  577, 


§  361 


INSTRUCTIONS   TO  JURIES 


66a 


ner,"  *~  "dangerous,"  *^  "deceptive/'  or  "deceptively,"  **  "deliver," 
or  "deliverv,"  *^  "drunkenness,"  *^  "efficient  and  procuring- 
cause,"*'  "exhibit,"  88  "extort," »»  "fact," »»  "flying  switch,"  »^ 
"fraud,"  "fraudulent,"  or  "fraudulent  statement,"  or  kindred 
words,92  "good  repute,"  »=^  "habitual  drunkard,"  »*  "habitually,"  ^^ 
"imminent  peril,"  ^^  "intoxicated,"  ^"  "lucid  interval,"  ^  "material 
fact,"  ®^  "materially,"  ^  "may,"  ^  "misrepresentation,"  *  "occupa- 
tion," or  "business,"*  "open  and  gross,"  ^  "passenger,"®  "pimp,"' 
"prima  facie,"  *  "procuring  cause,"  ^  "proper  inspection,"  ^^  "pros- 


64  Tex.  Or.  R.  96;  Chavarria  v.  State 
(Tex.  Cr.  App.)  63  S.  W.  312. 

82  State  V.  Colvin,  126  S.  W.  448, 
226  Mo.  446 ;  State  v.  Linney,  52  Mo. 
40. 

8  3  Gilbert  v.  Hilliard  (Mo.  App.) 
222  S.  W.  1027. 

8  4  Glover  v.  American  Hominj' 
Flal^es  Co.,  76  Mo.  App.  108. 

8  5  Jameson  v.  Flournoy,  184  P. 
910.   76   Okl.   227. 

8  6  State  V.  Bobbst,  190  S.  W.  2.5'r, 
269  :Mo.  214. 

Sufficient  definition  in  absence 
of  reqnest  for  amplification.  An 
instruction  defining  drunkenness  as 
that  condition  of  a  person  due  to 
the  excessive  use  of  intoxicatinsr  liq- 
noTs,  in  accordance  with  the  common 
experience  of  the  jurors,  etc.,  was 
sufficient,  in  the  absence  of  any  re- 
quest to  amplify  the  same.  People  v. 
Lowrie,  128  N.  W.  741,  163  Mich.  514. 

8  7  Ramsey  v.  Gibson  (Tex.  Civ, 
App.)    185    S.   W.    1025. 

8  8  State  v.  Nichols,  170  S.  W.  1110, 
262  Mo.  113. 

8  9  State  V.  Tx»uanis,  65  A.  532,  79 
Vt.  463,  9  Ann.  Cas.  194. 

9  0  In  re  Nutt's  Estate,  185  P.  393, 
181  Cal.  522. 

91  Lange  v.  Missouri  Pac.  Ry.  .Co., 
91  S.  W.  989,  115  Mo.  App.  582. 

9  2  Barco  v.  Taylor,  63  S.  E.  224,  5 
Ga.  App.  372;  State  v.  Gregory,  71 
S.  W.  170,  170  Mo.  598;  Kischman 
V.  Scolt,  65  S.  W.  1031,  166  Mo.  214 ; 
Fearv  v.  O'Neill,  149  Mo.  467,  50  S, 
W,  918,  73  Am.  St,  Rep,  440. 

9  3  State  V.  Walker,  134  S,  W,  516, 
232  Mo.  252, 

9*Rimkle  v.  Southern  Pac,  Milling 
Co.  (Cal.)  195  P.  .398. 


0  5  Johnson  v.  State,  104  S.  W.  902, 
51  Tex.  Cr.  R.  648. 

9  6  Ervant  v.  Kansas  City  Rys,  Co. 
(Mo.)    228    S.    W.    472. 

9  7  iMvitual  Life  Ins'.  Co.  v.  Johnson, 
166  P.  1074,  64  Okl.  222, 

9  8  Montgomery  v.  State,  151  S.  W. 
S13,  68  Tex.  Or.  R.  78. 

9  9  North  Chicago  St.  R.  Co.  v. 
Shreve,  49  N.  E.  534.  171  111.  438,  af- 
firming .iudgment  70  111.  App.  666 ; 
State  v.  Davidson,  157  S,  W.  890,  172 
Mo.  App.  356. 

1  Illinois  Cent.  R.  Co.  v.  Tolar's 
Adm'r.  183  S.  W.  242,  169  Ky,  114. 

2  Eewiston  Milling  Co.  v.  Cardiff 
(C,  C.  A.  Idaho)  266^  F.  7.53. 

3  Zackwik  v.  Hanover  Fire  Ins.  Co. 
(Mo.  App.)  225  S.  W.  135. 

4  Figueroa  v.  State,  159  S.  W.  1188, 
71  Tex.  Cr.  R.  371 ;  Dickson  v.  State, 
146  S.  W,  914,  66  Tex.  Cr.  R.  270. 

5  State  V,  Pedigo,  176  S.  W.  556, 
190  Mo.  App.  293,  certiorari  dismissed 
(Sup.)  State  ex  rel.  Pedigo  v,  Robert- 
son, 181  S.  W,  987, 

6  Schwanenfeldt  v.  Metropolitan  St. 
Ry.  Co.,  174  S,  W,  143,  187  Mo.  App. 
.^88;  Gillogly  v.  Dunham,  174  S,  W. 
118,  187  Mo.  App.  551, 

7  People  V,  Gastro,  42  N.  W.  937,  75 
Mich.  127. 

sBalfe  V.  People,  179  P.  137,  66 
Colo.  94 ;  Chicago  &  A.  R.  Co.  v.  Es- 
ten,  52  N.  E.  954,  178  111.  192,  affirming 
judgment  78  111.  App.  326. 

Contra,  Nelson  v.  State,  168  P.  460, 
14  Okl.  Cr.  153, 

9  Lumsrlen  v.  Jones  (Tex.  Civ.  App.) 
227  S.  W.  358. 

10  Brogan  v.  Union  Traction  Co.,  8Q 
S.  E.  753,  76  W.  Va.  698. 


667 


DEFINITION    OR    EXPLANATION    OF    TERMS 


362 


titution,"  ^^  "punitive,"  or  "exemplary,"  ^^  "reasonable  diligence,"  ^^ 
"reasonable  proximity,"  ^*  "reasonable  time,"  ^^  "reputation."  ^* 
"self-defense,"^'  "serious  bodily  injury,"  ^^  "stone,"  ^^  "substan- 
tial," or  "substantially,"  ~«  and  "theft."  ^i 

§  362.     Necessity  of  request  for  definition 

As  a  general  rule,  a  party  who  does  not  request  an  instruction 
defining  a  word  or  phrase  cannot  complain  of  the  failure  to  give 
it;^^'  this  rule  applying  to  the  definition  of  such  words  as  "accom- 


11  Clark  V.  State,  174  S.  W.  354,  76 
Tex.  Cr.  R.  34S ;  Tores  v.  State  (Tex. 
Cr.  App.)  63  S.  W.  880. 

12  St.  Louis  &  S.  F.  R.  Co.  v.  Moore, 
58  So.  471,  101  Miss.  70S,  39  D.  R.  A. 
<N.  S.)  978,  Ann.  Cas.  1914B,  597; 
Distler  v.  Missouri  Pac.  Ry.  Co.,  147 
S.  W.  518,  163  Mo.  App.  674. 

In.  Michigan  it  has  been  held,  in 
an  action  under  a  statute  providing 
that  one  selling  intoxicating  liquor 
to  a  minor  shall  be  liable  for  both 
actual  and  exemplary  damages,  that 
as  "exemplary  damages"  does  not 
mean  "smart  money,"  but  means  com- 
pensatory damages  for  wounded 
pride,  mortification,  injury  to  feel- 
ings, mental  anxiety  and  the  like,  an 
instruction  using  the  term  "exemplary 
damages"  should  explain  its  real 
meaning.  Hink  v.  Sherman,  129  N. 
W.  732,  164  Mich.  352. 

13  Texas  Midland  R.  R.  v.  Ritchey, 

108  S.  W.  732,  49  Tex.  Civ.  App.  409. 

14  Oliver  v.  Fomev  Cotton  Oil  & 
Ginning  Co.  (Tex.  Civ.  App.)  226  S.  W. 
1094. 

i^j  Rettoki  V.  Northwestern  Coal  & 
Mining  Co.  (Mo.  App.)  180  S.  W.  1021 ; 
Houston  &  T.  0.  R.  Co.  v.  Roberts, 

109  S.  W.  982,  50  Tex.  Civ.  App.  69. 

16  Pitman  v.  Drown,  195  S.  W.  815. 
176  Ky.  263. 

17  State  V.  Bailev.  88  S.  W.  7.33,  190 
Mo.  257. 

Contra,  Bone  v.  State,  68  So.  702, 
13  Ala.  App.  5. 

18  Thomas  v.  State,  116  S.  W.  600, 
55  Tex.  Cr.  R.  293. 

10  Commonwealth  v.  Carroll,  145 
Mass.  403.  14  N.  E.  618. 

2oDeathprage  Lumber  Co.  v.  Snj'- 
der,  65  Mo.  App.  568. 

24Bloch  v.  U.  S.  (0.  C.  A.  Tex.) 
201  F.  321,  certiorari  denied  40  S.  Ct. 
481,  253  U.  S.  484,  64  L.  Ed.  1025. 


-i  Ark.  Morris  v.  Collins,  191  S. 
W.  963,  127  Ark.  68. 

Cal.  People  v.  Hirsch,  132  P.  1062, 
21  Cal.  App.  737. 

Ga.  City  of  Americus  v.  Phillips. 
79  S.  E.  36,  13  Ga.  App.  321. 

111.  Henderson  v.  People,  124  111. 
607,  17  N.  E.  68,  7  Am.  St.  Rep.  391. 

Ind.  Jenney  Electric  Mfg.  Co.  v. 
Flannery,  98  N.  E.  424,  53  Ind.  App. 
397. 

Iowa.  Wegner  v.  Kelly,  165  N. 
W.  449,  182  Iowa,  2.59,  affirming  judg- 
ment on  rehearing  157  N.  W.  206 : 
Richards  v.  Crosby,  162  N.  W.  609. 
179  Iowa,  1355 ;  Wickwire  v.  Web- 
ster City  Savings  Bank,  133  N.  W. 
100, 153  Iowa,  225  ;  State  v.  Mahoney, 
97  N.  W.  1089,  122  Iowa,  168;  State 
V.  Atkins,  97  N.  W.  996,  122  Iowa,  161. 

Ky.  Louisville  &  E.  R.  Co.  v.  Vin- 
cent, 9G  S.  W.  898,  29  Ky.  Law  Rep. 
1049 ;  Louisville  &  N.  R.  Co.  v.  Fow- 
ler, 96  S.  W.  568,  29  Ky.  Law  Rep. 
905;  Russell  v.  Cincinnati  R.  Co.,  4 
Ky.  Law  Rep.  (abstract)  906. 

Mass.  Dunham  v.  Holmes,  113  N. 
E.  845,  225  Mass.  68. 

Minn.  Gruber  v.  German  Roman 
Catholic  Aid  Ass'n  of  Minnesota,  129 
N.  W.  581,  113  Minn.  340;  Kostuch 
V.  St.  Paul  City  Ry.  Co.,  81  N.  W.  215. 
78  Minn.  459. 

Mo.  Dabbs  v.  Kansas  City  South- 
ern Ry.  Co.  (App.)  202  S.  W.  276: 
State  V.  Eraser,  143  S.  W.  545,  161 
Mo.  App.  333 ;  Asmus  v.  United  Rys. 
Co.  of  St.  I^uis,  134  S.  W.  92.  152  Mo. 
App.  521 ;  Kirby  v.  Tvower,  124  S.  W. 
34,  139  Mo.  App.  677. 

N.  D.  Reichert  v.  Northern  Pac. 
Ry.  Co.,  167  N.  W.  127.  .39  N.  D.  114. 

Pa.  Lindemann  v.  Pittsburgh  Rys. 
Co..  96  A.  1085,  251  Pa.  489. 

S.  C.  State  V.  Allen,  96  S.  E.  401. 
110  S.  C.  278. 


362 


INSTRUCTIONS   TO  JURIES 


668 


modation,"  ^^  "accomplice,"^*  "adverse  possession,"  ^^  "agent,"  ^^ 
"aid,"  2'  "assault,"  28  "burden  of  proof,"29  "carnal  knowledge,"  ^o 
"cattle    guards,"  ^^   "circumstantial   evidence,"  ^^   "concealed   wea- 


Tex.  Millsaps  v.  Johnson  (Civ. 
App.)  190  S.  W.  202;  Galveston,  H. 
&  S.  A.  Ry.  Co.  V.  Roemer  (Civ.  App.) 
173  S.  W.  229;  Ellerd  v.  Campfield 
(Civ.  App.)  161  S.  W.  392;  Day  v. 
Becker  (Civ.  App.)  145  S.  W.  1197; 
Kretzschmar  v.  Pescliel  (Civ.  App.) 
144  S.  W.  1021;  Knight  v.  Durham 
(Civ.  App.)  136  S.  W.  591;  Berry  v. 
State  (Civ.  App.)  135  S.  W.  631;  St. 
Louis,  B.  &  M.  Ry.  Co.  v.  West,  131 
S.  W.  839,  62  Tex.  Civ.  App.  553 ;  Tex- 
as &  N.  O.  R.  V.  Walker,  125  S.  W. 
99,  58  Tex.  Civ.  App.  615 ;  Galveston, 
H.  &  S.  A.  Rv.  Co.  V.  Harper,  114  S. 
W.  1168.  53  Tex.  av.  App.  614,  judg- 
ment affirmed  on  rehearing,  114  S.  W. 
1199,  53  Tex.  Civ.  App.  614;  West- 
ern Union  Telegraph  Co.  v.  Craven 
(Civ.  App.)  95  S.  W.  633 :  Pacific  Mut. 
Life  Ins.  Co.  v.  Terry,  84  S.  W.  656, 
37  Tex.  Civ.  App.  486 ;  Galveston,  H. 
&  S.  A.  Ry.  Co.  V.  Ford,  54  S.  W.  37, 
22  Tex.  Civ.  App.  131;  Arkansas 
Const.  Co.  v.  Eugene.  50  S.  W.  736, 
20  Tex.  Civ.  App.  GOl ;  Schulz  v. 
Tessman  (Tex.  Civ.  App.)  48  S.  W. 
207,  reversed  49  S.  W.  1031,  92  Tex. 
488. 

Wis.  Holmes  v.  State,  102  N.  W. 
321,  124  Wis.  133. 

Definition  of  statutory  phrase. 
In  an  action  for  causing  the  death  of 
plaintiff's  son,  failure  to  define  the 
meaning  of  the  statutory  phrase, 
"such  damages  as  they  may  think 
proportioned  to  the  injury,"  is  not 
ground  for  reversal,  where  no  request 
is  made  therefor,  and  the  court  charg- 
es the  jury  in  the  language  of  the 
statute,  and  gives  the  construction 
placed  on  it  by  the  supreme  court, 
and  also  charges  that  the  jury  cannot 
give  punitive,  l)ut  only  compensatory, 
damages.  Nohrden  v.  Northeastern 
R.  Co.,  37  S.  E.  228,  59  S.  C.  87,  82 
Am.  St.  Rep.  826.  Where  a  statute 
provides  that  if  a  person  is  injured 
at  a  crossing,  and  the  railroad  cor- 
poration neglects  to<  give  the  statu- 
tory signals,  and  such  neglect  contrib- 
utes  to   the   injury,   the   coi'poration 


shall  be  liable,  etc.,  it  is  not  error  to 
omit  to  explain  to  the  jury  the  mean- 
ing of  the  term  "contributes,"  as  used 
in  said  statute,  where  no  request 
therefor  is  made  at  the  trial.  Wragge 
V.  South  Carolina  &  G.  R.  Co.,  47  S. 
C.  105,  25  S.  E.  76,  58  Am.  St.  Rep. 
870,  33  L.  R.  A.  191. 

Necessity  of  request  for  fuller 
definition.  In  a  homicide  case,  if 
the  court's  charge  on  manslaughter, 
in  defining  adequate  cause  as  being 
such  as  "would  commonly  produce  a 
degree  of  anger,  rage,  resentment,  or 
terror  in  a  person  of  ordinary  temper 
sufficient  to  render  the  mind  incapable 
of  cool  reflection,"  was  insufficient,  in 
that  the  evidence  showed  accused  to 
be  subject  to  epileptic  fits  and  nerv- 
ous and  irritable,  he  should  have  of- 
fered some  other  definition.  Zimmer- 
man V.  State,  215  S.  W.  101,  85  Tex. 
Cr.  R.  630. 

2  3  Sales  V.  Martin,  191  S.  W.  480, 
173  Ky.  616. 

24  Driggers  v.  United  States,  104  S. 
W.  1166,  7  Ind.  T.  752,  judgment  re- 
versed 95  P.  612,  21  Okl.  m,  1  Okl. 
Cr.  167,  129  Am.  St.  Rep.  823,  17  Ann. 
Cas.  66. 

2  5  Western  North  Carolina  Land 
Co.  v.  Scaife  (C.  C.  A.  N.  C.)  80  F.  352, 
25  C.  C.  A.  461;  Robinson  v.  Mclver 
(Tex.  Civ.  App.)  23  S.  W.  915. 

2  6  Smith  V.  Brinson,  89  S.  E.  368, 
145  Ga.  406. 

2  7  State  V.  McDonald,  193  P.  179, 
107  Kan.  568. 

2  8  Roark  V.  State,  32  S.  E.  125,  105 
Ga.  736;  State  v.  Baker,  135  N.  W. 
1097,  157  Iowa,  126,  judgment  modi- 
fied on  rehearing  138  N.  W.  841,  157 
Iowa,  126. 

2»  Howard  v.  Beldenville  Lumber 
Co.,  108  N.  W.  48,  129  Wis.  98. 

30  Drake  v.  State,  151  S.  W.  315, 
68  Tex.  Cr.  R.  94. 

2^1  Quinn  v.  Atchison,  T.  &  S.  F.  Ry. 
Co.  (Mo.  App.)  193  S.  W.  933. 

3  2  Hamilton  v.  State,  89  S.  E.  449, 
18  Ga.  App.  295. 


669 


DEFINITION   OR   EXPLANATION   OF   TERMS 


362 


pons,"  ^*  "conspiracy,"  ^*  "conspiracy  to  defraud  creditors,"  *^ 
"converted,"  ^*  "deliberation  and  premeditation,"  *''  "disease  of  a 
serious  nature,"  ^^  "efficient  and  procuring-  cause,"  ^®  "exigency,"  *" 
"false,"  or  "forgery,""  "felony," «  "fornication," «  "fraud"  or 
"undue  influence,"*^  "fraudulent  taking,""*^  "gambling  house,"  ^« 
"heat  of  passion,"*'  "in  evasion  of  the  statute,""  "inmate," •*»  "in- 
terstate commerce,"  ^^  "malice,"  ^*  "malt,"  ^^  "margin,"  ^^  "market 
value,"  ^*  "mitigate,  excuse  or  justify,"  ^^  "murder,"  ®®  "negli- 
gence," "ordinary  care,"  and  kindred  words,^'''  "nighttime,"  ^*  "no- 


33  Johnson  v.  State,  40  So.  678,  51 
Fla.  44. 

3  4  Yasser  v.  State,  87  S.  W.  635,  75 
Ark.  373. 

3  5  Wiler  v.  Manlev,  51  Ind.  169. 

3  6  Walker  v.  Lewis,  124  S.  W.  567, 
140  Mo.  App.  26. 

37  State  V.  Armstrong,  79  P.  490,  37 
Washr  51. 

3  8  Woodmen  of  the  World  v.  Lock- 
lin,  67  S.  W.  331,  28  Tex.  dv.  App. 
486. 

30  Black  T.  Wilson  (Tex.  Civ.  App.) 
187  S.  W.  493. 

40  Rocci  V.  Massachusetts  Ace.  Co., 
11©  N.  E.  477,  226  Mass.  545. 

41  People  V.  Warner,  104  Mich.  337, 
62  N.  W.  405. 

4  2  Evans  v.  State,  102  S.  E.  43.  24 
Ga.  App.  700;  Smith  v.  State,  99  S. 
E.  142,  23  Ga.  App.  541;  Cook  v. 
State,  96  S.  E.  .393.  22  Ga.  App.  266; 
Pressley  v.  State,  63  S.  E.  784,  132  Ga. 
64;  People  v.  Meyer,  124  N.  E,  447, 
289  111.  184. 

43  Hembree  v.  State,  86  S.  E.  286, 
17  Ga.  App.  117. 

44  Pye  V.  Pye.  65  S.  E.  424,  133  Ga. 
246;  Bugg  v.  Holt,  97  S.  W.  29,  29 
Ky.  Law  Rep.  1208. 

45  Ellington  v.  State,  140  S.  W. 
1102,  63  Tex.  Cr.  R.  420. 

4G  Schmidt  v.  Territory,  108  P.  246, 
13  Ariz.  77 ;  Bluhakis  v.  State,  88  S. 
E.  911,  18  Ga.  App.  112. 

47  State  V.  Buffington,  81  P.  465,  71 
Kan.  804,  4  L.  R.  A.  (N.  S.)  154; 
Beauregard  v.  State,  131  N.  W.  347, 
146  Wis.  280. 

48  State  V.  Fountain,  168  N.  W.  285, 
183  Iowa,  1159. 

49  State  V.  Burley,  165  N.  W.  190, 
181  Iowa,  981. 

5  0  Malott  V.  Hood,  66  N.  E.  247,  201 


111.  202,  affirming  judgment  99  111. 
App.  360. 

5xPtK)ple  V.  Glaze,  72  P.  965,  139 
Cal.  154;  State  v.  Moynihan,  106  A. 
817,  93  N.  J.  Law,  2.53. 

6  2  Edwards  v.  City  of  Gulfport,  49 
So.  620,  95  Miss.  148. 

63  Gill  V.  State,  30  Ohio  Cir.  Ct.  R. 
278. 

54Texarkana  &  Ft.  S.  Ry.  Co.  v. 
Spencer,  67  S.  W.  196,  28  Tex.  Civ. 
App.  251. 

=  5  Kelly  V.  State,  151  S.  W.  304,  68 
Tex.  Cr.  R.  317. 

5  6  Dixon  V.  State,  64  So.  468,  100 
Miss.  697,  overruling  suggestions  of 
error  64  So.  379. 

5  7  u.  S.  Western  Union  Tel.  Co. 
V.  Engler  (C.  C.  A.  Nev.)  75  F.  102, 
21  C.  C.  A.  246,  affirming  judgment 
Engler  v.  Western  Union  Tel.  Co.  (C. 
C.)  69  F.  185. 

Ark.  Western  Coal  &  Mining  Co.  v. 
Jones,  87  S.  W.  440,  75  Ark.  76. 

Cal,  O'Connor  v.  United  Railroads 
of  Snn  Francisco,  141  P.  809,  168 
Cal.  43. 

Colo.  Colorado  &  S.  Ry.  Co.  v. 
Webb,  85  P.  683.  36  Colo.  224. 

Ga.  Wakefield  v.  Lee.  90  S.  E.  224, 
18  Ga.  App.  648;  Atlantic  &  B.  Rv. 
Co.  V.  Smith,  58  S.  E.  542,  2  Ga.  App. 
294. 

Iowa.  Fisher  v.  Cedar  Rapids  & 
M.  C.  Ry.  Co.,  157  N.  W.  860,  177 
Iowa.  400. 

Ky.  Blue  Grass  Traction  Co.  v. 
Ingles,  131  S.  W.  278.  140  Ky.  488: 
South  Covington  &  C.  St.  Ry.  Co.  v. 
Brown,  104  S.  W.  703,  31  Ky.  Law 
Rep.  1072;    Cincinnati.  N.  O.  &  T.  P. 

■■^  Shaffel  V.  State,  72  N.  W.  888.  07 
Wis.  ,377. 


362 


INSTRUCTIONS  TO  JURIES 


670 


tice,"  ^9  "not  guilty,"  ^^  "part  with  ownership,"  «i  "penetration,"  <'" 
"plea  of  avoidance,"  ^^  "premeditated  design,"  ®*  "premises,"  ^^ 
"prima  facie,"  or  "prima  facie  evidence,"  ®^  "probable  profits,"  ^^ 
"proximate  cause,"  ^^  "proximate  result,"  ®^  "publication," '"  "rea- 
sonable cause,"  '1  "remove,"  '^''  "reputation,"  "'^  "robbery,"  '*  "spe- 


Ry.  Co.  V.  Cecil,  90  S.  W.  585,  28  Ky. 
Law  Rep.  830;  Cincinnati,  etc.,  R. 
Co.  V.  Richardson,  14  Ky.  Law  Rep. 
(abstract)  36'7. 

Mo.  Unionville  Produce  Co.  v.  Chi- 
cago, B.  &  Q.  R.  Co.,  153  S.  W.  63, 
168  Mo.  App.  1G8;  Rippetoe  v.  Mis- 
souri, K.  &  T.  Ry.  Co.,  122  S.  W. 
314,  138  Mo.  App.  402 ;  Rattan  v.  Cen- 
tral Electric  Ry.  Co.,  96  S.  W.  735, 
120  :Mo.  App.  270 ;  Ashby  v.  Elsberry 
&  N.  H.  Gravel  Road  Co.,  85  S.  W. 
957,  111  Mo.  App.  79;  Priesmeyer  v. 
St.  Louis  Transit  Co.,  77  S.  W.  313, 
102  Mo.  App.  518 ;  Quirk  v.  St.  Louis 
United  Elevator  Co.,  126  Mo.  279,  28 
S.  W.  1080;  Johnson  v.  Missouri 
Pac.  Ry.  Co.,  96  Mo.  340,  9  S.  W.  790, 
9  Am.  St.  Rep.  351. 

N.  J.  Blumenfeld  v.  Hudson  &  M. 
R.  Co.,  99  A.  312,  89  N.  J.  Law,  580. 

Tex.  Atchison,  T.  &  S.  F.  Ry.  Co. 
v.  Mills,  116  S.  W.  852,  53  Tex.  Civ. 
App.  359;  International  &  G.  N.  R. 
Co.  V.  Tisdale,  87  S.  W.  1063,  39  Tex. 
Civ.  App.  372;  Taylor  v.  Houston  & 
T.  C.  R.  Co.  (Civ.  App.)  80  S.  W.  260 ; 
Western  Union  Tel.  Co.  v.  James,  73 
S.  W.  79.  31  Tex.  Civ.  App.  503 ;  In- 
ternational &  G.  N.  R.  Co.  v.  Clark 
(Civ.  App.)  71  S.  W.  587,  judgment  re- 
versed 72  S.  W.  584,  96  Tex.  349 :  Dal- 
las Consol.  Electric  St.  Ry.  Co.  v. 
Broadhurst,  68  S.  W.  315,  28  Tex.  Civ. 
App.  630 ;  Milligan  v.  Texas  &  N.  O. 
R.  Co.,  66  S.  W.  896,  27  Tex.  Civ.  App. 
600 :  Galveston,  H.  &  S.  A.  Ry.  Co.  v. 
Smith.  57  S.  W.  999,  24  Tex.  Civ.  App. 
127 ;  Galveston,  H.  &  S.  A.  Rv.  Co.  v. 
Waldo  (Civ.  App.)  26  S.  W.  1004 ;  Gal- 
veston, II.  &  S.  A.  Ry.  Co.  V.  Arispe,  81 
Tex.  517,  17  S.  W.  47. 

Wasli.  Cogswell  v.  West  St.  &  N. 
E.  Electric  Rv  Co.,  5  Wash.  46,  31 
P.  411. 

Wis.  Brunette  v.  Town  of  Gagen, 
82  N.  W.  564.  106  Wis.  618. 

Insufficient      4efinition.       Where 


the  court  charged  that  "by  the  term 
'negligence,'  when  used  in  this  charge, 
is  meant  the  omission  or  failure  to 
do  something  which  an  ordinarily  pru- 
dent and  careful  person  would  have 
done  under  like  circumstances,"  It 
was  held  that  appellant  waived  ob- 
jection that  the  definition  did  not  in- 
clude the  doing  of  any  affirmative  act, 
by  his  failure  to  request  a  further 
charge  to  that  effect.  Campbell  v. 
Warner  (Civ.  App.)  24  S.  W.  703. 

5  9  Collins  V.  Kelsey  (Tex.  Civ.  App.) 
97  S.  W.  122. 

6  0  Knoxville.  C.  G.  &  L.  R.  -Co.  v. 
Wvrick.  42  S.  W.  434.  99  Tenn.  r.OO. 

61  Wylie  V.  State,  215  S.  W.  593,  140 
Ark.  24. 

6  2  State  V.  Oden,  138  P.  1083,  69  Or, 
385. 

63  Texas  &  N.  O.  R.  Co.  v.  Scott,  71 
S.  W.  26,  30  Tex.  Civ.  App.  496. 

6  4  McDonald  v.  State,  46  So.  176, 
55  Fla.  134. 

65  Carter  v.  State,  94  S.  E.  630,  21 
Ga.  App.  493. 

6  6  Fagnani  v.  State,  146  S.  W.  542, 
66  Tex.  Cr.  R.  291;  San  Antonio  & 
A.  P.  Ry.  Co.  V.  Use  (Tex.  Civ.  App.) 
59  S.  W.  564. 

6  7  Ramsay  v.  Meade,  86  P.  1018,  37 
Colo.  465. 

6  8  Varney  v.  Ajax  Forge  Co.,  204  111. 
App.  208;  Singer  v.  Martin.  164  P. 
1105,  96  Wash.  231 ;  Miles  v.  Stanke, 
89  N.  W.  833,  114  Wis.  94. 

6  9  Western  Union  Tel.  Co.  v.  Giffin, 
65  S.  W.  661,  27  Tex.  Civ.  App.  306. 

'0  Chaddick  v.  Haley,  81  Tex.  617, 
17  S.  W.  233. 

71  Ross  V.  Grand  Pants  Co.,  156  S. 
W.  92,  170  Mo.  App.  291. 

7  2  State  V.  Bosworth,  152  N.  W.  581, 
170  Iowa,  329. 

7  3  Pitman  v.  Drown,  195  S.  W.  815, 
176  Ky.  263. 

7  4  People  V.  Rogers,  126  P.  143,  163 
Cal.  476. 


671  DEFINITION   OR   EXPLANATION   OF   TERMS  §  364 

cie,"  "in  kind'"  and  "for  consumption,"  '^  "subsidiary  facts,"  '^  "sub- 
stantial performance," ''  "successful  impeachment,"  '*  "unlawful 
purpose,"  '^  "usages  of  civilized  warfare,"  ^^  and  "wantonly"  or 
"willfully."  81 

§  363.     Effect  of  failure  to  give  definition 

The  failure  of  the  court  to  define  a  word  or  phrase  will  not  con- 
stitute ground  for  reversal,  where  it  appears  that  the  jury  under- 
stood its  meaning,*^  or  that  they  could  not  have  attached  to  it  a 
meaning  more  damaging  to  the  appellant  than  that  which  the  court 
intended  to  convey.*^ 

§  364.     Sufficiency  of  definition  or  explanation  of  terms 

Where  the  court  undertakes  to  define  words  or  phrases,  it  should 
use  terms  having  a  precise  and  definite  meaning.**  In  an  action 
based  on  a  statute,  it  will  usually  be  suflicient  to  define  terms  used 
therein  in  the  language  of  the  statute.*"^  The  court  is  not  required 
to  supplement  a  definition  by  the  use  of  illustrations.**  The  jury 
should  not  be  told  to  look  to  the  evidence  for  the  "ordinary  and 
usual"  meaning  of  words  and  terms,  since  such  meaning  is  a  mat- 
ter for  the  determination  by  the  jury  upon  their  own  knowledge, 
information,  and  experience,  independent  of  evidence  or  instruc- 
tion.*' It  is  the  better  practice  to  adhere  to  charges  which  have 
already  received  the  approval  of  the  court  of  last  resort.** 

7  5  Foote  V.   Kelley,  55   S.  E.   1045,  struction  in  which  the  word  "reason- 

126  Ga.  799.  ably"  was  defined  to  mean  "in  a  rea- 

7  6  Hinshaw  V.  State  (Ind.  Sup.)  47  sonable  manner ;   consistent  with  rea- 

N.  E.  157,  147  Ind.  334.  son;    in  a  moderate  degree;    tolera- 

7  7ConneIl   v.   Higgins,  150  P.   769,  hlv."    York  v.  City  of  Everton,  97  S. 

170  Cal.  541.  W.  604,  121  Mo.  App.  ©40. 

78  Kelly  V.  State,  SS  S.  E.  822,  145  "Etc."  The  use  of  the  expression 

Ga.  210.  "etc."  in  an  instruction  defining  actu- 

7  9  State  V.  Jacobs,  97  S.  E.  835,  111  al  malice  as  "actual  ill  will,  hatred, 
S.  C.  283.  etc.,"   is  harmless  error;    the   mean- 
so  White  V.  Crump,  19  W.  Va.  583.  ing  of  the  word  "malice"  being  well 
81  State  V.  Barrett,  65  S.  E.  894,  151  imderstood.    Louisville    Press   Co.    v. 

N.  C.  665.  Tennelly,  49  S.  W.  15,  105  Ky.  365,  20 

8  2  Miller  v.  Barnett,  101  S.  W.  155,      Ky.   Law  Rep.  1231. 

124  Mo.  App.  53.  8  5  Skeen  v.  Chambers,  86  P.  492,  31 

8  3  Cody  V.  Greramler,  99  S.  W.  46,  Utah,  36. 

121  Mo.  App.  359.  86  Rowe     v.     United     Commercial 

S4  Equitable  Produce  &  Stock  Ex-  Travelers'  Ass'n,  172  N.  W.  454,  180 

change    v.    Keyes,    67   111.   App.   460;  Iowa,  454,  4  A.  L.  R.  1235. 

"Ware  v.  Flory,  201  S.  W.  593,  199  Mo.  87  Garrity  v.  Catholic  Order  of  For- 

App.  60.  esters,  148  111.  App.  189,  .iudgnient  af- 

Definitions     lacking     in     preci-  firmed  90  N.  E.  753,  243  111.  411. 

sion.     In  an  action    for  personal  in-  ss  State  v.  Nerzinger.  119  S.  W.  370. 

juries    from    a    defective    sidewalk,  220  Mo.  36;  Miller  v.  State,  119  N.  W. 

there  was  no  error  in  refusing  an  in-  850,  139  Wis.  57. 


365 


INSTRUCTIONS  TO  JURIES 


672 


§  365.     Sufficiency  of  definition  of  criminal  offense 

In  a  criminal  prosecution  it  is  not  improper  for  the  court  to  de- 
fine the  crime  charged  in  the  exact  words  of  the  statutory  defini- 
tion of  it,*^  and  it  is  perhaps  better  that  the  court  should  do  so ;  ^^ 
and  it  is  no  objection  to  quoting  the  statute  that  there  is  no  evi- 
dence that  the  defendant  has  made  use  of  all  the  means  designated 
in  the  statute  of  committing  the  crime  charged;®^  but  it  is  not 
necessary  for  the  court  to  use  the  words  of  the  statute  in  defining 
the  offense,  so  long  as  the  language  which  it  does  use  has  the 
same  meaning  and  cannot  be  misconstrued  by  the  jury.®^ 

Where  the  statute  on  which  a  criminal  prosecution  is  based  de- 
fines more  than  one  offense,  the  court  should  give  to  the  jury  only 
that  part  of  the  statute  dealing  with  the  offense  charged ;  *^  but  it 
will  not  be  reversible  error  to  quote  the  statute  in  full,  if  the 
court  limits  its  application  to  the  allegations  of  the  indictment.^* 


8  9  ni.  Duncan  v.  People,  134  111. 
110,  24  N.  E.  765. 

Iowa.  State  v.  Wilson,  141  N.  W. 
3.37,  157  Iowa,  69S. 

Momt.  State  v.  Tracey,  90  P.  791, 
35  Mont.  552. 

Mo.  State  v.  Frank,  103  Mo.  120, 
15  S.  W.  330 ;  State  v.  Miller,  03  Mo. 
263,  6  S.  W.  57. 

Neb.  Alt  V.  State,  129  N.  W.  432, 
88  Neb.  259,  35  L.  R.  A.  (N.  S.)  1212. 

Tex.  Jackson  v.  State  (Or.  App.) 
38  S.  W.  990. 

Wis.  State  V.  Essex,  175  N.  W. 
705,  170  Wis.  512 ;  Giskie  v.  State,  71 
Wis.  612,  38  N.  W.  .334. 

Defining  "practice  of  dentist- 
ry." An  instruction  on  a  trial  for 
practicing  dentistry  without  a  license, 
which  defines  the  practice  of  dentist- 
ry in  the  language  of  the  statute,  reg- 
ulating the  practice,  is  not  erroneous. 
People  V.  Fortch,  110  P.  823,  13  Cal. 
App.  770. 


9  0  Long  V.  State,  23  Neb.  33,  36  N. 
W.  310. 

91  People  V.  McGonegal,  62  Hun, 
622,  17  N.  Y.  S.  147. 

92  Jones  V.  State,  99  S.  E.  893,  24 
Ga.  App.  129 ;  State  v.  Ireland,  S3  P. 
1036,  72  Kan.  265;  Holmes  v.  State, 
118  N.  W.  99,  82  Neb.  406 ;  Adkins  v. 
State,  56  S.  W.  63,  41  Tex.  Cr.  R.  577. 

Departure  from  statute  after 
once  quoting  it.  Where  the  precise 
terms  of  the  statute  are  once  used, 
and  thereafter  there  is  a  slight  de- 
parture from  the  literal  words  of  the 
statute,  the  obvious  equivalent  being 
used,  no  reversible  error  is  commit- 
ted. Ward  V.  State,  126  S.  W.  1145, 
59  Tex.  Cr.  R.  62. 

93  Jones  V.  State,  22  Tex.  App.  680, 
3  S.  W.  478;  Clubb  v.  State,  14  Tex. 
App.  192. 

94  Simons  v.  State  (Cr.  App.)  34 
S.  W.  619;  Hargrave  v.  State  (Cr. 
App.)  30  S.  W.  444. 


673  '  DUTIES  OP  JURY  §  366 


CHAPTER  XXIX 

NECESSITY  AND  PROPRIETY  OF  INSTRUCTIONS  AS  TO  DUTIES 

OF  JURY 

§  366.     In  general, 

367.  Instructions  as  to  province  of  court  and  jury, 

368.  Duty  of  court  to  avoid  coercing  jury. 

369.  Urging  agreement. 

370.  Encouraging  disagreement. 

371.  Charges  that  juror  should  not  surrender  his  individual  judgment  or 

conscientious  convictions. 

372.  Instructions  tending  to  increase  feeling  of  responsibility  by  jury. 

373.  Instructions  objectionable  or  criticized  as  tending  to  lessen  sense  of 

responsibility  of  jurors. 

374.  Obligation  of  oath. 

375.  Duty  to  look  to  the  whole  evidence. 

376.  Duty  to  reconcile  conflicting  evidence. 

§  366.     In  general 

The  giving  of  cautionary  instructions  with  respect  to  the  duties 
of  the  jury  rests  largely  in  the  discretion  of  the  trial  court. ^  Thus 
there  is  no  error  in  refusing  a  requested  instruction  that  special 
charges  given  by  the  court  at  the  request  of  either  party,  have  the 
sarne  dignity  and  binding  force  as  the  main  charge  of  the  court, 
and  that  such  special  charges  should  be  given  the  same  considera- 
tion as  the  main  charge.^  So  the  refusal  of  instructions  that  the 
jury  should  find  upon  the  issues  submitted  without  reference  to 
their  opinions  as  to  the  legal  rights  of  the  parties  is  not  error.^  So 
the  court  is  not  required  to  tell  the  jury  to  specify  in  their  general 
verdict  under  what  count  or  counts  of  the  declaration  the  same  is 
returned.*  On  the  other  hand,  cautionary  instructions  may  be  prop- 
er as  to  the  right  to  sue  in  one  county  for  an  injury  occurring  in 
another  county,^  or  as  to  the  duty  of  the  jury  to  consider  written 
and  oral  instructions  together,^  or  as  to  their  duty  to  consider  the 
appearance  of  the  witnesses  on  the  stand,'''  or  that  the  jury  must 
answer  a  special  question  submitted  one  way  or  the  other,*  or  as  to 

1  Penney  v.  Johnston,  142  111.  App.  4  Junction  Min.  Co.  v.  Ench,  111  111. 
634:   Bernier  v.  Nute,  94  A.  509.  77  N.       App.    346. 

H.   56S ;     Barnhart  v.   North   Pacific  s  st.   Louis,   I.   M.  &   S.   R.   Co.  v. 

Lumber  Co.,  162  P.  843,  82  Or.  657;  Thurman,  161  S.   W.  1054,   110   Ark, 

Childers  v.  Brown.  158  P.  166 ;  81  Or.  188. 

1,  Ann  Cas.  1918D,  170.  e  Birmingham  Ry.,  Light  &  Power 

2  St.  Louis  Southwestern  Ry.  Co.  of  g;  ^'-  Jackson,  73  So.  627,  198  Ala. 

Texas  v.   Langston   (Tex.   Civ.  App.)  ?'tt     i  ci.  ..      -n-i   ^-    ttt    /^o 

-lo^  Q   1X7  004  7  Huebner  v.   State,  111  ?s.  W.  63, 

l2o  S.  W.  oo4.  ^3^  ^.^    ^g2. 

3  Stine  Oil  &  Gas  Co.  v.  English  s  Stevens  v.  Beardsley,  96  N.  W. 
(Tex.  Civ.  App.)  185  S.  W.  1009.                 571,  134  Mich.  506. 

IxsT.TO  Juries — 43 


§  366  IXSTRUCTIONS  TO  JURIES  674 

the  order  of  the  jury's  deliberations,^  or  as  to  the  duty  of  the  jury 
not  to  act  arbitrarily.^® 

In  a  criminal  case  the  court  should  avoid  giving  the  jury  the 
impression  that  the  conviction  of  the  guilty  is  of  more  importance 
than  the  acquittal  of  the  innocent/^  but  it  is  not  improper  to  tell 
the  jury  that  they  should  neither  convict  the  innocent  nor  acquit 
the  guiity.^^  The  question  of  granting  mercy  to  the  accused  in  case 
of  a  conviction  not  being  for  the  jury,  it  is  not  error  to  so  instruct 
them,^^  and  it  is  proper  to  refuse  to  instruct  that,  if  the  evidence 
is  evenly  balanced,  they  should  lean  to  the  side  of  mercy .^* 

The  general  charge  of  the  court  in  a  criminal  case  should  always 
include  the  direction  that  if  the  jury  do  not  believe  the  defendant 
to  be  guilty  they  must  acquit  him.^^ 

§  367.     Instructions  as  to  province  of  court  and  jury 

In  civil  cases,  and  in  many  jurisdictions  ift  criminal  cases  as 
well,  it  is  proper  to  instruct  the  jury  that,  while  they  are  authorized 
to  determine  the  facts,  they  must  take  the  law  governing  the  same 
from  the  court,^^  and  that  they  are  not  to  take  the  law  from  coun- 
sel,^'' and  in  some  jurisdictions  such  an  instruction  must  be  given 
on  request,^*  although  it  is  not  necessary  to  state  such  rule  in  ev- 
ery instruction.-^^ 

In  jurisdictions  where  the  court  is  required  to  instruct,  on  request, 
in  a  criminal  case,  that  the  jury  may  determirte  the  law  and  the 
facts,  it  may  nevertheless  refuse  to  tell  the  jury  that  they  can  dis- 

9  Randall  v.  Sterling,  D.  &  E.  Elec-  Jefferson  v.  State,  158  S.'  W.  520,  71 
trie  Ry.  Co..  158  111.  App.  56;    Louis-       Tex.   Cr.   R.  120. 

ville.  N.  A.  &  C.  Ry.  Co.  v.  Stevens,  87  Respective    provinces    of    court 

Ind.  108.                               '  and  jury.     An  instruction   that  the 

10  State  V.  Wilson,  141  N.  W.  337,  jury  is  supreme  in  the  realm  of  fact, 
157  Iowa,  698.  and  that  the  court  is  supreme  in  the 

11  Koenigstein  v.  State,  162  N.  W.  realm  of  law,  whether  it  correctly 
879,  101  Neb.  229.  states  it  or  not,  is  proper.     White  v. 

12  Commonwealth  v.  Dennery,  102  East  Side  Mill  &  Lumber  Co.,  164  P. 
A.  874,  250  Pa.  223.  736,  84  Or.  224. 

13  Avery  v.  State,  27  So.  505.  124  i"  Anderson  v.  State.  50  S.  E.  51, 
Ala.  20 ;  Dinsmore  v.  State,  85  N.  W.  122  Ga.  175 ;  Cohen  v.  Citv  of  Chica- 
445,  61  Neb.  418.  go,  197  111.  App.  377 ;    Hyde  v.  Town 

iiKirby    V.    State,   44    So.   38,    151  of  Swanton,  47  A.  790,  72  Vt.  242. 

Ala.   m;    Rus.scll  v.   State  (Ala.)  38  is  Chicago  &  E.   I.  R.  Co.  v.  Bur- 

So.  201.  ridge,   71   N.    E.    838,   211   111.   9,    re- 

15  Steagald  v.   State,  22  Tex.  App.  versing  judgment  107  111.  App.  23  ;  IIU- 

464,  3  S.  ,W.  771.  nois  Commercial  Men's  Ass'n  v.  Per- 

icSharpless    v.    Pantages,    172    P.  rin,  139  111.  App.  543 ;   Chicago  &  E.  I. 

384.  178  Cal.  122 :    Hill  v.   State.  07  R.  Co.  v.  Stonecipher,  00  111.  App.  511. 

S.    R   442,    148   Ga.   521:     Council    v.  1 9  Chicago   Union    Traction    Co.    v. 

Teal,  40  S.  E.  800,  122  Ga.  61;  Akridge  O'Brien,  117  111.  App.  183,  judgment 

V.  Nobile,  41  S.   E.  78,  114  Ga.  040;  affirmed  76  N.  E.  341,  210  111  303. 


675 


DUTIES   OF  JURY 


367 


regard  the  law  given  to  them  by  the  court,'®  and  after  the  court 
has  informed  the  jury  that  they  are  the  judges  of  the  law  as  well 
as  of  the  facts,  it  will  be  misleading  and  erroneous  to  tell  them  that 
common  sense  is  their  best  guide,  unless  its  application  is  limited 
to  the  value  and  weight  of  the  evidence.-^  In  the  absence  of  a  re- 
quest therefor,  the  court  need  not  instruct  that  the  jury  are  the 
judges  of  the  law  and  the  facts.^^ 

In  most  jurisdictions  it  is  not  improper,  or  at  least  it  is  not  re- 
versible error,  to  tell  the  jury  that  they  are  the  exclusive  or  sole 
judges  of  the  credibility  of  the  witnesses  and  of  the  weight  to  be 
given  to  their  testimony ,^^  although  they  are  not  always  so,~*  and 


20  Brid£?ewater  v.  State,  55  N.  E. 
737.  153  Ind.  560.  See  State  v.  Pow- 
ell, 33  So.  748,  109  La.  727. 

Instructions  held  proper.  Au  in- 
struction that  it  was  for  the  jury  to 
determine  the  facts  of  the  case  and  to 
apply  to  such  facts  the  law  as  stated 
in  the  instructions,  and  that  the  in- 
structions given  should  be  considered 
as  an  entire  series,  was  not  open  to 
attack  on  the  ground  that  it  was 
against  the  plain  language  of  the  stat- 
ute that  the  jury  shall  be  the  judges 
of  the  law  as  well  as  of  the  facts. 
People  V.  Mirabella,  128  N.  JE.  374,  294 
111.  246. 

21  Wright  V.  State,  69  Ind.  163,  35 
Am.  Rep.  212. 

2  2  Webb  V.  State,  99  S.  E.  630.  149 
Ga.  211;  Killian  v.  State,  92  S.  E. 
227.  19  Ga.  App.  750;  Williams  v. 
State.  74  S.  E.  902,  11  Ga.  App.  151; 
Reddick  v.  State,  74  S.  E.  901.  11  Ga. 
App.  150;  Keyes  v.  State,  122  Ind. 
527.  23  N.  E.   1097. 

23  Ala.  Brown  v.  State,  38  So.  268, 
142  Ala.  287. 

Cal.  People  V.  Davis,  81  P.  716,  1 
Cal.  App.  8,  transfer  to  Supreme  Court 
denied  81  P.  71S,  147  Cal.  346. 

Fla.    Glover  v.  State,  22  Fla.  493. 

Ga.  Central  of  Georgia  Rv.  Co.  v. 
McGuire,  73  S.  E.  702,  10  Ga.  App. 
483. 

111.  Chicago  &  A.  R.  Co.  v.  Fisher, 
141  111.  614,  31  N.  E.  406,  affirming 
38  111.  App.  33 ;  Illinois  Cent.  R.  Co. 
V.  Smith,  111  111.  App.  177. 

Ind.  Tucker  v.  Eastridge,  100  N. 
E.  113,  51  Ind.  App.  632. 

Iowa.  State  v.  Dunn,  89  N.  W. 
984.  116  Iowa,  219. 

Mo.  State  V.  Maupin,  93  S.  W. 
379,  196  Mo.  164. 


Neb.  Parkins  v.  Missouri  Pac.  Ry. 
Co.,  93  N.  W.  197,  4  ISTeb.  (Unof.)  1. 

Tenn.  East  Tennessee,  V.  &  G.  R. 
Co.  V.  Fain,  12  Lea,  35. 

Tex.  International  &  G.  N.  R.  Co. 
V.  Phillips,  69  S.  W.  107,  29  Tex.  Civ. 
App.  336. 

See  State  v.  Kelly,  73  Mo.  60S. 

Flatly  contradictory  evidence. 
In  the  case  of  flatly  contradictory 
evidence,  the  court  may  instruct  the 
jury  to  judge  for  themselves  the  credi- 
bility of  the  witnesses ;  and  if  the 
liberty  .so  given  is  abused  by  the  jury, 
it  will  be  remedied  by  the  court  in 
subsequently  setting  aside  the  verdict. 
Lanning  v.  Chicago,  B.  &  Q.  R.  Co., 
6S  Iowa,  502,  27  N.  W.  478. 

Charge  that  jury  are  judges  of 
what  is  in  evidence.  Though  it  is 
not  acairate  to  charge  the  jury  that 
they  are  the  judges  of  what  is  in 
evidence,  where  the  context  shows 
that  the  meaning  intended  is  that  the 
jury  are  the  judges  of  what  the  evi- 
dence proves,  the  verbal  inaccuracy  is 
not  misleading.  Chattanooga,  R.  &  G. 
R.  Co.  V.  Owen,  90  Ga.  265,  15  S.  E. 
853. 

Charge  that  jury  are  sole  judges 
of  every  fact  essential  to  proof  of 
crime  alleged.  It  was  not  error  to 
refuse  an  instruction  that  the  jury 
are  the  sole  judges  of  the  facts,  and 
every  fact  essential  to  the  proof  of 
tlie  crime  alleged,  since  such  instruc- 
tion might  have  misled  the  jui-y  into 
the  belief  that  they  were  judges  as  to 
what  were  the  essential  facts  to  be 
proved  by  the  state.  State  v.  Simas, 
02  P.  242,  25  Nev.  432. 

2  4  Denver  Tramway  Co.  v.  Owens, 
20  Colo.  107,  36  P.  848. 


§  367  INSTRUCTIONS  TO  JURIES  676 

in  some  jurisdictions  the  rule  in  criminal  cases  is  that  the  court 
should  so  instruct  on  the  request  of  the  defendant.^^  The  giving 
of  such  an  instruction,  in  other  jurisdictions,  lies  in  the  discretion 
of  the  court,^^  and  in  some  jurisdictions  it  is  held  that,  while  such 
an  instruction  is  not  per  se  reversible  error,^^  it  is  useless  and  may- 
be prejudicial  error,  as  the  jury  may  take  it  as  an  intimation  that 
some  of  the  witnesses  are  not  entitled  to  credit  and  that  some  of 
the  testimony  is  without  weight.^* 

In  the  federal  courts  in  defining  the  respective  provinces  of  the 
court  and  jury,  the  charge  should  state  that  in  respect  to  the  law 
of  the  case  the  instructions  of  the  court  are  controlling  and  that 
upon  matters  of  fact,  the  credibility  of  witnesses,  the  weight  of  evi- 
dence, and  the  like  the  jury,  although  it  may  be  advised  by  the  court, 
must  finally  exercise  an  independent  judgment.^® 

§  368.     Duty  of  court  to  avoid  coercing  jury 

There  should  be  nothing  in  the  intercourse  of  the  court  with  the 
jury  having  the  least  appearance  of  duress  or  coercion,^**  and  it  has 
been  held  error  to  tell  the  jury  that  disobedience  of  the  instructions 
of  the  court  will  expose  them  to  pfunishment  for  contempt.^^  Where 
separate  indictments  against  different  defendants  are  tried  together, 
an  instruction  that  the  jury  may  find  all  of  the  defendants  guilty, 

25  Minn.     State  v.   Sailor,  153  N.  26  People   v.    Boggs,    20    Cal.    432; 

W.  271,  130  Minn.  84.  Pittsbiu-gh,    C,   C.   &   St.   L.   Ry.   Co. 

Tex.     Taylor  v.    State.   100  S.  W.  v-  Collins  (Ind.)  80  N.  E.  415. 

393,  50  Tex.  Cr.  K.  560 ;   Wadhams  v.  Necessity  of  request  for  instruc- 

State,  99  S.  W.  1014,  50  Tex.  Cr.  B.  tions.     Where  a  party  is  apprehen- 

.599;    Binvon  v.  State  (Tex.  Cr.  App.)  sive  that  the  jury  may  be  unduly  in- 

56  S.  W.  339 ;   Lensing  v.  State  (Tex.  fluenced  by  the  expression  of  the  court 

Cr.  App.)  45   S.   W.   572 ;    Barbee  v.  in  its  instructions  of  its  opinion  of 

State,  23  Tex.  App.  199,  4  S.  W.  584 ;  the  facts,  he  should  specially  request 

Jackson  v.  State,  22  Tex.  App.  442,  3  the  court  to  charge  the  jury  that  they, 

S.  W.  111.  ^°^  ^0*  the  court,  are  the  exclusive 

'       ' ,      '        ,        ^T.    ,    .  ,    „  TT*  1,  judges  of  all  questions  of  fact.    Bon- 

TTtali.    People  v.  Chadwick,  7  Ltah,  ^ess   v.   Felsing,    106  N.   W.   909,    97 

134,  25  P.  737.  Minn.  227,  114  Am.   St.  Rep.  707. 

Instructions     sufficient     within  27  Transatlantic    Fire    Ins.    Co.    v. 

rule.     A  charge  that  the  jury  are  the  Bamberger  (Ky.)  11  S.  W.  595 ;    Peo- 

"exclusive  judges  of  the  facts  of  the  pies  v.  Commonwealth,  87  Ky.  487,  9 

case  and  the  weight  of  the  testimony"  S.  W.  810  ;  Forman  v.  Commonwealth, 

KufRfiontly  instructs  them  that  they  86  Ky.  605,  6  S.  W.  579. 

are  the  exclusive  judges  of  the  credi-  28  Smith  v.  Commonwealth  (Ky.)  8 

])iUty    of    the   witne.sses.     Allison   v.  g,  sy   190 

State,  14  Tex.  App.  402.  '20  MobTle  &  O.  R.  Co.  v.  Wilson  (C. 

Necessity  of  request.     Failure  to  C.  A.  111.)  76  F.  127,  22  C.  C.  A.  101. 

instruct  that  the  jury  are  the  exclu-  so  Price  v.   Carter,  22   So.  715,  39 

sive  judges  of  questions  of  fact  is  not  Fla.  362 ;    Green  v.  Telfair,  11  How. 

ground  for  reversal  In  the  absence  of  Prac.  (N.  Y.)  260. 

a  request.    State  v.  Sailor,  153  N.  W.  si  Price  v.   Carter,  22   So.  715.  39 

271,  130  Minn.  84.  Fla.  362. 


G77  DUTIES   OF  JURY  §  369. 

or  find  some  guilty  and  some  not  guilty,  but  they  cannot  find  a 
verdict  as  to  some  and  disagree  as  to  others,  is  erroneous,  as  tend- 
ing to  coerce  the  jury.  In  such  a  case,  if  the  jury  cannot  agree, 
an  accused  is  entitled  as  of  right  to  go  before  a  new  jury.^^ 

On  the  other  hand,  in  a  criminal  case  an  objection  to  instructions 
on  the  ground  that  they  are  calculated  to  coerce  and  intimidate  the 
jury  to  the  prejudice  of  the  defendant  does  not  lie  merely  because 
they  call  the  attention  of  the  jury  to  their  plain  duty,  as  where 
the  jury  are  told  that  they  dare  not  go  outside  of  the  jury  box  in 
considering  the  testimony  ;^^  nor  are  instructions  objectionable  on 
such  ground  because  they  say  that  the  good  order  and  welfare  of 
the  community  are  involved  in  the  case,^*  nor  because  the  jury  is 
directed  to  receive  the  law  as  stated  by  the  court,  although  they 
may  believe  that  the  court  is  wrong,  or  that  the  law  should  be 
otherwise,^^  nor  because  the  jury  are  advised  that  a  violation  of 
certain  proper  directions  by  the  court  with  respect  to  the  conduct 
of  the  jury  will  be  punished  severely.^^ 

The  use  of  the  words  "should,"  "shall,"  or  "will,"  in  an  instruc- 
tion with  respect  to  finding  for  one  party  or  the  other  if  the  jury 
believe  from  the  evidence  certain  things  to  exist,  is  not  considered 
erroneous  in  some  jurisdictions,  as  tending  to  coerce  a  verdict.^' 

§  369.     Urging  agreement 

In  a  civil  action  the  jury  may  be  urged  to  make  an  efifort  to  agree, 
and  to  that  end  to  reason  with  one  another.^*  It  is  proper  to  charge 
as  to  the  duty  of  a  juror  finding  himself  in  the  minority  to  con- 
sider whether  he  is  more  likely  to  be  right  than  the  majority,^**  and 
it  is  not  improper  to  tell  the  jury  to  return  a  verdict  as  soon  as  they 

3  2Bucklin  v.  United  States.  159  U.  Reclfern  v.  McXaul.  79  111.  App.  232, 

S.  6S2,  16  Sup.  Ct.  182,  40  L.  Ed.  305.  affirmed  53  N.  E.  569.  179  111.  203. 

33  State  V.  Mills.  60  S.  E.  664,  79  s!  Ind.    Bader  v.  State,  94  N.  E.  1009, 

C    187  ITe  IiKl.  2GS  :  Indianapolis  St.  Ry.  Ck). 

'34  state  V.  Tarlton,  118  N.  W.  706,  v.  Johnson   72  K  E.  571.  163  Ind   518. 

00  q   n   4Q-1  ^^  J-  L-  Mott  Iron  Works  v.  Metro- 

"                                                           „„  politan  Bank,  156  P.  S64,  90  Wash. 

3  5  State  V.  Johnson,  149  N.  W.  730,  555 

34  S.  D.  601.  After  two   mistrials,   trial  judge 

36  Villereal  v.  State  (Tex.  Cr.  App.)  was  right  at  outset  of  charge  to  stress 

61  S.  W.  715.  importance    of    agreeing    upon    jui-y, 
,7  Ai         T',M-^^  ,.    TUff    c«  C3^    pqo  .iurors     not     being     instructed     they 

i4  .^     r-o  ^^-^*  surrender  opinions,  but  being 

1^9  Ala.  bo—  .  charged  they  might  reason  together, 

111.     Central  Ry.  Co.  v.  Bannister,  that  one  might  adopt  view  of  another, 

62  X.    E.    S64,    105  111.   48,    affirming  etc.    Nelson  v.  Atlantic,  Gulf  &  Pacif- 
judgment  96  111.  App.  .3.32 ;  North  Chi-  ic  Co.,  92  S.  E.  194,  107  S.  C.  1. 
cago   St.   R.   Co.   V.    Zeiger,   54  N.   E.  39  Boston  &  M.  R.  R.  v.  Stewart  (C. 
1006,  182  111.  9,  74  Am.  St.  Rep.  157,  C.  A.  N.  H.)  254  F.  14,  165  C.  C.  A. 
affirming  judgment  78  111.  App.  463;  424. 


369 


INSTRUCTIONS  TO  JURIES 


678 


can,  consistently  with  due  deliberation  and  with  their  consciences."^" 
In  criminal  cases,  also,  it  is  not  improper  to  urge  upon  the  jury 
the  duty  of  trying  to  come  to  an  agreement  one  way  or  the  other,*^ 
so  long  as  the  court  is  careful  not  to  suggest  which  way  the  ver- 
dict should  be  rendered.*^  Thus  it  is  proper  to  charge  that  it  is 
the  duty  of  each  juror  to  reason  with  his  fellow  jurors  to  the  end 
of  joining  in  a  verdict,*^  or  that  no  juror  should  refuse  to  agree 
from  mere  pride  of  opinion,'^*  or  that  if  a  juror  should  find  himself 
in  a  small  minority  he  should  ask  himself  whether  the  fact  that 
the  majority  difi'er  with  him  does  not  indicate  that  his  own  doubt 
is  not  a  reasonable  one  or  that  his  own  conclusions  one  way  or  the 
other  are  not  correct,*^  and  telling  the  jury  that  it  is  a  rule  of  the 
court  to  keep  them  together  until  they  should  agree  upon  a  ver- 
dict, is  not  improper  as  tending  to  coercion."*^ 

§  370.     Encouraging  disagreement 

The  efficient  conduct  of  a  judicial  controversy  should  result  in 
an  agreement  by  the  jury  one  way  or  the  other.    The  ends  of  justice 


*o  G  lea  son  v.  Denson,   132  P.   530, 
65  Or.  199. 
Instructions    held    improper    as 

calculated  to  lead  jurors  to  surrender 
conscientious  convictions.  Southern 
Ins.  Co.  V.  White,  24  S.  W.  425,  58 
Ark.  277;  Highland  Foundry  Ck).  v. 
New  York.  N.  H.  &  H.  R.  Co.,  85  X. 
E.  437.  199  Mass.  403. 

41  Sigsbee  v.  State,  30  So.  816,  43 
Fla.  524;  (Sup.)  State  v.  Lieberman, 
79  A.  331,  80  N.  J.  Law.  506,  .iudg- 
ment  afBrmed  82  A.  1134,  82  N.  J. 
Law,  748;  Territory  v.  Gonzales,  68 
P.  925,  11  N.  M.  301 ;  People  v.  Beck- 
er, 109  N.  E.  127,  215  X.  Y.  126,  Ann. 
Cas.  1917A,  600,  rehearing  denied  109 
N.  E.  10S6.  215  N.  Y.  721;  State  v. 
Hawkins,  18  Or.  476,  23  P.  475. 

Instructions  held  proper  ■roithin 
rule.  An  instruction  telling  the  jury 
the  effect  of  a  disagreement  at  com- 
mon law,  and  the  mitigation  of  the 
rule  in  the  United  States,  and  re- 
marking to  them  that  they  would 
have  to  remain  together  and  could 
not  separate  until  they  agreed  on  a 
verdict,  and  brought  it  into  court,  is 
not  error.  State  v.  Saunders,  14  Or. 
300,  12  P.  441.  An  instruction  in  a 
larceny  prosecution,  that  the  case 
was  imi)ortant  to  the  people  of  the 
county  and  state,  as  well  as  to  accus- 
ed, and  that  if  the  jury  could  get  to- 


gether and  render  a  verdict,  it  was 
the  court's  desire  that  they  do  so ; 
that  they  "ought  to  be  able  to  decide 
the  case;  that  it  sometimes  happened 
that  disagreeing  jurors  became  arbi- 
trary and  unreasonable,  and  failed  to 
respect  the  opinion  of  the  other  ju- 
rors ;  that  "I  hope  this  is  not  true 
of  this  jury,  and  have  no  reason  to 
believe  that  it  is,  so  I  want  you  to  get 
together,  if  possible,  and  render  a 
verdict;"  that  a  retrial  would  re- 
sult in  considerable  expense  and  trou- 
ble to  accused  and  the  county,  and  "I 
hope  you  will  get  together  and  render 
a  verdict,  but  what  the  court  has  said 
to  you  will  not  influence  your  verdict 
one  way  or  the  other."  Jackson  v. 
State,  126  S.  W.  843,  94  Ark.  169. 

4  2  Spick  V.  State,  121  N.  W.  664,  140 
Wis.  104. 

4  3  I'eople  V.  Richards,  82  P.  691,  1 
Cal.  A  pp.  566. 

4  4  Myers  v.  State,  31  So.  275,  43 
Ha.  500. 

45  Commonwealth  v.  Tuey,  8  Cush. 
(Mass.)  1;  State  v.  Egland,  121  X. 
W.  798.  23  S.  D.  323,  139  Am.  St. 
Rep.  1066. 

4  6  Ammerman  v.  U.  S.  (C.  C.  A. 
Xeb.)  262  F.  124.  certiorari  denied 
253  U.  S.  495,  40  S.  Ct.  587,  64  L.  Ed. 
1030. 


679  DUTIES  OF  JURY 


§371 


are   not  ordinarily  subserved  by   a  disagreement.     Therefore   in- 
structions which  have  a  tendency  to  restrain  jurors  from  agreeing 
on  a  verdict  will  ordinarily  be  erroneous,  and  are  properly  refused. 
§  371.     Charges  that  juror  should  not  surrender  his  individual  judg- 
ment or  conscientious  convictions 
In  some  jurisdictions  it  is  improper  to  instruct,*^  or  it  is  proper 
to  refuse  to  instruct,*^  that  no  juror  should  consent  to  a  verdict 
which  does  not  have  the  approval  of  his  individual  judgment  and 
conscience,  and  that  a  juror  should  not  surrender  his  deliberate 
and  conscientious  convictions  for  the  sake  of  unanimity,  or  because 
the  majority  may  happen  to  be  against  him ;  ^^  this  being  upon 
the  ground  'that  such  an  instruction  is  an  invitation  to  a  disagree- 
ment, or  presupposes  that  jurors  will  violate  their  oaths  with  re- 
spect'to  rendering  a  true  verdict  according  to  the  evidence.    Upon 
this  question,  however,  as  upon  the  question  of  the  duty  of  the 
court  to  instruct  that  each  juror  must  be  convinced  beyond  a  rea- 
sonable doubt,  discussed  in  a  preceding  section  (§  274),  there  is  a 
conflict  of  authority.    In  California,  a  defendant  in  a  criminal  case 
is  entitled  to  an  instruction  that  jurors  are  not  required  to  sur- 
render their  honest  convictions  for  the  mere  purpose  of  agreeing 
upon  a  verdict.^i     In  Kansas  it  is  proper  to  charge  that  each  ju- 
ror must  ultimately  act  upon  his  individual  judgm.ent,  although 
the  refusal  to  so  charge  in  a  civil  case  is  not  reversible  error  where 
it  does  not  appear  that  there  is  any  special  necessity  for  such  an 

47  Chica<-o  &  E   I   R.  Co.  v.  Rains,  the  jury  bad  had  some  experience  in 
67  N    E    S40    203  111.  417;    San  An-  court  during  tlie  term  at  which  the 
tonio"&  A   P  'Ry.  Co.  v.  Choate,  56  S.  case  was  tried,  and  could  he  presum- 
W   '^14   ^^2  Tex    Civ   App.  618.  ed  to  be  acquainted  with  the  ordinary 
4  8"pe'ople  V.  Le  Morte  (111.)  124  N.  duties  of  jurors,  and  the  court  cbai-g- 
E  301-  Gehrig  V.  Chicago  &  A.  R.  Co.,  ed  them  to  engage  in  no  discussion 
''01  111'  App  287  •   Souleyret  v.  O'Gara  that    would    tend    to    prevent    their 
Coal  Co.,  161  111.  App.  60.  agreeing,   consider  the  evidence  and 
4  9  111.     Casey     v.     Kellv-Atkinson  the  facts,  and  reach  a  verdict,  if  they 
Const    Co    88  N   E.  982,  240  111.  416;  could,  such  as  should  thereafter  satis- 
-    City  of  Evanston  v.  Richards,  79  N.  fy  their  individual  consciences,  it  was 
B    673    "24  111    444;    Comorousld  v.  not  error  to  refuse  a  request  that  it 
Spring'  Vallev  Coal  Co.,  203  111.  App.  was  the  duty  of  the  jury  to  consider 
617 ;     Springfield  Consol.   Ry.  Co.   v.  the  testimony,  and  to  reconcile  their 
Farrant,  121  111.  App.  416 ;  Chicago  &  opinions  if  able  to  do  so,  but  that  no 
A    Rv    Co    V.  Kirkland,  120  111.  App.  individual  was  required  to  surrender 
272  his  individual  opinion.    Shaller  v.  De- 
Mass.     See  Commonwealth  v.  Has-  troit  United  Ry.,  102  N.  W.  632,  139 
san    126  N.  E.  287,  235  Mass.  26.  Mich.  171. 

Okl.     Tucker  v.   State   (Cr.   App.)  no  Addison  v.  People,  62  NE   235, 

191  P.  201.  193  111.  405 ;    State  v.  Howell,  66  P. 

Propriety,  where  court  lias  in-  291,  26  Mont.  3.  ,-,^0 

struct  ed  tliat  verdict  should  satis-  01  People   v.    Wong   Lowng,    114   P. 

fy    individual    conscience.     Where  829,  159  Cal.  520. 


372  INSTRUCTIONS  TO  JURIES 


680 


instruction  or  that  any  prejudice  resulted  from  such  refusal ;  it  be- 
ing held  that  the  same  strictness  is  not  required  in  civil  as  in  crim- 
inal cases.52  In  Indiana  it  seems  to  be  proper  to  charge  that  a 
juror  should  yield  a  conviction  only  when  in  the  full  exercise  of 
his  independent  and  honest  judgment  he,  as  an  individual  juror, 
is  persuaded  of  his  error.^^ 
§  372.     Instructions  tending  to  increase  feeling  of  responsibility  by 

Instructions  which  impartially  direct  the  attention  of  the  jury 
to  the  gravity  of  the  issues  involved  or  the  importance  of  the  case 
to  the  parties  concerned,  that  it  may  receive  their  more  careful 
consideration  have  been  held  not  improper,^*  and  it  is  not  improper 
to  instruct  as  to  the  importance  of  the  case  being  tried  as  consti- 
tuting a  precedent.^^ 

In  a  criminal  case  the  court  may  properly  speak  of  the  duty  of 
the  jury  to  the  state  and  the  defendant,^*'  and  of  the  gravity  of  the 
issues  involved,^'  where  nothing  is  said  to  prejudice  the  rights  of 
the  accused,®*  or  to  impress  the  jury  with  the  idea  that  it  is  more 
important  to  vindicate  the  law  by  conviction  if  the  defendant  is 
guilty  than  to  acquit  him  if  he  is  innocent.^^ 

§  373.  Instructions  objectionable  or  criticized  as  tending  to  lessen 
sense  of  responsibility  of  jurors 
The  court  should  not  give  instructions  which  have  a  tendency 
to  lessen  the  sense  of  the  jury's  responsibility  to  arrive  at  a  true 
and  just  decision  upon  the  merits  of  the  case  being  tried  before 
them.  This  is  particularly  true  in  criminal  cases.  Thus  an  instruc- 
tion which  in  effect  informs  the  jury  in  a  criminal  case  that  it  does 

B2  Central  Brfinch  U.  P.  R.  Co.  v.  upon  the  jury  the  importance  of  the 

Andrews,  41  Kan.  370,  21  P.  276.  case  to  the  state  are  not  erroneous, 

5:5  Chicago  &  E.  R.  Co.  v.  Thomas  where  they  are  equally  emphatic  in 

(Ind )  55  N   E   861  stating  its  importance  to  defendant. 

«4\valker  v.'  Walker,  65  S.  E.  923.  State  v  Mueller,  141  N.  W.  1113,  122 

151   N.   C.    164 ;     Rhodes   v.    Granby  ^^i^°-  ^l-  ,  A°  instruction  is  not  er- 

Cotton  Mills,  68  S.  E.  824,  87  S.  C.  18.  rpneous  which  calls  the  jury's  atten- 

,,  ,    ^,        .        ^        ^       4.     IT  tion  to  the  importance  of  having  the 

00  Anthony  v.   Cass  County  Home  ^^^.^  properly  executed,  and  of  a  care- 

?,^'^1'^^"^   ^°-   ^^^   ^-   ^'  ^^^'   ^^       ful  consideration  of  the  evidence  and 

^oT^^^^^Z{^             '                            '  ^"^<^  ^'^^^^  ^^'^^1  ^  "j"«t  to  both  sides, 

124  Iowa,  -64.  regardless  of  what  may  be  the  conse- 

6  7  Lyl-os  V.  State,  60  S.  E.  578,  130  quences."     People  v.  Hawes,  98  Cal. 

Ga.  204;    Hoover  v.   State,  68  N.  E.  648,  33  P.  791. 

rm,  161  Tnd.  348;  Schwantes  v.  State,  58  Brannon  v.  State,  SO  S.  E.  7,  140 

106  N.  W.  237,  127  Wis.  160.  Ga.  787. 

Importance  to  both  accused  and  5  9  Weldon  V.  State,  94  S.  E.  326,  21 

state.     In.structious    which    impress  Ga.  App.  330. 


681  DUTIES  OF  JURY  §  374 

not  matter  whether  their  verdict  is  for  acquittal  or  conviction  is 
erroneous,^®  as  is  an  instruction  that  the  oath  taken  by  a  juror  im- 
poses no  more  obligation  upon  him  to  doubt  than  if  no  oath  had 
been  administered,*^^  or  an  instruction  which  suggests  the  possibil- 
ity that  the  court  will  discharge  the  defendant.^'^ 

It  is  proper,  however,  in  a  criminal  case,  to  tell  the  jury  that 
the  law  does  not  require  that  they  be  absolutely  certain  of  the  cor- 
rectness of  their  verdict,^^  and  that  they  are  not  responsible  for 
the  consequences  of  their  verdict,^*  but  only  for  its  truth.^^  So  it 
is  proper  to  say  that  the  jury  should  not  be  controlled  by  any  fear 
as  to  what  the  punishment  may  be,^''  and  an  instruction  that  the 
jury  should  not  be  concerned  with  the  matter  of  punishment  in  case 
of  a  conviction  is  not  error  as  an  invitation  to  convict,*''  and  it  has 
been  held  not  improper  for  the  court  to  suggest  to  the  jury  that 
error  in  acquitting  the  defendant  cannot  be  remedied,  but  that  er- 
ror in  convicting  him  can  be  corrected  by  the  appellate  court,^*  or 
to  charge  in  effect  that  the  appellate  court  stands  ready  to  protect 
the  defendant,  should  errors  be  committed  in  the  lower  court,*'^  par- 
ticularly where  the  trial  court  expressly  charges  that  the  jury  must 
perform  their  duties  without  regard  to  the  statutory  provision  by 
which  an  appeal  may  be  taken/*^ 

§  374.     Obligation  of  oath 

It  is  proper  to  instruct  that  each  juror  should  bear  in  mind  the 
obligation  of  his  oath  and  should  follow  the  guidance  of  his  con- 
science.'^ 

00  state  V.  Ah  Ton?.  7  Nev.  148.  38  N.  W.  440;    State  v.  Hannibal.  37 

61  Adams  v.  State.  135  Ind.  571,  34  La.  Ann.  619;   State  v,  Benner,  64  Me. 

N.  E.  9.16.  following  Siberry  v.  Same,  267:    State  v.  Petsch,  43  S.  C.  132,  20 

133  Ind.  677,  33  N.  E.  681.  S.  E.  993. 

6  2  People  V.  Harris,  77  Mich.  568,  43  In  Georgia,   however,   it  is  error 

N.  W.  1060.  for  the  presiding  jndge  to  remind  the 

63  State  V.  Tedder,  65  S.  E.  449,  83  jury  of  the  existence  of  the  supreme 

S.  C.  437.  court,  to  which  the  defendant  could 

6  4  Morgan  v.  State,  48  S.  E.  238,  120  carry  his  case  up,  if  evidence  offered 

Ga,  499;    State  v.  Way,  38  S.  C.  333,  in  his  behalf  had  been  improperly  re- 

17  S.  E.  39.  jected ;    such  remark,  however  well- 

65  Griggs  v.  State,  86  S.  E.  726,  17  intentioned,  being  calculated  to  lessen 

Ga.  App.  301.  their  sense  of  their  own  responsibil- 

6G  Brantley  v.  State,  87  Ga.  149,  13  ity,  and,  at  the  same  time,  to  convey 

S.  E.  257.  the  idea  that  the  proof  already  before 

6  7  People  V.  Singer,  140  N,  W.  522,  them  was  not  sufficient  to  acquit  the 

174  Mich.  361;    State  v.  Inks,  37  S,  defendant.     Monroe  v.   State,   5  Ga. 

W.  942,  135  Mo.  678.                        '  85. 

68  United  States  v.  Adams,  2  Dak.  to  People  v.  Ferone,   105  N.  T.    S. 

305.  9  N.  W.  718.  448,  120  App.  Div.  .323,  judgment  af- 

Contra,    Hodges   v.   State,   15  Ga.  firmed  89  X.  E.  454,  196  N.  Y.  522. 

117.  71  Wimherly  v.  State,  77  S.  E.  879, 

60  Territory  v.  Keyes,  5  Dak.  244,  12  Ga.  App.  540. 


375 


INSTRUCTIONS   TO  JURIES 


682 


§  375.     Duty  to  look  to  the  whole  evidence 

It  is  an  invasion  of  the  province  of  the  jury  to  instruct  that  they 
must  consider  the  evidence  bearing  on  an  issue  in  its  entirety,'^  or 
that  their  determination  of  the  case  must  be  reached  from  the  whole 
evidence,'*  if,  by  such  an  instruction,  it  is  sought  to  require  the 
jury  to  give  evidentiary  force  to  every  part  of  the  evidence,'*  since 
the  jury  have  a  right  to  accept  a  part  and  to  reject  the  rest,  if  the 
circumstances  justify  such  action.'^ 

On  the  other  hand,  a  charge  should  not  intimate  to  the  jury  that 
a  conclusion  may  be  based  upon  the  evidence  of  either  party,  or 
that  the  testimony  of  either  side  may  be  rejected,  and  a  fact  be 
established  upon  less  than  all  the  evidence  introduced  upon  the 
trial ;  ~'^  and  it  is  proper  to  instruct  that  the  jury  should  take  into 
consideration  the  whole  of  the  evidence  and  all  the  facts  and  cir- 
cumstances proved  at  the  trial.'' 

The  jury  may  be  cautioned  against  allowing  certain  circum- 
stances from  preventing  their  looking  to  the  whole  evidence,'*  and 
an  instruction  that  the  jury  should  be  careful  and  slow  to  reject 
any  testimony  is  not  improper,'^  while  instructions  which  permit 
the  jury  to  arbitrarily  reject  any  evidence,  or  the  testimony  of 
any  witness,  are  erroneous.***     Where  facts  have  been  improperly 


7  2  Kansas  City,  M.  &  O.  Ry.  Co.  of 
Texas  v.  Barnhart  (Tex.  Civ.  App.) 
145  S.  W.  1049. 

7  3  Missouri,  K.  &  T.  Ry.  Co.  of  Tex- 
as V.  Barnos,  95  S.  W.  714,  42  Tex. 
Civ.  App.  626. 

7  4  Kansas  City,  M.  &  O.  Ry.  Co.  of 
Texas  v.  Barnhart  (Tex.  Civ.  App.) 
145  S.  W.  1049. 

70  Riddle  V.  Webb,  110  Ala.  599,  18 
So.  323. 

7  0  Ala.  Louisville  &  N.  R.  Co.  v. 
Abernathy,  73  So.  103,  197  Ala.  512; 
King  V.  State,  72  So.  552,  15  Ala. 
App.  67;  Roden  v.  State,  69  So.  306, 
13  Ala.  App.  lO.j;  Boswell  v.  State, 
.56  So.  21,  1  Ala.  App.  178 ;  Cheney  v. 
State,   55   So.   801,    172   Ala.   368. 

Tex.  International  &  G.  N.  It.  Co. 
v.  Von  Hoesen  (Civ.  App.)  91  S.  W. 
604,  question  certifietl  answered  by 
Supreme  Court  92  S.  W.  798,  99  Tex. 
646,  and  .iudgment  reversed  on  re- 
hoarini,'  (Civ.  App.)  97  S.  W.  .509. 

7  7  Carter  v.  Carter.  152  111.  4.34,  28 
N.  E.  948,  38  X.  E.  669,  aflirming  37 
111.  App.  219;  Semrau  v.  Calumet  & 
S.  C.  Ry.  Co.,  185  111.  App.  203. 


Ijimiting  jury  to  consideration 
of  "circumstances."  An  instruc- 
tion that  the  burden  rests  on  plaintiff 
to  establish  his  cause  of  action  by  a 
preponderance  of  the  evidence,  and, 
in  determining  upon  which  side  the 
preponderance  lies,  the  jury  should 
pass  upon  the  credibility  of  the  wit- 
nesses, "in  view  of  all  the  evidence, 
facts,  and  circvnnstances  proved  on 
the  trial,  and  from  all  these  circum- 
stances determine  upon  which  side  is 
the  preponderance  of  the  evidence," 
is  not  misleading  as  tending  to  limit 
the  .iury  to  the  consideration  of  "cir- 
cumstances" as  the  basis  for  deter- 
mining the  preponderance  of  the  evi- 
dence. Pfaffenback  v.  Lake  Shore  & 
M.  S.  Ry.  Co.,  142  Ind.  240,  41  N.  E. 
530. 

7  8  Anderson  v.  Martindale,  61  Tex. 
188. 

7  0  Lyts  V.  Keevey,  5  Wash.  606,  32 
P.  534. 

8  0  Drake  v.  Chicago,  R.  I.  &  P.  Ry. 
Co.,  70  Iowa,  59,  29  N.  W.  804 ;  Cal- 
isher  v.  Mathias  (Tex.  Civ.  App.)  43 
S.  W.  265. 


683 


DUTIES   OF  JURY 


376 


admitted  in  evidence  upon  a  disputed  issue,  it  is  improper  to  tell 
the  jury  to  determine  such  issue  from  all  the  facts  or  all  the  evi- 
dence.** 

§  376.     Duty  to  reconcile  conflicting  evidence 

The  court  may,*^  and  should,**  charge  the  jury  that  it  is  their 
duty  to  reconcile  apparently  conflicting  evidence,  if  it  is  possible 
to  do  so  on  the  theory  that  witnesses  at  seeming  variance  with 
each  other  have  sworn  to  the  truth,*^  such  an  instruction,  while  con- 
sidered superfluous  in  some  jurisdictions,  not  being  regarded  as 
on  the  weight  of  evidence,*^  and  an  instruction  is  erroneous  which 
prevents  the  jury  from  reconciling  the  discrepancies  or  contradic- 
tions in  the  testimony  of  witnesses.*^ 

However,  while  seeming  conflicts  in  the  testimony  may  be  shown 
not  to  exist',  real  conflicts  can  only  be  disposed  of  by  discarding  the 
testimony  of  one  side  or  the  other,  and  in  case  of  an  irreconcilable 
conflict  in  the  testimony  the  jury  should  not  be  required  to  recon- 
cile it  if  they  can,*'  and  it  is  not  improper  to  instruct  that,  when  the 


81  Lee  V.  Toledo,  St.  L.  &  W.  R.  Co., 
184  111.  App.  144;  Stewart  v.  Swartz, 
106  N.  E.  719,  57  Ind.  App.  240. 

8  2  u.  S.  Parulo  v.  Philadelphia  & 
R   Ry.  Co.,  145  F.  664. 

Ala.  Steen  v.  Sanders,  22  So.  498, 
116  Ala.  155. 

Ga.  Collum  v.  Georgia  Ry.  &  Elec- 
tric Co.,  79  S.  E.  475,  140  Ga.  573; 
Rogers  v.  King,  12  Ga.  229. 

Neb.  H.  Hirschberg  Optical  Co.  v. 
Michaelson,  95  N.  W.  461,  1  Neb. 
(Unof.)  137. 

Tex.  Houston  &  T.  Cent.  R.  Co.  v. 
Bell  (Civ.  Apn.)  73  S.  W.  56,  judgment 
affirmed  75  S.  W.  484,  97  Tex.  71; 
Howe  V.  O'Brien  (Civ.  App.)  45  S.  W. 
813 ;  Liverpool  &  L.  &  G.  Ins.  Co.  v. 
Ende,  65  Tex.  118. 

Duty  to  harinoiiize  evidence.  It 
is  not  error  to  instruct  the  jury  that, 
if  they  find  the  evidence  apparently 
conflicting,  it  is  their  duty,  if  possi- 
ble, to  "harmonize"  it,  instead  of  tell- 
ing them  to  "reconcile"  it.  Holdridge 
V.  Lee,  3  S.  D.  134,  52  N.  W.  265.  An 
instruction  that  it  is  the  duty  of  the 
jury  to  harmonize  the  conflict  in  evi- 
dence, and  that  the  fact  that  one 
witness  squarely  contradicts  another 
does  not  necessarily  nullify  the  evi- 


dence on  that  point,  is  not  ground 
for  reversal;  it  being  reasonable  to 
assume  that  the  jury  knew  what  the 
trial  court  meant.  Seckerson  v.  Sin- 
clair, 140  N.  W.  239,  24  N.  D.  326, 
625;  Hawldns  v.  Sinclair,  140  N.  W. 
246,  24  N.  D.  623 ;  Burger  v.  Sinclair, 
140  N.  W.  246,  24  N.  D.  624. 

83  Rickerson  v.  State,  78  Ga.  15,  1 
S.  E.  178;  McGonnell  v.  Pittsburgh 
Rvs.  Co.,  83  A.  282,  234  Pa.  396. 

'84  Wright  V.  Carillo,  22  Cal.  595; 
Atlantic  Coast  Line  R.  Co.  v.  Beazley, 
45  So.  761,  54  Fla.  311;  Walters  v. 
Philadelphia  Traction  Co.,  161  Pa.  36, 
28  A.  941. 

85  Means  v.  State,  10  Tex.  App.  16, 
38  Am.  Rep.  640. 

8  6  Beers  v.  Metropolitan  St.  Ry. 
Co.,  84  N.  Y.  S.  785,  88  App.  Div.  9; 
Moore  v.  Kendall,  2  Pin  (Wis.)  99,  1 
Chand.  (Wis.)  33.  52  Am.  Dec.  145. 

ST  Sherrill  v.  State,  35  So.  129,  138 
Ala.  3:  Houston  &  T.  C.  R.  Co.  v. 
I5ell,  75  S.  W.  484,  97  Tex.  71,  affirm- 
ing judgment  (Civ.  App.)  73  S.  W.  56 ; 
Williamson  v.  D.  M.  Smith  &  Co. 
(Tex.  Civ.  App.)  79  S.  W.  51;  Hous- 
ton, E.  &  W.  T.  Ry.  Co.  v.  Richards, 
49  S.  W.  687,  20  Tex.  Civ.  App.  203. 

See  Hall  v.  Brown,  30  Conn.  551. 


§  376  INSTRUCTIONS  TO  JURIES  684 

evidence  is  irreconcilably  conflicting,  the  jury  must  reject  that  evi- 
dence which  they  believe  to  be  false.*' 

An  instruction  as  to  the  duty  to  reconcile  conflicting  evidence 
will  be  erroneous,  if  it  is  so  framed  as  to  intimate  an  opinion  on  a 
matter  of  fact.*''  Ordinarily  the  failure  of  the  court  to  charge  the 
jury  as  to  their  duty  concerning  the  reconcilement  of  conflicting  evi- 
dence will  not  be  error,  if  no  request  is  made  for  such  an  instruc- 
tion 


90 


88  Epps  V.  State,  102  Ind.  539,  1  N.  so  Watts  v.  State,  92  S.  E.  966,  20 

E.  491 ;    State  v.  Goforth,  37  S.  W.  Ga.  App.  182 ;    Moore  v.  State,  66  S. 

801,  136  Mo.  111.  E.  377,  7  Ga.  App.  77, 

8  9  Hicks  V.  Critcher,  61  N.  C.  353. 


685      DUTY  TO  BASE  CONCLUSIONS  ON  EVIDENCE  ALONE     §  377 


CHAPTER  XXX 

INSTRUCTIONS  CONSIDERED  WITH  REFERENCE  TO  DUTY  OF  JURY 
TO  FORM  CONCLUSIONS  SOLELY  FROM  THE  EVIDENCE 

§  377.    In  general. 

378.  Instructions  as  to  application  of  personal  knowledge,  experience,  and 

observation  of  jurors. 

379.  Instructing  jury  to  apply  their  common  sense  in  weighing  evidence. 
Sayj.     Effect  oi  view  of  premises. 

381.  Guarding  against  influence  of  public  press. 

382.  Charges  as  to  sympathy,  bias,  prejudice,  or  public  opinion. 

383.  Appeals  to  sympathy  or  prejudice. 

384.  Instructions  as  to  reaching  verdict  by  lot  or  by  the  law  of  averages. 

Confining  jury  to  evidence  on  question  of  damages,  see  ante,  §  353. 

§  377.     In  general 

The  jury  must  form  their  conclusions  as- to  the  facts  solely  from 
the  evidence  admitted  at  the  trial. ^  The  court  may^  therefore, 
and  should,^  give  instructions  directing  the  jury  that  their  belief 
as  to  where  the  truth  lies  on  disputed  questions  of  fact  should  be 
based  on  the  evidence  so  produced,  and  telling  them  that  they 
have  no  right  to  indulge  in  speculations  not  supported  by  the  evi- 
dence,* and  instructions  so  framed  as  to  be  likely  to  lead  the  jury 
to  infer  a  fact  otherwise  than  from  the  evidence,^  or  which  are 
calculated  to  make  them  think  that  they  can  determine  the  mat- 
ters in  controversy  according  to  their  own  individual  notions,  with- 

1  Lundon  v.  City  of  Chicago,  83  lU.  Miss.  Gordon  v.  State,  49  So.  609, 
App.  208.  93  Miss.  543. 

2  State  V.  Hamilton,  157  P.  796,  80  N.  Y.  Schappert  v.  Ringler,  45  N. 
Or.  562;    Peterson  v.  Bogner,  117  P.  Y.  Super.  Ct.  345. 

805,  59  Or.  555;    International  Har-  Pa.     McGonigal  v.  Pittsburgh  Rys. 

\ ester   Co.    of   America  v.    Campbell,  Co.,  89  A.  805,  243  Pa.  47. 

96  S.  W.  93,  43  Tex.  Civ.  App.  421.  S.  C.     State  v.  Cooler,  98  S.  E.  845, 

Duty    not    to    consider    previous  112  S.  C.  95. 

disagreements.     Where     a     murder  ^Ramsey   v.   Burns,   69  P.   711,   27 

case  has  been  three  times  previously  Mont.  154. 

tried,  and  on  each  trial  the  jury  dis-  5  Mathews     v.     Hamilton,     23     111. 

agreed,  it  is  not  error  to  charge  the  470;    Goulding  v.  Phillips,  100  N.  W. 

jury  that  they  must  in  no  sense  con-  516,  124  Iowa,  496;    D'Arcy  v.  Cath- 

sider  such  fact,  but  render  a  verdict  erine  Lead  Co.,  133   S.  W.  1191,  155 

according  to  the  evidence  in  the  case,  ]Mo.  App.  266 ;    Fruit  Dispatch  Co.  v. 

and  consider  no  other  matters  except  F.  Lisey  &  Co.,  4  Ohio  App.  300. 

the  evidence  and  the  instructions  of  Instructions     improper     within 

the  court.     People  v.  Hawes,  98  Cal.  rule.    An  instruction  stating  to  the 

648,  33  P.  791.  jury  that  they  are  the  judges  of  the 

3  111.  Dowdey  v.  Palmer,  122  N.  E.  facts  in  the  case  is  misleading,  as 
102,  287  lU.  42;  Staninger  v.  Tabor,  leaving  them  free  to  consider  facts 
103  111.  App.  330;  Champion  Iron  not  proved  by  the  evidence,  but  of 
Fence  Co.  v.  Bradley,  10  111.  App.  328.  which  they  may  have  been  informed 


§377 


INSTRUCTIONS  TO  JURIES 


686 


out  regard  to  the  evidence,^  or  which  warrant  the  jury  in  discred- 
iting and  disregarding  the  evidence  of  a  party,  if  for  any  reasons 


in  some  other  way.  Chicago  General 
Ry,  Co.  V.  Noyacek,  94  111.  App.  178. 
An  instruction  that  the  jury  are  to 
determine  on  which  side  the  prepon- 
derance of  the  evidence  lies  from  the 
"facts  shown  by  the  evidence  and 
from  all  other  facts  and  circumstanc- 
es. Balenovic  v.  Ansick,  181  111.  App. 
660.  In  a  criminal  trial,  it  is  error 
for  the  court  to  say  to  the  jury  that 
they  may  consider  the  fact  that  the 
public  in  a  certain  locality  think  the 
defendants  guilty  as  corroborative  of 
the  particular  facts  proven  in  the 
case.  State  v.  Whitehead,  54  A.  229. 
69  N.  J.  Law,  63.  A  charge  that  the 
jury  must  acquit  if  they  can  reason- 
ably reconcile  the  evidence  with  the 
fact  that  the  state's  witnesses  are 
mistaken.  Bryant  v.  State,  68  So. 
704,  1.3  Ala.  App.  206,  certiorari  de- 
nied 69  So.  1017,  19.3  Ala.  67.3.  a 
charge,  in  a  prosecution  for  homicide, 
that,  though  the  jury  might  believe 
from  the  evidence  that  accused  had 
intended  to  kill  his  wife,  yet  if  be- 
tween the  time  of  fonning  such  in- 
tent and  the  time  of  the  killing  "some- 
thing" intervened  which  displaced 
such  intent  and  was  in  itself  the  mov- 
ing cause  of  the  killing,  the  jury  could 
not  find  defendant  guilty  of  murder 
in  the  first  degree,  was  properly  re- 
fused, as  calculated  to  mislead  the 
jury  to  consider  "something"  outside 
the  evidence.  Thomas  v.  State,  43  So. 
;;71.  150  Ala.  31. 

Permitting  consideration  of  doc- 
uments merely  offered  in  evidence. 
An  instruction  to  the  jury  that,  in 
determining  what  weight,  if  any.  Is 
to  be  given  to  any  book  of  account 
or  memoranda  of  account  offered 
in  evidence,  the  jury  should  consid- 
er every  fact  and  circumstance  in 
evidence  showing  the  fairness  or  un- 
fairness of  the  account  or  memoran- 
da, etc.,  is  erroneous,  as  only  such 
books  of  account  should  have  been 
considered  by  the  jury  as  were  ad- 
mitted in  evidence,  not  those  which 
were  merely  offered.  Schnellbacher 
V.  Frank  McLaughlin  Plumbing  Co., 
108  111.   App.  486. 


Instructions  not  improper  with- 
in rule.  In  a  prosecution  for  theft, 
an  instruction  that,  if  the  jury  have 
a  reasonable  doubt  as  to  whether  de- 
fendant is  the  identical  person  who 
sold  the  stolen  animals  to  a  witness, 
they  should  acquit,  is  not  objec-tion- 
able  as  permitting  the  jury  to  arrive 
at  a  belief  that  defendant  was  such 
identical  person  from  sources  other 
than  the  evidence.  Ellison  v.  State 
(Tex.  Cr.  App.)  72  S.  W.  188.  On  an 
issue  as  to  whether  certain  sales  of 
intoxicating  liquors  were  in  violation 
of  law,  an  instruction  which,  after 
enumerating  certain  facts  to  be  con- 
sidered in  determining  whether  any 
of  such  sales  were  unlawful,  direct- 
ed the  consideration  of  "all  other  mat- 
ters throwing  light  thereon,"  was  not 
erroneous,  as  authorizing  the  jury  to 
believe  that  it  might  go  outside  of  the 
evidence,  where  all  such  matters  ap- 
pearing in  the  evidence  were  not 
enumerated.  State  v.  Skillicorn,  73  N. 
W.  503.  104  Iowa,  97.  It  is  sufficient 
to  apprise  the  jury  that  their  verdict 
must  be  based  upon  the  evidence  in 
the  case  alone,  that  they  were  in- 
structed that  the  law  presumes  the 
accused  innocent,  and  that  this  pre- 
sumption continues  until  his  guilt  is 
established  by  competent  evidence  be- 
vond  a  reasonable  doubt.  Palin  v. 
State,  38  Xeb.  862.  57  N.  W.  743.  A 
charge,  in  a  prosecution  for  rape,  that 
if,  after  hearing  all  the  evidence,  ju- 
ry were  convinced  beyond  a  reason- 
able doubt  they  should  convict,  Zinn 
V.  State,  205  S.  W.  704,  135  Ark.  342. 
A  charge  that  it  was  the  jury's  duty 
to  give  the  case  a  dispassionate  con- 
sideration, and  if  they  found  the  de- 
fendant guilty  to  convict  him ;  but 
if,  mider  the  evidence  and  law,  there 
was  a  reasonable  doubt  of  his  guilt, 
they  should  not  hesitate  to  find  him 
not  guilty.  Gebhardt  v.  State,  114 
N.  W.  290,  80  Neb.  363. 

6  Smith  v.  Bellrose,  200  111.  App. 
368  ;  Chicago  City  Ry.  Co.  v.  Schaefer, 
121  111.  App.  334 ;  Hvde  v.  Shank,  77 
Mich.  517,  43  N.  W.  890. 

"Discretion"     of     jury.     An     in- 


687 


DUTY   TO   BASE   CONCLUSIONS   ON   EVIDENCE   ALONE 


§377 


known  to  themselves  privately  and  personally  they  believe  his 
testimony  to  be  untrue/  or  which  tend  to  convey  to  the  jury  the 
impression  that  they  are  independent  of  the  court  and  the  law,* 
or  which  are  so  worded  that  the  belief  of  the  jury  without  regard 
to  the  evidence,®  or  without  regard  to  any  consideration  save  that 
of  doing  even-handed  justice  between  the  parties^"  may  control 
and  warrant  a  verdict,  are  erroneous.  Thus  it  is  error  to  tell  the 
jury  to  find  as  they  think  right  and  proper  between  the  parties," 
or  to   charge   generally   that  the  jury  may   find   any   fact  proven 


struction  that  the  jury,  in  its  sound 
"discretion,"  may  return  a  verdict,  is 
objectionable,  and  the  quoted  word 
should  be  replaced  by  "judgment." 
Birmingham  Ry.,  Light  &  Power  Co. 
V.  Smith,  69  So.  910,  14  Ala.  App.  2M. 

Duty  to  follow  conscience.  An 
instruction  that  it  was  the  jury's  duty 
to  follow  their  own  consciences,  ir- 
respective of  anything  else  in  the 
case,  was  erroneous.  Nilsson  v.  Mar- 
tinson, 130  P.  106,  72  Wash.  286. 

Instructions  not  improper  ■with- 
in rule.  A  charge,  "If  you  believe 
that  the  offense  was  committed  In 
this  county  and  state,  and  if  you 
further  believe  that  the  defendant 
was  the  party  committing  the  same, 
you  will  convict,"  is  not  objectionable 
in  authorizing  a  conviction  upon  a 
belief  other  than  that  arising  from 
the  evidence.  Miles  v.  State,  14  Tex. 
App.  436.  An  instruction  that,  in  de- 
termining what  facts  are  proven  in 
the  case,  the  jury  should  carefully 
consider  all  the  evidence  given  before 
them,  with  all  the  circumstances  of 
the.  transaction  in  question  as  detail- 
ed by  the  witnesses,  and  they  may 
find  any  fact  to  be  proved  which  they 
think  may  be  rightfully  and  reason- 
ably inferred  from  the  evidence  giv- 
en in  the  case,  although  there  may 
be  no  direct  evidence  of  testimony  as 
to  such  fact,  is  proper.  North  Chica- 
go St.  R.  Co.  V.  Rodert,  105  111.  App. 
314,  judgment  affirmed  67  N.  E.  812, 
203  111.  413.  An  instruction  to  "con- 
sider the  ca.se  fairly  and  candidly, 
and  give  the  plaintiff  such  amount  as 
you  tliink  reasonable  and  just  under 
the  circumstances."  Corcoran  v.  Har- 
ran,  55  Wis.  120,  12  X,  W.  468.  A 
charge,  in  an  action  against  a  physi- 


cian for  malpractice,  where  the  tes- 
timony of  experts  was  contlicting, 
that  the  jury  were  not  bound  to  ac- 
cept their  statements  or  conclusions, 
but  should  determine  the  case  upon 
the  whole  evidence.  Sheldon  v. 
Wright,  67  A.  807.  80  Vt.  298. 

7  Rylee  V.  State,  22  So.  890,  75  Miss. 
352. 

8  North  Chicago  St.  R.  Co.  v.  Ras- 
pers, 57  N.  E.  849.  186  111.  246 ;  Lud- 
wig  V.  Suger,  84  111.  99. 

Instructions  not  obnoxious  to 
rule.  An  instruction  that  the  court 
did  not  mean  to  give  an  opinion  as 
to  what  were  or  were  not  the  facts 
in  the  case,  but  that  it  was  solely  and 
exclusively  for  the  jury  to  determme 
from  the  evidence,  and  having  done 
so  to  apply  to  them  the  law  as  stated 
in  the  instructions.  North  Chicago 
St.  R.  Co.  v.  Raspers,  57  N.  E.  849, 
186  111.  246.  affirming  judgment  85 
111.  App.  316.  An  instruction  that 
the  jury  are  to  be  guided  by  their  own 
"judgment"  in  determining  whether 
from  all  the  facts  and  circumstances 
in  a  case,  a  party  is  guilty  of  the 
charge  against  him.  is  not  erroneous 
as  telling  them  that  they  may  dis- 
regard the  rules  of  law  in  coming  to 
such  determination.  Timmis  v.  Wade, 
5  Ind.  App.  139,  31  N.  E.  827. 

9  Jackson  v.  Johnson,  212  111.  App. 
61;  People  v.  Peden,  109  111.  App. 
560 ;  Pfirshing  v.  Heitner,  91  111.  App. 
407 ;  Chicago,  B.  &  Q.  R.  Co.  v.  Libey, 
68  111.  App.  144;  Coles  v.  Nikirk,  57 
P.  41,  8  Ran.  App.  857. 

10  Chicago  North  Shore  St.  Ry.  Oo. 
V.  Hebson,  93  111.  App.  98. 

11  Ruckersville  Bank  v.  Hemphill,  7 
Ga.  .396;  Bailey  v.  Ormsby,  3  Mo. 
580. 


§  377  INSTRUCTIONS  TO  JURIES  688 

which  they  may  think  rightfully  and  reasonably  inferable  from 
the  evidence.^ 

Under  this  principle  instructions  which,  in  either  a  civil  ^^  or 
a  criminal  case/*  suggest  to  the  jury  the  possible  consequences  of 
their  verdict,  are  improper,  and  ordinarily  such  an  instruction  is 
properly  refused.-^^  Under  this  principle  it  is  proper  for  the  court 
to  instruct  the  jury  not  to  be  influenced  by  such  considerations  as 
that  the  defendant  has  been  in  jail  for  a  long  time  on  account  of 
the  charge  on  which  he  is  being  tried,^®  or  by  any  speculation  as 
to  the  final  judgment  or  sentence  of  the  court  in  case  they  find 
the  defendant  guilty,^'  or  by  the  consideration  that  the  complain- 
ing witness  may  have  a  civil  remedy  against  the  defendant,^* 
and  cautionary  instructions  against  considering  certain  acts  of 
the  court  in  rulings  upon  motions,  etc.,  as  indicating  its  opinion 
upon  the  facts  may  be  sometimes  necessary. ^^ 

Instructions  will  not  be  erroneous  because  they  do  not  expressly 
restrict  the  jury  to  the  evidence.^"  If,  construing  the  instructions 
as  a  whole,  they  do  not  authorize  the  jury  to  base  their  verdict  in 
whole  or  in  part  on  matters  outside  of  the  evidence  introduced  at 
the  trial  and  a  reasonable  understanding  of  them  requires  the  jury 
to  look  only  to  such  evidence  they  will  be  sufficient  in  this  re- 
gard.^^    It  is  not  necessary  to  repeat  in  each  clause  of  an  instruc- 

12  Henry  v.  Colorado  Land  &  Wa-  charge  the  jury  to  base  its  findings 
ter  Co..   51  P.  90.  10  Colo.  App.  14.      solely   on   the   evidence   is  not   fatal 

13  Miller  v.  United  States,  .37  App.      where  oomplaiuaut  asked  no  instruc- 

D.  C.  138:    Rav  v.  Patterson,  81  S.      tion  on  the  subject.     Burr  v.  McCal- 

E.  773,   165  'S/C.   512;     Catasauqua      lum,  80  N.  W.  1040,  59  Neb.  326,  SO 
Mfg.  Co.  V.  Hopkins.  141  Pa.  30.  21      Am.  St.  Rep.  677. 

A.  638,   28  Wldy.   Notes   Cas.   146.  21  m.     Chicago    City    Ry.    Co.    v. 

14  State  V.  Crofford,  96  N.  W.  889,  Carroll,  68  N.  E.  1087,  206  111.  318, 
121  Iowa,  395;  Menn  v.  State,  112  affirming  judgment  102  111.  App.  202 ; 
N.  W.  .38.  132  "^Hs.  61.  Davis   v.    Northwestern   El.    Ry.    Co.. 

15  Smith  V.  Ross.  31  App.  D.  C.  48  N.  E.  1058,  170  111.  595;  Padfield 
348 :  Schmohl  v.  Buscomi,  117  N.  T.  v.  People,  146  111.  660,  35  N.  E.  469. 
S.  788.  133  App.  Div.  20.  ^      Ind.     Golibart  v.  Sullivan,  66  N.  E. 

16G0SS  V.  State.  81  S.  E.  247,  14  iss,  30  Ind.  App.  428;    Eureka  Block 

Oa.  App.  402;    Foskey  v.  State,  45  S.  Coal  Co.  v.  Wells,  61  N.  E.  236,  29 

E.  967.  119  Ga.  72.  Ind.   App.    1,   94    Am.    St.   Rep.    259; 

17  People  V.  Bernal,  180  P.  825.  40  Citizens'  St.  R.  Co.  v.  BaUard,  52  N. 
Cal.    App.    358;     Nicholson   v.    State,  e.  729,  22  Ind    App    151 

106  P.  929,  18  Wyo.  298.  Mo.'   s'charfe   v.    Southera    Illinois 

18  State  V.  Leonard,  144  P.  113,  73  Const.  Co.,  92  S.  W.  126,  115  Mo.  App. 
Or.  451,  rehearing  denied  144  P.  681,      157. 

73  Or.   451.  Consideration    of    ezclnded    evi- 

loMeeteer  v.   Manhattan   Ry.   Co.,  dence.     An   instruction   "to  consider 

63  Hun,  5.J3,  IS  N.  Y.  S.  561.  all  the  evidence  in  the  case"  is  not 

ft4^>j    w^o  '^*  ^^^^^°'  ^^^  ^^^^^-  '^^'  erroneous,  as  allowing  the  considera- 

■o            ,  tion  of  evidence  that  had  been  admit- 

Keqaest     necessary.     Failure     to  ted  and  afterwards  excluded  by  the 


689      DUTY  TO  BASE  CONCLUSIONS  ON  EVIDENCE  ALONE     §  377 

tion  that  the  jury  must  base  their  belief  as  to  the  facts  upon  the 
evidence,22  ^nd  it  is  held  that  the  words  "from  the  evidence"  are 
implied  in  all  instructions  to  find  for  one  party  or  the  other,  if 
the  jury  find  certain  facts  to  be  established ;  =^3  nor  is  such  formula 
re-quired  to  be  used  where  the  charge  is  based  upon  undisputed 
evidence.'* 

The  phrases  "under  the  evidence  and  the  mstructions  of  the 
court"  and  "from  the  preponderance  of  the  evidence  in  this  case 
and  under  the  instructions  of  the  court"  are  held  not  to  be  mis- 
leading,  and  to  be  proper  substitutes  for  the  customary  term  "from 

the  evidence."  ^^  .  i  ^ 

Where  events,  not  a  part  of  the  trial,  but  havmg  a  tendency  to 
affect  the  sympathies  or  emotions  of  the  jury,  occur  m  the  court- 
room, it  is  within  the  discretion  of  the  trial  judge  to  refuse  to  m- 
struct  that  the  jury  shall  not  consider  such  occurrences.  «_  A 
charge  that  in  determining  a  disputed  question  of  fact  the  jury 
must'' look  to  all  the  circumstances  connected  with  the  transaction 
is  not  objectionable,  as  authorizing  them  to  look  to  matters  not 
in  evidence^'  and  an  instruction  that  the  jury  should  rely  on  their 

court,  where,  in  another  instruction, 
they  are  directed  to  disregard  any 
evidence  that  has  been  stridden  out. 
Tedens  v.  Sanitary  Dist.  of  Chicago, 
149  111.  87,  36  N.  E.  1033. 

2  2  Miller  v.  Balthasser,  78  111.  302; 
Durham  v.  Evans,  56  111.  App.  513; 
Wear  v.  Duke,  23  111.  App.  322 ;  Ganz 
V.  Jletropolitan  St.  Ry.  Co.  (Mo.)  220 
S.  W.  490. 

23  Poland  V.  Miller,  95  Ind.  387,  48 
Am.  Rep.  730;  Blumhai-dt  v.  Rohr, 
70  Md.  328,  17  A.  266 ;  Baker  v.  Kan- 
sas City,  C.  &  S.  Ry.  Co.,  52  Mo.  App. 
602. 

"If  the  jury  believe."  An  in- 
struction dealing  with  conflicting 
evidence  is  not  bad  for  failing  to  use 
the  words  "from  the  evidence"  after 
the  words  "if  the  jury  believe." 
]\Iansfield  v.  Morgan,  37  So.  393,  140 
Ala.  567. 

2  4  Schmidt  v.  Pfau,  114  111.  494,  2 
N.  E.  522;  Carpenter  v.  Hyman,  66 
S.  E.  1078,  67  W.  Va.  4,  20  Ann.  Cas. 
1310. 

25  Chicago  &  W.  I.  R.  Co.  v.  New- 
ell, 113  111.  App.  263. 

2  6  Chicago  &  E.  R.  Co.  v.  Meech, 
45  N.  E.  290,  163  111.  305. 

2  7Walcott  V.  Brander,  10  Tex.  419. 
Inst.to  Juries — 44 


"Facts  and  circumstances  on 
the  trial."  An  instruction  that  the 
jurv  are  the  exclusive  judges  of  the 
credibility  of  the  witnesses,  and  that 
they  "should  take  into  consideration 
the  whole  of  the  evidence,  and  all  the 
facts  and  circumstances  on  the  trial, 
living  to  the  several  parts  of  the  evi- 
dence such  weight  as  they  are  enti- 
tled to,"  etc.,  is  not  objectionable  as 
permitting  the  jury  to  consider  mat- 
ters outside  the  evidence,  the  clause 
"facts  and  circumstances  on  the  tri- 
al" being  limited  by  the  instruction 
"to  the  several  parts  of  the  evidence." 
Fischer  v.  Coons,  26  Neb.  400,  42  N. 
W.  417.  Instructions  permitting  jury 
to  consider  facts  and  ciraimstances 
in  evidence,  "or,"  in  the  disjunctive, 
other  facts  and  circumstances  observ- 
ed during  trial,  was  not  erroneous  as 
permitting  jury  to  consider  facts  and 
circumstances  observed  during  trial 
outside  of  those  in  evidence.  Potter 
V.  Womach,  162  P.  801,  63  Okl.  107. 
An  instruction  to  the  jury  to  find  for 
the  plaintiff  if  they  should  believe 
certain  facts  from  the  evidence  "and 
all  the  circumstances  proven  in  the 
case"  could  not  have  misled  the  jury. 
Bnien  v.  Grahn,  5  Ky.  Law  Rep. 
(abstract)  323. 


377 


INSTRUCTIONS  TO  JURIES 


690 


own  recollection  and  belief  in  preference  to  those  of  the  attor- 
neys is  not  improper.^^ 

A  particular  instruction  which  fails  to  confine  the  jury  to  the 
evidence  will  not  necessarily,  or  perhaps  not  ordinarily,  constitute 
cause  for  reversal.  Thus  an  instruction  that  if  the  jury  find  the 
issues  for  the  plaintiff  they  may  award  him  damages  in  such  amount 
"as  they  believe"  will  compensate  him,  while  erroneous,  will  not 
work  a  reversal  where  the  court  has  also  instructed  that  every 
element  essential  to  a  recovery  must  be  established  by  a  preponder- 
ance of  the  evidence."^ 

§  378.  Instructions  as  to  application  of  personal  knowledge,  expe- 
rience, and  observation  of  jurors 
The  court  may  instruct,^**  and,  on  request,  the  jury  should  be 
instructed,^^  that  the  case  is  to  be  tried  upon  the  evidence  given 
at  the  trial,  and  not  upon  information  that  one  or  more  jurors  may 
have  outside  of  the  record.  Instructions  which  permit  the  jury, 
not  only  to  consider  the  evidence  introduced  before  them,  but  their 
own  special  personal  knowledge  with  regard  to  the  facts  in  con- 
troversy, and  draw  conclusions  therefrom  are  erroneous,^^  as  are, 


It  has  been  held,  however,  that 
charges  to  the  jury  which  instruct 
them  that  in  coming  to  their  conclu- 
sion they  must  "carefully  consider 
the  circumstances  of  the  case"  are 
niislendins;.  Larkinsville  Min.  Co.  v. 
Flippo,  30  So.  358,  130  Ala.  361. 

2  8  Meagher  v.  Fogarty,  152  N.  TV. 
S.33,  129  Minn.  417. 

2  9  Kelley  v.  .Tohn  E.  Daily  Co..  181 
P.  326,  .56  Mont.  63. 

30  Griggs  V.  State,  86  S.  E.  726,  17 
Ga.  App.  301;  State  v.  Gaymnn.  44 
S.  C.  .33.  22  S.  E.  305,  31  L.  P..  A.  489, 
?>l  Am.  St.  Rep.  861;  State  v.  Jones, 
29  S.  C.  201,  7  S.  E.  296. 

Application  of  knoxeledge  deriv- 
ed by  some  jurors  from  trial  of 
previous  cases.  Where,  on  the  trial 
of  a  criminal  case,  the  jury,  some  of 
whom  had  at  the  same  term  tried 
other  similar  cases',  during  the  trial 
of  which  law  hooks  had  been  read  to 
the  jury  by  permission  of  the  court, 
were  instructed  that  they  might  bring 
to  their  aid,  in  deciding  on  the  evi- 
dence, any  knowledge  which  they  had 
acquired  from  any  source  equally 
open  to  them  all,  but  not  any  partic- 
ular knowledge  as  to  the  law  or  the 


facts  communicated  to  a  part  of 
them  only ;  and  that  they  were  to 
decide  this  case  on  the  evidence  in- 
troduced into  it,  and  not  on  any  evi- 
dence of  the  law  or  facts  introduced 
into  other  cases,  in  which  some  of 
them  did  not  sit ;  and  that  the  jury 
were  bound  to  consider  the  instruc- 
tions of  the  court  on  the  law  of  the 
case  as  evidence  of  the  law ;  and 
that  they  must  decide  the  case  ac- 
cording to  the  evidence,  it  was  held 
that  the  defendant  had  no  ground  of 
exception.  Commonwealth  v.  Law- 
rence. 9  Gray  (Mass.)  133. 

3iDoggett  v.  Jordan,  2  Fla.  541; 
Downing  v.  Farmers'  Mut.  Fire  Ins. 
Co.,  138  N.  W.  917,  158  Iowa,  1 ;  Citi- 
zens' St.  R.  Co.  V.  Burke,  40  S.  W. 
10S5,  98  Tenn.  650. 

3  2  Ga.  Gibson  v.  Carreker,  91  Ga. 
617.  17  S.  E.  965. 

ni.  Ottawa  Gas  Light  &  Coke  Co. 
v.  Graham,  28  111.  73,  81  Am.  Dec. 
263. 

Kan.  Chicago,  R.  I.  &  P.  Ry.  Co. 
V.  Spring  Hill  Cemetery  Ass'n,  57  P. 
252,  9  Kan.  App.  882. 

Me.  Page  v.  Alexander,  84  Me.  83, 
24  A.  584 ;  Douglass  v.  Trask,  77  Me. 
35 ;    State  v.  Bartlett,  47  Me.  388. 


691  DUTY   TO   BASE   CONCLUSIONS  ON   EVIDENCE   ALONE  §  378 

in  some  jurisdictions,  instructions  authorizing  them  to  view  the 
evidence  in  the  light  of  their  own  knowledge,  observation,  and  ex- 
perience in  life,  not  limiting  them  to  such  knowledge,  observa- 
tion, and  experience  as  they  share  in  common  with  men  general- 
ly,^^ and  where  a  knowledge  of  certain  facts  in  controversy  is  not 
common  to  persons  generally  it  will  be  misleading  and  erroneous 
to  charge  that  the  jury  may  use  their  general  knowledge  in  deter- 
mining such  facts.^*  Although  there  is  some  conflict  in  the  cases, 
the  rule  supported  by  the  weight  of  authority  seems  to  be  that  it 
is  error  to  instruct  that  the  jurors  can  act  upon  their  private  and 
personal  knowledge  of  the  character  of  a  witness  in  determining 
his  credibility,^^  and  it  is  proper  to  instruct  that  jurors  should 
disregard  any  such  personal  knowledge,  and  not  impart  it  to  fel- 
low jurors.^^ 

It  is  not  improper,  however,  in  some  jurisdictions,  to  charge  in 
effect  that  the  jurors  are  entitled  to  make  use  of  their  own  knowl- 
edge and  judgment  in  determining  the  weight  of  the  evidence  upon 
a  disputed  question  of  fact,  if  the  jury  cannot  understand  from 
the  charge  as  a  whole  that  they  can  act  upon  such  knowledge,  re- 
gardless of  the  evidence,^'  and,  as  indicated  by  the  foregoing  dis- 
cussion, the  jury,  in  determining  questions  of  fact,  may  apply  the 
knowledge  and  experience  which  they  have  in  common  with  all 
men,  and  an  instruction  to  that  effect  is  proper  ;2*  it  being  said 

Mich.     Karrer  v.  Citv  of  Detroit,  36  Ross  v.  State,  170  S.  W.  305,  75 

106  N.  W.  64,   142  Mich.  331:     Bur-  Tex.  Cr.  R.  59. 

rows  V.  Delta  Transp.  Co.,  106  Mich.  37  Ainslie    v.    Biffgs,    211    III.    App. 

582,  64  N.  W.  501.  29  L.  R.  A.  468;  46.3;    State  v.  Bielkstrom,  104  N.  W. 

Wood  V.  Barker,  49  Mich.  295,  13  N.  431,  20  S.  D.  1 ;   Lindqnist  v.  Town  of 

^^^r^^-J:      T,               XT  ^      -,.  ^T   ^   cf  Bradley,  152  N.  W.  827,  161  Wis.  175 : 

^     •  ^'o.  ^^^^^  ^-  ^^^^'  ^^  ^-  ^-  ^^-  Solbers  V.  Robbins  Lumber  Co.,   133 

5fP-     ^^}  'r.  S^^I"^'     '';.F^*'£^^'     5  ^'-  W.  28,  147  Wis.  259,  37  L.  R.  A.  (N. 

Thomp.  &  C.  265,  3  Hun,  164,  affirmed  g.)  790 ;    Neanow  v.  Uttech,  46  Wis. 

without  opinion  62  N.  Y.  623.  ^g^   1  N   W  221 

33  Loveman  v.  Birmingham  Rv..  L. 

&   P.   Co.,  43   So.   411,   149   Ala.   515;  Directing   jury   to    reject   testi- 

Sloss-Sheffield    Steel    &    Iron    Co.    v.  mony    mot    in    accord    witli    jury's 

Hutchinson,  40  So.  114.  144  Ala.  221 ;  knowledge.     On  an  issue  whether  a 

Chicago,  B.   &  Q.  R.  Co.  v.  Kraven-  '^^^11  was  any  less  valuable  because  a 

buhl,  91  N.  W.  880,  65  Neb.  889,  59  L.  ^^^le  out   of  plumb,   where   some   of 

R.  A.  920.  ^^^®    testimony    was    extravagant,     a 

'34  Walte  V.  Teeters,  36  Kan.  604,  14  '^harge  to  reject  any  testimony  that 

Pac.  146.  the  wall  was  less  safe  than  if  built 

35  Collins  V.   State,  94  Ga.  394,  19  ^°    ^^^^'    ^^   ^^^^    testimony    did    not 

S.  B.  243 ;    Pettvjohn  v.  Liebscher,  92  accord  with  the  jury's  knowledge  of 

Ga.  149,  17  S.  E.  1007 ;    Chattanooga,  ^^^^    matters,    is    proper.      Stiles    v. 

R.  &  C.  R.  Co.  V.  Owen.  90  Ga.  265,  ^eillsville   Milling  Co.,  87  Wis.   266, 

15  S.  E.  853.  58  N.  W.  411. 

Contra,   Howard  v.   State,  73   Ga.  38  Ala.     Sloss-Sheffield  Steel  &  Iron 

83  ;   Head  v.  Bridges.  67  Ga.  227;   An-  Co.  v.  Hutchinson,  40  So.  114,  144  Ala. 

derson  v.  Tribble,  66  Ga.  584,  221 ;   Rosenbaum  v.  State,  33  Ala.  354. 


§  379 


INSTRUCTIONS  TO  JURIES 


692 


in  one  jurisdiction  that  the  experience  of  the  juror  is  the  lamp  of 
reason  by  which  his  judgment  is  controlled,  and  that  he  may  con- 
sult and  be  governed  by  it  in  all  cases  in  which  the  evidence  is 
conflicting  and  not  declared  to  be  conclusive.^^  Such  rule  applies 
in  determining  the  credibility  of  witnesses.^" 

§  379.  Instructing  jury  to  apply  their  coanmon  sense  in  weigh- 
ing evidence 
The  common  sense  of  the  jury,  brought  to  bear  upon  the  consid- 
eration of  the  testimony  and  in  obedience  to  the  rules  laid  down  by 
the  court,  is  the  most  valuable  feature  of  the  jury  system,  and  has 
done  more  to  preserve  its  popularity  than  any  apprehension  that 
a  bench  of  judges  will  willfully  misuse  their  power.*^  It  is  there- 
fore proper  to  instruct  the  jury  that  there  is  nothing  to  prevent 
them  from  applying  to  the  facts  of  the  case  the  sound  common 
sense  which  is  supposed  to  characterize  their  daily  transactions, 
and  that  they  would  apply  to  any  other  subject  that  came  under 
their  consideration  and  that  demanded  their  judgment.  Such  an 
instruction  does  not  authorize  the  jury  to  depart  from  the  rules 


Colo.  Denver  &  R.  G.  R.  Co.  v. 
Warring,  86  F.  305,  37  Colo.  122. 

Fla.  Marshall  v.  State,  44  So.  742, 
54  Fla.  66. 

111.  People  V.  Turner,  107  N.  E. 
162,  265  111.  594,  Ann.  Cas.  1916A, 
1062. 

Kan.  Fisher  v.  O'Brien,  162  P. 
317,  09  Kan.  621,  L.  R.  A.  1917F,  610 ; 
Smitli  V.  St.  L.  &  S,  F.  R.  Co.,  148 
P.  7.59,  95  Kan.  451 ;  Sanford  v.  Gates, 
38  Kan.  405,  16  P.  807 ;  Missouri  Riv- 
er R.  R.  Co.  V.  Richards,  8  Kan.  101. 

Minn.  Johnson  v.  Hillstrom,  37 
Minn.  122,  33  N.  W.  547. 

Instructions  not  improper  ivitli- 
in  rule.  An  instrjction  that,  in  con- 
sidering the  damages,  the  jury  might 
consider  the  facts  proved  in  connection 
with  their  own  knowle<lge  and  experi- 
ence, was  not  objectionable  as  not 
limiting  the  jury  to  such  knowledge 
as  men  ordinarily  possess,  where  such 
knowledge  related  to  the  value  of  the 
services,  the  expense  of  clothing,  edu- 
cation, and  support  of  a  child  alleged 
to  have  been  wrongfully  killed  by  de- 
fendant. Illinois  Cent,  R.  Co.  v.  War- 
rincr.  82  N.  E.  246,  229  111.  91,  affirm- 
ing judgment  132  111.  App.  301.  An 
instruction  in  a  criminal  case  that  the 
jury  might  consider   in   ascertaining 


the  truth  the  demeanor  of  a  witness, 
etc.,  and  "all  other  things  that  might 
be  inferred  from  experience  or  which 
the  jury  may  deem  proper  under  the 
circumstances,"  is  not  open  to  ob- 
jection that  the  jury  might  infer  from 
their  own  experience  what  the  ver- 
dict should  be,  and  arrive  at  a  con- 
clusion not  based  on  evidence.  State 
V.  Runyon,  107  A.  33,  93  N.  J.  Law, 
16. 

Knoivledge  of  city  ordinances. 
In  an  action  for  injuries  to  a  street- 
car passenger,  caused  by  collision 
with  a  locomotive  at  a  crossing,  it 
was  proper  to  refuse  to  charge  that 
the  jury  should  not  consider  any 
knowledge  they  might  possess  of  the 
citj'  ordinances  regulating  the  speed 
of  trains,  the  ringing  of  the  engine 
bell,  or  the  placing  of  watchmen  at 
crossings.  Houston  Citv  St.  Ry.  Co.  v. 
Ross  (Tex.  Civ.  App.)  28  S.  W.  254. 

3  9  Willis  V.  Lance,  28  Or.  371,  43 
P.  384,  487. 

40  Jenney  Electric  Co.  v.  Branham, 
145  Ind.  314,  41  N.  E.  448,  33  L.  R. 
A.  395 ;  Nye-Schneider-Fowler  Co.  v. 
Chicago  &  N.  W.  Ry.  Co.  (Neb.)  179 
N.  W.  .503. 

*i  Dunlop  V.  United  States,  17  S. 
Ct.  375,  165  U.  S.  486,  41  L.  Ed.  799. 


G93      DUTY  TO  BASE  CONCLUSIONS  ON  EVIDENCE  ALONE     §  380 

of  evidence,  or  to  decide  the  case  upon  abstract  notions  of  their 
own  or  irom  facts  gathered  outside  of  the  testimony.  -  An  in- 
stTu^tion  however,  which  in  effect  tells  the  jury  that  their  com- 
mon sense  is  a  bet  er  guide  than  the  rules  of  law  given  to  them  by 
Te  court  is  misleading,  since  such  rules  may  ^1---^- 
to  be  the  concentrated  common  sense  of  many  generations. 

S  380.     Effect  of  view  of  premises  .Uo  tninrl^  nf 

In  most  jurisdictions  the  impressions  made  upon  the  minds  of 
the  iurby  the  examination  of  premises  involved  m  the  litigation 
to  ihch  they  have  been  sent  for  the  purpose  of  a  view,  do  not 
coniti  ute  a  part  of  the  evidence  in  the  cause,-  and  an  mstruction 
vhTcl:  permit's  the  jury  to  use  as  evidence  what  they  saw  orj^earned 
on  such  a  view,«  or  which  warrants  the  jury  m  flndmg  a  materia 
?act  upon  their  own  judgment  from  what  they  saw,  regardless  of 
anv  of  the  sworn  testimony ,^«  is  erroneous. 

The  ntent  of  the  statute  allowing  such  view  is  to  enable  he 
iurv  to  better  understand  and  comprehend  the  testirnony  of  the 
wtniesses  and  thereby  the  more  intelligently  to  apply  it  to  the 
™on  tHai  before  them,  and  not  to  make  them  silent  witnesses 
In  the  case,-  and  it  may  be  necessary  in  some  cases  to  mstruct 
the  jury  to  disregard  knowledge  obtamed  by  a  view 

On  the  other  hand,  the  court  is  not  required  to  charge  that  in 
determinino-  the  rights  of  the  parties  the  jury  should  not  con- 
sidei  anything  they  saw  at  the  view,  since  obedience  to  such  an 
i;fstruct?on  would  defeat  the  object  of  the  view  -  and  where,  be- 

..Dunlop  V.  united  States.  17  S.  J-ree  f  ^^  ^'''  ^''  ^^  ''''  ' 
Ct.  375,  165  U.  S.  486,  41  L.  Ed.  799^      Ann.  Cas.  ^300;^^^^.^^  ^.^^  ^    B^,^,,, 

43  Densmore  v.  State,  67  Ind.  .:50b,      ^  ^^^  j^^p   g^  ^^  p   g^^ 

33Am.  Eep.  96.  In    Wisconsin,    it    seems   that,    if 

44  Headv  v.  Vevay,  Mt.  S.  &  V.  ^,itnesses  testify  to  something  wnich 
Turnpike  Co.,  52  Ind.  117.  Compare  ^^^  ^^^y  know  by  the  ejidenee  of 
City  of  Topeka  v.  Martineau,  22  F.  ^j^^j^  senses  on  the  view  to  be  raise, 
419,  42  Kan.  387,  5  L.  R.  A.  775.  t^gy  may  be  told  that  they  may  disre- 

45  Morrison  v.  Burlington,  C.  R.  &  gard  such  testimony  and  find  the 
IV  Rv  Co  84  Iowa,  663,  51  N.  W.  75 ;  facts  as  they  know  them  to  be,  ai 
SchuSz  V '  Bower,  57  Minn.  493,  59  though  no  witness  gives  testimony  in 
f  W   631:  47  Ini.'  St.  Rep.  630.  support  of  such  finding.    Washburn^. 

In  Louisiana,  in  eminent  domain  MUwaul^e  &  L  W.  R.  Co.,  18  N.  W. 
-e^SSfk/SpSS  ^/SrS     "^^  wSf  %P-er,^CaI.e09; 

and^ their  own  opinions  acquired  from      ^^\State  v.  Henrj    ^1  f:  K  43|  51 
a    view    as   a   part   of   the    evidence     W.  \  a.  283 .    *^^^.^-  ^^^^™^  ^^.^ 
tn   the  case.     City  of   Shreveport  v.     R.  Co.,  34  W.  Va.  406.  12  S.  E.  757. 


§  381  INSTRUCTIONS  TO  JURIES  694 

fore  a  view  by  the  jury,  they  are  cautioned  not  to  consider  their 
own  observations  as  evidence,  and  are  properly  instructed  as  to  the 
purposes  of  the  view,  an  instruction  in  regard  to  the  same  matter 
need  not  be  also  given  at  the  close  of  the  trial.^*>  An  instruction 
which  fairly  indicates  to  the  jury  that  the  proper  object  of  a  view 
is  to  better  enable  the  jury  to  understand  the  evidence,  or  that, 
where  there  is  a  conflict  in  the  testimony,  they  may  resort  to  the 
evidence  of  their  senses  on  the  view  to  determine  the  truth,  and 
does  not  place  such  view  on  an  equality  with  the  evidence,  is  not 
improper.^^ 

§  381.     Guarding  against  influence  of  public  press 

The  refusal  of  an  instruction  warning  the  jury  against  being 
influenced  by  newspaper  articles  is  not  necessarily  error,^'^  but  the 
case  may  be  of  such  notoriety  and  public  interest  that  it  will  be 
the  duty  of  the  court  to  so  instruct  the  jury  that  they  will  not 
be  likely  to  see  newspapers  commenting  on  the  proceedings.^ 

§  382.     Charges  as  to  sympathy,  bias,  prejudice,  or  public  opinion 

It  is  largely  discretionary  with  the  trial  court  whether  to  give, 
or  to  refuse  to  give,  cautionary  instructions  to  the  jury  against 
being  influenced  by  sympathy,  prejudice,  or  bias  one  way  or  the 
other.'**  It  Avill  ordinarily  be  proper  to  give  such  an  instruc- 
tion,"" as  wliere  there  is  danger  of  racial  prejudice  entering  into 

•■■•o  Cox  V.  Chicago  &  N.  W.  Ry.  Co.,  Or.      Xordin  t.    Lovesrren   Lumber 

95  Iowa,  54r  6.3  N.  W.  450.  Co..  156  P.  587.  SO  Or.  140. 

51  Murrav  v.  Vandalia  R.  Co..  202  Va.     Ponhatan  Lime  Co.  v.  Whet- 

111.  App.  Se,2 ;    City  of  Clay  Center  v.  zel'.s  Adm's,  86  S.  E.  898,  118  Va.  161. 

.Tevons.  2  Kan.  App.  ^^(\R.  44  P.  745;  55  Ala.      Lunsford    v.    Walker,    93 

Ham  V.  Delaware  &  H.  Canal  Co..  1.55  Ala.  36,  8  So.  386. 

Pa.  548.  20  A.  757,   32   Wldv.   Notes  Cal.     People  v.  Bojorquez,  169  P. 

Cas.  3.35.  20  L.  R.  A.  682;    Seattle  &  922.  35  Cal.  App.  350. 

M.   R.   Co.   V.    Rocder,  70  I'.   498,   30  Fla.     Lindsev  v.   State,  43  So.  87, 

Wash.  244,  94  Am.  St.  Rep.  864.  53  Fla.  56. 

12  Union  Cent.  Life  Ins.  Co.  v.  Skip-  Ga.     Jackson  v.  Seaboard  Air  Line 

per  (C.  C.  A.  Ark.)  115  F.  69.  .52  C.  C.  Ry.,  78  S.  E.  10.59.  140  Ga.  277:    At- 

A.  003 ;   Beyer  v.  Martin,  120  111.  App.  lantic  &  B.  Rv.  Co.  v.  Bowen,  54  S. 

.50.  E.  105,  125  Ga.  460. 

53  Oirren  v.  Rockford  Star  Printing  111.    People  v.  Duzan,  112  X.  E.  315, 

Co.,  123  N.  E.  587,  288  111.  405.  272  111.  478. 

6*  Ala.     Snedecor  v.   Pope.   39   So.  Minn.      Bingham    v.    Bernard,    36 

318.  143  Ala.  275.  Minn.  114,  30  N.  W.  404. 

111.     P.irmiuf.'ham  Fire  Ins.  Co.   v.  N.  C.     State  v.  Fulkersou,  61  N.  C. 

Pulver.  27  111.  App.  17,  affirmed  126  233. 

111.  329,  IS  N.  E.  804,  9  Am.  St.  Rep.  Wash.     Wheeler  v.  Hotel  Stevens 

598.  Co.,  127  P.  840,  71  Wash.   142,  Ann, 

Miss,     flark  v.  State,  59  So.  887,  Cas.  1914C,  576. 

102  Miss.  7G8.  Instructions  proper  xtritliin  rule. 

Neb.     llnskovec  V.  Omaha  St.  Ry.  An  instruction  that  it  is  jury's  duty  to 

i'l).,  VS.:  N.  W.  .305,  85  Neb.  295.  follow  the  law,  and  the  instructions 


695 


DUTY   TO   BASE    CONCLUSIONS   ON   EVIDENCE   ALONE 


§  382 


the  deliberations  of  the  jury,^  or  where  a  corporation  is  a  party .'^'^ 
An  instruction,  in  an  action  against  a  corporation,  to  consider  the 
evidence  with  the  same  fairness  that  the  jury  would  show  to  a 
private  individual,  is  a  cautionary  instruction,  and  not  objection- 
able as  on  the  weight  of  the  evidence.^* 

In  criminal  cases  it  is  proper  to  caution  the  jury  against  being 
biased  or  influenced  by  sympathy  for  the  accused  or  his  relatives, 
or  by  public  opinion  or  prejudice,^**  and  such  an  instruction  is  not 
prejudicial  to  the  accused,  as  requiring  the  jury  to  determine  the 
case,  freed  from  any  of  the  mental  processes  by  which  men  usually 
arrive  at  conclusions.*'® 

On  the  other  hand,  the  refusal  of  the  trial  court  to  caution  the 
jury  against  the  influence  of  sympathy  or  prejudice  or  public  sen- 
timent will  not  usually  be  cause  for  reversing  a  judgment;''^  ju- 
rors being  presumed  to  be  of  sufficient  intelligence  to  know  their 
duties  in  this  regard.^"  Thus  the  court  need  not,  as  a  general  rule, 
admonish  the  jury  not  to  entertain  a  bias  for  the  plantiff  because 
the  defendant  is  a  corporation,  or  charge  that  a  corporation  is 
entitled  to  the  same  protection  under  the  law  as  individual  liti- 


given  by  the  court,  anrl  they  were 
bound  to  decide  a  case  without  any 
feeling,  sympathy,  or  prejudice  for 
or  against  plaintiff  and  the  other  de- 
fendants, and  on  its  merits,  as  be- 
tween two  individuals,  was  proper. 
Hoag  V.  Washington-Oregon  Corpora- 
tion, 147  P.  750,  75  Or.  588,  modifying 
judgment  on  rehearing  144  P.  574, 
75  Or.  588.  In  an  action  against  a 
coal  mining  company  at  the  time  of 
the  labor  troubles,  it  was  proper  to 
instruct  the  jui-y  not  to  be  influenced 
by  sympathy  or  prejudice,  and  that 
a  disregard  of  such  instruction  would 
lead  to  the  setting  aside  of  the  ver- 
dict. Bachert  v.  Lehigh  Coal  &.  Nav- 
igation Co.,  57  A.  765,  208  Pa.  362. 

5  6  People  V.  Taylor,  87  P.  215,  4  Cal. 
App.  31 ;  Summerford  v.  State,  49  S. 
E.  268,  121  Ga.  390 ;  McLaurin  v.  Wil- 
liams, 95  S.  E.  559,  175  N.  O.  291; 
State  V.  Barwick,  71  S.  E.  838,  89  S. 
C.  153. 

B7  Cornell  v.  Manistee  &  N.  E.  Pt. 
Co.,  75  N.  W.  472,  117  Mich.  238  ;  Huss 
V.  Heydt  Bakery  Co.,  108  S.  W.  63, 
210  Mo.  44 ;  Davis  v.  Atlanta  &  C.  A. 
L.  Ry.  Co.,  41  S.  B.  892,  63  S.  C.  577 ; 
Id.,  41  S.  E.  468,  63  S.  C.  370;    N.  & 


C.  R.  R.  V.  Smith,  11  Heisk.  (Tenn.) 
455. 

5  8  Lecklieder  v.  Chicago  City  Ry. 
Co.,  172  111.  App.  557. 

5  9  Day  v.  State.  44  So.  715,  54  Fla. 
25 ;  McTvier  v.  State.  91  Ga.  254,  IS 
S.  E.  140 ;  People  v.  Beecher,  154  111. 
App.  229 ;  State  v.  Trapp,  109  P.  1094. 
56  Or.  588. 

60  State  V.  Harsted,  119  P.  24.  66 
Wash.  158. 

61  People  V.  Feld.  86  P.  1100,  149 
Cal.  464 ;  Chicago  Union  Traction  Co. 
V.  Goulding,  81  N.  E.  S.33.  228  111.  164 : 
Doyle  V.  Dobson,  74  Mich.  582.  42  N. 
W.  137;  Cloherty  v.  Griffiths,  144  P. 
912.  82  Wash.  634. 

Cliarge  not  to  disregard  proof 
vrhicli  harmonizes  •with  sympa- 
thies. A  charge  to  the  jury  "that 
they  have  no  right  to  act  upon  their 
sympathies  without  proof,  but  are  not 
to  disregard  the  proof,  because  it 
happens  to  concur  with  their  sympa- 
thies, but  are  to  be  governed  by  it,"  is 
not  error.  Sheahan  v.  Barry,  27  Mich. 
217. 

6  2  Grand  Rapids  &  I.  R.  Co.  v. 
Plorn,  41  Ind.  479 ;  P.  Lorillard  Co.  v. 
Clay,  104  S.  B.  3S4,  127  Va.  734. 


§382 


INSTRUCTIONS  TO  JURIES 


69G 


gants.^^  It  is  only  under  exceptional  circumstances,  or  when  some- 
thing has  transpired  to  indicate  that  the  jurors  are  unmindful  of 
their  sworn  duty,  that  a  party  will  be  entitled  to  such  an  instruc- 
tion.^* 

As  indicated  by  the  foregoing  statement  the  circumstances  may 
be  such  that  the  ends  of  justice  will  be  best  served  by  cautioning 
the  jury  against  allowing  any  considerations  of  sympathy  or  prej- 
udice to  enter  their  deliberations,  in  which  case  the  court  should 
give  an  appropriate  instruction.®^  So  such  instructions  may  some- 
times be  required  in  actions  for  personal  injuries,^  and  in  criminal 
cases  the  court  should,  when  the  circumstances  so  require,  cau- 
tion the  jury  against  convictions  from  prejudice  or  upon  insuffi- 
cient evidence,®'  as  where  there  is  a  strong  prejudice  in  the  county 
against  the  defendant.®* 

§  383.     Appeals  to  sympathy  or  prejudice 

The  court  should  not  in  its  instructions  use  language  calculated 
to  cause  the  jury  to  be  swayed  by  their  sympathies®^  or  their  prej- 


63  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v. 
Lvman,  57  Ark.  .512,  22  S.  W.  170; 
Same  v.  Paup  (Ark.)  22  S.  W.  213; 
Spear  v.  United  Railroads  of  Sau 
Francisco,  117  P.  956,  16  Cal.  App. 
637;  Central  Branch  U.  P.  R.  Co.  v. 
Andrews,  41  Kan.  370,  21  P.  276 ;  Tur- 
ner V.  Southwest  Missouri  R.  Co.,  120 
S.  W.  128,  138  Mo.  App.  143. 

64  Johnson  v.  St.  Louis  &  S.  Ry. 
Co.,  73  S.  W.  173,  173  Mo.  307 ;  Cope- 
land  V.  Omaha  &  C.  B.  St.  R.  Co.,  151 
N.  W.  947,  98Xeb.  42. 

6  5  People  V.  Turner,  107  N.  E.  162, 
265  111.  594,  Ann.  Cas.  1916A,  1062; 
Smith  V.  Sanitary  Dist.  of  Chicago, 
103  N.  E.  254,  260  111.  4.53 ;  Chapman 
V.  Pfarr,  123  N.  W.  002,  145  Iowa,  196; 
Shanks  v.  Oregon- Washington  R.  & 
Xav.  Co.,  167  P.  1074,  98  Wash.  509. 

Caution  against  popular  preju- 
dice. Where  the  court  discovers  a 
popular  prejudice  against  a  party,  it 
should  state  the  law  so  clearly  and 
unequivocally  as  to  leave  the  .iury  no 
escape  from  their  duty.  Quinbv  v. 
Railway  Co.,  2  Del.  Co.  CL  R.  (Pa.) 
2S5. 

o«  Jones  &  Adams  Co.  v.  George,  81 
N.  E.  4,  227  111.  64,  10  Ann.  Cas.  2.85, 
reversing  judgment  125  111.  App.  .503. 

6  7  Cook  V.  State,  35  So.  665,  46  Fla. 
20;  Doyle  v.  State.  22  So.  272,  39 
Fla.  155,  63  Am.  St.  Rep.  159. 


68  State  V.  Barton,  142  P.  348,  70 
Or.  470. 

6  9  People  V.  Williams,  17  Cal.  142; 
Amend  v.  Smith.  87  111.  198  ;  National 
Council  of  Knights  and  Ladies  of  Se- 
curity V.  O'Brien,  112  111.  App.  40; 
Robertson  v.  Brown,  76  N.  W.  891,  56 
Neb.  390 ;  Hoag  v.  Washington-Ore- 
gon Corporation,  147  P.  756,  75  Or. 
588,  modifying  judgment  on  rehearing 
144  P.  574,  75  Or.  588. 

Instructions  erroneous  xcitliin 
rule.  Where,  in  an  action  against  an 
insurance  company  by  the  widow  and 
child  of  the  insured,  the  court  opened 
his  charge  by  stating  that,  when  wo- 
men and  children  were  connected  with 
a  case,  he  made  it  a  rule  to  say  as 
little  as  possible  to  the  jury,  because 
his  sympntliies  frequently  got  the  bet- 
ter of  his  judgment,  and  he  subse- 
quently said  that,  while  he  always 
tried  to  close  his  eyes  to  the  fact  that 
a  woman  and  child  had  an  interest  in 
a  .suit,  he  could  not  always  do  it,  and 
did  not  suppose  the  jury  could  and 
proceeded:  "It  is  not  expected.  If 
a  man  can  do  that,  he  is  no  better 
than  a  brute.  lie  is  as  bad  as  the 
heathen  is  supposed  to  be,  and  worse 
than  the  horse  thief  is  thought  to  bo. 
If  he  could  close  his  eyes  to  that' fact, 
lose  all  sense  of  decency  and  self-re- 
spect, he  would  not  be  fit  for  a  ju- 


697 


DUTY   TO   BASE   CONCLUSIONS   ON   EVIDENCE   ALONE 


383 


udices''**  rather  than  the  evidence,  and  instructions  containing  lan- 
guage of  this  description  are  properly  refused.'*  But  not  every 
instruction  which  embodies  matter  that  might  conceivably  make 
an  appeal  to  the  emotional  side  of  a  juror  will  be  cause  for  re- 
versing a  judgment.''^  Such  matter  will  not  render  an  instruc- 
tion objectionable,  if  it  is  proper  for  the  jury  to  consider,'*  and  an 
instruction  which,  while  telling  the  jury  that  it  is  natural  and 
proper  for  them  to  feel  sympathy,  also  cautions  them  that  they 


ror"— it  was  held  that  this  was  ground 
for  reversal  of  a  judgment  in  favor 
of  plaintiffs.  Northwestern  Mut.  Life 
Ins.  Co.  V.  Stevens  (C.  C.  A.  Neb.)  71 
F.  258,  18  C.  O.  A.  107. 

7  0  Jones  v.  State,  25  So.  25,  120  Ala. 
383 ;  Muhlig  v.  Rebhan  (Sup.)  105  N. 
Y.  S.  110,  55  Misc.  Rep.  305.  See  Mc- 
Gaughey  v.  State,  169  S.  W.  287,  74 
Tex.  Cr.  R.  529. 

Instructions  lield  objectionable 
within  rule.  On  a  prosecution  for 
larceny  of  a  bond,  it  was  error,  after 
charging  at  defendant's  request  that, 
if  the  taking  of  the  bond  was  not  un- 
lawful, defendant's  failure  to  return 
the  bond  on  demand  was  not  suffi- 
cient to  constitute  the  offense,  to  add 
that,  if  the  taking  was  wrongful,  the 
failure  to  return  the  bond  on  demand 
was  simply  a  recurrence  of  the  wrong, 
adding  insult  to  injury.  State  v.  Eng- 
lish, 62  Minn.  402,  64  N.  W.  1136. 

Reference  to  people  attending 
trial  as  a  lobby.  Instructions  which 
characterize  the  people  in  attendance 
at  a  trial  as  a  lobby,  who  have  packed 
the  courtroom  with  intent  to  influence 
the  jury  to  decide  the  case  without 
regard  to  evidence,  are  properly  re- 
fused, as  calculated  to  prejudice  the 
jury.  Lvnch  v.  Bates,  139  Ind.  206, 
38  N.  E.  806. 

71  Starling  v.  Selma  Cotton  Mills,  88 
S.  E.  242,  171  N.  C.  222;  Supreme 
Council  of  American  Legion  of  Honor 
v.  Anderson,  61  Tex.  296. 

72  People  V.  Pool,  27  Gal.  572;  State 
V.  McCarter,  98  N.  C.  637,  4  S.  E.  553 ; 
Duprel  V.  Collins,  146  N.  W.  592,  33 
S.  D.  365;  Texas  &  N.  O.  R.  Co.  v. 
Walker,  125  S.  W.  99,  58  Tex.  Civ. 
App.  615;  Peltier  v.  Chicago.  St.  P., 
M.  &  O.  Ry.  Co.,  88  Wis.  521,  60  N.  W. 
250. 

Instructions  beld  not  improper 


witbin  rule.  An  instruction  that 
the  jury  might  consider  the  reasona- 
ble or  unreasonableness  of  testimony 
given  by  deposition  as  to  declarations 
by  a  person  since  deceased,  and  might 
also  consider  that  the  lips  of  declar- 
ant were  closed  by  death,  so  that  the 
testimony  could  not  be  contradicted. 
Bohen  v.  North  American  Life  Ins.  Co. 
of  Chicago,  177  N.  W.  706,  188  Iowa, 
1349.  Where  the  court  instructs  the 
jury  that  the  issue  is  not  whether  the 
defendants'  business  was  a  cheat,  but 
whether  it  was  a  lottery,  the  fact  that 
the  charge  also  states  that  the  defend- 
ants' business  was  a  cheat  no  better 
than  highway  robbery  is  not  ground 
for  reversal.  MacDonald  v.  United 
States  (C.  C.  A.  111.)  12  C.  C.  A.  339,  63 
Fed.  426.  Where  the  character  of  the 
homicide  is  not  in  issue,  the  only  con- 
troversy being  as  to  whether  defend- 
ants committed  the  homicide,  an  in- 
struction reciting  the  theory  of  the 
state  as  to  the  circumstauces,  and 
stating  that,  "if  this  is  tnie,  this 
crime,  in  its  sickening  and  horrible 
details,  is  without  parallel  in  the  his- 
tory of  crime  in  this  state,"  and  then 
warning  the  jury  not  to  be  influenced 
by  the  indignation  the  recital  of  the 
crime  may  have  aroused,  is  not  ground 
for  reversal.  State  v.  Green,  26  S.  E. 
234,  48  S.  C.  136.  There  was  no  er- 
I'or  in  instructing  the  jury  that  the 
offense  with  which  defendant  was 
charged  was  a  very  serious  one,  which 
should  not  escape  punishment,  where 
they  were  also  instructed  that,  be- 
cause of  the  seriousness  of  the  charge, 
the  prisoner  should  not  be  convicted 
on  slight  evidence.  Commonwealth  v. 
Harris,  168  Pa.  619,  32  A.  92,  36  Wkly. 
Notes  Cas.  343. 

73  Lomax  v.  Holbine,  90  N.  W.  1122, 
65  Neb.  270. 


§  384 


IXSTKUCTIOXS   TO  JURIES 


698 


must  render  a  verdict  according  to  the  law  and  the  evidence,  un- 
influenced by  their  sympathy,  is  not  reversible  error.'* 

§  384.  Instructions  as  to  reaching  verdict  by  lot  or  by  the  law 
of  averages 

Cautionary  instructions  as  to  the  manner  in  which  the  jury 
shall  reach  their  verdict  are  in  the  discretion  of  the  trial  court.'^ 
It  is  not  error  to  tell  the  jury  that  a  quotient  verdict,'®  or  a  ver- 
dict decided  by  lot,''  is  illegal  and  improper;  and,  on  the  other 
hand,  the  refusal  of  the  court  to  caution  the  jury  against  deter- 
mining their  verdict  by  lot,'*  or  by  the  law  of  averages,'^  will  not 
constitute  reversible  error.  It  is  improper,  however,  for  the  court 
to  give  instructions  which  tend  to,  or  expressly  sanction,  a  verdict 
founded  on  compromise  or  the  law  of  averages.*** 

Where  the  court  undertakes  to  caution  the  jury  in  a  criminal 
case  not  to  find  their  verdict  by  lot  or  chance,  it  should  admonish 
them  that  they  must  first  ascertain  the  fact  that  the  defendant  is 
guilty.*^ 


7  4  Robbins  v.  Magoon  &  Kimball  Co., 
159  N.  W.  .323.  193  Mich.  200;  Citi- 
zens' St  Ry.  Co.  V.  Dan,  52  S.  W.  177, 
102  Tenn.  320. 

75  Carson  v.  Southern  Ry.  Co.,  46 
S.  E.  525,  68  S.  C.  55,  judgment  af- 
firmed Southern  Ry.  Co.  v.  Carson, 
24  S.  Ct.  609,  194  U.  S.  136,  48  L.  Ed. 
907. 

7c  ShaiD  V.  Kansas  Citv  Cable  Rv. 
Co.,  114  Mo.  91,  20  S.  W.  93. 

7  7  Lankster  v.  State  (Tex.  Cr.  App.) 
72  S.  W.  388 ;  Driver  v.  State,  38  S. 
W.  1020,  37  Tex.  Cr.  R.  100. 

7  8  Renjamin  v.  Metropolitan  St.  Ry. 
Co.,  133  Mo.  274,  34  S.  W.  590. 

7  0  Sherwood  v.  Grand  Ave.  Rv.  Co., 
132  Mo.  339,  33  S.  W.  774 ;  Woodman 
V.  Town  of  Northwood,  36  A.  255,  67 
N.  H.  307. 

8  0  Richardson  v.  Coleman,  131  Ind. 
210,  20  N,  E.  909,  31  Am.  St.  Rep.  429 ; 
Ooodsell  V.  Seeley,  10  N.  W.  44.  46 
Mich.  623,  41  Am,  Rep.  183;  Edens 
V.  Hannibal  &  St.  J.  R.  Co.,  72  Mo. 
212;  Boden  v.  Irwin,  92  Pa.  345;  Gulf, 
C.  &  S.  F.  Ry.  Co.  V.  Johnson,  90  S.  W. 
164,  90  Tex.  337,  reversing  judgment 


Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Rogers,  82 
S.  W.  822,  37  Tex.  Civ.  App.  99. 

Wliile  a  quotient  verdict  ^^ill 
not  necessarily  be  set  aside,  yet  the 

trial  court  ought  not  to  suggest  to 
the  jury,  if  the  vpitnesses  differ  as  to 
values,  that  they  ascertain  what  the 
average  of  the  estimates  are  first,  and 
then  afterwards  decide  whether  such 
an  average  is  fair  or  full  value.  Kan- 
sas City,  W.  &  N.  W.  R.  Co.  v.  Ryan, 
49  Kan.  1,  30  P.  108. 

Instrnctions  tending  to  induce 
quotient  verdict.  An  instniction 
that,  if  the  jury  find  for  the  plaintiff, 
they  must  not  assess  damages  by  add- 
ing the  amounts  they  individually 
think  should  be  awarded  and  divid- 
ing the  amount  so  obtained  by  the 
number  of  jurors,  unless  they  there- 
after agree  upon  such  amount  as  a 
just  sum  under  the  evidence,  is  er- 
roneous, as  tending  to  induce  the  jury 
to  reach  a  verdict  in  tlie  manner  cen- 
sured by  the  instruction.  West  Chi- 
cago St.  R.  Co.  V.  Dougherty,  89  111. 
App.  302. 

SI  Winfrey  v.  State,  209  S.  W.  151, 
84  Tex.  Cr.  R.  579. 


699 


ARGUMENTS  OF  COUNSEL 


§  385 


CHAPTER  XXXI 

NECESSITY  AND  PROPRIETY  OF  INSTRUCTIONS  WITH  REFERENCE 
TO  ARGUMENTS  OF  COUNSEL 

§  385.     Influence  and  effect  of  arguments  of  counsel. 
386.     Improper  arguments. 

§  385.     Influence  and  effect  of  arguments  of  counsel 

The  court  cannot,  in  advance  of  the  arguments  of  counsel,  be 
required  to  instruct  the  jury  on  the  province  of  counsel  in  arguing 
the  cause.i  Counsel  have  a  right  to  address  the  jury,  such  right 
being  conferred  by  statute  in  some  jurisdictions,  and  the  court  can- 
not properly  instruct  the  jury  to  disregard  the  arguments  of  coun- 
sel,^ or  give  instructions  tending  to  limit  the  influence  of  legitimate 

judgment  105  111.  App.  652.  Charge 
that  neither  court  nor  jury  could  sur- 
render judgment  to  control  of  counsel 
on  either  side,  though  they  might  be 
of  assistance  in  determining  the  truth, 
that  it  is  the  right  and  duty  of  coun- 
sel to  fairly  maintain  their  cause, 
and  they  may  emphasize  the  law  and 
evidence  sustaining  their  contentions, 
but  the  jurv  are  to  determine  the 
facts.  State  v.  Price,  160  N.  W.  677, 
185  Minn.  159.  Instruction  that  re- 
marks of  counsel  are  not  evidence, 
and  that  verdict  must  be  founded  sole- 
ly on  evidence  and  laws  given  by 
court.  State  v.  Moss,  172  P.  199,  24 
N.  M.  59.  An  instruction  that  the 
jury  must  try  the  case  by  what  they 
hear  from  the  witness  stand  and 
from  the  law  applicable  thereto,  "us- 
ing the  argument  of  counsel  to  assist 
you  in  understanding  the  law  as  ap- 
JDlicable  to  the  evidence,"  is  not  erro- 
neous as  leading  the  jury  to  under- 
stand that  they  must  reject  any  im- 
pressions of  fact  made  on  their  minds 
by  a  full  discussion  of  the  evidence 
by  counsel.  Mann  v.  State,  53  S.  E. 
824,  124  Ga.  760,  4  L.  R.  A.  (N.  S.) 
934.  An  instruction  that  the  verdict 
must  be  based  on  the  evidence,  and 
the  law  as  given  by  the  court,  and 
that  extraneous  statements  should  be 
discarded.  State  v.  Butts,  78  N.  W. 
687,  107  Iowa,  653.  A  charge  that 
where  court  and  counsel  differ  as  to 
the  law  the  jury  should  take  and  ap- 


1  Parrish  v.  Parrish,  72  P.  844,  67 
Kan.  823. 

2  Ala.  Tucker  v.  State,  52  So.  464, 
167  Ala.  1. 

111.  People  V.  Ambach,  93  N.  E. 
810.  247  111.  451. 

Minn.  Svensson  v.  Lindgren,  145 
N.  W.  116,  124  Minn.  386,  Ann.  Cas. 
1915B,  734. 

N.  D.  State  v.  Gutterman.  128  N. 
W.  807,  20  N.  D.  432,  Ann.  Cas.  1912C, 
816. 

Tex.  Chapman  v.  State,  147  S.  W. 
580,  66  Tex.  Cr.  R.  4S9 :  Reeves  v. 
State,  84  Tex.  Cr.  R.  483,  31  S.  W. 
3S2. 

Instructions  erroneous  witliin 
rule.  A  charge  that  the  jury  are 
not  to  try  the  case  by  the  arguments 
of  counsel,  who,  by  "the  study  of  a 
lifetime,  *  *  *  leam  how  to  dis- 
tort, change  color  and  discolor  facts, 
•in  order  that  they  may  use  them  to 
the  advantage  of  their  clients."  Gib- 
sou  V.  State,  26  Fla.  109,  7  So.  876. 

Instructions  not  erroneous  witli- 
in rule.  An  instruction  that  if  in 
putting  in  the  evidence  or  in  argu- 
ment counsel  has  made  any  statement 
not  based  upon  the  evidence,  the  jury 
should  wholly  disregard  such  state- 
ment, is  not  objectionable  for  failure 
to  distinctly  say  that  the  statements 
of  counsel  referred  to  were  statements 
in  reference  to  the  facts  in  the  case. 
North  Chicago  Sti  R.  Co.  v.  Wellner, 
69    N.    E.    6,    206    111.    272,    affirming 


385 


INSTRUCTIONS  TO  JURIES 


700 


statements  and  arguments  of  counsel,^  and  it  is  ordinarily  improper 
for  the  court  to  comment  unfavorably  upon  the  arguments  of  coun- 
sel.* It  has  been  held  not  error  to  charge  that  as  a  general  rule 
it  is  the  fairest  and  best  way  for  a  jury  to  decide  cases  mainly  upon 
the  grounds  taken  and  discussed  by  counsel  in  their  argument,®  and 
it  is  proper  for  the  court  to  recapitulate  fairly  such  contentions  of 
counsel  as  illustrate  the  bearing  of  the  evidence  on  the  issues.® 

The  giving  of  an  instruction  which  otherwise  might  be  im- 
proper is  sometimes  justified  by  the  comments  of  counsel  made 
in  argument,'  and  the  court  may  tell  the  jury  that  the  statements 


ply  the  law  from  the  court  was  not 
prejudicial  error,  in  tbat  it  destroyed 
the  wholesome  effect  of  argument  of 
counsel  for  plaintiff  in  error,  where 
there  was  no  actual  difference  as  to 
applicable  law.  Williams  v.  State,  91) 
S.  E.  711,  24  Ga.  App.  53.  Where  the 
court  in  a  criminal  trial  charged  the 
jury  that  the  trial  was  not  an  oratori- 
cal contest  between  the  eloquent  coun- 
sel, and  that  the  jurors  were  not  sit- 
ting to  determine  which  ipade  the 
most  eloquent  speech  or  emitted  the 
largest  volume  of  sound,  there  was  no 
error.  State  v.  Evans,  92  N.  W.  976, 
88  Minn.  262.  Instructions  that  refer- 
ence had  been  made  in  the  argument 
to  the  punishment  that  might  be  in- 
flicted, and  stating  that  the  jury  had 
nothing  to  do  with  that,  and  telling 
the  jury  to  disregard  statements  in 
argument  not  supported  by  evidence, 
and  to  decide  the  case  on  the  evidence 
alone,  guided  by  the  instructions,  were 
abstractly  correct,  and,  if  not  justi- 
fied by  the  arguments  were  not  preju- 
dicial to  accused.  State  v.  Wilson,  99 
N.  W.  1060,  124  Iowa,  264.  An  in- 
struction that  the  jury  should  not 
regard  the  remarks  of  counsel  as  evi- 
dence, but  that  the  verdict  must  be 
based  solely  on  the  evidence.  Miera 
V.  Territory,  81  P.  586,  13  N.  M.  192. 
An  instruction  that  the  jury  must  try 
the  case  on  the  evidence  and  the  law 
as  given  by  the  court,  disregard  all 
statements  of  counsel  on  either  side, 
unless  supported  by  the  testimony, 
and  draw  no  inferences  from  ques- 
tions propounded  by  counsel  and  ex- 
cluded. State  V.  Burton,  07  P.  1097, 
27  Wash.  528. 

Failnre  to  except.     Under  statute 


providing  that  a  charge,  if  clearly  er- 
roneous, is  ground  for  reversal  though 
not  objected  to  until  appeal,  if  it 
relates  to  a  material  matter,  and  is 
calculated  to  prejudice  defendant,  a 
charge,  not  excepted  to,  to  disregard 
the  arguments  of  counsel  and  try  the 
case  by  the  law  given  in  the  charge 
and  the  testimony  admitted,  "  and  al- 
low nothing  else  to  influence  you  in 
finding  your  verdict,"  is  not  a  depri- 
vation of  the  right  to  be  heard  by 
counsel,  so  as  to  be  cause  for  reversal. 
Roe  V.  State,  25  Tex.  App.  33,  8  S. 
W.  403. 

3  People  V.  Hite,  S  Utah,  461,  33  P. 
254.  See  Moss  v.  Mosley,  41  So.  1012, 
148  Ala.  168. 

Instructions  not  objectionable 
Tiritliin  rule.  In  prosecution  for  as- 
sault with  intent  to  rape,  a  charge 
that  in  determining  defendant's  guilt 
or  innocence  the  opinion  of  counsel 
in  case  would  not  control  jury,  and 
that  it  was  not  province  of  counsel  to 
express  any  opinion  as  to  what  jury's 
conclusions  ought  to  be,  was  not  er- 
roneous, as  curtailing  the  right  of  ar- 
gument of  counsel  for  movant,  in 
violation  of  a  constitutional  provision 
giving  right  to  defend  in  person  or  by 
attorney.  Washington  v.  State  (Ga. 
App.)  103  S.  E.  854. 

4  Commonwealth  v.  Maddocks,  93 
N.  E.  253,  207  Mass.  152. 

5  Melvin  v.  Bullard,  35  Vt.  268. 

6  Clark  V.  Wilmington  &  W.  R.  Co., 
109  N.  C.  430,  14  S.  E.  43,  14  L.  R.  A. 
749. 

7  Stephens  v.  Neilson,  154  111.  App. 
67;  SawTer  v.  State,  35  Ind.  80;  State 
V.  West,  43  La.  Ann.  1000,  10  So.  364. 

Instructions  proper  within  rule. 


ARGUMENTS   OF   COUNSEL 


„   .,.„..  .,  386 

701 

of  counsel  as  to  the  facts  in  the  case  are  not  to  "Pf.  "S^f^/'.f  ^^^„t 
statements  are  at  variance  with  the  record  or  with  the  jury  s  recoi 
ectTo"  of  the  evidence,'  or  that  the  attorneys  are  not  supposed    o 
be    mpartial  and  that  the  jury  are  to  talce  the.r  statements  both 
as  to  the  Lw  and  the  facts  guardedly,"  or  that  the  assertion  of 
counsel  as  to  the  opinion  they  entertain  of  the  effect  of  the  ev.dence. 
rowever  strongly  made,  is  not  evidence-  -d  the  Prosecut.ng  at- 
tornev  in  a  criminal  case  may  express  his  opmion  of  the  gijiit  or 
the  accused  in  such  terms  as  to  entitle  the  defendant  to  a  charge 
hat  the    ury  must  not  consider  the  belief  of  the -prosecutrng  attor- 
ney or  his  Lpression  of  the  testimony."    Where  counsel,  m  the 
course  of  their  argument,  read  extracts  from  law  books,  ,t  .s  proper 
for  the  court  to  lay  to  the  jury  that  such  extracts  are  not  to  be 
accepted  as  law,  and  that  the  jury  must  receive  the  law  only  from 
the  court.^^ 

8  386.     Improper  arguments 

Where  counsel  make  improper  assertions,  misstate  propositions 
of  law,  indulge  in  fallacious  argument,  appeal  to  prejudice,  or  com- 


Where  on  a  trial  for  murder,  defend- 
ant's counsel  alluded  in  argument  to 
a  higber  law,  wliicli  he  claimed  the 
Bible  sustained,  it  was  not  error  for 
the  court  to  refer  to  the  Bible,  in  his 
charge,  to  justify  the  laws  of  the 
state  on  the  subject  of  murder  and 
manslaughter.  State  v.  Workman,  39 
S.  C.  151,  17  S.  E.  694. 

8  Szczech  V.  Chicago  City  Ry.  Co., 
157  111.  App.  150 ;  Meagher  v.  Fogar- 
ty,  152  N.  W.  833,  129  Minn.  417; 
City  of  Tacoma  v.  Wetherby,  106  P. 
903,  57  Wash.  295 ;  Mullen  v.  Reinig, 
72  Wis.  388,  39  N.  W.  861. 

9  State  V.  Jones,  29  S.  C.  201,  7  S. 
E.  296. 

10  McRae  v.  State,  52  Ga.  290._ 
Instructions  held  proper  within 

rule.  Where  counsel  for  defendant 
stated  in  argument  to  the  jury  that 
defendant  impressed  him  in  his  state- 
ment there,  and  before,  that  he  was 
innocent,  and  that  he  conscientiously 
did  not  believe  defendant  was  guilty, 
there  was  no  error  in  charging  that 
"what  counsel  said  in  their  argument, 
and  what  they  believe,"  was  to  have 
no  influence  with  the  jury;  it  clearly 
appearing    that    the    judge    referred 


solely  to  the  statement  by  counsel  as 
to  his  belief  in  defendant's  innocence. 
Smith  V.  State,  95  Ga.  472,  20  S.  E. 
291. 

11  People  V.  McGuire,  89  Mich.  64, 
50  N.  W.  786. 

Discretion  of  conrt.  A  request 
to  charge  that  expression  of  belief  in 
guilt  of  accused  by  state's  attorney 
and  filing  of  an  information  by  him, 
should  not  influence  jury  belonged  to 
the  class  of  requests  which  ordinarily 
mav  be  given  to  the  jury  or  not,  ac- 
cording as  judgment  of  trier  may  de- 
termine. State  V.  Greenberg,  103  A. 
897,  92  Conn.  657. 

12  Chamberlain  v.  Masterson,  26 
Ala.  371;  Morehouse  v.  Remson,  59 
Conn.  392,  22  A.  427. 

Reading  from  text-books  or  le- 
gal decisions.  If  the  prosecuting 
attorney,  in  his  argument  in  a  capital 
case,  is  permitted  to  read  extracts 
from  medical  works,  or  testimony  of 
professors  of  chemistiT  from  the  crim- 
inal reports  of  another  state,  it  is  the 
duty  of  the  court  to  instruct  the  jury 
that  they  are  not  evidence.  Yoe  v. 
People.  49  111.  410. 


§  886 


INSTRUCTIONS   TO  JURIES 


702 


ment  on  matters  not  in  evidence,  the  court  may/^  and  should  ^^ 
on  request,  give  instructions  for  the  purpose  of  nullifying  any  prej- 
udicial effect  that  might  be  produced  by  such  argument,  and  the 
failure  to  object  to  such  argument  at  the  time  it  is  made  wall  not 
justify  the  court  in  subsequently  refusing  to  give  such  an  instruc- 
tion.^^ 

The  remarks  of  the  prosecuting  attorney  in  a  criminal  case  may 
be  of  such  a  character  as  to  entitle  the  defendant  to  a  charge  that 
they  be  disregarded,^^  and  it  is  proper  in  a  criminal  case  to  tell 


13  Ala.  Williams  v.  State.  30  So. 
484,  130  Ala.  107. 

Cal.  Kellner  v.  Travelers'  Ins.  Co., 
Hartford,  Conn.,  181  P.  61,  180  Cal. 
.326. 

Conn.  State  v.  Gannon,  52  A.  727. 
75  Conn.  206. 

Del.  State  v.  Lapista  (Gen.  Sess.) 
105  A.  676,  7  Boyce,  260. 

Ga.  Brooks  v.  State.  90  S.  E.  989. 
19  Ga.  App.  3 :  Cole  v.  State.  48  S.  E. 
156,  120  Ga.  485:  Rucker  v.  State,  39 
S.  E.  902,  114  Ga.  13;  Matthews  v. 
Poythress,  4  Ga.  287. 

Ind.  Blizzard  v.  Applegate.  77  Ind. 
516. 

N.  J.  State  V.  Clark,  64  A.  984,  74 
X.  J.  Law,  33. 

N.  D.  State  v.  Dodson.  136  N.  W. 
789,  23  N.  D.  .305. 

Or.  State  v.  Richie,  108  P.  134.  56 
Or.  169:  State  v.  McGinnis,  108  P. 
132,  56  Or.  163. 

Pa.  Randal  v.  Gould,  73  A.  986. 
225  Pa.  42 :  Manchester  v.  Reserve 
Tp.,  4  Pa.  35. 

R.  I.  Brown  v.  Rhode  Island  Co., 
102  A.  965. 

Tex.  Norton  v.  Galveston,  H.  &  S. 
A.  Ry.  Co.  (Civ.  App.)  108  S.  AV.  1044 ; 
Willis  V.  State.  90  S.  W.  1100.  49  Tex. 
Cr.  R.  139 :  Barkman  v.  State,  52  S. 
W.  73.  41  Tex.  Cr.  R.  105. 

Instructions  held  proper  vi^itliin 
rnle.  Where,  on  a  prosecution  for 
murder,  the  court  instructed:  "You 
need  not  be  afraid  of  seeing  spooks 
either  now  or  when  you  come  to  die. 
if  you  have  been  honest  and  decided 
conscientiously,  as  the  only  spook  that 
a  .iuror  ever  sees  is  the  spook  of  a 
murdered  conscience — a  conscience 
murdered  by  consenting  to  an  un- 
righteous verdict" — it  was  held  that 


the  language  was  not  erroneous,  it 
having  been  called  forth  by  an  appeal 
made  to  the  jury  by  defendant's  at- 
torney, and  having  been  merely  in- 
tended to  admonish  the  jury  not  to 
render  a  verdict  on  sentimental 
grounds.  State  v.  Malloy,  60  S.  E. 
228,  79  S.  C.  76. 

14  Ark.  Briggs  v.  Jones,  201  S.  W. 
118,  132  Ark.  455:  Boone  v.  Holder, 
112  S.  W.  1081,  87  Ark.  461,  15  Ann. 
Ca«    735. 

111.  Illinois  Cent.  R.  Co.  v.  Bor- 
ders, 61  111.  App.  55. 

Ind.  Jackson  v.  State,  116  Ind. 
464,  19  N.  E.  330;  Couaway  v.  Shel- 
ton,  3  Ind.,  334. 

Iowa.  State  v.  McCartney,  65  Iowa, 
522.  22  N.  W.  658. 

Kan.  State  v.  Francis.  68  P.  66, 
64  Kan.  664. 

Ky.  Louisville  &  N.  R.  Co.  v. 
Smith,  84  S.  W.  755,  27  Ky.  Law  Rep. 
257. 

Mass.  Taft  v.  Fiske,  140  Mass. 
250.  5  N.  E.  621.  54  Am.  Rep.  459. 

Mo.  Drumm-Flato  Commission  Co. 
V.  Gerlach  Bank.  107  Mo.  App.  426, 
81  S.  W.  .503. 

Tex.  Seals  v.  State  (Cr.  App.)  38 
S.  W.  1006 :  Cooksie  v.  State,  26  Tex. 
App.  72,  9  S.  W.  58. 

Wash.  Farnandis  v.  Great  North- 
ern Ry.  Co.,  84  P.  18.  41  Wash.  486. 
5  L.  R.  A.  (N.  S.)  1086,  111  Am.  St. 
Rep.  1027. 

15  Todd  V.  Todd,  77  N.  E.  680,  221 
111.  410. 

Contra,  Louisville  &  N.  R.  Co.  v. 
Seibert's  Adm'r,  55  S.  W.  892.  21  Ky. 
Law  Rep.  1603. 

16  Magnuson  v.  State,  41  N.  E.  545, 
13  Ind.  App.  303;  State  v.  King,  74  S. 
W.  627,  174  Mo.  647 ;   People  v.  Rose, 


703 


ARGUMENTS   OF   COUNSEL 


§386 


the  jury  to  disregard  arguments  of  counsel  which  are  not  based 
upon  the  evidence.^''  The  district  attorney  may  be  estopped  or  pre- 
cluded by  his  own  stipulations  or  admissions  from  arguing  along 
certain  lines,  and  if  he  does  so  argue  the  defendant  will  be  entitled 
to  an  instruction  to  counteract  the  effect  of  such  argument.^* 

In  some  jurisdictions,  however,  charges  asked  in  a  criminal 
prosecution  for  no  other  purpose  than  to  respond  to  or  offset  the 
arguments  made  before  the  jury  by  the  prosecuting  attorney  are 
properly  refused ;  ^^  the  remedy  being,  if  such  arguments  are  im- 
proper, or  based  on  matters  not  in  evidence,  to  object  when  the 
arsfument  is  uttered.'" 


52  Hun,  33,  4  N.  Y.  S.  787 ;  Young  v. 
State,  55  S.  W.  331.  41  Tex.  Cr.  R. 
442;  Goldstein  v.  State  (Tex.  Cr. 
App.)  35  S.  W.  289. 

17  Brewer  v.  State,  49  So.  3-36.  160 
Ala.  66 ;  Bowen  v.  State,  84  S.  E.  793. 
16  Ga.  App.  179;  Commonwealth  v. 
Nye,  87  A.  585.  240  Pa.  359 ;  Hart  v. 
State,  121  S.  W.  508,  57  Tex.  Cr.  R. 
21;  State  v.  Lance,  162  P.  574,  94 
Wash.    484. 

18  State  V.  Wilson,  49  So.  986,  124 
La.  82. 


19  Earle  v.  State,  56  So.  32,  1  Ala. 
App.  183 ;  Anderson  v.  State,  49  So. 
460,  160  Ala.  79 ;  Hill  v.  State,  46  So. 
864,  156  Ala.  3;  Ward  v.  State,  45 
So.  221,  153  Ala.  9;  Bluett  v.  State, 
44  So.  84,  151  Ala.  41;  Thomas  v. 
State,  43  So.  371,  150  Ala.  31 ;  Brown 
V.  State,  43  So.  194,  150  Ala.  25 ;  Ne- 
ville V.  State,  41  So.  1011,  148  Ala. 
681;  Whatley  v.  State,  39  So.  1014, 
144  Ala.  68. 

2  0  Hill  V.  State,  50  So.  41,  161  Ala. 
67. 


§  387  INSTRUCTIONS  TO  JURIES  704 

CHAPTER  XXXII 

DIRECTIONS  AS  TO  FORM  OF  VERDICT 

I 
§  387.    Form  of  verdict  in  civil  cases. 

388.  Form  of  verdict  in  ci-iminal  cases. 

389.  Duty,  on  convicting  of  one  offense,  to  acquit  of  another. 

§  387.     Form  of  verdict  in  civil  cases 

Where  the  trial  judge  instructs  the  jury  as  to  how  to  answer  a 
certain  issue  upon  a  given  state  of  facts  if  found  for  the  plaintiff, 
he  should  also  instruct  them  as  to  how  to  answer  such  issue  if 
they  should  find  for  the  defendant.^  Where  an  issue  in  abatement 
and  an  issue  on  the  merits  of  an  action  are  both  submitted,  the 
court  should  direct  the  jury  to  find  separately  upon  them,^  or  that 
if  they  find  for  defendant  on  the  issue  in  abatement  they  need  not 
consider  issues  on  the  merits.^ 

It  is  improper  to  require  the  jury,  in  the  event  of  a  finding  for 
the  plaintiff,  to  state  the  grounds  of  their  verdict.*  Usually  it  will 
not  be  reversible  error  to  fail  to  give  to  the  jury  a  form  of  verdict, 
in  the  absence  of  any  request  for  such  an  instruction.® 

§  388.     Form  of  verdict  in  criminal  cases 

In  a  criminal  case  it  is  proper  to  submit  a  form  of  verdict  to  be 
found  in  case  of  acquittal  or  conviction,*'  although,  in  the  absence 

1  Jarrett  v.  High  Point  Trunk  &  "Guilty  of  manslaughter" — is  correct. 
Bag  Co.,  56  S.  E.  937,  144  N.  C.  299.  State  v.  Owens,  44  S.  C.  324,  22  S.  B. 

2  Gardner  v.  Clark,  21  N.  Y.  399.  244,  following  State  v.  Faile,  43  S.  C. 

3  Robertson  v.  Ephraim,  18  Tex.  52,  20  S.  E.  798.  Where  the  court  in- 
118.  structed  that  if  the  jury  found  de- 

4  Gulf,  C.  &  S.  F,  Ry.  Co.  v.  Har-  fendant  charged  with  assault  to  kill 
riett.  80  Tex.  73,  15  S.  W.  556.  guilty  "of  this  charge"  the  form  of 

5  Triggs  V.  Mc'Intyre,  115  111.  App.  the  verdict  would  be,  etc.,  was  proper 
257,  judgment  adinned  74  N.  E.  400,  as  distinguishing  the  form  from  that 
215  111.  369 ;  MoCrary  v.  Missouri,  K.  to  be  used  if  he  was  found  guilty  of 
&  T.  Ry.  Co.,  74  S.  W.  2,  99  Mo.  App.  less  offense.  Turner  v.  State,  92  S. 
518.  E.  975,  20  Ga.  App.  165.     In  a  trial 

0  People  V.  Chaves,  54  P.  596,  122  for  violating  the  local  option  law,  in- 

Cal.  1.34 ;   Keigans  v.  State,  41  So.  886,  volving  two  counts  alleging  two  sales 

52  Fla.  57;    Loyd  v.  State  (Ga.  App.)  on   the  same  day,   instructions   that 

106  S.  E.  601 ;   State  v.  Butler,  173  N.  each  separate  sale  constitutes  a  sep- 

W.   2.39,    1S6   Iowa,   1247;     Common-  arate  offense,  that  if  accused  made  a 

wealth  V.  Kloss,  .38  Pa.  Super.  Ct.  307.  sale   on    the  same   day   as   the   sale 

Instructions  held  proper.    An  in-  charged  in  the  first  count,  but  at  a 

struction  tbat  if  the  jury  should  find  different  time,  he  should  be  convicted 

defendant     guilty     of     murder     they  on  the  second  count,  and  that  if  he 

should  write  in  their  vei'dict  the  word,  made  the  sales  charged  in  both  counts 

"Guilty;"    if  guilty  of  manslaughter,  a  separate  verdict  should  be  returned 


705 


DIRECTIONS  AS   TO   FORM  OP   VERDICT 


388 


of  any  statutory  requirement  to  that  effect,  it  is  not  error  to  fail 
to  furnish  such  a  form.' 

Where  a  form  of  verdict  is  submitted  to  the  jury,  it  should  be 
so  comprehensive  as  to  include  every  kind  of  verdict  the  jury 
would  be  warranted  in  returning,^  although  it  is  held  that  it  is  not 
error  for  the  court  to  fail  to  give  a  form  for  acquittal  in  the  ab- 
sence of  a  request  therefor.^  Where  the  defendant  pleads  not 
guilty  and  former  acquittal,  the  jury  should  be  instructed  to  ren- 
der a  verdict  on  both  pleas.^* 

Where  the  defense  of  insanity  is,  set  up,  the  court  should  charge 
that,  if  the  defendant  is  acquitted  on  that  ground,  the  jury  should 
so  state  in  their  verdict,  in  order  that  appropriate  action  may  be 
taken  by  the  court  under  statutory  provisions  relating  to  the  dis- 
position of  the  prisoner  in  that  event,^^  and  the  court  should  also 


on  each  count,  were  not  objectionable 
as  omitting  to  authorize  acquittal  on 
one  count  and  conviction  on  another, 
or  acquittal  on  both.  State  v.  Woods, 
138  S.  W.  681,  157  Mo.  App.  550. 
Where,  in  a  prosecution  of  two  de- 
fendants for  burglary,  the  court 
charged  what  was  essential  for  con- 
viction, and  that  if  the  jury  believed 
from  the  evidence  beyond  a  reasona- 
ble doubt  they  should  find  defendants 
guilty  as  charged,  but  should  acquit 
if  they  did  not  find  each  of  such  facts 
to  be  established,  and  if  they  so  found 
such  facts  as  against  one  defendant, 
but  not  as  against  the  other,  they 
should  convict  the  former  and  acquit 
the  latter,  and  if  they  found  defend- 
ants, or  either  of  them,  guilty,  they 
should  assess  their  or  his  punishment 
at  confinement  for  not  less  than  2  nor 
more  than  12  years,  and,  if  they  con- 
victed both,  they  might  assess  the 
same  or  a  different  punishment  as  to 
each,  it  was  held  that  the  charge  was 
sufiicient  to  enable  the  jury  to  prop- 
erly formulate  their  verdict  if  they 
should  convict  either,  neither,  or  both 
of  the  defendants.  Ragsdale  v.  State, 
134  S.  W.  2.31,  61  Tex.  Cr.  R.  145. 

7  Territory  v.  McFarlane,  7  N.  M. 
421,  37  Pac.  1111. 

8  People  V.  Doras,  125  N.  E.  2,  290 
111.  188;  Cronin  v.  State  (Ind.)  128 
N.  E.  606 ;  State  v.  Miller,  157  N.  W. 
131, 175  Iowa,  210  ;  Commonwealth  v. 
Mandela,  48  Pa.  Super.  Ct.  56 ;   Gates 

Inst. TO  Jukies — 45 


V.  State,  103  S.  W.  859,  51  Tex.  Cr.  E. 
449. 

Form  for  attempt  to  commit 
crime.  Where  whatever  attempt  to 
commit  the  offense  there  was  on  the 
part  of  defendant  culminated  in  a 
complete  crime,  the  court  did  not  err 
in  refusing  to  submit  a  form  of  ver- 
dict authorizing  conviction  for  an  at- 
tempt. State  V.  Aker,  103  P.  420,  54 
Wash.  342,  18  Ann.  Cas.  972. 

Alternative  form  in  case  of  ac- 
quittal. A  charge,  in  a  murder 
trial,  that  if  the  jury  found  accused 
guilty  they  would  assess  his  punish- 
ment  at  years,   and   if   they 

found  him  not  guilty  they  would  sim- 
ply say  so  in  their  verdict,  is  not  ob- 
jectionable as  giving  no  alternative 
form  of  a  verdict  in  case  of  acquittal, 
and  thus  leaving  the  jury  without  op- 
tion to  acquit.  Beard  v.  State,  53  S. 
W.  348,  41  Tex.  Cr.  R.  173. 

9  Clemons  v.  State,  37  So.  647,  48 
Fla.  9;  Greeu  v.  State,  24  So.  537.  40 
Fla.  474 :    Long  v.  State.  95  Ind.  481. 

10  State  V.'  Gutke,  139  P.  346,  25 
Idaho,  737. 

11  Thomson  v.  State,  83  So.  291,  78 
Fla.  400;  Scott  v.  State,  60  So.  355, 
64  Fla.  490;  State  v.  Crowe,  102  P. 
579,  39  Mont.  174,  18  Ann.  Cas.  643. 

Form  embodying  finding  tliat 
there  xsras  reasonable  doubt  of 
sanity.  The  Wisconsin  statute  pro- 
viding that  if  the  jury  shall  find  on 
a  special  issue  of  insanity  that  ac- 


§  388  INSTRUCTIONS   TO  JURIES  706 

provide,  on  request,  a  form  of  verdict  of  not  guilty,  independent 
of  the  question  of  insanity. ^^ 

Instructions  submitting  forms  of  verdict  should  speak  of  the 
necessity  that  any  verdict  returned  must  be  based  upon  the  belief 
of  the  jury  from  the  evidence,^^  although  an  instruction  submitting 
a  form  of  verdict  to  be  used  in  case  the  jury  find  the  defendant 
guilty  is  not  erroneous,  as  tending  to  mislead  the  jury  into  the 
belief  that  they  are  directed  to  convict  the  defendant,  where  other 
instructions  require  his  guilt  to  be  established  beyond  a  reasonable 
doubt.^* 

Where  the  evidence  shows  that  the  defendant  is  guilty  of  the 
highest  degree  of  the  offense  charged,  if  guilty  at  all,  it  is  not  error 
to  refuse  to  submit  a  form  of  verdict  for  a  lower  degree. ^^ 

It  will  ordinarily  be  improper  to  submit  a  form  of  verdict  des- 
ignating the  particular  prison  in  which  the  accused  shall  be  incar- 
cerated in  case  of  conviction.^® 

As  has  already  been  indicated,  the  general  rule  is  that,  if  the  de-, 
fendant  in  a  criminal  case  desires  that  a  particular  form  of  ver- 
dict be  submitted  to  the  jury,  he  should  request  an  instruction  em- 
bodying such  form.-^' 

§  389.     Duty,  on  convicting  of  one  offense,  to  acquit  of  another 

An  instruction  on  included  offenses  should  inform  the  jury  that, 
if  they  should  find  the  defendant  guilty  of  some  minor  degree  of 
the  offense  charged  the}^  should  expressly  declare  him  to  be  not 

cused  was  insane,  or  that  there  is  a  form  to  the  effect  that  there  was  a 

reasonable  doubt  of  his  sanity  at  the  reasonable  doubt  of  defendant's  sani- 

time  of  the  commission  of  the  alleged  ty  at  the  time  of  the  commission  of 

offense,  they  shall  also  find  him  not  the  olfense.    Steward  v.  State,  102  X. 

guilty  of  such  offense  for  that  rea-  W.  1079,  124  Wis.  623,  4  Ann.  Cas. 

son,  only  requires  that  the  question  of  389. 

insanity  or  reasonable  doubt  of  san-  ^-  Territory  v,  Kennedy,  110  P.  854, 

ity  be  submitted  to  the  jury  in  some  15  X.  M.  556. 

form,  and  does  not  require  submission  is  State  v.  Clifford,  52  S.  E.  981,  59 

of  a  form  of  verdict  on  such  issue  to  W.  Va.  1. 

the  effect  that  there  was  reasonable  i*  State  v.  Davis,  92  S.  W.  484,  194 

doubt   of   defendant's   sanity   at  the  Mo.  4S.5,  4  L.  R.  A.   (N.   S.)  1023,  5 

time  of  the  commission  of  the  alleged  Ann.  Cas.  1000. 

offense.     Steward  v.  State,  102  N.  W.  is  People  v.  Hagenow,  86  X.  E.  370, 

1079,  124  Wis.  623,  4  Ann.  Cas.  389.  236  111.  514;    State  v.  Clough,  79  P. 

Where,  on  an  issue  of  accused's  in-  117,  70  Kan.  510. 

sanity,  the  jury  was  fully  instructed  i^  People  v.   Stein,  137  P.  271,  23 

on  the  question  of  burden  of  proof  Cal.  App.  108. 

and  reasonable  doubt,  and  three  prop-  i^  Fla.     Kelly  v.  State,  33  So.  235, 

er  forms  of  verdict  were  submitted,  44  Fla.  441. 

one  on  behalf  of  the  state  and  two  on  111.     People  v.   Foster,   123   X.   E. 

behalf  of  defendant,  it  was  not  error  534,  288  111.  371 ;    Moutag  v.  People, 

for  the  court  to  refuse  to  .submit  a  141  111.  75,  30  X.  E,  337 ;  Spies  v.  Peo- 


707  DIRECTIONS   AS   TO   FORM   OF   VERDICT  §  389 

guilty  of  the  higher  degree,  but  only  of  the  lower,  and  the  omis- 
sion of  such  an  instruction,  when  followed  by  a  general  verdict  of 
guilty,  is  ground  for  reversal. ^^  So  where,  under  statutory  provi- 
sion, the  jury  are  authorized  to  return  a  verdict  that  the  defendant 
is  not  guilty  of  the  felony  or  misdemeanor  charged,  but  is  guilty 
of  an  attempt  to  commit  the  same,  the  court,  in  charging  under 
such  statute,  should  tell  the  jury  that  they  cannot  legally  convict 
of  an  attempt,  without  finding  that  the  defendant  is  not  guilty  of 
the  offense  laid  against  him  in  the  indictment.^* 

pie,  122  111,  1,  12  N.  E.  S65,  17  N.  B.  S.  C.     State  v.  Hendrix,  68  S.  E. 

898,  3  Am.   St.   Rep.  320 ;    Dacey  v.  129,  86  S.  0.  64. 

People,  116  III.  555,  6  N.  E.  165.  is  Kilkelly  v.  State,  43  Wis.  604. 

Ind.     Long  V.  State,  95  Ind.  481;  i»  Marley  v.  State,  33  A.  208,  58  N. 

Hodge  V.  State,  85  Ind.  561.  J.  Law,  207. 


INSTRUCTIONS  TO  JURIES  708 

CHAPTER  XXXIII 
FORMAL  MATTERS   CONNECTED   WITH   GIVING   OF   INSTRUCTIONS 

A.     Form  and  Abbangement  of  Instbuctions  in  General 

§  390.  Preliminary  statement. 

391.  Logical  arrangement. 

392.  Matters  which  may  be  included  in  single  instruction. 

393.  Reference  to  other  instructions. 

394.  Submissions  of  matters  conjunctively  or  disjunctively. 

B.     Language,  Manner,  and  Tone  of  Instructions 

395.  Definiteness  and  simplicity  of  language. 

396.  Latitude  allowed  to  court  in  tone  or  manner  of  expressing  its  ideas. 

397.  Inadvertent  errors  or  omissions. 

398.  Use  of  illustrations. 

399.  Use  by  court  of  own  language  or  that  of  another. 

400.  Interlineations. 

401.  Underscoring  and  capitalizing. 

402.  Addressing  jurors  individually. 

C.     Setting  Out  Pleadings  and  Propriety  of  Practice  of  Referring 
'  Jury  to  Pleadings 

1.  Reference  to  Pleadings  in  Civil   Cases 

403.  Setting  out  pleadings. 

404.  Reference  to  pleadings  for  issues. 

405.  Reference  for  other  purposes  than  determination  of  issues. 

2,  Reference  to  Indictment  or  Information 

406.  Reference  for  elements  of  offense  charged. 

D.     Reading,  Quoting,  or  Citing  Statutes 

407.  Necessity,  propriety,  and  method  of  presenting  statutes  to  jury. 

408.  Statutes  containing  irrelevant  provisions. 

409.  Using  exact  language  of  statute. 

410.  Reference  to  statutes. 

E.    Reading,  Quoting,  or  Citing  Judicial  Decisions  oe  Text-Books 

411.  Propriety  of  instructions  quoting  from  judicial  decisions  or  text-books. 

412.  Quoting  entire  opinion  or  extracts  therefrom. 

413.  Citing  authorities. 

P.     Repetition  of  Instructions 

414.  Necessity  and  pi-opriety  of  repetition. 

415.  Limitations  of  rule  against  repetition. 

416.  Effect  of  repetition  which  misleads  or  gives  undue  prominence  to  cer- 

tain matters. 

G.     Argumentative  Instructions 

417.  General  rule. 

418.  Application  of  rule  in  criminal  cases. 

419.  Statement  of  contentions  of  parties  or  of  undisputed  facts. 


709  FORMAL  MATTERS 

§  420.     Repetition  as  constituting  argument. 

421.  Effect  of  argumentative  instructions  as  ground  for  reversal. 

H.     Confused  or  Misleading  Instructions 

422.  General  rule. 

423.  Specific  applications  of  rule. 

424.  Limitations  of  rule. 

425.  Misstatements  of  evidence. 

426.  Comments  by  court  on  the  justice  or  validity  of  rules  of  law  stated 

by  it. 

I.    Inconsistent  or   Contradictory   Instructions 

427.  Rule  that  such  instructions  are  erroneous. 

428.  Specific  applications  of  rule. 

429.  Submitting  opposing  theories  of  case. 

430.  Effect  of  such  instructions  as  ground  for  reversal. 

J.     Singling   Out  ob  Giving   Undue  Prominence  to   Particular   Facts 

OR  Matters 

431.  General  rule. 

432.  Applications  of  rule. 

433.  Singling  out  testimony  of  particular  witnesses. 

434.  Limitations  of  rule. 

435.  Effect  of  repetition. 

436.  Duty  to  avoid  distinguishing  certain  matters  by  arbitrary  or  mechani- 

cal devices. 

K.    Time  for  Giving  Instructions 

437.  Limitation  of  time  by  statute  or  rule  of  court. 

438.  Mandatory  character  of  such  regulations. 

L.     Length  and  Number  of  Instructions 

439.  Rule  against  multiplying  instructions. 

440.  Effect  of  length  or  brevity  of  instructions. 

M.     Necessity  of  Written  Instructions 
1.    Ritle  in  Absence  of  Statutory  Regulation 

441.  Instructions  may  be  oral. 

442.  Right  or  duty  of  party  desiring  to  except  to  instructions. 

2.     Rule  under  Statutes 

443.  In  general. 

444.  Scope  of  such  provisions. 

445.  Modifications  and  explanations. 

446.  Limitations  of  statutory  rule. 

447.  Waiver  of  benefits  of  rule. 

448.  Manner  and  time  of  preferring  requests  for  written  instructions. 

N.    Matters  Beaeing  on  Requisites  of  Written  Instructions 

449.  SufBciency  of  reduction  of  instructions  to  writing. 

450.  Nunibex'ing  instructions. 

451.  Signing  and  sealing. 

452.  Filing  instructions. 

O.     Presence  of  Parties  and  Right  to  Inspect  Instructions 

453.  Presence  of  parties  or  their  counsel  during  charge. 

454.  Right  to  inspect  instructions. 


§  390  INSTRUCTIONS   TO   JURIES  710 


A.  Form  and  Arrangement  of  Instructions  in  Generai, 

§  390.     Preliminary  statement 

The  court  is  not  required,  prior  to  charging  as  to  the  law  of  the 
case,  to  make  a  preliminary  statement  of  the  issues  raised  by  the 
pleadings,  where  the  issues  are  sufficiently  pointed  out  in  the 
course  of  the  charge.^ 

§  391.     Logical  arrangement 

So  long  as  all  the  instructions  proper  and  needful  in  a  case  are 
given,  and  so  long  as  they  embody  correct  statements  of  the  prop- 
ositions of  law  involved  and  cannot  mislead  the  jury,  it  is  im- 
jiiaterial  in  what  precise  form  the  charge  is  made,  or  that  it  is 
lacking  in  orderly  or  logical  arrangement.^ 

§  392.     Matters  which  may  be  included  in  single  instruction 

The  discussion  of  what  matters  must  be  included  in  a  single 
instruction  is  deferred  to  a  subsequent  chapter.^  * 

Two  or  more  correct  propositions  of  law  may  be  stated  in  the 
>same  instruction,  if  the  jury  will  not  be  confused  thereby.*  The 
respective  theories  of  the  parties  need  not  be  presented  in  separate 
instructions,^  and  where  there  is  nothing  special  or  individual  to 
distinguish  the  defenses  of  two  or  more  persons  joined  as  defend- 
ants, it  is  within  the  discretion  of  the  trial  court  to  give  particular 
instructions  as  to  each  defendant,  or  to  so  modify  one  set  of  in- 
structions as  to  make  them  applicable  to  ail  the  defendants.** 

An  instruction,  however,  is  objectionable  which  involves  wholly 
unrelated  subjects,'  and  may  properly  be  refused.*     It  is  the  duty 

1  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  s  Post,  §§  533-539. 

Hitzfelfler,  66  S.  W.  707,  24  Tex.  Civ.  4  Gemmill  v.  Brown.  56  N.  E.  691. 

App.  318.  25  Ind.  App.   6;    Louisville  &  N.  R. 

2  Kan.     Atchison.  T.  &  S.  F.  R.  Co.  Co.   v.   Veach,  46  S.   W.   493,   20  Ky. 
V.  Calvert,  52  Kan.  547,  34  P.  976.  Law    Rep.    403 ;     Abernathv    v.    Em- 
Minn.     Cneiiu    v.    Hunt,    6   Minn.  poria  Mfg.  Co.,  95  S.  E.  41S,  122  Va. 

375   (Gil.  260).  406. 

Neb.     Gigley   v.    National   Fidelity  s  Morris  v.  Territory,  99  P.  760.  1 

^,  ,^"^."0^^-^  .^'';'    \^^..^'-J^'-.^].^'  ^^       Old.    Cr.    017,  'rehearing    denied    101 
Neb.  813,  50  L.  R.  A.  (X.  S  )  1040^  p.   ni,  1   OKI.  Cr.   617;    Toone  v.   .T. 

^o  ;^^o/PrV-T?°oo'f''Vi^;.^-'  ^'-  ^''^'6511   Const.   Co.,   121  P.   10,  40 

72  A.  1024,  75  X.  H.  228 ;    Walcott  v.  Tjtah    26'i 
Keith,  22  X.  H.  196. 

Vt.     Holhrook  v  Hyde  1  Vt  '>S6  "  Hitchcock    v.    Corn    Exch.    Bank, 

Wash.     Ilutchins    v.    School    Dist.  '^^  I"-  '"^l^P-  414. 

Xo.    SI    of   Spokane   County,    195   P.  '^  Holbrook  v.   Seagrave,  110  X.  E 

1020.  SS9,  228  i^Fass.  26. 

W.  Va.     :McClintie  v.  Ocheltree,  4  «  Beam  Motor  Car  Co.  v.  Loewer, 

^  •  ^  «•  -^0-  102  A.  90S,   131  Md.  552. 


711 


FORMAL   MATTERS 


§  394 


of  the  court  to  separate  and  definitely  state  the  issues  of  fact 
made  by  the  pleadings,  and  to  give  such  instructions  as  to  each 
issiie  as  the  nature  of  the  case  requires.'' 

§  393.     Reference   to   other   instructions 

There  is  no  necessity  for  qualifying  each  instruction  by  express 
reference  to  the  others/®  but  the  court  in  one  instruction  may 
refer  to  another  for  certain  matters/^  and  it  is  not  necessary  that 
the  instructions  so  referred  to  should  be  repeated,^"  although  they 
should  be  designated  with  reasonable  particularity.^^ 

An  instruction  referring  to  an  instruction  given  by  the  court  in 
a  former  case  to  the  jurors  on  the  same  panel  and  restating  such 
instruction  is  not  objectionable.** 

§  394.     Submissions  of  matters  conjunctively  or  disjunctively 

Where  a  party  is  entitled  to  a  verdict  if  any  one  of  several 
facts  has  been  established,  it  is  error  to  present  all  the  facts  in  the 
conjunctive,  thus,  in  effect,  telling  the  jury  to  return  a  verdict 
for  said  party  only  in  case  the  combination  of  facts  has  been  es- 


9  .Tones  v.  People's  Bank  Co.,  lib 
N.  "R.  .34.  n."  Ohio  St.  253. 

Illnstration  of  necessity  of  sep- 
arately stating  issues  of  fact.     In 

an  action  by  a  pedestrian  injured  by 
an  automobile,  contention  of  plaintiff 
being:  that  collision  took  place  on 
crossinsr,  and  contention  of  defend- 
ant being  that  it  occurred  at  the  in- 
tersection, the  court,  although  the 
pedestrian  had  the  right  of  way  at 
both  places  under  a  city  ordinance, 
should  have  instructed  separately  as 
to  the  reciprocal  duties  and  rights  of 
pedestrians  and  vehicles  at  street 
crossings  and  intersections  thus  ena- 
bling the  jury  to  apply  the  instruc- 
tions to  the  case  as'  they  found  the 
facts  to  be  as  to  the  exact  location 
of  the  collision.  Schwalen  v.  W.  P. 
Fuller  &  Co.,  1S2  P.  592,  107  Wash. 
476.  10  A.  L.  R.  296. 

10  Scott-Force  Hat  Co.  v.  Sturgeon, 
127  Mo.  .392,  30  S.  W.  183. 

11  People  V.  Ivaures,  124  N.  E.  585, 
289  111.  490;  German  Fire  Ins.  Co. 
V.  Grunert.  112  111.  68,  1  X.  E.  113; 
Carter  v.  Howard,  11  Ky.  Law  Rep. 
(abstract)  443 ;  State  v.  Solon,  153  S. 
^Y.  1023,  247  IMo.  672. 

Instructions  proper  within  rule. 
An  instruction  that  if  the  jury  failed 
to  find  a  verdict  according  to  law  as 


declared  in  instruction  No.  2.  but  find 
that  defendant  feloniously,  nremedi- 
tatedly.  on  purpose,  and  with  malice 
aforethought,  with  a  deadly  weapon, 
shot  and  killed  deceased,  he  was  guil- 
ty of  murder  in  the  second  deeree, 
was  not  bad,  as  dependinc:  on  another 
instruction.  State  v.  Haines.  61  S. 
W.  621.  160  Mo.  555.  An  instruction 
which  informs  the  jury  that  if,  under 
the  evidence  and  instructions,  they 
believe  the  defendant  liable,  then  they 
shall  assess  the  damages,  is  not  er- 
roneous, because  of  its  reference  to 
the  other  instnictions.  Chicago,  M. 
&  St.  P.  R.  Co.  V.  Kendall,  49  III  App. 
398.  An  instruction  that  if  the  jury, 
"from  the  evidence, .  and  under  the 
instructions  of  the  court,"  find  the 
issue  for  plaintiff,  etc.,  is  not  error. 
Norton  v.  Volzke,  54  111.  App.  543. 

12  O'Leary  v.  German  American 
Ins.  Co.  of  New  York,  69  N.  W.  GS6, 
100  Iowa,  390. 

13  Harvey  v.  State,  73  So.  200.  15 
Ala.  App.  311;  McBeth-Evans  Glass 
Co.  V.  Brunson  (Ind.  App.)  122  N.  E. 
439 ;  Carrington  v.  Graves,  89  A.  237, 
121  Md.  567;  Drumm-Flato  Commis- 
sion Co.  V.  Gerlack  Bank,  92  Mo.  App, 
326. 

14  Di  Maio  v.  Tolen  Bottling  Works, 
107  A.    497,   93   Conn.    597. 


395 


INSTRUCTIONS  TO  JURIES 


712 


tablished,^^  and  where  a  defendant  pleads  several  defenses,  an 
instruction  grouping  them  together  coiljunctively,  and  requiring 
the  jury  to  believe  that  there  is  evidence  sufficient  to  support  all 
of  them  before  they  can  find  for  the  defendant,  is  error,^®  It  is 
held,  however,  that,  in  the  absence  of  a  request  to  submit  several 
matters  of  defense  disjunctively,  their  submission  conjunctively, 
so  that  the  jury  is  seemingly  required  to  believe  all  of  them  to  have 
been  established  in  order  to  find  for  the  defendant,  while  not  good 
practice,  is  not  reversible  error/'  where  it  does  not  appear  that  the 
jury  were  misled.-^* 

B.  Language,  Manner,  and  Tone  oe  Instructions 

§  395.     Definiteness  and  simplicity  of  language 

The  terms  and  expressions  used  in  an  instruction  to  the  jury 
should  not  be  obscure,  vague,  or  indefinite,^^  or  susceptible  of  a 
double  meaning,^"  but,  on  the  other  hand,  should  be  technically 
accurate-^  and  couched  in  as  simple,  plain,  everyday  language  as 
it  is  possible  to  use.^'^  Simplicity  of  language  may  be  said  to  be 
one  of  the  hall-marks  of  a  good  instruction.^^    The  model  instruct 


isLanshan  v.  City  of  Louisville, 
216  S.  W.  10S2.  ]  S6  Ky.  43S ;  Tiiepker 
V.  Soveroiffn  Camp.  W.  O.  W.  CMo. 
App.)  226  S.  W.  1002:  Crow  v.  Citi- 
zens' Ry.  Co.,  78  S.  W.  l.S.  84  Tex. 
Civ.  App.  8:  Bell  v.  Beazley.  45  S. 
W.  401.  18  Tex.  Civ.  App.   6.89. 

16  .Tones  x.  People's  Rank  Co.,  116 
N.  E.  34,  95  Ohio  St.  25.8 ;  Kersher  v. 
I»timer  (Tex.  Civ.  App.)  64  S.  W. 
237. 

i"Oar  V.  Davis  (Tex.  Civ.  App.) 
135  S.  TT.  710;  Texas  &  P.  Ry.  Co. 
V.  Patterson,  102  S.  W.  138.  46  Tex. 
Civ.  App.  202:  Texas  Cent.  R.  Co.  v. 
Wnklie  (Tex.  Civ.  App.)  101  S.  W.  517. 

Facts  pleaded  conjunctively. 
"WTiere  the  facts  constituting  the  al- 
legerl  contributory  negligt^ice  are 
pleaded  conjunctively,  no  aflirmative 
error  will  arise  in  submitting  the  Is- 
sues in  that  form.  Ft.  Worth  &  R. 
G.  Ry.  Co.  V.  Keith  (Tex.  Com.  App.) 
208  S.  W.  801,  affirming  judgment 
(Civ.  App.)   163   S.  W.  142. 

1 «  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Hill,  69 
S.  W.   136,  95  Tex.  629. 

10  Riley  v.  Fletcher,  64  So.  85,  185 
Ala.  570;  Chicago  City  Kv.  Co.  v. 
Sandusky.  09  111.  App.   164,   affirmed 


64  N.  E.  990,  198  111.  400;  Parkors- 
burg  Industrial  Co.  v.  Schultz,  43  W. 
Va.  470.  27  S.  E.  25.5. 

Charge  held  too  general.  In  an 
action  for  the  price  of  a  livery  stable, 
where  the  defense  was  sale  of  good- 
will also,  and  breach  of  the  contract, 
a  charge,  requested  by  defendants, 
that,  "if  there  was  a  sale  of  good- 
will, plaintiff  would  be  responsible 
for  breach  of  the  contract,"  without 
specif^-ing  how,  or  in  what  amoum, 
is  too  general,  and  was  properly  re- 
fused. Chambers  v.  Walker,  SO  Ga. 
642,  6  S.  E.  165. 

2  0  Fuller  v.  Stevens  (Ala.)  39  So. 
623;  Fitts  v.  Southern  Pac.  Co.,  86 
P.  710,  149  Cal.  310,  117  Am.  St.  Rep. 
1.80. 

21  Illinois  Steel  Co.  v.  McFadden, 
63  N.  E.  671.  196  111.  344,  89  Am.  St. 
Rep.  319,  affirming  judgment  98  111. 
App.  296;  Fowlie  v.  Cruse,  157  P. 
958,  .52  :\Iont.  222. 

22  Kein  v.  Gilmore  &  P.  R.  Co.,  181 
P.  656,  23  Idaho,  511 ;  Aikin  v.  Weck- 
orly,  19  Mich.  482. 

2  3  Hegberg  v.  St.  Louis  &  S.  F.  R. 
Co.,  147  S.  W.  192,  164  Mo.  App.  514 ; 
Morris  v.  Morris,  28  Mo.  114. 


713  FORMAL  MATTERS  §  396 

tion  is  a  simple,  impartial,  clear,  concise  statement  of  the  law  ap- 
plicable to  the  evidence  in  the  case  on  trial,"*  and  an  instruction 
which  states  the  law  correctly,  but  which  uses  language  such  as 
is  not  apt  to  be  comprehended  by  the  average  juror,  is  errone- 
ous,^® and  should  be  refused.^® 

Pursuant  to  the  above  rule  the  court  should  avoid  the  use  of 
technical  or  Latin  terms,^'  and  employ  instead  words  which  are 
generally  used  and  concerning  the  meaning  of  which  the  jury  can 
have  no  doubt."*  It  is  not  error,  however,  for  the  court  to  make 
use  of  technical  phrases,  if  the  jury  are  not  misled  thereby,^®  nor 
is  it  error  to  use  Latin  words,  or  words  of  Latin  derivation  which 
have  become  a  part  of  the  English  language-^® 

§  396.     Latitude  allowed  to  court  in  tone  or  manner  of  express- 
ing its  ideas 

A  certain  latitude  as  to  the  form  and  expression  of  a  charge  is 
necessarily  left  to  the  trial  court,  so  long  as  the  determination  of 
the  issues  of  fact  is  left  to  the  jury,^^  and  the  tone  or  manner  of 
a  charge,^^  the  vehemence  or  eloquence  of  certain  passages  there- 
in,^^  or  the  fact  that  the  court  does  not  use  language  best  suited 
to  convey  the  ideas  sought  to  be  expressed,  or  that  certain  words 
or  phrases  are  inaccurate,  or  that  unnecessary  words  are  em- 
ployed,^* will  not  be  cause  for  a  reversal  of  the  judgment  of  the 

2  4,Gottlipb  V.  Commonwealth,  101  S.  so  Thiessen  v.  City  of  Belle  Plaine. 

E.  S72.  126  Va.  807.  81  Iowa,   118.  46  N.  TV.   8,54:    In  re 

25  IMarvland  Casualty  Co.  v.  Finch  Convey's  Will.  52  Iowa.  107.  2  X.  W. 
(C.  C.  A.  Minn.)  147  F.  388,  77  C.  C'.  1084;  Owens,  Lane  (<t  Dver  Marh. 
A.  566.  8  L.  R.  A.  (N.  S.)  308;  Har-  Co.  v.  Pierce,  5  Mo.  App.  .575: 
vey  V.  Miles,  16  111.  App.  533;  Wat-  Schwartz  v.  State.  83  S.  W.  195.  47 
kins  V.  Wallace.  19  Mich.  57.  Tex.  Cr.  R.  213.  11  Ann.  Cas.  620. 

26  Russell  V.  Oregon  R.  &  Nav.  Co.,  3i  Mawich  v.  Elsev,  10  N.  W.  ,57, 
102  P.  619,  54  Or.  128.  47  Mich.  10;    Flick  v.  Ellis-Hall  Co., 

27  Indianapolis   Traction   &   Termi-  165  N.  W.  135,  138  Minn.  364. 

nal  Co.  V.  Thornburg  CInd.  App.)  125  32  Bishop  v.  .lournal  Newspaper  Co., 

N.  E.  57;     State  v.  Helm,  61  N.   W.  168  Mass.  327.  47  N.   E.   119;     Fath 

248,  92  Iowa,  540;    Fletcher  v.   Mil-  v.  Thompson,  58  N.  J.  Law,  180,  33 

burn  Mfg.  Co.,  35  Mo.  App.  321.     See  A.  391;   Briffitt  v.  State,  58  Wis.  39, 

Owens,    Lane   &    Dyer    Mach.    Co.    v.  16  N.   W.   39,  46  Am.   Rep.   621. 

Pierce,  5  Mo.  App.  576.  33  Page    v.    Town    of    Sumpter,    53 

Presumption    of    fraud.     An    in-  Wis.  652,  11  N.  W.  60. 

struction  that  fraud  will  not  be  pre-  34  u.  S.     (Sup.)  Rogers  v.  Marshal, 

sumed  from  slight  circumstances,  but  1  Wall.  644,  17  L.  Ed^  714;    (C.  C.  A.' 

the  proof  mnst  be  clear  and  conclu-  Pa.)   Mowles  v.   Lorimer,  212  F.  155^ 

slve,  Is  erroneous,  as  being  stated  in  129  C.  C.  A.  11. 

too   technical   language.     Watkins  v.  Ark.     Fourche   River   Valley   &  I 

Wallace,  19  Mich.  57.  T.  Ry.  Co.  v.  Tippett,  142  S.  W.  520, 

2  8  Dunn   V.   Land   (Tex,   Civ.   App.)  101  Ark.  376. 

193  S.  W,  698.  Ga.     City  of  Rome  v.  Ford,  79  S. 

2  9Gano  v.  Samuel,  14  Ohio,  593.  e.  243,   13  Ga.  App.  386;    James   v. 


S   395     '  INSTRUCTIONS  TO  JURIES  '^1-4: 

trial    court,   if   the   instructions   as    a   whole   are    correct,    if    their 
meaning  is  clear,  and  if  the  jury  have  not  been  misled  by  the 


Harail,  7S  S.  E.  721,  140  Ga.  168; 
Orr  V.  Planters'  Phosphate  &  Fertili- 
zer Co.,  68  S.  E.  779,  S  Ga.  App.  59 ; 
Coweta  County  v.  Central  of  Georgia 
Ry.  Co.,  60  S.  E.  1018,  4  Ga.  App.  94. 
111.  Coulter  V.  Illinois  Cent.  R. 
Co.,  106  N.  E.  258,  264  111.  414.  affirm- 
ing judgment  184   111.   App.   20S. 

ind.  Southern  Ry.  Co.  v.  Hazle- 
wood,  90  N.  E.  18,  45  Ind.  App.  478_, 
denying  rehearing  88  N.  E.  636,  45 
Ind.  App.  478. 

Iowa.     First  Nat.  Bank  of  Marcus 

V.  Wise,  151.  N.  W.  495,  172  Io\ya,  24. 

Ky.     St.  Louis,  I.  M.  &  S.  R.  Co. 

V.  McWhirter,  140  S.  W.  672.  143  Ky. 

427. 

Md.  Weant  v.  Southern  Trust  & 
Dei)osit  Co..  77  A.  289,  112  Md.  463. 

Mich.  Davidson  v.  Kolb,  55  N.  W. 
373.  95  Mich.  469. 

Mo.  Sparks  v.  Hlarvey  (App.)  214 
S.  W.  249;  Millirons  v.  Missouri  & 
K.  I.  Ry.  Co.,  162  S.  W.  1069.  176 
Mo.  App.  39;  Stubblefield  v.  Smith, 
129  S.  W.  1027,  146  Mo.  App.  316; 
Torrevson  v.  T'nited  Rys.  Co.  of  St. 
Louis'  120  S.  W.  409.  144  Mo.  App. 
fi26 ;  Sherer  v.  Rischert,  23  Mo.  App. 
275. 

Neb.  Stull  V.  Stull.  96  N.  W.  196, 
1  Neb.  rUnof.)  380,  389:  Thayer  Coun- 
ty Bank  v.  Iluddleson,  95  N.  TV.  471.  1 
S'eb.  (Unof.>  261 :  Langdon  v.  Winter- 
steen,  78  N.  W.  501,  58  Neb.  278. 

N.  J.  Redhing  v.  Central  R.  Co., 
54  A.  431,  68  N.  J.  Law,  641. 

N.  Y.  Raynor  v.  Timerson,  51 
Barb.  517. 

S.  D.  M.  E.  Smith  &  Co.  v.  Kim- 
ble. 162  N.  W.  162.  38  S.  D.  511. 

Tex.  Mutual  Life  Ins.  Co.  of  New 
York  V.  Hodnette  (Civ.  App.)  147  S. 
W.  615;  St.  Louis  Southwestern  Ry. 
Co.  of  Texas  v.  Wilbanks  (Civ.  App.) 
11.3  S.  W.  .318;  Texas  &  P.  Ry.  Co. 
v.  .lohnson,  106  S.  W.  773,  48  Tex.  Civ. 
App.  135 ;  Houston  &  T.  C.  R.  Co.  v. 
Anglin.  99  S.  W.  897,  45  Tex.  Civ. 
App.  41. 

Utah,  iiu-sgrave  v.  Studebaker 
Bros.  Co.  of  Utah,  160  P.  117,  48  Utah, 
410. 


Vt.  Coolidge  v.  Taylor,  80  A.  1038, 
85  Vt.  39. 

Wash.  Peterson  v.  Arland,  141  P, 
63,  79  Wash.  679. 

W.  Va.  Webb  v.  Ritter,  54  S.  E. 
484,  60  W.  Va.  193. 

Omission  of  a  prefix.  A  charge 
that  the  jury  are  not  bound  to  accept 
the  opinions  of  doctors,  but  may  give 
such  opinions  the  weight  to  which 
they  deem  them  entitled,  or  altogeth- 
er disregard  them  in  so  far  as  tliey 
may  deem  them  "reasonable,"  being 
correct  in  every  respect,  except  the 
obvious  omission  of  the  prefix  "un" 
before  the  word  "reasonable"  is  not 
fatally  erroneous.  Day  v.  Emery- 
Bird-Thaver  Dry  Goods  Co.,  89  S.  W. 
903,  114  Mo.  App.  479. 

Inappropriate     use      of     "words. 
That  the  court,  in  reference  to  an  al- 
teration in  a  written  contract  which 
would  render  the  agreement  invalid, 
if  inserted  without  the  knowledge  or 
consent  of  one  of  the  parties  to  the 
contract,    used    the    word    "forgei\v," 
was  immaterial,   though,   technically 
speaking,  such  criminal  act  could  not 
be    committed    by    such    alteration. 
Swmdells  v.  Dupont,  92  N.  W.  468,  88 
-Minn.  9.    An  instruction  that  the  cre- 
ation of  an  agency  carries  with  it  the 
power  to  do  all  those  things  which 
are  necessary,  proper,  and  usual  to  be 
done  in  order  to  effectuate  the  pur- 
pose of  the  agency,  and  embraces  all 
the  "approximate"   means  necessary 
to  accomplish  the  desired  ends,  is  not 
erroneous,  because  of  the  use  of  the 
word  "approximate"  instead  of  "ap- 
propriate."    Riverview   Land    Co.   v. 
Dance,  35  S.  E.  720,  98  Va.  239.     Un- 
der a  statute  making  it  a  misdemean- 
or to  leave  open  a  hole  or  shaft  and 
imposing  penalty  of  double  value  of 
stock  injured  or  killed  by  falling  into 
the  shaft,  there  was  no  error  in  an 
instruction  referring  to  a  hole  as  an 
"excavation,"  when  it  was  nine  feet 
long,  six  feet  wide,  and  six  feet  deep, 
and  clearly  came  within  the  statute, 
although  an  excavation  may  or  may 
not  be  prohibited  by  statute.     Jones- 
boro,  L,  C.  &  E.  R.  Co.  v.  Kirksey,  204 


715 


FORMAL  MATTERS 


396 


manner  of  expression  of  the  court.     It  is  not  improper  to  use  the 
masculine  gender  in  referring  to  a  person  of  the  female  sex.^^ 


S.  W.  208,  135  Ark.  617.  In  an  action 
for  injury  to  a  pedestrian  who  fell 
into  a  coalhole,  error  cannot  be  predi- 
cated on  tlie  use  by  the  court  in  an 
instruction  of  the  word  "slipped,"  in- 
stead of  the  word  "tilted,"  as  used  in 
the  petition,  where  the  evidence  on 
the  nature  of  the  injury  was  clear, 
and  no  prejudice  could  have  resulted. 
Young  Men's  Christian  Ass'n  v.  Jasse 
(Tex.  Civ.  App.)  183  S.  W.  867. 

Use  of  "proof"  and  "evidence" 
intercliaiigeably'.  "Proof"  in  a 
strictly  accurate  and  technical  sense 
is  the  result  or  effect  of  evidence, 
while  "evidence"  is  the  medium  or 
means  by  which  a  fact  is  proved  or 
disproved,  but  the  words  "proof"  and 
"evidence"  may  be  used  interchange- 
ably and  synonymously  in  coui't's 
charge  especially  where  attention  of 
court  is  not  specially  called  to  the 
real  difference  in  meaning  (citing 
"Words  and  Phrases,  Evidence ; 
Proof).  Walker  v.  State,  212  S.  W. 
319,  138  Ark.  517. 

Use  of  "approximately"  instead 
of  "proximately."  An  instruction 
on  contributory  jiegligence,  in  an  ac- 
tion for  death  at  an  interurban  rail- 
way crossing,  was  not  defective  in 
the  use  of  the  word  "approximately," 
instead  of  "proximately" ;  the  two 
words  being  so  closely  allied  in  mean- 
ing that  the  use  of  the  former,  in  a 
clause  requiring  such  negligence  to 
have  "approximately"  contributed  to 
the  injury,  could  not  have  misled  the 
jury.  Brooks  v.  Muncie  &  P.  Trac- 
tion Co.,  95  N.  E.  1006,  176  Ind.  298. 
Where,  in  an  action  for  injuries  to  an 
employe,  the  court  defined  proximate 
cause  and  used  in  its  instructions  the 
word  "proximate"  several  times,  the 
use  of  the  word  "approximately"  for 
"proximately"  in  a  charge  relating  to 
proximate  cause  was  not  erroneous. 
Choctaw,  O.  &  T.  Ry.  Co.  v.  McLaugh- 
lin, 96  S.  W.  1091,  43  Tex.  Civ.  App. 
523. 

Use  of  "culvert"  instead  of 
"drain."  In  an  action  against  a 
railroad  company  for  injuries  to 
plaintiff's  adjoining  property  by  a 
change  in  the  grade  of  a  street  inter- 


fering with  a  natural  drain,  an  in- 
struction that  in  the  construction  of 
defendant's  approaches  to  a  viaduct 
defendant  was  bound  to  construct  cul- 
verts through  the  embankment  was 
not  objectionable  in  the  use  of  the 
word  culvert ;  the  openings  having 
been  referred  to  in  other  instructions 
as  drains  or  channels.  Shrader  v. 
Cleveland,  C,  C.  &  St.  L.  Ry.  Co.,  89 
N.  E.  997,  242  111.  227,  26  L.  R.  A.  (N. 
S.)  226,  affirming  judgment  147  III. 
App.  252. 

Use  of  "defendant"  instead  of 
"plaintiff."  A  charge  exonerating 
defendant  from  liability,  if  "defend- 
ant" was  guilty  of  contributory  negli- 
gence by  failing  to  exercise  ordinary 
[care]  in  his  shipment,  is  not  rendered 
misleading  by  the  use  of  the  word 
"defendant"  instead  of  "plaintiff," 
and  the  omission  of  the  word  "care." 
Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Word' 
(Tex.  Civ.  App.)  124  S.  W.  478. 
■  "Disaster"  instead  of  "acci- 
dent.'^  In  an  action  for  injuries  to- 
a  child,  caused  by  defendant's  negli- 
gently leaving  a  live  wire  in  a  public 
place  unguarded,  an  instruction  stat- 
ing that  defendant  was  bound  to  ex- 
ercise the  highest  skill  in  the  mainte- 
nance of  the  entire  plant,  consistent 
with  the  proper  conduct  of  the  busi- 
ness according  to  the  best  known 
methods  of  the  state  of  its  art,  prior 
to  the  disaster,  was  not  erroneous  for 
using  the  word  "disaster"  instead  of 
"accident,"  or  some  other  similar 
term.  Colorado  Springs  Electric  Co. 
V.  Soper,  88  P.  161,  38  Colo.  126. 

Use  of  Tfford  "result"  instead  of 
"cause."  Where  the  court,  in  an  ac- 
tion for  injuries  to  a  servant,  in  re- 
sponse to  a  suggestion  charged:  "1 
did  not  tell  you,  if  there  was  negli- 
gence on  the  part  of  the  plaintiff,  it 
had  to  be  the  'proximate  result'  of 
the  injuries  to  bar  his  recovery.  The 
same  rule  applies  to  both  sides.     If 

3  5  Hightower  v.  State,  80  S.  E.  6S4, 
14  Ga.  App.  246;  Marek  v.  State,  34 
S.  W.  469,  49  Tex.  Cr.  R.  428;  Ma- 
gruder  v.  State,  84  S.  W.  587,  47  Tex.. 
Cr.  R.  465. 


§  397 


INSTRUCTIONS  TO  JURIES 


716 


§  397.     Inadvertent  errors  or  omissions 

As  a  general  rule,  error  is  not  properly  predicable  upon  the  in- 
advertent use  of  a  wrong  word  in  an  instruction,  or  the  uninten- 
tional omission  therefrom  of  a  word  or  phrase  which  it  is  apparent 
would  have  been  corrected  if  attention  had  been  called  thereto,^® 
and  where  it  is  clear  that  the  jury  has  not  been  misled,  and  a  cor- 
rect result  has  been  reached,^'  or  where  to  hold,  in  view  of  the 
charge  as  a  whole,  that  the  jury  could  have  been  misled  by  a  slip 


one  side  was  guilty  of  negligence,  it 
must  proximately  result  in  injury,  or 
he  would  not  be  entitled  to  recover.  I 
mean,  if  plaintiff  was  guilty  of  negli- 
gence, to  bar  recovery,  it  must  be  the 
proximate  result  of  his  injury,"  it 
was  held  that  the  use  of  the  word 
"result,"  instead  of  "cause,"  did  not 
render  the  instruction  erroneous, 
since,  if  the  injury  must  be  the  proxi- 
mate result  of  the  negligence,  then 
the  negligence  must  have  proximately 
caused  the  injury,  Sloss-Sheoield 
Steel  &  Iron  Co.  v.  Stewart,  55  So. 
785,  172  Ala.  516. 

"Sue"  instead  of  "recoverJ'    An 
instruction  in  an  action  for  enticing 
an  employe  to  break  his  contract  witii 
plaintiff  that  plaintiff  cannot  "sue"  on 
any  other  contract  except  the  one  al- 
leged in  the  complaint  is  not  mislead- 
.  ing  in  the  use  of  the  word  "sue,"  in- 
stead of  the  word  "recover."    Burgess 
V.  Tucker,  77  S.  E.  1016,  94  S.  C.  309. 
Use  of  word  "just."     Instruction 
that  plaintiff,  in  action  for  personal 
injury,  has  burden  of  proving  by  pre- 
ponderance of  evidence  that  his  claim 
is  just,  and  that  he  is  entitled  to  re- 
cover, was  erroneous,  as  a  just  claim 
is  not  always  a  legal  claim  that  may 
be  compensated  for  in  damages,  and 
as  "just"  may  apply  in  nearly  all  its 
senses   to   either   ethics   or   law,   de- 
noting something  which  is  normally 
right   and   fair,   and   sometimes  that 
which  is  right  and  fair  according  to 
positive  law.     Lake  Hancock  &  C.  R. 
Co.  V.  Stinson,  81  So.  512,  77  Fla.  333. 
Use  of  "etc."     The  use  of  the  ab- 
breviation "etc."  in  a  charge  on  dam- 
ages is  not  to  be  commended,  as  the 
court  should  specify  what  things  he 
means.      Dallas   Consol.    Electric    St. 
Ry.  Co.  V.  Chambers,  118  S.  W.  851, 
55  Tex.  Cr.  R.  331. 


Use  of  tiie  singular  instead  of 
the  plural  number.  An  instruction 
that  the  burden  of  proof  is  on  the 
plaintiff  to  prove  his  case  by  a  pre- 
ponderance of  evidence,  and  if  he  has 
failed  to  make  such  proof  the  jury 
should  find  the  issue  for  the  "defend- 
ant," is  not  misleading,  though  there 
were  two  defendants.  Peirce  v.  Shol- 
tey,  190  111.  App.  341.  The  use  of  the 
word  "plaintiff"  in  an  instruction 
where  there  are  two  plaintiffs  to  the 
action  is  not  misleading,  where  a  jury 
of  average  intelligence  would  under- 
stand that  the  court  meant  the  par- 
ties suing.  Citizens'  Gas  &  Oil  Min, 
Co.  V.  Whipple,  69  N.  E.  557,  32  Ind. 
App.  203. 

Failure  to  use  •word  "felonious-* 
lyV"  An  instruction  authorizing  con- 
victiVe  of  the  accused  if  he  committed 
certain  actb  was  not  erroneous  for 
failure  t6  iise  the  word  "feloHlously." 
State  V.  MilW,  89  S.  W.  377,  190  Mo. 
449.  An  insfruction  that  if  the  kill- 
ing was  not  dotie  Id  self-defense,  but 
was  done  in  sufiiden  heat  or  passion'/ 
etc.,  the  jury  shoiikl  find  defendant 
guilty  of  voluntary  fnaflglaughter, 
was  not  bad  for  faiiihg  to  Mse  the 
word  "feloniously."  (?oOk  v.  Cotri-' 
monwealth,  72  S.  W.  2'S3,'  24  Ky.  tttw 
Rep.  1731.  Instruction'  as"  to'  wlia't: 
should  be  found  to  warrant  conviction' 
of  robbery  may  in  place  of  the' word' 
"feloniously"  use  other  wbi'ds,  tbe' 
eriuivalent  thereof.  State  v.  Johnson; 
53  P.  667,  19  Wash.  410. 

30  Gilroy  v.  Loftus  (Sup.)  48^ N.  Y. 
S.  532,  22  Misc.  Rep.  105;  Holt  v. 
State,  100  S.  W.  156,  51  Tex.  Cf.  R. 
15;  State  v.  Carter,  15  Wash.  I2l, 
45  P.  745. 

3'  Ga.  Allen  v.  State,  88  S.  E.  100,' 
18  Ga.  App.  1;  Solomon  v.  State,  58' 
S.  E.  381,  2  Ga.  App.  92 ;    City  of  At- 


717 


FORMAL  MATTERS 


§  397 


of  the  tongue  or  pen  would  impute  such  want'of  ordinary  capacity 
to  the  jury  as  to  make  them  unfit  for  service,^*  slight  verbal  inac- 
curacies or  clerical  errors  will  be  disregarded. 

The  above  rule  has  been  applied  to  the  omission  of  the  phrase 
"from  the  evidence,"  ^®  to  the  use  of  the  word  "testimony"  instead 


lanta  v.  Champe.  66  Ga.  659;  Carter 
V.  Buchanan,  9  Ga.  5.39. 

111.     Nichols  V.  Mercer,  44  111.  250  j 

Ind.  Coppage  V.  Gregg,  1  Ind. 
App.  112,  27  N.  E.  570;  Rollins  v. 
State,  62  Ind.  46. 

Iowa.  Clifton  v.  Granger,  86  Iowa, 
573,  .5.3  N.  W.  316. 

Kan.  State  V.  Miller,  35  Kan.  328, 
10  P.  865. 

Ky.-  Day  v.  Commonwealth,  96  S. 
W.  510,  29  Ky.  Law  Rep.  816. 

Miss.  Palmer  v.  State,  18  So.  269 ; 
Oliver  v.  State,  39  Miss.  526. 

M6nt.  Neill  v.  Jordan,  15  Mont. 
47   38  P.  223. 

Neb.  Carroll  v.  State,  73  N.  W. 
939,  53  Neb.  431 :  Stein  v.  Vannice,  44 
Neb.  132.'  62  N.  W.  464. 

Or.  State  v.  Porter,  49  P.  964,  32 
Or.  135. 

Tex.  Hill  V.  State  (Cr.  App.)  77  S. 
W.  808;  Hutcherson  v.  State  (Cr. 
App.)  35  S.  W.  376;  Callicoatte  v. 
State  (Cr.  App.)  22  S.  W.  1041 ;  Ar- 
rington  v.  State  (Cr.  App.)  20  S.  W. 
927;  Rand  v.  C.  R.  Johns  &  Sons 
(App.)  15  S.  W.  200. 

Wis.  Schultz  V.  Culbertson,  49 
Wis.  122,  4  N.  W.  1070. 

Inadvertent  use  of  "not." 
Where,  in  an  action  on  an  insurance 
policy,  it  was  uncontroverted  that  cer- 
tain articles  claimed  as  lost,  in  the 
proof  of  loss,  were  in  fact  saved,  it 
was  held  that  inadvertent  eiTor  in 
instructing  that,  though  the  jury  may 
"not"  believe  that  articles  named  as 
lost  were  actually  saved,  that  fact 
alone  would  not  constitute  a  defense, 
is  not  ground  for  reversal.  Bokien  v. 
State  Ins.  Co.  of  Oregon,  14  Wash.  39, 
44  P.  110. 

Making  mere  fact  of  injury 
standard  of  liability.  In  an  action 
for  personal  injuries,  the  fact  that  the 
judge  in  one  part  of  his  charge  inad- 
vertently makes  injury  to  plaintiff, 
and  not  negligence,  the  standard  of 
liability,  is  not  ground  for  reversal 


when  he  gives  the  true  guide  repeat- 
edly, before,  in  immediate  connection 
with,  and  after  the  sentence  com- 
plained of,  rehearsing  the  evidence  of 
defendant  in  denial  of  negligence,  and 
closes  his  charge  by  telling  the  jury 
that  they  must  first  consider  whether 
there  was  any  negligence  on  the  part 
of  defendant.  McCloskey  v.  Bell's 
Gap  R.  R.,  156  Pa.  254,  27  A.  246, 

Direction  of  verdict.  Where,  In 
the  course  of  a  charge  which  covers 
three  printed  pages  the  court  states 
and  reiterates  that  the  jury  are  the 
sole  judges  of  the  facts  and  states 
what  facts  must  be  found  before  a 
verdict  can  be  given  for  plaintiff,  but 
afterwards,  at  plaintiff's  request, 
gives  a  charge  that  "your  verdict 
should  be  for  the  plaintiff  in  this  ac- 
tion for  such  damages  as  you  shall 
assess,"  it  will  be  presumed  that  this 
language  was  inadvertently  used,  and 
that  the  jury  did  not  understand  it 
as  a  direction  to  find  for  plaintiff. 
Klimple  v.  Boelter,  44  Minn.  172,  46 
N.  W.  306. 

3  8  Ala.  Stewart  v.  State,  34  So. 
818.  137  Ala.  33. 

Conn.  Smith  v.  King,  62  Conn. 
515.  26  A.  1059. 

Ga.  Newman  v.  State,  87  S.  E. 
398,  144  Ga.  494  ;  Huffman  v.  State, 
95  Ga.  469,  20  S.  E.  216. 

Ind.  Vanvalkenberg  v.  Vanvalken- 
berg,  90  Ind.  433. 

Iowa.  State  V.  Christopher,  149  N. 
W.  40,  167  Iowa,  109. 

Mo.  State  v.  Taylor,  168  S.  W. 
1191,  261  Mo.  210. 

Tex.  McWhirter  v.  State,  146  S. 
W.  189,  66  Tex.  Ci'.  R.  188;  Spencer  v. 
State,  34  Tex.  Cr.  R.  65,  29  S.  W'.  159; 
Hill  v.  State,  11  Tex.  App.  456. 

Vt.  State  V.  Bolton,  102  A.  489,  92 
Vt.  157. 

aoMilligan  v.  Chicago,  B.  &  Q.  R. 
Co.,  79  Mo.  App.  393 ;  Rogers  v.  War- 
ren, 75  Mo.  App.  271. 


397 


INSTRUCTIONS  TO  JURIES 


718 


of  "evidence,"  or  vice  versa/^  to  the  employnient  of  the  word  "tes- 
timony" in  place  of  the  word  "facts,""  to  the  use  of  the  word 
"defendant"  for  the  word  "witness,"  ^^  to  the  use  of  the  word 
"plaintiff"  instead  of  "defendant,"  or  vice  versa,''^  to  the  use  of 
"and"  in  place  of  "or,"  or  vice  versa,"  to  the  use  of  "may"  instead 
of  "must,"  or  vice  versa,^^  and  to  the  use  of  "yes,"  instead  of 


40  Cal.  People  v.  Hubert,  51  P. 
329,  119  Cal.  216,  63  Am.  St.  Rep.  72 ; 
Mann  v.  Higsins,  83  Cal.  66,  23  P.  206. 

111.  Fitzgerald  v.  Benner,  76  N.  E. 
709,  219  111.  485,  affirming  jugdment 
120  111.  App.  447;  Jones  v.  Gregory, 
48  111.  App.  228;  Welch  v.  Miller,  32 
111.  App.  110. 

S.  C.  Dial  V,  Gardner,  89  S.  E, 
396,  104  S.  C.  456. 

Tex.  Black  v.  Brooks,  129  S.  W. 
177,  60  Tex.  Civ.  App.  533;  Goodwin 
V.  Mortsen,  128  S.  W.  1182,  60  Tex. 
Civ.  App.  287:  Houston  &  T.  C.  R. 
Co.  V.  Craig.  92  S.  W.  1033,  42  Tex. 
Civ,  App.  486. 

Wash.  Jones  v.  City  of  Seattle,  98 
P.  743,  51  Wash.  245;  Noyes  v.  Pugin, 
2  Wash.  653,  27  P.  548. 

41  Clark  v.  State,  63  S.  E.  606,  5 
Ga.  App.  605. 

4  2  Turner  v.  Commonwealth,  215  S, 
W.  76,  185  Ky.  382. 

43  Ga.  Southern  Bell  Telegraph  & 
Telephone  Co.  v.  Jordan,  87  Ga.  69, 
13  S.  E.  202. 

111.  McKenzie  v.  Remington,  79 
111.  388. 

Ind.  Wilson  v,  Trafalgar  &  B.  C. 
Gravel  Road  Co.,  93  Ind.  287. 

Iowa.  Reupke  v.  D.  H,  Stuhr  & 
Son  Grain  Co.,  102  N.  W.  509,  126 
Iowa,  632;  Shipley  v.  Reasoner,  87 
Iowa,  555,  54  N.  W.  470. 

Mo.  Suttie  V.  Aloe,  39  Mo.  App. 
38 

N.  C.  Pittman  v.  Weeks,  43  S.  E. 
."82,  132  N.  C.  81. 

Tex.  Central  Texas  &  N.  W.  Ry. 
Co.  V.  Bush,  12  Tex.  Civ.  App.  291.  34 
S.  W.  1.33 ;  Galveston,  H.  &  S.  A.  Ry. 
Co.  V.  Porfert,  72  Tex.  344,  10  S.  W. 
207. 

Sco.  also,  post.  §  424,  note  51. 

Use  of  "plaintiff"  instead  of 
name  of  infant  for  ^trlioni  plaintiff 
sues.  In  an  action  by  a  lather  in- 
dividually, and  as  next  friend  for  in- 
juries to  his  infant  son,  an  instruction 
to  find  for  plaintiff,  if  the  jury  found 


certain  facts,  unless  they  found 
"plaintiff"  guilty  of  contributory  neg- 
ligence, being  evidently  a  clerical 
mistake  in  the  use  of  the  word  "plain- 
tiff," instead  of  the  name  of  the  in- 
fant, was  not  ground  for  reversal. 
Pecos  &  N.  T.  Ry.  Co.  v.  Trower,  130 
S,  W.  588,  61  Tex.  Civ.  App,  53. 

Use  of  "defendant"  instead  of 
"garnishee."  Where  the  issues  in 
garnishment  proceedings  are  only 
those  between  plaintiff  and  the  gar- 
nishee, an  instruction  calling  the  gar- 
nishee "defendant"  is  harmless  error. 
Citizens'  State  Bank  v.  Council  Bluffs 
Fuel  Co.,  89  Iowa,  618,  57  N.  W,  444, 
44  O'Connor  v,  Langdon,  3  Idaho 
(Hasb.)  61,  26  P.  659 ;  Citizens'  Gas- 
light &  Heating  Co.  v.  O'Brien,  118 
111.  174,  8  N.  E.  310 ;  State  v.  Minne- 
apolis &  St.  L.  Ry.  Co.,  88  Iowa,  689, 
56  N.  W.  400;  Wachovia  Loan  & 
Trust  Co.  V.  Forbes,  27  S.  E.  43,  120 
N.  C.  355;  O'Neal  v.  State,  100  S.  W, 
919,  51  Tex.  Gr.  R,  100, 

Instructions  lield  not  objection- 
able within  rule.  In  an  action  for 
injuries  to  a  servant,  where  the  com- 
plaint alleged  negligence  in  not  fur- 
nishing plaintiff  with  safe  machineiy 
and  a  safe  place  to  work,  in  that  a 
belt  which  broke  and  injured  him  was 
old.  unsafe,  defective  and  worn  out, 
thereby  causing  it  to  break  easily,  an 
instruction  that  the  burden  was  on 
plaintiff  to  prove  that  the  place  at 
which  he  was  put  to  work  was  not 
safe  and  suitable,  "and"  that  the  belt 
was  old,  unsafe,  and  defective,  was 
not  objectionable  for  using  the  con- 
junctive instead  of  the  disjunctive; 
there  being  in  effect  only  one  specifi- 
cation of  negligence,  Dover  v.  Lock- 
hart  :Mills,  68  S,  E.  525,  86  S,  C.  229, 

4s  Wilson  V,  State,  160  S.  W.  83,  71 
Tex,  Cr.  R,  399;  State  v,  Wilson,  9 
Wash,  10,  30  P.  907. 

Use  of  "ought"  instead  of 
"must."  On  a  trial  for  murder,  a 
charge  that  the  jury  "ought"  to  con- 


719 


FORMAL  MATTERS 


§397 


"no."  ^^  The  possibility  that  the  jury  were  misled  by  the  use  of 
the  indefinite  article  "a."  instead  of  the  definite  article  "the,"  or 
vice  versa,  before  the  phrase  "proximate  cause,"  may  be  so  re- 
mote, in  view  of  other  instructions  given,  that  the  reviewing  court 
will  decline  to  reverse  for  this  reason.*' 

An  inaccurate  statement  of  the  pleadings  will  not  constitute 
ground  for  reversal,  where  the  mistake  is  as  to  an  immaterial 
matter,**  or  the  court  has  plainly  stated  to  the  jury  the  questions 
at  issue.*®  Objections  to  instructions  having  for  their  basis  mis- 
takes in  punctuation  are  treated  with  scant  courtesy  by  the 
courts,^"  and  the  omission  of  a  comma  will  Iiot  be  erroneous,  if 
the  jury  are  not  misled.^^ 

Where,  however,  an  inadvertent  error  in  the  use  of  words, 
names,  or  dates,  or  in  the  omission  of  words  or  phrases,  is  calcu- 
lated to  mislead  the  jury,  it  will  be  cause  for  reversal. ^"-^  Thus  an 
inadvertent  error  in  the  use  of  the  word  "not"  in  an  instruction. 


sider  the  circumstances  of  the  case 
from  the  standpoint  of  defendant  as 
it  appeared  at  the  time  of  the  killing 
is  not  objectionable  because  the  court 
did  not  use  the  word  "must,"  since 
any  ordinary  jury  would  understand 
that  the  charge  was  mandatory. 
Jackson  v.  State,  32  Tex.  Cr.  R.  192, 
22  S.  W.  831. 

46  In  re  Spencer,  96  Cal.  44S,  31 
P.  453. 

4  7  Freiburg  v.  Israel  (Cal.  App.)  187 
P.  130;  Squier  v.  Davis  Standard 
Bread  Co.  (Cal.)  185  P.  391. 

48  Kimble  v.  Seal,  92  lud.  276. 

4  0  Young  V.  Clegg,  93  Ind.  371. 

5  0  Jarvis  v.  Flint  &  P.  M.  R.  Co.,  87 
N.  W.  136,  128  Mich.  61;  Ft.  Worth 
&  D.  C.  Ry.  Co.  V.  Poteet,  115  S.  W. 
883,  53  Tex.  Cr.  R.  44. 

51  Pagels  V.  Meyer,  61  N.  E.  1111, 
193  111.  172,  reversing  judgment  88  111. 
App.  169 ;  Painter  v.  People,  147  111. 
444,  35  N.  E.  64;  E.  I.  Du  Pont  de 
Nemours  &  Co.  v!  Snead's  Adm'r,  97 
S.  E.  812,  124  Va.  177. 

5  2  Ga.  Wright  v.  State,  101  S.  E. 
591,  24  Ga.  App.  543;  Wellborn  v. 
Rogers,  24  Ga.  558. 

111.  Hoffman  v.  Boomer,  40  111. 
App.  231;  Illinois  Cent.  K.  Co.  v. 
Zang,  10  111.  App.  (10  Bradw.)  594. 

Mich.  Deti-oit  Electric  Light  & 
Power  Co.  v.  Applebaum,  94  N.  W.  12, 
132  Mich.  555. 


Tex.  Pickett  V.  State,  12  Tex.  App. 
86. 

Improper  use  of  adjective.     The 

use  of  the  word  "greatly,"  in  instruc- 
tions, by  calling  attention  to  the  in- 
jury by  the  repeated  expressions 
"greatly  injured,"  "greatly  wounded," 
and  "suffered  greatly,"  is  error,  ei- 
ther to  mislead  the  jury  to  under- 
stand there  could  be  no  recovery  un- 
less the  injury  was  great,  or  to  give 
them  the  impression  that  the  trial 
judge  considered  the  injury  great. 
Louisville  &  N.  R.  Co.  v.  Lynch,  126 
S.  W.  362,  137  Ky.  696. 

Inadvertment  inclusion  of  ele- 
ment of  damage.  In  an  action  by  a 
minor  servant  against  a  master  for 
personal  injuries  resulting  from  dan- 
gerous machinery,  the  inclusion  by 
the  judge  through  oversight  of  dam- 
ages sustained  and  loss  of  earning 
power  during  plaintiff's  minority  was 
reversible  error.  Clark  Mile-End 
Spool  Cotton  Co.  V.  Shaffery,  33  A. 
284,  58  N.  J.  Law,  229. 

Omission  of  ^vord.  An  instriic- 
tion  that,  if  the  jury  believe  from  the 
evidence  that  any  one  has  testified 
"willfully  false"  to  a  material  fact, 
they  may  disregard  "the  entire  evi- 
dence," is  erroneous,  since  it  is  not 
clear  whether  the  "entire  evidence  of 
the  witness"  or  the  "entire  evidence  in 
the  case"  is  meant.  City  of  Hiawatha 
v.  Warren,  55  P.  484,  8  Kan.  App.  209. 


§  398  INSTRUCTIONS  TO  JURIES  720 

or  in  its  omission  therefrom,  may  be  of  such  a  character  that  the 
jury  would  not  be  likely  to  detect  the  error,  in  which  case,  unless 
the  jury  is  clearly  shown  not  to  have  been  misled,  the  error  will 
work  a  reversal.^^  So  a  clerical  error  in  the  use  of  the  word 
"plaintiff"  for  "defendant,"  or  vice  versa,  may  constitute  revers- 
ible error,^  and  an  inadvertence  of  the  court  in  attributing  the 
testimony  of  a  witness  to  another  witness  may  constitute  ground 
for  reversal,  if  such  error,  because  of  a  difference  in  the  age  or 
character  of  the  witnesses,  may  affect  the  credibility  of  the  testi- 
mony with  the  jury,^^  and  where  the  trial  court,  as  the  result  of 
a  clerical  error  in  a  criminal  case,  tells  the  jury  to  acquit  if  the 
crime  charged  is  proven,  and  to  convict  if  it  is  not  proven,  it  can- 
not be  presumed  that  the  jury  were  not  misled,  and  such  an  error 
will  work  a  reversal.^ 

§  398.     Use  of  illustrations 

Within  proper  limits  the  use  of  illustrations  by  the  court  is  not 
erroneous,  and  may  sometimes  be  helpful.^' 

§  399.     Use  by  court  of  own  language  or  that  of  another 

The  court  may  charge  the  law  of  the  case  in  its  own  language,^* 
but  it  is  the  safer  practice  for  the  trial  court,  in  stating  a  rule  of 
law,  to  follow  the  expression  of  the  same  rule  by  the  appellate 
court.®^  It  should  be  borne  in  mind  in  this  connection,  however, 
as  has  elsewhere  been  stated,®"  that  appellate  courts,  in  discussing 
facts,  frequently  make  use  of  language  which,  though  embodying 
sound  principles  of  law,  is  not  intended  to  be  adjusted  to  the  re- 
quirements and  proprieties  of  a  charge  to  be  given  to  juries.®^ 

It  is  not  improper  for  the  court  to  adopt  as  its  main  charge  a 
charge  prepared  by  the  counsel  of  one  of  the  parties,®^  and  in  an 

5  3  Carleton    Min.    &    Mill.    Co.    v.  bs  joyner  v.  Atlantic  Coast  Line  R. 

Ryan,  68  P.  279,  29  Colo.  401;    SoutH-  Co.,  74  S.  E.  825,  91  S.  C.  104. 

western  Telegraph  &  Telephone  Co.  v.  50  Anderson    v.     Horlick's    Malted 

Newman   (Tex.   Civ.   App.)  34    S.   W.  Milk  Co.,  119  N.  W.  342,  137  Wis.  569 ; 

661.  Grotjan  v.  Rice,  102  N.  W.  551,  124 

54  Mathews  V.  Granger,  71  111.  App.  \-vis_  253. 
467;    Alter  v.   Holliday,   9  Ky.   Law  go  Pns<-    8  4.11 

Rep.  (abstract)  972.  t^^^7  ^,    ^"t*  ^        ,      „       ^ 

55  Collins  V.  Leafev,  124  Pa.  203,  16  "  Central  of  Georgia  Ry.  Co.  v. 
A.   765,   23   Wkly.    Notes  Cas.   264.          Hartley    (Ga.    App.)    103    S.    E.    259; 

5G  Cunimings  v.  State,  69  N.  W.  756,  Southern  Cotton  Oil  Co.  v.  Skipper,  54 

50  Neb.  274.  S.  E.  110,  125  Ga.  368 ;   Atlanta  &  W. 

57  Neel  V.  Powell,  61  S.  E.  729,  130  ^-  ^-  ^o.  v.  Hudson,  51  S.  E.  29,  123 

Ga.  756;    Draper  v.   Cotting,  120  N.  ^^-  ^^S. 

E.  365,  231  Mass.  51;    Wellington  v.  62  Kansas  City,  M.  &  O.  Ry.  Co.  of 

City  of  Cambridge,  107  N.  E.  976,  220  Texas  v.  Harral  (Tex.  Civ.  App.)  199 

Mass.  312.  S.  W.  659. 


721  FORMAL  MATTERS  §  403 

action  based  on  a  statute  instructions  following  its  language  are 
generally  good.^^ 

§  400.     Interlineations 

Where  a  statute  forbidding  interlineations  and  erasures  in  in- 
structions is  directory  merely,  an  interlineation  will  not  be  pre- 
sumed to  be  improper.®* 

§  401.     Underscoring  and  capitalizing 

It  is  not  improper  for  the  court  to  underscore  words  which  are 
usually  italicized  in  legal  treatises,®^  but  the  practice  of  capital- 
izing a  part  of  the  instruction  should  be  avoided.®® 

§  402.     Addressing  jurors  individually 

The  court  is  not  required  to  address  its  instructions  to  each  one 
of  the  jury  as  individuals;®"  it  being  the  better  practice  to  ad- 
dress instructions  to  the  jury  as  a  whole,®* 

C.    Spotting  out  Pleadings  and  Propriety  of  Practice  of  Refer- 
ring Jury  to  Pleadings 

1.  Rtde  in  Civil  Cases 

§  403.     Setting  out  pleadings 

It  is  not  error  to  embrace  the  pleadings  in  the  instructions®* 
although  it  is  not  good  practice  to  set  out  the  pleadings  at  length 
in  an  instruction,'®  and  it  is  advisable  to  avoid  setting  out  a  com- 
plaint which  contains  much  surplusage  or  many  repetitions,  and 
which,  in  stating  the  facts  constituting  the  cause  of  action,  greatly 
exaggerates  them.'^  It  is  sufficient  if  the  instructions  contain 
the  substance  of  the  pleadings,''^  and  they  should  not  be  incum- 
bered by  the  recital  of  immaterial  pleadings.""' 

63  Beaver  Creek  School  Land  Ditch  es  Shepard  v.  United  States  (C.  C. 

Co.  V.  Filing,  148  P.  273,  27  Colo.  App.  A.  Utah)  160  F.  584.  87  C.  C.  A.  486, 

252  ;   Mertens  v.  Southern  Coal  &  Min-  certiorari  denied  29  S.  Ct.  682,  212  U. 

ing  Co.,  85  N.  E.  743.  235  111.  540,  af-  S.  571.  53  L.  Ed.  655. 

firming    .iudgment   Mertins   v.    Same,  eg  Vandalia  Coal  Co.  v.  Mooi'e,  121 

140  111.  App.  190;    Reisch  v.  People,  N.  E.  685,  69  Ind.  App.  311. 

82  N.  E.  321,  229  111.  574.  7o  Evans\'ille  Gas  &  Electric  Light 

6  4  Daly  V.  Bernstein,  6  N.  M.  380,  Co.   v.   Robertson.  100  N.  E.  689,  55 

28  P.  764.  Ind.    App.    353;     Spieler    v.    Lincoln 

6  5  Philpot  V.  Lucas,  70  N.  W.  625,  Traction  Co.,  171  N.  W.  896,  103  Neb. 

101  Iowa,  478;    Crockett  v.  Miller,  96  339;    Home  Savings  Bank  v.  Stewart, 

N.  W.  491,  2  Neb.  (Unof.)  292.  110  N.  W.  947,  78  Neb.  624. 

6  6  El  wood  V.  Chicago  City  Ry.  Co.,  ti  city    of    Indianapolis    v.    Moss 

90  111.  App.  397 ;   Week  v.  Reno  Trac-  (Ind.  App.)  128  N.  E.  857. 

tion  Co..  149  P.  65,  38  Nev.  285.  7  2  Mosslander  v.  Armstrong,  134  N. 

oT  State  V.  Armstrong,  79  P.  490,  37  W.  922,  90  Neb.  774. 

Wash.     51;      State    v.    Williams,    13  73  Lang  v.   Omaha  &  C.  B.   St.  R. 

Wash.  335,  43  Pac.  15.  Co.,  148  N.  W.  964,  96  Neb.  740. 
Inst.to  Juries — 46 


404 


INSTRUCTIONS   TO  JURIES 


722 


§  404.     Reference  toi  pleadings  for  issues 

As  one  court  has  said,  much  confusion  arises  from  the  practice 
of  allowing  the  jury  to  take  the  pleadings  into  the  jury  room,  or 
of  reading  them  aloud  in  the  court  room ;  juries  not  being  learned 
in  legal  verbiage  and  rarely  centering"  their  attention  on  a  partic- 
ular point  or  paragraph  involved.''*  The  general  rule,  therefore, 
is  that  the  court  should  evolve  from  the  pleadings  a  plain  state- 
ment of  the  issues  of  fact  and  submit  it  to  the  jury,'^  and  that  a 
presentation  of  the  issues  merely  by  copying  the  pleadings  in  the 
instructions,'^  or  by  simply  referring  the  jury  to  the  pleadings  to 
determine  for  themselves  what  the  issues  are,'''  is  erroneous,  or  at 


"4  Brantliover  v.  Monarch  Elevator 
Co..  156  N.  W.  927,  33  N.  D.  454. 

7  5  Fla.  Seaboard  Air  Line  Ry.  Co. 
V.  Kay,  74  So.  523.  73  Fla.  554. 

Ga.    McLean  v.  Clark,  47  Ga.  24. 

HI.  Dickson  v.  George  B.  Swift 
Co.,  87  N.  E.  59.  238  111.  62,  affirming 
142  111.  App.  655;  Chicago  City  Ry. 
Co.  V.  Mauger,  105  111.  App.  579. 

Ky.  Taylor  v.  Armstrong,  5  Ky. 
Law  Rep.  (abstract)  251. 

Mo.  Sinnamon  v.  Moore,  142  S. 
W.  494,  161  Mo.  App.  168;  Jaffi  v. 
Missouri  Pac.  Ry.  Co.,  103  S.  W.  1026, 
205  Mo.  450. 

Neb.  Plath  v.  Brunken,  167  N.  W. 
567,  102  Neb.  467. 

Ohio.  Russell  v.  Weiler,  28  Ohio 
Cir.  Ct.  R.  176. 

Tex.  Panhandle  &  S.  F.  Rv.  Co.  v. 
Morrison  (Civ.  App.)  191  S.  W.  138. 

AVhere  pleadings  contain  mat- 
ters of  evidence,  rather  than  ulti- 
mate facts,  the  court  sufficiently  states 
the  issues  by  stating  tersely  the  ulti- 
mate facts  pleaded.  Murphey  v.  Vir- 
gin. 47  Neb.  692,  66  N.  W.  652. 

7  6  Iowa.  Black  v.  Miller,  138  N. 
W.  535.  158  Iowa,  293 ;  Shebek  v.  Na- 
tional Cracker  Co.,  94  N.  W.  9.30,  120 
Iowa.  414;  Erb  v.  German-American 
Ins.  Co.  of  New  York,  83  N.  W.  1053, 
112  Iowa,  3.57;  West  v.  Averill  Gro- 
cery Co.,  80  N.  W.  5.55,  109  Iowa,  488 ; 
Hankins  v.  Hankins,  79  N.  W.  278; 
Robinson  &  Co.  v.  Berkey,  69  N.  W. 
434,  100  Iowa,  136,  62  Am.  St.  Rep. 
.549. 

Neb.  Parkins  v.  Missouri  Pac.  Ry. 
Co..  93  N.  W.  197,  4  Neb.  (Unof.)  1. 

Tenn.  Nashville,  C.  &  St.  L.  Ry. 
v.  Anderson,  185  S.  W.  677,  134  Tenn. 


666,  L.  R.  A.  1918C,  1115,  Ann.  Cas. 
1917D,  902. 

Utab.  Davis  v.  Heiner,  181  P.  587, 
54  Utah,  428. 

Submitting  to  tbe  jury  in  detail 
all  the  allegations  disclosed  in  the 
pleadings,  whether  or  not  they  are 
finally  for  its  determination,  is  un- 
necessary and  improper.  Ft.  Lyon 
Canal  Co.  v.  Bennett,  156  P.  604,  61 
Colo.   111. 

In  Indiana  it  is  held  that,  although 
the  court  may  in  its  charge  read  the 
pleadings  to  the  jury  (Clouser  v. 
Ruckman,  104  Ind.  588,  4  N.  E.  202). 
it  is  the  better  practice  for  the  court 
to  advise  or  instruct  the  jui'y  as  to 
the  issues  in  the  case  (Blair -Baker 
Horse  Co.  v.  First  Nat.  Bank,  72  N. 
E.  1027,  164  Ind.  77;  Angola  Ry.  & 
Power  Co.  v.  Butz,  98  N.  E.  818,  52 
Ind.  App.  420 ;  Woodruff  v.  Hensley, 
60  N.  E.  312,  26  Ind.  App.  592). 

7  7  Ala.  Louisville  &  N.  R.  Co.  v. 
Laney,  69  So.  993,  14  Ala.  App.  287; 
Pennsylvania  Fire  Ins.  Co.  v.  Draper. 
65  So.  923,  187  Ala.  103 ;  Birmingham 
Ry.,  Light  &  Power  Co.  v.  Adkins,  62 
So.  367,  8  Ala.  App.  555,  judgment  re- 
versed Ex  parte  Birmingham  Ry., 
Light  &  Power  Co.,  64  So.  70,  184  Ala. 
580  ;  Birmingham  Ry.,  Light  &  Power 
Co.,  V.  Fox,  56  So.  1013,  174  Ala.  657 ; 
Lewy  Art  Co.  v.  Agricola,  53  So.  145, 
169  Ala.  60. 

111.  Bernier  v.  Illinois  Cent.  R.  Co., 
129  N.  E.  747,  296  111.  464;  Schlauder 
V.  Chicago  &  Southern  Traction  Co., 
97  N.  E.  233,  2.53  111.  154.  reversing 
judgment  160  111.  App.  309;  Pitts- 
burgh. C,  C.  &  St.  L.  R.  Co.  V.  Kin- 
nare,  67  N.  E.  826,  203   111.  388,  af- 


723 


FORMAL  MATTERS 


404 


least  not  good  practice,  unless  the  pleadings  contain  a  clear  state- 
ment of  the  issues  intelligently  presenting  the  very  matters  to  be 


firming  judsment  105  111.  App.  566; 
Latham  v.  CleA^eland,  C,  C.  &  St.  L. 
R.   Co.,  179  111.  App.  324. 

Iowa.  Trott  v.  Chicago,  R.  I.  &  P- 
R  Co.,  86  N.  W.  33,  115  Iowa,  SO,  re- 
hearing denied  87  N.  W.  722,  115 
Iowa,  80;  Lindsay  v.  City  of  Des 
Moines,  68  Iowa,  368,  27  N.  W.  283; 
Bryan  v.  Chicago,  R.  I.  &  P.  R-  Co., 
63  Iowa,  464,  19  N.  W.  295;  Porter 
V.  Knight,  63  Iowa.  365.  19  N.  W. 
282 ;  Fitzgerald  v.  McCarty,  55  Iowa, 
702,  8  N.  W.  646. 

Mo.  Williams  v.  Tucker  (App.) 
'^'^4  S.  W.  21;  Byrne  v.  News  Corp., 
190  S.  AV.  933,  ^95  Mo.  App.  265; 
Boomshaft  v.  Klauber,  190  S.  W. 
616,  196  Mo.  App.  222 ;  State  ex  rel. 
and  to  Use  of  Macke  v.  Randolph 
(App.)  186  S.  W.  590;  Smith  v.  Means, 
155  S.  W.  454,  170  Mo.  App.  158; 
Birch  Tree  State  Bank  v.  Dowler, 
145  S.  W.  843,  163  Mo.  App.  65. 

Neb.  Larson  v.  Chicago  &  N.  W. 
R.  Co.,  131  N.  W.  201,  89  Neb.  247; 
Murray  v.  Burd,  91  N.  W.  278,  65  Neb. 
427. 

Ohio.  Baltimore  &  O.  R.  Co.  v. 
Lookwood,  74  N.  E.  1071,  72  Ohio, 
586. 

Tenn.  East  Tennessee,  V.  &  G.  Ry. 
Co.  V.  Lee,  90  Tenn.  570,  18  S.  W. 
268. 

Tex.  Adams  &  Washam  v.  South- 
ern Traction  Co.  (Civ.  App.)  188  S.  W. 
275;  Missouri,  K.  &  T.  Ry.  Co.  of 
Texas  v.  Graves,  122  S.  W.  458,  57 
Tex.  Civ.  App.  395;  Texas  &  N.  O. 
R.  Co.  V.  Mortensen,  66  S.  W.  99,  27 
Tex.  Civ.  App.  106;  San  Antonio  & 
A.  P.  Ry.  Co.  v.  De  Ham  (Civ.  App.) 
54  S.  W.  395. 

Va.  Jones'  Adm'r  v.  City  of  Rich- 
mond, 88  S.  E.  82,  118  Va.  612. 

See  Galveston,  H.  &  S.  A.  Ry.  Co. 
V.  Parvin,  64  S.  W.  1008,  27  Tex.  Civ. 
App.  60. 

Refusal  of  instructions.  It  is 
not  improper  to  refuse  an  instmction 
which  refers  the  jury  to  the  declara- 
tion for  the  issues.  Rosinski  v.  Bur- 
ton, 163  111.  App.  162 ;  Shewbridge  v. 
Chicago  City  Ry.  Co.,  188  111.  App. 
454.  ,        ^    . 

Matters  not  violating  rule.     It  IS 


not  error,  in  itself,  to  give  the  issues 
to  the  jury  by  stating  to  them  the  sub- 
stance of  the  pleadings  in  the  order 
in  which  they  were  filed.  City  of  Ft. 
Madison  v.  Moore,  80  N.  W.  527,  109 
Iowa,  476.  In  an  action  for  rent, 
where  defendants  counterclaimed  for 
trespass  of  plaintiff's  animals,  an  in- 
struction, relating  to  the  form  of  the 
verdict,  directing  the  jury  to  make  a 
finding  on  both  the  petition  and  coun- 
terclaim, and  that  the  amount  conced- 
ed due  plaintiff  should  be  deducted 
from  the  amount,  if  any,  found  on 
the  counterclaim,  and  that  whether 
defendants  were  entitled  to  recover 
on  their  counterclaim  was  a  matter  to 
be  determined  from  the  evidence,  was 
not  objectionable  as  referring  the  ju- 
ry to  the  pleadings  for  the  issues. 
Barnard  v.  Weaver  (Mo.  App.)  224  S. 
W.  152. 

Instructions  held  not  objection- 
able as  authorizing  or  requiring 
the  jury  to  determine  the  mate- 
rial allegations  of  the  complaint. 
An  instruction  authorizing  the  jury 
to  render  a  verdict  for  plaintiffs  if 
the  jury  believe,  from  a  preponder- 
ance of  the  evidence,  that  plaintiffs 
had  made  out  their  case  "as  laid  in 
the  declaration."  Fraternal  Army  of 
America  v.  Evans,  74  N.  E.  689,  215 
111.  629.  aflirming  judgment  114  111. 
App.  578.  Where,  in  an  action  for 
injuries  to  a  passenger,  the  jury  were 
not  informed  as  to  the  material  alle- 
gations of  the  declaration,  an  instruc- 
tion that,  if  the  evidence  was  equally 
balanced  on  any  point  material  to 
plaintiff's  case,  or  if  the  evidence  pre- 
ponderated in  defendant's  favor  on 
any  point  material  to  plaintiff's  case, 
the  verdict  must  be  for  defendant, 
and  that  plaintiff  was  required  to 
prove  the  tinith  of  the  material  alle- 
gations of  his  declaration,  or  some 
count  thereof,  by  a  preponderance  of 
the  evidence,  and  if  ho  failed  so  to  do 
the  jury  should  find  defendant  not 
guilty,  was  not  misleading  to  plain- 
tiffs'prejudice,  as  requiring  the  jury 
as  a  matter  of  law  to  ascertain  what 
were  the  material  allegations  in  the 
declaration.     Judgment  116  111.  App. 


404 


INSTRUCTIONS  TO  JURIES 


724 


tried,''*  and  while  a  reference  of  the  jury  to  the  pleadings  for  the 
issues  will  not  necessarily,  or  perhaps  not  ordinarily,  be  cause 
for  a  reversal,'^  since  the  rule  is  that,  before  a  party  will  be  al- 
lowed to  disturb  the  judgment  of  the  lower  court  for  such  a  cause, 
he  must  show  prejudice  resulting  therefrom,*"  such  reference  will 
constitute  ground  for  reversal,  if  the  jury  are  misled  thereby,  or 
the  pleadings  are  so  involved  as  to  render  it  doubtful  whether  the 
jury  can  understand  the  issues  raised.*^  Where  defenses  are  plead- 
ed, but  abandoned,  it  is  bad  practice  to  read  the  answer  to,  the 
jury,  or  to  refer  specifically  thereto  in  the  instructions;  the  bet- 
ter practice  being  to  merely  instruct  the  jury  what  the  sole  and 
only  defenses  are.*^  However,  where  the  parties  consent  there- 
to, and  the  pleadings  are  clear  and  concise,  and  state  the  exact 
issues,  it  is  not  error  to  refer  the  jury  to  the  pleadings  for  the  is- 
sues in  the  case,*^  and  where  the  court  fully  states  the  contentions 


507,  affirmed.  Harvey  v.  Chicago  & 
A.  Ry.  Co..  77  N.  E.  569,  221  111.  242, 
affirming  judsment  123  111.  App.  442. 
Tscanfield  v.  Chicago,  R.  I.  &  P. 
Rv.  Co.,  121  N.  W.  186,  142  Iowa,  658; 
Swanson  v.  Allen,  79  N.  W.  132,  108 
Iowa.  419. 

7  9  111.  Thorne  v.  Southern  Illinois 
Rv.  &  Power  Co.,  206  111.  App.  372. 

Ind.  Ohio  &  M.  Ry.  Co.  v.  Smith, 
5  Ind.  App.  560,  32  N.  E.  809. 

Iowa.  Sutton  v.  Greiner,  159  N. 
W.  268,  177  Iowa.  532;  McDonald  v. 
Bice.  84  ^^  W.  9S5,  113  Iowa,  44. 

Neb.  Forrest  v.  Koehn,  156  N.  W. 
1046,  99  Neb.  441. 

Tex.  Houston  Electric  Co.  v.  Nel- 
son, 77  S.  W.  978,  34  Tex.  Civ.  App. 
72. 

Utah.  Smith  v.  Columbus  Buggy 
Co.,   123  P.  580,  40   Utah,   580. 

8  0  Savino  v.  Griffin  Wheel  Co.,  136 
N.  W.  876,  118  Minn.  290 ;  Tobler  v. 
L'nion  Stockyards  Co.,  123  N.  W.  461, 
85  Neb.  413. 

81  Kansas  City,  Ft.  S.  &  M.  R.  Co. 
V.  Dalton,  72  P.  209,  66  Kan.  799; 
Stev.-ns  V,  Maxwell,  70  P.  S73,  65 
Kan.  8.35;  Boring  Mfg.  Co.  v.  Feme- 
lat.  79  S.  W.  869,  35  Tex.  Civ.  App. 
36. 

lustractions  improper  vritliiii 
rule.  Where  no  part  of  the  charge 
contained  a  statement  of  the  issues, 
and  the  statement  in  the  petition  was 
such  as  to  Involve  complicated  ques- 
tions as   to  the  defendant's  liability, 


a  paragraph  of  the  charge,  directing 
the  .lury  to  the  petition  for  the  "par- 
ticular .statement  of  fact  upon  which 
the  plaintiff  must  recover,  if  he  is 
entitled  to  recover  at  all,"  was  prej- 
udicial error.  Keatley  v.  Illinois 
Cent.  Ry.  Co.,  94  Iowa.  685,  63  N.  W. 
560.  Reading  the  separate  answer  of 
one  defendant  to  the  .iury  as  a  part 
of  the  instructions  is  error,  where 
it  contains  allegations  which  may  in- 
fluence the  juiy  as  to  the  liability 
of  another  defendant.  Nupen  v. 
Pearce  (C.  C.  A.  N.  D.)  235  F.  497,  149 
C.  C.   A.  43. 

82  Elliott  Supply  Co.  v.  Green,  160 
N.  W.  1002.  35  N.  D.  641. 

83  Iowa.  Stephens  v.  Brill,  140  N. 
W.  809,  159  Iowa,  620;  McDivitt  v. 
Des  Moines  City  Ry.  Co.,  118  N.  W. 
4.59.  141  Iowa,  689;  Dean  v.  Carpen- 
ter, 111  N.  W.  815,  1.34  Iowa,  275; 
Trumble  v.  Happy,  87  N.  W.  678,  114 
Iowa,  624;  Graybill  v.  Chicago,  M.  & 
St.  P.  Ry.  Co.,  84  N.  W.  946,  112 
Iowa,  738;  Crawford  v.  Nolan,  72 
Iowa,  673,  34  N.  W.  754. 

■While  it  is  the  duty  of  a  judge 
to  state  the  contentions  of  the  lit- 
igants, an  instruction  that  the  jury 
will  find  the  contentions  of  the  par- 
ties in  the  petition  and  answer,  which 
are  so  clearly  set  out  and  so  frequent- 
ly referred  to  by  counsel  that  the 
court  does  not  deem  it  necessary  to 
again  state  them,  sufficiently  meets 
the   requirement,   unless    the   special 


725 


FORMAL  MATTERS 


§405 


of  the  parties,  or  the  substance  of  them,  to  the  jury,  the  fact  that 
it  also  refers  them  to  the  pleadings  to  determine  the  issues,  or  for 
further  particulars,  does  not  constitute  reversible  error.** 

An  instruction  that  correctly  states  a  certain  defense  is  not  er- 
roneous merely  because  it  designates  such  defense  by  reference 
to  a  certain  count  in  the  answer,*^  and  in  stating  the  contentions 
of  the  parties  it  is  not  improper  to  use  the  language  of  the  plead- 
ings, if  the  court  would  otherwise  be  required  to  resort  to  equiva- 
lent phraseology.*''  As  a  general  rule,  a  party  who  would  avail 
himself  on  appeal  of  the  failure  of  the  trial  court  to  state  the  issues 
to  the  jury  must  request  such  a  statement." 

§  405.     Reference  for  other  purposes  than  determination  of  issues 

In  some  jurisdictions  it  is  not  improper,  or  at  least  not  reversi- 
ble error,  for  the  court  to  refer  the  jury  to  the  pleadings  for  a  state- 


facts  of  the  case  demand  a  more  for- 
mal summary  to  prevent  possible  mis- 
apprehensions. Jones  V.  McElroy,  68 
S.  E.  729,  134  Ga.  857,  137  Am.  St. 
Rep.  276. 

84  Ga.  Woodward  v.  Fuller,  88  S. 
E.  974,  145  Ga.  252;  Brewer  v.  Bar- 
nett  Nat.  Bank,  85  S.  E.  928,  16  Ga. 
App.  593 ;  Macon  Ck)nsol.  St.  R.  Co.  v. 
Barnes,  38  S.  E.  756,  113  Ga.  212. 

Iowa.  Hankins  v.  Hankins,  79  N. 
W.  278;  Keatley  v.  Illinois  Cent.  R. 
,Co..  63  N.  W.  560,  94  Iowa.  685; 
Morrison  v.  Burlington,  C.  R.  &  N. 
Ry.  Co.,  84  Iowa,  663,  51  N.  W.  75; 
Drake  v.  Chicago.  R.  I.  &  P.  Ry.  Co., 
70  Iowa,  59,  29  N.  W.  804. 

Neb.  Bloomfield  v.  Finn,  121  N. 
W.  716,  84  Neb.  472. 

S.  C.  Fl^nklin  v.  Atlanta  &  C.  Air 
Line  Ry.  Co..  54  S.  E.  578,  74  S.  C. 
332. 

Tex.  Missouri,  K.  &  T.  Ry.  Co.  of 
Texas  v.  Swift  (Civ.  App.)  128  S.  W. 
450. 

Instructions  ield  proper  within 
rule.  The  inclusion  in  instmetions 
of  certain  allegations  of  the  complaint 
is  not  erroneous  if  the  issues  raised 
are  correctly  stated.  Union  Gold 
Min.  Co.  V.  Crawford,  69  P.  600.  29 
Colo.  511.  Where  the  court  simply 
sets  out  the  pleadings,  but  follows 
this  with  instructions  clearly  stating 
the  facts  necessary  for  the  pLiintilf 
to  prove  to  entitle  him  to  recover,  it 
is  a  sufficient  statement  of  the  issues. 
Dorr  V.  Simerson,  73  Iowa,  89,  34  N. 


W.  752.  An  instruction  which  sets 
out  all  the  facts  necessary  for  plain- 
tiff to  recover,  and  refers  the  jury  to 
the  petition  by  adding,  "as  stated  in 
the  petition,"  is  not  error.  Hartpence 
V.  Rodgers,  45  S.  W.  6.50,  143  Mo.  623. 
Where  the  only  reference  to  the 
pleadings  in  the  instructions  is  found 
in  plaintiff's  first  instruction,  where 
it  was  entirely  harmless,  and  merely 
made  for  the  purpose  of  shortening 
a  description,  there  could  be  no  re- 
versal of  the  judgment  on  the  ground 
that  the  instructions  referred  the  jur.v 
to  the  pleadings  to  ascertain  the  is- 
sues, especially  as  the  other  instruc- 
tions fully  told  the  jury  what  facts 
were  necessary  to  be  found.  Brown 
v.  Missouri.  K.  &  T.  R.  Co.,  104  Mo. 
App.  691,  78  S.  W.  273.  A  charge 
stating  the  issues,  which  substantial- 
ly conforms  to  the  allegations  in  the 
petition,  and  refers  the  jury  to  the 
petition  for  a  full  statement  of  the 
cause  of  action,  is  sufficient.  Mis- 
souri, K.  &  T.  Ry.  Co.  of  Texas  v. 
Gilbert.  131  S.  W.  1145,  61  Tex.  Civ. 
App.  478. 

s  5  Paddock  v.  Bartlett,  68  Iowa,  16, 
25  N.  W.  906. 

86  Earl  V.  San  Francisco  Bridge 
Co.,  160  P.  570,  31  Cal.  App.  339; 
Georgia,  F.  &  A.  Ry.  Co.  v.  Spivey,  80 
S.  E.  678.  14  Ga.  App.  157. 

8  7  Pittsburgh,  C,  C.  &  St.  L.  Ry. 
Co.  V.  Lightheiser,  78  N.  E.  1033,  168 
Ind.  438 ;  Barney  v.  Pinkham,  37  Neb. 
664,  56  N.  W.  323. 


405 


INSTRUCTIONS   TO   JURIES 


726 


ment  or  description  of  the  facts  on  which  a  party  relies,**  while  in 
other  jurisdictions  such  an  instruction  is  improper,***  especially 
where  the  pleading  referred  to  is  a  very  long  one,®*^  and  is  prop- 
erly refused."^  In  any  event  a  reference  to  the  pleadings  for  cer- 
tain facts  does  not  constitute  reversible  error,  where  no  prejudice 
to  the  party  complaining  results  therefrom,^-  as  where  the  facts  are 
undisputed,^^  or  where  the  instructions  also  set  out  the  facts  for 
which  reference  is  made.®*  An  instruction  referring  to  the  plead- 
ings for  the  purpose  of  identifying  a  thing  about  which  an  issue  is 


88  111.  United  States  Brewing  Co. 
V.  Stoltenberg.  71  N.  E.  1081,  211  111. 
531,  affirming  judgment,  113  111.  App. 
435;  Illinois  Terminal  R.  Co.  v. 
Tliompi=?on.  71  N.  E.  328,  210  111.  226, 
affirming  112  111.  App.  463:  Chicago 
Citv  Rv.  Co.  V.  Carroll,  68  N.  E.  1087, 
206  111.  318,  affirming  judgment  102 
111.  App.  202:  Illinois  Cent.  R.  Co. 
V.  Jemigan,  65  X.  E.  88,  198  111.  297, 
affirming  judgment  101  111.  App.  1 ; 
Suburban  R.  Co.  v.  Balkwill.  63  N.  E. 
389,  195  111.  535,  affirming  judgment 
94  111.  App.  454;  Central  Ry.  Co.  v. 
Bannif?ter.  62  N.  E.  864.  195  111.  48, 
affirming  judgment  96  111.  App.  332; 
Hoffman  v.  Chicago  Rys.  Co.,  204  111. 
App.  414 :  Sandor  v.  Verhovey  Aid 
Ass'n,  199  111.  App.  199;  Power.s  v. 
Chicago,  B.  &  Q.  Ry.  Co.,  142  111.  App. 
515;  Chicago  &  A.  R.  Co.  v.  Harring- 
ton, 90  111.  App.  638.  affirmed  61  N.  E. 
622,  192  111.  9:  North  Chicago  City 
Rv.  Co.  V.  Gastka,  27  111.  App.  .518, 
affirmed  128  111.  613,  21  N.  E.  522, 
4  L.  R.  A.  481. 

Ind,  Toledo.  St.  L.  &  W.  R.  Co.  v. 
Miller,  88  X.  E.  968,  44  Ind.  App. 
227. 

Iowa.  Marion  v.  Chicago,  R.  I.  & 
P.  Rv.  Co..  66  Iowa,  585.  24  N.  W.  39; 
Id.,  64  Iowa.  568,  21  X.  W.  86. 

Kan.  T'nion  Pac.  Rv.  Co.  v.  Stern- 
berger,  54  P.  1101,  8  Kan.  App.  131. 

Tex.  Andrews  v.  Wilding  CCiv. 
App.)  193  S.  W.  192:  P^-eeman  v. 
McElroy  (Civ.  App.)  149  S.  W.  428; 
St.  I>ouis  Southwestern  Ry.  Co.  v. 
Harri.=on,  73  S.  W.  38,  32  Tex.  Civ. 
App.  :'J->S. 

Where  the  court  referred  the 
jury  to  the  petition  for  the  terms 
of  a  contract  alleged   to  have   been 


violated,  and  for  certain  statements 
alleged  to  have  been  made  by  the  de- 
fendant, designating  where  each 
might  be  found  in  the  petition  by 
pencil  marks,  but  the  construction  of 
the  pleadings  and  the  detei-mination 
of  the  issues  were  not  left  to  the  ju- 
ry, it  was  held  that  there  was  no 
prejudicial  error.  Myer  v.  Moon,  45 
Kan.   580.  26   P.  40. 

S9  Rouse  V.  St.  Paul  Fire  &  Marine 
Ins.  Co.,  219  S.  W.  688.  203  Mo.  App. 
603;  Pollard  v.  Carlisle  (Mo.  App.) 
218  S.  W.  921 ;  Bean  v.  Lucht,  145  S. 
W.  1171,  165  Mo.  App.  173;  Webh 
V.  Carter.  98  S.  W.  776,  121  Mo.  App. 
147. 

9  0  Curtis  &  Shumway  v.  Williams, 
(Va.)  80  S.  E.  848. 

f)i  Wilks  V.  St.  Louis  &  S.  F.  R.  Co., 
141  S.  W.  910,  159  Mo.  App.  711. 

9  2  Helt  V.  Smith,  74  Iowa,  667,  39- 
N.   W.  81. 

9  3  Butcher  v.  BeU  (Mo.  App.)  198 
S.  W.  1123;  Britton  v.  City  of  St. 
Louis.  120  Mo.  437.  25  S.  W.  366. 

9  4  Chicago  &  A.  R.  Co.  v.  Harring- 
ton, 61  N.  E.  622.  192  111.  9,  affirming 
judgment  90  111.  App.  638;  Mal- 
ott  V.  Hood,  66  X.  E.  247,  201  111.  202, 
affirming  judgment  99  111.  App.  360; 
Lake  Shore  &  M.  S.  Ry.  Co.  v.  Mc- 
intosh,  140   Ind.   201,   38   X.    E.   476. 

Reference  for  facts  admitted  by 
pleadings.  A  direction  to  render  a 
verdict  for  plaintiff  if  the  jury  found 
certain  facts  from  admissions  of  the 
pleadings  and  evidence  did  not  im- 
pose on  the  jury  the  re.sponsibility  of 
construing  the  pleadings  when  the 
court  had  already  informed  the  jury 
what  facts  were  admitted  therein. 
Piluso  V.  Spencer,  172  P.  412,  36  Cal. 
App.   416. 


727  FORMAL   MATTERS  §  406 

raised  is  not  objectionable  as  a  reference  to  determine  what  the  is- 
sues are."^ 

In  some  jurisdictions  it  is  not  error  to  refer  the  jury  to  the  plead- 
ings to  determine  whether  the  evidence  proves  the  allegations  and 
charges  therein,^'*'  and  where  this  rule  prevails  it  is  proper  to  in- 
struct that,  if  the  plaintifif  proves  his  case  as  alleged  in  his  com- 
plaint, the  jury  may  find  for  him  if  the  complaint  contains  all  the 
necessary  allegations  for  recovery .^^  In  other  jurisdictions  the 
rule  is  that  the  jury  should  not  be  required  to  carefully  scrutinize 
the  pleadings,  and  compare  the  averments  therein  with  the  evi- 
dence as  heard  by  them,  and  then  determine  which  averments  have 
or  have  not  been  proven;^*  it  being  held  that  the  jury  is  entitled 
to  have  the  law  of  the  case  as  given  by  the  court  written  out  in 
full  in  the  instructions,  and  that  to  require  the  jury  to  resort  to 
the  pleadings  to  patch  up  and  piece  out  the  instructions  is  calcu- 
lated to  confuse  and  mislead  them.^^ 

In  one  jurisdiction  it  is  held  proper  to  refer  to  the  pleadings  to 
determine  whether  the  allegations  of  the  complaint  are  to  be  taken 
as  prima  facie  true  because  of  the  failure  of  defendant  to  answer 
them.^ 

After  giving  the  items  of  damage  claimed  by  the  plaintiff,  the 
court  may  refer  to  the  petition  for  a  fuller  statement.^ 

2.  Reference  to  Indictment  or  Information 

§  406.     Reference  for  elements  of  offense  charged 

In  a  criminal  prosecution  it  is  the  duty  of  the  court,  in  charging 
the  jury,  to  define  the  offense  of  which  the  defendant  is  accused 
in  plain  and  concise  language,  and  tell  them  the  essential  facts 
necessary  to  a  conviction,  rather  than  to  refer  them  to  the  indict- 

0  5  Ekstan  v.  Herrincton  (Mo.  App.)  o^  Cromer  v.   Borders  Coal  Co..  92 

204  S.  W.  409 ;    Big  River  Lead  Co.  N.  E.  926,  246  111.  451,  reversing  .indg- 

V.   St.  Louis,  I.   M.  &  S.  R.  Co.,  101  ment  152  111.  App.  555;    Wascliow  v. 

S.  W.  036.  123  Mo.  Apn.  394;    Dwyer  Kelly  Coal  Co.,  92  N.  E.  303,  245  111. 

V.  St.  Louis  Transit  Co.,  83  S.  W.  303,  516 ;    Annen  v.  W.  F.  McLaughlin  & 

lOS  Mo.  App.  152.  Co.,   189  111.  App.  261. 

96  isicFarlane  v.   Chicago  City  Ry.  gg  Alabama  Great  Southern  R.  Co. 

Co.,  123  N.  E.  638.  288  111.  476,  affirm-  ^._    McWhortcr,    47    So.   84,    156    Ala. 

iug    .indscment    212     111.     App.     664;  oqq 

?rx  ?'85?"oos\5i°%3''^affirS  ^  ^  Southern  Ry.  Co.  v.  Ganong,  53 

Judgment  128  fu    App.  1^9  ;'BoTd  ^^  ^o.  355,  99  Miss.  540. 

kimmel,    161    lU.    App.    206 ;    Illinois  ^  Almand  v.  Thomas,  96  S.  E.  962, 

Cent.  R.  Co.  v.  Jornigan,  101  111.  App.  148  Ga.  369. 

1.  judgment  affirmed  65  N.  E.  88,  198  2  Lanniug  v.  Chicago,  etc.,  Ry.  Co., 

111.  297.  27  N.  W.  478,  68  Iowa,  502. 


§  407  INSTRUCTIONS  TO  JURIES  72S 

ment  to  determine  what  they  must  find  in  order  to  convict.^  But 
a  reference  to  the  indictment  or  information  is  not  erroneous,  if 
such  reference  is  not  necessary  to  enable  the  jury  to  perform  their 
duties,*  and  a  defendant,  asking  an  instruction  containing  such  a 
reference,  cannot  complain  of  it.^  An  instruction  which  states  what 
facts  are  to  be  found  in  order  to  convict  is  not,  because  of  the  in- 
clusion of  the  words  "as  charged  in  the  indictment,"  objectionable 
as  referring  the  jury  to  the  indictment  to  ascertain  the  issues.** 

D.  Reading,  Quoting,  or  Citing  Statutes 

§  407.     Necessity,  propriety,  and  method  of  presenting  statutes  to 
jury 

In  a  criminal  prosecution  the  court  is  not  bound  to  read  or  state 
to  the  jury  the  substance  of  the  statute  under  which  the  defend- 
ant is  being  tried ; ''  it  being  sufficient  if  the  acts  necessary  to  con- 
stitute the  crime  charged  are  clearly  specified  in  the  instructions.* 
The  court  may,  however,  properly,  as  a  part  of  its  charge,  read 
or  quote  from,  or  give  to  the  jury  in  substance,  a  statute  on  which 
a  suit  is  based  or  a  criminal  prosecution  founded,  or  which  may 
throw  some  light  on  the  points  in  controversy  and  aid  in  under- 
standing the  rights  of  the  parties.^ 

^-  Mo.     State  V.  Herring,  188  S.  W.  5  Chri.stie  v.   People,   69   N.  E.   33, 

leo,  268  Mo.  514;    State  v.  Constitino  206  111.  337. 

(Sup.)  ISl  S.  W.  1155;    State  v.  RLari-  e  state  v.  Scott,  109  Mo.  226,  19  S. 

on,  138  S.  W.  491,  235  Mo.  359 ;   State  W.  89. 

V.  McCaskey,  104  Mo.  644,  16  S.  W.  7  Yancey  v.   State,  58  S.  E.  546,  2 

511;    State  V.  Brown,  104  Mo.  365,  16  Ga.    App.    400;      Commonwealth     v. 

S.  W.  406.  Burns,  167  Mass.  374,  45  N.  E.  755; 

N.  M.     State  v.  :McKnight,  153  P.  Gentry    v.    State,    136    S.    W.    50,    61 

76,  21  N.  M.  14 ;  Territory  v.  Baca,  71  Tex.  Cr.  R.  619. 

P.  460,  11  N.  M.  559.  8  State  v.  Johnson,  149  N.  W.  730, 

4  State    V.    Dooley,    89    Iowa,    584,  34  S.  D.  601. 

.57  N.  W.  414;    State  v.  By rd,  213  s.  9  Ala.     Frazier    v.    State,    49    So. 

W.  35,  278  Mo.  426 ;   State  v.  Burgess  245,  159  Ala.  1. 

(Mo.)  193  S.  W.  821.  Ark.     Pennewell   v.    State,    150    S. 

Reference         not         misleading.  W.    114,    105   Ark.    32;     Van    Valkin- 

Whore  an  indictment  for  murder  con-  burgh    v.    State,    142    S.  W.    843,    102 

taincd  two  counts,  one  charging  the  Ark.  16;    Mitchell  v.  State,  S3  S.  W. 

killing    to    have   been    done    with. a  1050,  73  Ark.  291. 

knife,    and   the   other   charging   that  Cal.     People  v.  Lima,  172  P.   762, 

the  killing  was  done  in  some  manner  36  Cal.  App.  553 ;    People  v.  Crane, 

to  tlie  grand  jurors  unknown,  an  in-  87  P.  239,  4  Cal.  App.  142. 

struction  that  if  the  defendant  killed  Ga.     Holland  v.  Bell,  96  S.  E.  419, 

deceased   "in   some   of  the   modes   or  148   Ga.   277;     McNulty   v.    State,   95 

by   some  of  the  means  specified,   de-  S.  E.  304,  21  Ga.  App.  783;    Howell 

fined,    and    described    in    the    indict-  v.   State,  88   S.   E.  592,   17   Ga.   App. 

ment"  was  not  misleading.     State  v.  802 ;    Georgia  &  P.  Ry.  Co.  v.  Tapley, 

Murray,  91  Mo.  95,  3  S.  W.  397.  87  S.  E.  473,  144  Ga.  453,  L.  R.   A. 


729 


FORMAL   MATTERS 


408 


Where  the  question  is  one  of  statutory  duty,  it  may  be  sufficient 
for  the  court  to  read  the  statute  defining  the  duty/**  without  in- 
terpreting it,^^  where  only  one  construction  tliereof  is  contended 
for  at  the  trial.  Where,  however,  there  is  a  sharp  conflict  at  the 
trial  as  to  the  interpretation  of  a  statute  so  read,  it  will  be  error 
not  to  accompany  such  reading  with  a  proper  explanation.-^^ 

§  408.     Statutes  containing  irrelevant  provisions 

The  court  may  in  its  charge  give  a  section  of  a  statute,  some 
phases  of  which  are  applicable  to  the  case,  although  the  section 
contains  phases  and  defines  acts  not  involved. ^^  At  least  the  read- 
ing of  a  statute  which  covers  matters  in  relation  to  other  subjects 
than  those  in  issue,  or  which  are  not  strictly  applicable  to  the  case, 
is  not  reversible  error,  if  the  jury  is  not  misled  thereby.^*     But 


191 6C,  1020;   City  of  Sparta  v.  Smith, 

84  S.  E.  151.  15  Ga.  App.  656;  Mc- 
Donald V.  State,  59  S.  E.  242,  129 
Ga.  452;  McNatt  v.  McRea,  45  S.  E. 
248,  117  Ga.  SOS:    Gochran  v.  Jones, 

85  Ga.  678,  11  S.  E.  811. 

lU.  People  V.  Crawford,  115  N.  B. 
901,  278  111.  134:  Wagner  v.  Chica- 
go. R.  I.  &  P.  Ry.  Co.,  200  111.  App. 
305,  ludgment  affirmed  115  N.  E.  201, 
277  111.  114;  Renner  v.  St.  Louis,  I. 
M.  &  S.  Rv.  Co.,  197  111.  App.  11; 
People  V.  Carter,  188  111.  App.  22; 
Tetrovec  v.  Meyers,  158  111.  App.  391 ; 
Mertins  v.  Southern  Coal  &  Mining 
Co.,  140  111.  App.  190,  judgment  af- 
firmed Mertens  v.  Same,  85  N.  E. 
743.  235  111.  540. 

Ind.  A^andalia  Coal  Co.  v.  Moore, 
121  N.  E.  685,  69  Ind.  App.  311  ;  Sel- 
lers V.  City  of  GreencaPtle,  34  N.  E. 
534,  1.34  Ind.  645. 

Iowa.  Kitteringham  v.  Dance,  58 
Iowa.  6.32,  12  N.  W.  612. 

Me.  State  v.  Stickney,  90  A.  705, 
111  Me.  590. 

Mo.  State  v.  Powell,  66  Mo.  App. 
598. 

Neb.  Lord  v.  Roberts,  165  N.  W. 
892.  102  Xeb.  49 ;  Shunnvav  v.  State, 
117  N.  W.  407.  82  Neb.  152.  .Indgment 
affirmed  on  rehearing  119  N.  W.  517, 
82  Neb.   166. 

N.  J.  Chiapparine  v.  Public  Serv- 
ice Ry.  Co.,  103  A.  180. 

N.  Y.  People  v.  Sc-uilnn,  117  N. 
T.  S.  57,  132  App.  Div.  .'528. 

Ohio.     Toledo  Consol.  St.  Ry.  Co. 


V.  Mammet.  6  O.  C.  D.  244,  13  Ohio 
Cir.  Ct.  R.  591. 

S.  C.  State  V.  Brown,  101  S.  E. 
847,  113  S.  C.  513;  State  v.  Black- 
stone,  101  S.  E.  845,  113  S.  C.  528; 
Gossett  V.  Western  Union  Telegraph 
Co.,  79  S.  E.  309,  95  S.  C.  397. 

S.  D.  State  v.  Fullerton  Lumber 
Co.,  152  N.  W.  708,  35  S.  D.  410. 

Tex.  Walker  v.  State,  181  S.  W. 
191,  78  Tex.  Cr.  R.  237 ;  International 
&  G.  N.  Ry.  Co.  V.  Bandy  (Civ.  App.) 
163  S.  W.  341 ;  Hobbs  v.  State,  7  Tex. 
App.  117. 

10  Sommer  v.  Carbon  Hill  Coal  Co. 
(C.  C.  A.  Wash.)  107  F.  230,  46  C.  C. 
A.  255 ;  Keel  v.  Seaboard  Air  Line 
Ry.,  95  S.  E.  64,  108  S.  C.  390. 

11  Louisiana  &  A.  Ry.  Co.  v.  Wood- 
son, 192  S.  W.  174,  127  Ark.  323 ;  St. 
Louis,  I.  M.  &  S.  Ry.  Co.  v.  Elrod,  173 
S.  W.  836,  116  Ark.  514;  Maffi  v.  Ste- 
phens, 108  S.  W.  1008,  49  Tex.  Civ. 
App.  354. 

12  Kansas  City,  Ft.  S.  &  M.  Ry.  Co. 
V.  Becker,  39  S.  W.  358,  63  Ark.  477. 

13  People  V.  Bernard,  130  P.  1063, 
21  Cal.  App.  56 ;  Keefer  v.  Amieone, 
100  P.  594,  45  Colo.  110 ;  Price  v.  Clo- 
ver Lead  Coal  Mining  Co.,  188  111. 
App.  27 ;  Baton  v.  Marion  County 
Coal  Co.,  173  111.  App.  444,  judgment 
affirmed  101  N.  E.  58,  257  111.  567. 

14  Ariz.  I^e  V.  State,  145  P.  244, 
16  Ariz.  291,  Ann.  Cas.  1917B,  131. 

Ga.  Pope  V.  Pope,  95  Ga.  87,  22  S. 
E.  245. 

111.     Daly   V.   New    Staunton   Coal 


409 


INSTRUCTIONS   TO  JURIES 


730 


where  the  statute  quoted  covers  matters  not  involved  in  the  case 
on  trial,  the  court  should  point  out  what  part  is  applicable.^^ 

§  409.     Using  exact  language  of  statute 

It  is  ordinarily  not  error,  in  an  action  based  on  a  statute,  to  give 
an  instruction  in  the  exact  language  of  the  statute,^^  although  a 
construction  has  been  given  to  the  statute  quoted  not  entirely  in 
accordance  with  the  popular  acceptation  of  the  terms  employed,  if 
it  is  thereafter  fully  explained  in  conformity  to  such  construction,^' 
and  usually,  where  an  instruction  is  given  with  reference  to  the 
provisions  of  a  particular  statute,  it  is  better  that  it  contain  the  lan- 
guage of  the  statute.^**  On  the  other  hand,  instructions  which  cor- 
rectly set  forth  a  rule  of  law  embodied  in  a  statute  are  not  errone- 
ous, because  they  do  not  use  its  exact  language.^® 

§410.     Reference  to  statutes 

An  instruction  merely  referring  the  jury  to  a  statute  by  its  title 
or  chapter  and  section  numbers  is  properly  refused,^'*  and  such  a  ref- 
erence while  not  necessarily  reversible  error,^^  may  be  a  ground  for 
reversal.^" 


Co.,  203  111.  App.  164,  judgment  af- 
firmed 117  N.  E.  413,  280  111.  175. 

Mo.  Hollenbeck  v.  Missouri  Pac. 
Ry.  Co.,  34  S.  W.  494. 

Neb.  McMartin  v.  State,  145  N.  W. 
095,  95  Neb.  292 ;  Henkcl  v.  Boudreau, 
130  N.  W.  753,  88  Neb.  784. 

15  Central  of  Georgia  Ry.  Co.  v.  De 
Loach,  89  S.  E.  433,  IS  Ga.  App.  362. 

iG  Ark.  Kansas  City  Southern  Ry. 
Co.  V.  Whitley,  213  S.  W.  369,  139 
Ark.  255. 

Fla.  Florida  Ry.  Co.  v.  Dorsey,  52 
So.  963,  50  Fla.  260. 

111.  Greene  v.  L.  Fish  Furniture 
Co.,  Ill  N.  E.  725,  272  111.  148;  Mt. 
Olive  &  S.  Coal  Co.  v.  Rademacher, 
GO  N.  E.  888,  190  111.  538,  affirming 
judgment  92  Til.  App.  442 ;  Warren 
V.  .Tackson,  204  111.  App.  oT6 ;  McCor- 
mick  V.  Decker,  204  111.  App.  554; 
Halladay  v.  Mnrphysboro  Supply  Co., 
203  111.  App.  142;  Watson  v.  Kam- 
nieicr,  203  111.  App.  31;  Adams  v. 
.Turifh,  160  111.  App.  522;  Wells  v. 
Baltimore  &  O.  S.  W.  R.  Co.,  1.53  111. 
App.  23;    Hefferuan  v.  Bail,  109  111. 


App.   231;    Consolidated  Coal  Co.  v 
Dombroski,  106  111.  App.  641. 

Mo.  Kippenbrock  v.  Wabash  R 
Co.,  194  S.  W.  50.  270  Mo.  479. 

17  Western  Union  Telegraph  Co.  v 
Harris,  64  S.  E.  1123,  6  Ga.  App.  260 

18  Atlantic  Coast  Line  R.  Co.  v.  Can- 
ty, 77  S.  E.  659.  12  Ga.  App.  411 
McDonald  v.  Jacobs,  10  Mo.  160 ;  Ja 
cobs  V.  McDonald,  8  Mo.  565  ;  Hoag  v 
Washington-Oregon  Corporation,  147 
P.  756,  75  Or.  588,  modifying-  judg- 
ment on  rehearing  144  P.  574,  75  Or. 
588. 

19  Hines  v.  Green,  101  S.  E.  757,  24 
Ga.  App.  575;  Alfriend  v.  Fox,  52  S. 
E.  925,  124  Ga.  563 :  Devine  v.  L.  Fish 
Furniture  Co.,  189  111.  App.  136; 
ITaines  v.  M.  S.  Welker  &  Co.,  165  N. 
W.  1027,  182  Iowa,  431;  Lindell  v. 
Stone.  94  A.  963,  77  N.  H.  582. 

2  0  Wallis  V.  Heard,  86  S.  E.  391,  16 
Ga.  App.  802. 

21  Lane  v.  Chicago,  R.  I.  &  P.  Ry. 
Co.,  35  Mo.  App.  567. 

2  2  Butler  V.  Gill,  127  P.  439,  34  Okl. 
814. 


731 


FORMAL  MATTERS 


§411 


E.  Reading,  Quoting,  or  Citing  Judicial  Di^cisioxs  or  Text- 
Books 

§  411.     Propriety  of  instructions  quoting  from  judicial  decisions 
or  text-books 

Although  it  is  not  improper  for  the  court  to  refuse  to  embody 
the  language  of  an  elementary  writer  in  a  charge  to  the  jury,~^  the 
court  may  read  the  law  to  the  jury  from  a  text-book,~^  and  it  is 
not  error  in  a  proper  case  for  the  trial  court  to  read  from  the  re- 
ports, as  a  part  of  its  charge  on  the  law,  the  opinion  of  the  appel- 
late court  on  a  former  appeal  in  the  same  case,"*^  or  the  decisions 
of  the  courts  in  other  cases,^"  or  to  quote  from  the  opinion  of  the 
highest  court  of  another  state,^'''  provided  the  quotations  from  such 
judicial  reports  correctly  state  the  law.~^ 

However,  such  a  practice  is  one  not  to  be  encouraged.'^    A  mere 


2  3  People  V.  Wayman,  128  N.  Y.  585, 
27  N.  E.  1070. 

2  4  Uuited  States  v.  Neverson,  1 
Maekey  (D.  C.)  152 ;  Lett  v.  Horner, 
5  Blackf.  (Ind.)  296 ;  Magill  v.  South- 
ern Ry.  Co.,  78  S.  E.  103.3,  95  S.  C.  306. 

2  5  Richmond  &  D.  R.  Co.  v.  His- 
song,  97  Ala.  187,  13  So.  209;  Rig- 
gins'  Ex'rs  V.  Brown,  12  Ga.  271 ;  Pow- 
er V.  Harlow,  23  N.  W.  606,  57  Mich. 
107;  Panama  R.  Co.  v.  Johnson,  63 
Hun,  629,  17  N.  Y.  S.  777. 

2GD.  C.  Johnson  v.  Baltimore  & 
P.  R.  Co.,  6  Maekey,  2.32. 

Ga.    Wright  v.  State,  18  Ga.  383. 

Ind.  Bronuenburg  v.  Charman,  80 
Ind.  475. 

Mass.  Rothwell  v.  New  York,  N. 
H.  &  H.  R.  Co.,  112  N.  E.  231,  223 
Mass.  550;  Commonwealth  v.  Dow, 
105  N.  E.  995,  217  Mass.  473 ;  Post  v. 
Leland,  09  N.  E.  361,  184  Mass.  001. 

Mich.  People  V.  Bowkus,  109  :Mich. 
360,  67  N.  W.  319 ;  People  v.  Niles,  7 
N.  W.  192,  44  Mich.  606. 

N.  Y.  People  v.  Broon,  74  N.  E. 
483,  181  N.  Y.  493;  People  v.  Min- 
naugh,  131  N.  Y.  563,  29  N.  E.  750; 
McManus  v.  Woolverton  fCom.  PI.) 
19  N.  Y.  S.  545,  judgment  affirmed  138 
N.  Y.  648,  34  N.  E.  513. 

N.  C.  State  v.  Cameron,  81  S.  E. 
748.  166  N.  C.  379. 

Pa.  Honrv  v.  Klopfer,  147  Pa.  178, 
23  A.  337,  338,  29  Wkly.  Notes  Cas. 
331. 


R.  I.  McCoart  v.  Rhode  Island 
Co.,  108  A.  585. 

Quoting  opinion  in  case  distin- 
guishable as  to  its  facts.  Where 
the  facts  relating  to  insanity,  in  a 
suit  to  set  aside  a  will,  and  those  on 
a  trial  for  assault  with  intent  to  kill, 
in  which  insanity  was  alleged  as  a 
defense,  were  clearly  distinguishable, 
extracts  from  the  opinion  of  the  Su- 
preme Court  in  the  will  ease  regard- 
ing insanity,  which  were  liable  to  mis- 
lead the  jury,  should  not  have  been 
read  as  a  nart  of  the  charge.  Lowe  v. 
State,  90  N.  W.  417,  118  Wis.  041. 

Argumentative  instructions. 

An  instruction  on  dying  declarations, 
although  literally  quoted  from  an 
opinion  of  Supreme  Court,  was  prop- 
erly refused  as  argumentative.  Har- 
per V.  State,  75  So.  829,  16  Ala.  App. 
153. 

2  7  Cousins  V.  Partridge,  79  Cal.  224, 
21  P.  745. 

2  8  In  re  Spencer's  Estate,  96  Cal. 
448,  31  P.  453. 

2  0  Karnopp  v.  Ft.  Smith  Light  & 
Traction  Co.,  178  S.  W.  302,  119  Ark. 
295. 

Reading  from  dictionary.  The 
practice  of  the  court  of  reading  to  the 
jury,  in  its  charge,  definitions  of  a 
word  given  in  dictionaries  is  not  to 
be  commended.  State  v.  Rivers,  78 
A.  786,  84  Vt.  154. 


§  411  INSTRUCTIONS  TO  JURIES  732 

incidental  statement  in  an  opinion  in  another  case,  not  laid  down 
as  a  proposition  of  law,  should  not  be  given  to  the  jury,^**  and  the 
mere  fact  that  certain  language  has  been  used  by  an  appellate  judge 
in  an  opinion  is  not  of  itself  sufficient  to  justify  the  use  of  the  same 
language  by  a  trial  court  in  an  instruction  in  a  similar  case,^^  since 
language  used  by  an  appellate  court  in  discussing  the  facts  of  a 
case  is  often  inappropriate  for  use  by  a  trial  judge  in  instructing 
a  jury.^^ 

The  court  should  not  give  as  an  instruction  a  paragraph  from  a 
book  containing  matters  hard  to  be  understood  and  calculated  to 
confuse  and  mislead.^^  The  facts  of  another  case  may  be  referred 
to  for  the  purpose  of  illustration.^* 

§  412.     Quoting  entire  opinion  or  extracts  therefrom 

It  will  ordinarily  be  error  for  the  court  to  read  to  the  jury  the  full 
text  of  a  reported  case,*^  and  then  state  to  the  jury  that  the  court 
adopts  the  decision  of  such  reported  case  as  the  law  on  the  sub- 
ject in  the  case  on  trial.^^  A  court,  in  instructing  as  to  the  mean- 
ing of  a  word  should  not  mislead  and  confuse  the  jury  by  reading 
a  whole  opinion  of  the  appellate  court,  whose  main  point  is  not 
analogous  to  the  case  at  bar,  although  it  contains  a  correct  defini- 
tion of  the  word,  but  should  cull  that  part  which  is  to  the  point,^' 
and  the  giving  of  an  instruction  by  reading _the  entire  headnote  of 
a  reported  case  is  erroneous,  as  likely  to  mislead,  where  the  facts 
of  such  case  are  very  different  from  those  of  the  case  on  trial.^* 

It  is  equally  error  to  instruct  the  jury  by  reading  an  extract  from 
a  published  opinion  of  the  Supreme  Court,  if  such  extract,  apart 

3  0  Jones  V.  State,  65  Ga.  506.  instruction  consisting  of  an  argumen- 

31  Jones  V.  P.  S.  Royster  Guano  Co.,  tative    discussion    by    tlie    Supreme 

65  S.  E.  361,  6  Ga.  App.  506 ;    Aber-  Court  of  the  law  of  qualified  privilege 

nathy  v.  Emporia  Mfg.  Co.,  95  S.  E.  as  a  defense  to  libel,  taken  fi*om  an 

418,  122  Va.  406.  opinion  in  another  case,  was  improper. 

Adopting  instructions  approved  Davis  v.  Hearst,  116  P.  530,  160  Cal. 

by  appellate  court.     It  is  not  safe  143. 

for  trial  courts  to  instruct  in  the  Ian-         33  Nicholas  v.  Kershner,  20  W.  Va. 

guase  of  opinions  or  to  adopt  instruc-  251. 

tions   appearing   therein,   as   instruc-         3  4McGufRn  v.  State,  59  So.  635,  178 

tions  are  approved  only  with  refer-  Ala.   40;     State   v.   Chiles,   36   S.   E. 

ence  to  exceptions  urged.     Liddlc  v.  496,  58  S.  C.  47. 
Salter,  163  N.  W.  447,  ISO  Iowa,  840.  3  5  Lendberg     v.     Brotherton     Iron 

3  2  Central    of    Georgia    R.    Co.    v.  Min.  Co.,  75  Mich.  84,  42  N.  W.  075. 
Hartley    (Ga.    App.)    103    S.    E.   259;  so  Frank  v.  Williams,  36  Fla.   136, 

Southern  Cotton  Oil  Co.  v.   Skipper,  18  So.  351. 

54  S.  E.  110,  125  Ga.  .368;    Atlanta  &  37  Stewart  v.  Hunter,  16  Or.  62,  16 

W.  P.  R.  Co.  V.  Hudson,  51  S.  E.  29,  Pac.  876,  8  Am.  St.  Rep.  267. 
123  Ga.  108.  ss  stucke  v.  Milwaukee  &  M.  R.  Co., 

Argumentative    discussion.      An  9   Wis.   202. 


733 


FORMAL  MATTERS 


§414 


from  the  context,  appears  likely  to  mislead  the  jury,^'  or  states  a 
different  proposition  from  that  contained  in  the  entire  opinion/* 

§  413.     Citing  authorities 

While  the  practice  of  noting  authorities  and  citations  of  cases 
on  the  margin  of  instructions  in  support  thereof  is  not  commend- 
ed/^ and  is  regarded  as  improper  in  some  jurisdictions,*^  such 
notation  is  considered  not  to  be  prejudicial  error/^ 


F.  Repetition  of  Instructions 

Repetition  as  constituting  argument,  see  post,  §  420. 

§  414.     Necessity  and  propriety  of  repetition 

Repetition  of  instructions  on  reasonable  doubt,  see  ante,  §  278. 

Where  ideas  or  propositions  of  law  are  correctly  set  out  in  one 
instruction,  it  is  not  ordinarily  required  that  they  should  be  repeated 
in  other  instructions,'*^  this  rule  applying  in  criminal  cases.*^     One 


ssTalmage  v.  Davenport,  31  N.  J. 
Law  (2  Vroom)  561. 

40  Laidlaw  v.  Sage,  80  Hun,  550,  30 
N.  Y.  S.  496. 

41  Herzog  v.  Campbell,  47  Neb.  370, 
66  N.  W.  424. 

42  State  V.  Sage,  126  P.  403,  22  Ida- 
ho, 489,  Ann.  Cas.  1914B,  251 ;  Sprin- 
ger V.  Orr,  82  111.  App.  558. 

4  3  In  re  Goldthorp's  Estate,  88  N. 
W.  944,  115  Iowa,  430;  Sioux  City 
&  P.  R.  Co.  V.  Finlayson,  16  Neb.  578, 
20  N.  W.  860,  49  Am.  Rep.  724. 

44  Ark.  St.  Louis,  I.  M.  &  S.  Ry. 
Co.  V.  Blaylock,  175  S.  W.  1170,  117 
Ark.  504.  Ann.  Oas.  1917A,  563. 

Cal.  Weaver  v.  Carter,  152  P.  323, 
28  Cal.  App.  241. 

Ga.  :\Iillen  &  S.  W.  R.  Co.  v.  Al- 
len, 61  g*.  E.  541,  130  Ga.  656. 

111.  Village  of  Altamont  v.  Carter, 
63  N.  E.  613,  196  111.  286,  affirming 
judgment  97  111.  App.  196;  Graybeal 
V.  Gardner,  146  111.  337,  34  N.  E.  528, 
affirming  48  111.  App.  305;  Kopf  v. 
Yordy,  208  111.  App.  580;  Dwyer  v. 
Chicago  City  Ry.  Co.,  153  111.  App. 
463. 

Ind.  Vandalia  Coal  Co.  v.  Yemm, 
92  N.  E.  49.  175  Ind.  524;  Surber  v. 
Mayfleld,  60  N.  E.  7,  156  Ind.  375. 

Iowa.  Scovel  V.  Monaghan,  164  N. 
W.  783,  183  Iowa,  581 ;  Doran  v.  Wa- 
terloo, C.  F.  &  N.  Ry.  Co.,  147  N.  W, 


1100;  Lillie  v.  Brotherhood  of  Rail- 
way Trainmen,  86  N.  W.  279,  114 
Iowa,  252. 

Minn.  Brown  v.  Duluth,  S.  S.  &  A. 
Ry.  Co.,  179  N.  W.  1003. 

Mo.  Cunningham  v.  Elvins  (App.) 
194  S.  W.  515. 

Neb.  Nebraska  Nat.  Bank  v. 
Burke,  44  Neb.  234,  62  N.  W.  452. 

N.  H.  Osgood  V.  Maxwell,  95  A. 
954,  78  N.  H.  35. 

Okl.  Flohr  V.  Territory,  78  P.  565, 
14  Okl.  477. 

Tex.  Anderson  v.  Crow  (Civ.  App.) 
151  S.  W.  1080. 

Utah.  Smith  v.  Columbus  Buggy 
Co.,  123  P.  580,  40  Utah,  580. 

Vt.  White  V.  Central  Vermont  Ry. 
Co.,  89  A.  618,  87  Vt.  330. 

Va.  E.  I.  Du  Pont  de  Nemours  & 
Co.  V.  Snead's  Adm'r,  97  S.  E.  812, 
124  Va.  177. 

■Wis.  Jones  V.  Monson,  119  N.  W, 
179,  137  Wis.  478,  129  Am.  St.  Rep. 
1082. 

4  5  Cal.  People  v.  Cornell,  155  P. 
1026,  29  Cal.  App.  430;  People  v. 
Stevens,  114  P.  800,  15  Cal.  App.  294 ; 
People  V.  Smith,  84  P.  449,  3  Cal. 
App.  62. 

Conn.  State  V.  Weiner,  80  A.  198, 
84  Conn.  411 ;  State  v.  Kritchman,  79 
A.  75,  84  Conn.  152. 

Ga.     Brundage  v.   State,  67  S.   E. 


§  414 


INSTRUCTIONS   TO  JURIES 


734 


clear  pointed  statement  to  the  jury  of  each  proposition  advanced 
is  sufficient.*®  Instructions  involving  such  a  repetition  are  prop- 
erly refused,*'  since  the  practice  of  multiplying  instructions  an- 
nouncing in  effect  the  same  legal  principles  or  embodying  the  same 
ideas  is  discouraged  by  the  courts,**  as  having  a  tendency  to  mis- 
lead or  confuse  the  jury.*^ 

Thus,  where  instructions  have  been  given  covering  the  subject 
of  contributory  negligence,^^  comparative  negligence,^^  doctrine  of 


1051,  7  Ga.  App.  726;  Hall  v.  State, 
66  S.  E.  486,  7  Ga.  App.  180. 

Ind.  Kennedy  v.  State,  6  N.  E.  305, 
107  Ind.  144,  57  Am.  Rep.  99. 

Kan.  State  v.  Buffington,  81  P. 
465,  71  Kan.  804,  4  L.  R.  A.  (N.  S.) 
154 :    State  v.  Kearley,  26  Kan.  77. 

Mo.  State  v.  Dipley,  147  S.  W.  Ill, 
242  Mo.  461. 

Mont.  State  v.  Connors,  94  P. 
199.  37  Mont.  15. 

Tex.  Cauthern  v.  State  (Or.  App.) 
65  S.  W.  96. 

W.  Va.  State  v.  Cooper,  82  S.  E. 
358,  74  W.  Va.  472,  Ann.  Cas.  1917D, 
453;  State  v.  Prater,  43  S.  E.  230, 
52  W.  Va.  132. 

Illustrations  of  repetitions  held 
unnecessary.  Where,  on  a  prosecu- 
tion for  aiding  and  abetting  a  third 
party  in  killing  decedent,  the  court 
charged  the  jury  that  they  must  be- 
lieve from  all  the  evidence,  to  the 
excRision  of  a  reasonable  doubt,  that 
such  third  party  did  feloniously  kill 
decedent,  it  was  not  necessary  in  an- 
other part  of  the  same  instruction, 
relating  to  th«  charge  against  defend- 
ant of  aiding  and  abetting  such  third 
party  in  the  killing  of  decedent,  to 
add  the  words  "if  he  did  kill  him." 
Fuqua  v.  Commonwealth.  73  S.  W. 
782,  24  Ky.  Law  Rep.  2204. 

4  8  Carr  v.  State,  23  Neb.  749.  37 
N.  W.  6.30;  Olive  v.  State,  11  Neb. 
1,  7  N.  W.  444. 

47  111.  Burke  v.  Toledo,  P.  &  W. 
Ry.  Co.,  109  N.  E.  691,  268  111.  614, 
affirming  judgment  190  111.  App.  419 ; 
Mattoon  Heat,  Light  &  Power  Co.  v. 
Walker,  134  111.  App.  414;  East  St. 
Louis  &  S.  Ry.  Co.  v.  Zink,  133  111. 
App.  127,  judgment  affirmed  82  N.  E. 
283,  229  111.  180. 

Iowa.  Riepe  v.  Eltlng,  89  Iowa,  82, 
56  N.  W.  285,  48  Am.  St.  Rep.  356,  26 
L.  R.  A.  769. 


Mo.  Sires  v.  Clark,  112  S.  W.  526, 
132  Mo.  App.  537. 

Tex.  El  Paso  Electric  Ry.  Co.  v. 
Benjamin  (Civ.  App.)  202  S.  W.  996; 
City  of  Greenville  v.  Branch  (Civ. 
App.)  152  S.  W.  478. 

48  Ark.  Sadler  v.  Sadler,  16  Ark. 
628. 

111.  Grace  &  Hyde  Co.  v.  Strong, 
79  N.  E.  967.  224  111.  630,  affirming 
judgment  127  111.  App.  336;  Field  v. 
Crawford,  146  111.  136,  34  N.  E.  481 ; 
Holler  V.  Chicago  City  Ry.  Co.,  209  111. 
App.  140;  Sullivan  v.  People,  108  111. 
App.  328. 

Ind.  State  V.  Totten,  114  N.  E. 
82,  185  Ind.  580;  Modern  Woodmen 
of  America  v.  Kincheloe.  94  N.  E.  228, 
175  Ind.  563,  Ann.  Cas.  1913C,  1259. 

Iowa.  Arnold  v.  Ft.  Dodge,  D.  M. 
&  S.  R.  Co.,  173  N.  W.  252,  186  Iowa, 
538. 

Ky.  Proctor  Coal  Co.  v.  Beaver's 
Adm'r,  152  S.  W.  965,  151  Ky.  8.39; 
Trosper  Coal  Co.  v.  Crawford,  153  S. 
W.  211,  152  Ky.  214. 

Mo.  Reeves  v.  Lutz,  177  S.  W. 
764,  191  Mo.  App.  550. 

Tex.  Cranfill  v.  Hayden,  80  S.  W. 
609,  97  Tex.  544,  reversing  judgment 
(Civ.  App.)  75  S.  W.  573;  Willis  v. 
Strickland,  50  S.  W.  1.59. 

Va.  Atlantic  Coast  Line  R.  Co.  v. 
Tyler,  98  S.  E.  &41,  124  Va.  484. 

W.  Va.  State  v.  Legg,  53  S.  E. 
545.  59  W.  Va.  315,  3  L.  R.  A.  (N.  S.) 
1152. 

49  Dean  v.  State,  214  S.  W.  38,  139 
Ark.  433 ;  Robbins  v.  Fugit  (Ind.)  126 
N.  E.  321;  Goodman  v.  Saperstein, 
81  A.  695,  115  Md.  678 ;  Rosenkovitz 
V.  United  Rys.  &  Electric  Co.  of  Balti- 
more City,  70  A.  108,  108  Md.  306. 

5  0  Sells  V.    Grand  Trunk   Western 

SI  Hay  ward  v.  Merrill,  94  111.  349, 
34  Am.  Rep.  229. 


73f 


FORMAL   MATTERS 


414 


last  clear  chance/''^  effect  of  usury  on  the  rights  of  the  parties,^^ 
stating  the  rule  as  to  the  measure  of  damages,^*  or  as  to  the  bur- 
den of  proof,^^  or  the  requirement  that  a  party  shall  prove  his  case 
by  a  preponderance  of  the  evidence,^  such  ideas  need  not  be  re- 
peated in  other  instructions.  So  the  words,  "If  the  jury  find  from 
the  evidence,"  contained  in  one  clause  of  an  instruction,  need  not 
be  repeated  in  subsequent  clauses.^' 

In  a  criminal  case  the  trial  judge  should  take  care  to  give  to  the 
jury  once  and  in  clear  language  every  principle  of  law  applicable 
to  the  case,  and  when  he  has  done  this  he  is  not  required  to  repeat 
any  of  them,  no  matter  how  many  separate  instructions  are  asked 
which  may  include  them.^^  •  Thus  a  repetition  of  the  definition  of 
the  offense  charged  should  be  avoided,  if  possible,^"  and  this  rule 
applies  to  instructions  relating  to  the  presumption  of  innocence, 
reasonable  doubt,  and  the  degree  of  proof  required  of  the  state,***^ 
to  instructions  on  malice  aforethought  and  premeditation,^^  on  the 
law  of  justifiable  or  excusable  homicide,^^  and  on  circumstances  of 
mitigation.^^  Information  that,  in  order  to  convict,  it  must  appear 
that  the  offense  charged  was  committed  in  the  county  named  in 
the  indictment,  need  not  be  repeated,'''*  and  after  the  court  has  de- 


Ry.  Co.,  206  111.  App.  45;  Knowles 
V.  Mulder,  74  Mich.  202,  41  N.  W.  896, 
16  Am.  St.  Rep.  627 ;  Cannon  v.  Lewis, 
18  Mont.  402,  45  P.  572;  Glover  v. 
Houston  Belt  &  Terminal  Ry.  Co.  (Tex. 
Civ.  App.)  163  S.  W.  1063 ;  Missouri, 
K.  &  T.  Ry.  Co.  of  Texas  v.  Stogner 
(Tex.  Civ.  App.)  163  S.  W.  819. 

5  2  Cleveland,  C,  C.  &  St.  L.  Ry. 
Co.  v.  Champe,  102  N.  E.  868,  55  Ind. 
App.  243. 

5  3  Walker  v.  Lastinger,  81  S.  E.  203, 
141  Ga.  435. 

5*  Stearns  Coal  &  Lumber  Co.  v. 
Tuggle,  161  S.  W.  1112,  156  Ky.  714. 

5  5  Stedman  v.  O'Neil,  72  A.  923.  82 
Conn.  199,  22  L.  R.  A.  (N.  S.)  1229; 
Mitchell  V.  Hindmau,  150  111.  538,  37 
N.  E.  916;  Ducharme  v.  St.  Peter,  135 
111.  App.  530. 

5  6  J.  M.  Robinson,  Norton  &  Co.  v. 
Stalcup,  106  N.  E.  395,  58  Ind.  App. 
370. 

5  7  ni.  Town  of  Bethel  v.  Pruett,  74 
N.  E.  Ill,  215  111.  162  ;  Slack  v.  Harris, 
65  N.  E.  669,  200  111.  96,  affirming 
judgment  101  111.  App.  527;  Village 
of  Altamont  v.  Carter,  63  N.  E.  613, 
196  111.  286,  affirming  judgment  97  111. 
App.  196;    People  v.  Mullen,  179  111. 


App.  262;  Hefeernan  v.  Bail,  109  111. 
App.  231 ;  Chicago,  R.  I.  &  P.  Rv.  Co. 
v.  Keely,  103  111.  App.  205;  Cleve- 
land, C.  C.  &  St.  L.  Ry.  Co.  v.  Hall,  70 
111.  App.  429. 

Ind.  Indianapolis  St.  Ry.  Co.  v. 
Robinson,  61  N.  E.  936,  157  Ind.  414. 

Mo.  Logan  v.  Field,  90  S.  W.  127, 
192  Mo.  54. 

N.  C.  Wilkie  v.  Raleigh  &  C.  F. 
R.  Co.,  37  S.  E.  204,  127  N.  C.  203, 
judgment  modified  on  rehearing  38 
S.  E.  289,  128  N.  C.  113. 

5  8  Thrasher  v.  State,  53  So.  256,  168 
Ala.  130 :  People  v.  Bickerstaff  (Cal. 
App.)  190  P.  656;  People  v.  White, 
128  P.  417,  20  Cal.  App.  156. 

5  9  People  V.  Martin,  185  P.  1003; 
Castner  v.  People,  184  P.  387,  67  Colo. 
327. 

6  0  People  V.  Bickerstaff,  190  P.  656. 
61  Brewer  v.   State,  78  S.   W.  773, 

72  Ark.  145. 

6  2  Territory  v.  Gonzales,  68  P.  925, 
11  N.  M.  301. 

6  3  Holt  V.  State,  100  S.  W.  156,  51 
Tex.  Cr.  R.  15. 

6  4  Keys  V.  State,  87  S.  E.  762,  112 
Ga.  392,  81  Am.  St.  Rep.  68;  State 
V.  Darragh,  54  S.  W.  226,  152  Mo.  522. 


415 


INSTRUCTIONS  TO  JURIES 


736 


fined  certain  terms  as  used  in  a  designated  instruction,  it  is  not 
necessary  to  define  such  terms  again,  when  afterwards  used.®® 

§415.     Limitations  of  rule  against  repetition 

But  while  one  clear  and  correct  statement  of  a  proposition  of  law 
would  seem  to  be  enough,  the  mere  repetition  of  it  will  not  neces- 
sarily constitute  reversible  error.*'®  Where  such  a  repetition  is  not 
prejudicial  to  the  party  complaining  thereof,  it  will  not  work  a 


6  5  Commonwealth  v.  Stout,  14  Ky. 
Law  Rep.  (abstract)  576. 

fi6  u.  S.  Grand  Trunk  Ry.  Co.  of 
Canada  v.  Ives,  144  U.  S.  408,  12  Sup. 
Ct.  679,  36  L.  Ed.  485,  affirming  Ives 
V.  Grand  Tinink  R.  Co.  (C.  C.  Mich.) 
35  Fed.  176. 

Colo.  Liutz  V.  Denver  Citv  Tram- 
way Co..  131  P.  258,  54  Colo.  371. 

Ga.  Wilson  v.  Barnard,  72  S.  B. 
943,  10  Ga.  App.  98. 

111.  People  V.  Lewis,  96  N.  B.  1005, 
252  111.  281 ;  People  v.  Cotton,  95  N. 
E.  283,  250  111.  338;  Kravitz  v.  Chi- 
cago City  Ry.  Co.,  210  111.  App.  287; 
I^ecklieder  v.  Chicago  City  Ry.  Co., 
172  111.  App.  557 ;  Eggmann  v.  Nutter, 
169  111.  App.  116;  Roman  v.  Silber- 
trust,  159  111.  App.  485 ;  McMahon  v. 
Chicago  City  Ry.  Co.,  143  111.  App. 
60S.  .iudgment  affirmed  88  N.  E.  223, 
239  iu.  334. 

Ind.  Davis  v.  Babb  (Ind.)  125  N. 
E.  403. 

Iowa.  Livingstone  v.  Dole,  167  N. 
W.  639,  184  Iowa,  1340;  Doran  v. 
Waterloo,  C.  F.  &  N.  R.  Co.,  153  N. 
W.  225,  170  Iowa,  614;  Covert  v. 
Town  of  Lovilia,  149  N.  W.  67,  167 
Iowa,  163  ;  Buchholtz  v.  Incorporated 
Town  of  Radcliffe,  105  N.  W.  336,  129 
Iowa,  27 ;  State  v.  McCahill,  72  Iowa, 
111.  .33  N.  W.  .599. 

Ky.  Wiltshire's  Adm'x  v.  Kister, 
100  S.  W.  743,  156  Ky.  168;  Louis- 
ville &  N.  R.  Co.  v.  Logsdon,  71  S.  W. 
905.  114  Ky.  746,  24  Ky.  Law  Rep. 
1.566. 

Md.  Pillard  v.  Chesapeake  S.  S.  Co. 
of  Baltimore,  92  A.  1040,  124  Md. 
468. 

Mass.  Mahar  v.  Steuer,  170  Mass. 
454.  49  N.  E.  741;  Commonwealth  v. 
Spoiling,  32  Mass.  (15  Pick.)  321. 

Minn.  .Tncobsen  v.  City  of  Minne- 
apolis. 132  N.  W.  341,  115  Minn.  397. 

Mo.  State  v.  Murray,  193  S.  W. 
830;  Huss  v.  Hevdt  Bakery  Co.,  108 
S.  W.  63,  210  Mo.  44. 


Neb.  Gandy  v.  Bissell's  Estate,  97 
N.  W.  632,  5  Neb.  (Unof.)  184,  revers- 
ed on  rehearing  100  N.  W.  803,  72 
Neb.  356;  Denise  v.  City  of  Omaha, 
69  N.  W.  119,  49  Neb.  750;  Gran  v. 
Houston,  45  Neb.  813,  64  N.  W.  245. 

N.  H.  Saltmarsh  v.  Bow,  56  N.  H. 
428. 

Ohio.  Smart  v.  Masters  &  War- 
dens of  N.  C.  Lodge  No.  2,  27  Ohio 
Cir.  Ct.  R.  273. 

Pa.  Murray  v.  New  York,  L.  &  W. 
R.  Co..  103  Pa.  37. 

S.  C.  Keys  v.  Winnsboro  Granite 
Co..  51  S.  E.  549.  72  S.  C.  97. 

Tex.  Smith  v.  Bryan  (Civ.  App.) 
204  S.  W.  359 ;  Woodard  v.  State,  111 
S.  W.  941,  54  Tex.  Cr.  R.  86;  Von 
Boeckmann  v.  Loepp  (Civ.  App.)  73  S. 
W.  849:  International  &  G.  N.  Ry. 
Co.  V.  Leak,  64  Tex.  654. 

Wis.  Klipstein  v.  Raschein,  94  N. 
W.  63,  117  Wis.  248. 

Illustrations  of  repetition  not 
constituting  reversible  error.  In 
an  action  for  personal  injuries,  where 
the  charge  correctly  stated  the  law 
governing  the  case,  a  judgment  will 
not  be  reversed  because  in  the  charge 
the  judge  twice  stated  that,  in  order 
to  entitle  plaintiff  to  a  verdict,  he 
must  show  negligence  on  the  part  of 
defendant,  and  twice  stated  that  plain- 
tiff must  show  that  he  exercised  ordi- 
nary care  to  avoid  the  accident.  Maes 
V.  Texas  &  N.  O.  Ry.  Co.  (Tex.  Civ. 
App.)  23  S.  W.  725.  Where  the  court 
charged  that  the  purchasers  must 
have  knowledge  of  the  fraud  to  avoid 
a  fraudulent  conveyance,  and  in  an- 
other charge  he  stated  more  specifical- 
ly what  would  amount  to  such  knowl- 
edge, and  in  other  separate  instruc- 
tions he  charged  that  such  knowledge 
would  avoid  the  sale,  though  the 
purchaser  had  paid  a  valuable  con- 
sideration, that  it  would  avoid  the 
sale,  though  the  vendee  had  no  fraud- 
ulent intent  in  making  the  purchase, 


737 


FORMAL  MATTERS 


§415 


reversal,"  It  is  only  where  the  repetition  of  a  correct  instruction 
appears  to  have  created  in  the  minds  of  the  jury  an  erroneous  im- 
pression of  the  law,^  or  to  have  prejudiced  a  party  by  giving  un- 
due prominence  to  a  particular  phase  of  a  case,''*  that  the  judgment 
of  the  lower  court  will  be  disturbed  on  account  thereof. 

Unnecessary  repetitions  of  instructions  on  a  single  subject,  given 
at  the  instance  of  both  parties  cannot  be  made  a  ground  of  com- 
plaint against  the  verdict.'^" 


that  tbe  sale  with  such  notice  was 
void  as  against  the  rights  of  credi- 
tors, that  the  sale  would  be  void, 
though  the  only  motive  for  making 
the  purchase  was  because  the  prop- 
erty was  cheap,  and  that  actual 
knowledge  on  the  part  of  the  pur- 
chaser was  not  necessary  to  set  aside 
the  sale,  it  was  held  that,  though  the 
charge  was  objectionable,  the  judg- 
ment should  not  be  reversed  on  the 
ground  of  too  frequent  repetition  of 
the  same  principle  of  law  to  the  jury. 
Traylor  v.  Townsend,  61  Tex.  144. 

6  7  Davis  V.  Michigan  Cent.  R.  Co., 
Ill  N.  W.  76,  147  Mich.  479;  Rob- 
inson V.  State,  98  N.  W.  694,  71  Neb. 
142. 

6  8  Adams  v.  Elgin  &  Belvidere  Elec- 
tric Co.,  204  111.  App.  1. 

69  Ark.  Huffman  v.  Sudbury,  194 
S.  W.  510,  128  Ark.  559. 

Fla.  Jacksonville  Electric  Co.  v. 
Hellenthal,  47  So.  812,  56  Fla.  443. 

Ind.  Terry  v.  Davenport,  83  N.  E. 
636,  170  Ind.  74. 

Kan.  Murray  v.  Empire  Dist.  Elec- 
tric Co.,  162  P.  1145,  99  Kan.  507; 
Lawder  v.  Hinderson,  36  Kan.  754,  14 
P.  164. 

Tex.  Carter  v.  Missouri,  K.  &  T. 
Ry.  Co.  of  Texas  (Civ.  App.)  160  S. 
W.  987;  Wood  v.  Dean  (Civ.  App.) 
155  S.  W.  363 ;  Pettithory  v.  Clarke  & 
Courts  (Civ.  App.)  139  S.  W.  989;  Wolf 
Cigar  Stores  Co.  v.  Kramer,  109  S. 
W.  990,  50  Tex.  Civ.  App.  411 ;  (Civ. 
App.)  Southern  Kansas  Ry.  Co.  of 
Texas  v.  Sage,  80  S.  W.  1038,  revers- 
ed 84  S.  W.  814,  9S  Tex.  438 ;  Conti- 
nental Ins.  Co.  v.  Pruitt,  65  Tex.  125. 

Wash.  Alaska  S.  S.  Co.  v.  Pacific 
Coast  (iypsum  Co.,  138  P.  875,  78 
Wash.  247. 

Instructions  held  not  improper 
under  rule.     A  repetition  in  the  in- 

TX^T.TO  .TtJRIES — 47 


struct  ions  of  the  rule  as  to  preponder- 
ance of  the  evidence,  and  the  applica- 
tion of  it  to  different  phases  of  the 
case.  Sonka  v.  Sonka  (Tex.  Civ.  App.) 
75  S.  W.  325;  Posener  v.  Harvey 
(Tex.  Civ.  App.)  125  S.  W.  356. 
Where,  in  an  action  for  injuries  to 
plaintiff's  wife,  plaintiff"  contended 
that  the  railroad  company  was  neg- 
ligent in  failing  to  stop  its  train 
at  a  certain  station  for  a  rea- 
sonable time,  in  starting  it  before 
plaintiff's  wife  could  alight,  in  stop- 
ping it  again  at  an  inconvenient  and 
dangerous  place,  and  in  failing  to  as- 
sist her  in  alighting,  and  the  court, 
in  instructing  on  each  of  these  issues, 
charged  that  the  plaintiff  must  estab- 
lish negligence  by  a  preponderance 
of  the  evidence,  there  was  no  such 
repetition  of  that  phrase  as  to  give 
undue  prominence  thereto.  Martin  v. 
St.  Louis  S.  W.  Ry.  Co.  of  Texas  (Tex. 
Civ.  App.)  56  S.  W.  1011.  Where  the 
court  charged  abstractly  upon  de- 
fendant's theory  of  defense,  the  giv- 
ing of  a  special  charge  presenting  the 
rule  of  law  in  connection  with  the 
conci'ete  facts  was  not  improper  as  un- 
due repetition.  Jones  v.  Missouri,  K.  & 
T.  Ry.  Co.  of  Texas  (Tex.  Civ.  App.)  157 
S.  W.  213.  Where  the  main  charge 
submits  the  issue  of  contributory  neg- 
ligence only  genei-ally,  there  is  no  un- 
undue  repetition  in  reference  to  it 
because  a  special  charge  submits  it 
in  connection  with  the  very  facts  on 
which  defendant  relies.  Andrews  v. 
Jefferson  Cotton  Oil  &  Refining  Co., 
74  S.  W.  342,  32  Tex.  Civ.  App.  288. 
An  instruction  does  not  give  undue 
prominence  to  a  rule  adopted  for  com- 
putation by  repeating  it  in  illustra- 
tions of  its  application.  McAuley  v. 
Harris,  71  Tex.  631,  9  S.  W.  679. 

"0  State  V.  Snider,  94  S.  E.  981,  81 
W.  Va.  522. 


§  415 


INSTRUCTIONS   TO  JURIES 


738 


It  is  held  that  a  party  has  a  right  to  a  special  instruction  on 
any  group  of  facts  supported  by  pleadings  and  evidence,  and  which, 
if  true,  would  be  of  controlling  effect  in  his  favor,  although  a 
charge  in  general  terms  is  given  which  is  to  the  same  effect,'^  and 
where  the  failure  to  repeat  a  particular  proposition  of  law  may  mis- 
lead the  jury,  it  will  be  error  not  to  repeat  it.'^ 

§  416.     Effect  of  repetition  which  misleads  or  gives  undue  promi- 
nence to  certain  matters 

As  is  implied  in  the  foregoing  statement  of  the  rule,  if  the  fre- 
quent repetition  of  a  phrase  or  a  proposition  of  law  is  mislead- 
ing,'^ or  is  such  as  to  give  undue  prominence  to  certain  features 
of  a  case,  to  the  prejudice  of  one  party  or  the  advantage  of  an- 
other,''^ it  will  constitute  reversible  error. 


71  Chicago,  R.  I.  &  G.  R.  Co.  v. 
Mitchum  (Tex.  Civ.  App.)  194  S.  W. 
622. 

T  2  The  Scran tonian  v.  Brown,  36 
Pa.  Super.  Ct.  170. 

Where  an  instruction,  -was  g:iven 
upon  one  brancli  of  a  case,  but  was 
omitted  when  it  should  have  been 
given  as  a  qualification  of  another  in- 
struction upon  a  different  branch  of 
the  case,  it  is  cause  for  I'eversal. 
Cochrane  v.  Faris,  18  Tex.  850. 

73  Piette  V.  Bavarian  Brewing  Co., 
91  Mich.  605,  52  N.  W.  152. 

7  4  ni.     People  V.  Harrison,  104  N.  • 
E.  259.  261  111.  517 ;    Kahl  v.  Chicago, 
M.  &  St.  P.  Ry.  Co.,  125  111.  App.  294. 

Okl.  Price  v.  State,  98  P.  447,  1 
Okl.  Cr.  358. 

Tex.  Carl  v.  Settegast  (Civ.  App.) 
211  S.  W.  506;  St.  Txiuis  Southwest- 
ern Rv.  Co.  of  Texas  v.  Kei'r  (Civ. 
App.)  184  S.  W.  1058;  Heldenfels  v. 
School  Trustees  of  School  Dist.  No.  7, 
San  Patricio  County  (Civ.  App.)  182  S. 
W.  386:  Lafferty  v.  Wilson  (Civ. 
App.)  162  S.  W.  379;  Risinger  v.  Sul- 
livan (Civ.  App.)  161  S.  W.  397 ;  State 
v.  Halev  (Civ.  App.)  142  S.  W.  1003; 
Continental  Oil  &  Cotton  Co.  v. 
Thomj)son  (Civ.  App.)  136  S.  W.  1178 ; 
Stringfellow  v.  P.raselton,  117  S.  W. 
204,  54  Tex.  Civ.  App.  1;  Redmond  v. 
Sherman  Cotton  Mills  (Civ.  App.)  100 
S.  W.  186;  Highland  v.  Houston.  E.  & 
W.  T.  Ry.  Co.  (Civ.  App.)  65  S.  W.  649. 

Wash.  Chicago,  M.  &  St.  P.  Ry. 
Co.  v.  Alexander.  91  P.  620,  47  Wash. 
131. 


Instructions  held  erroneous 
within  rule.  In  an  action  against  a 
carrier  for  death  of  a  passenger, 
where  the  issues  as  to  whether  dece- 
dent was  guilty  of  contributory  neg- 
ligence and  whether  she  died  from 
natural  disease  were  sharply  contest- 
ed, the  giving  of  special  charges  re- 
quested by  defendant  and  calculated, 
by  reason  of  repetition  giving  undue 
prominence  to  the  defenses  of  con- 
tributory negligence  and  death  from 
other  than  her  injuries,  to  impress 
the  jury  with  the  belief  that,  in  the 
court's  opinion,  plaintiff  could  not  re- 
cover, was  error.  Sizemore  v.  St. 
Louis  &  S.  F.  Ry.  Co.  (Tex.  Civ.  App.) 
130  S.  W.  1024.  Where  in  an  action  for 
injuries  to  a  i)assenger  while  alighting 
from  defendant's  train,  the  court  in 
its  general  charge  submitted  the  ques- 
tion whether  the  box  on  which  its 
passengers  alighted  was  unfit  or  un- 
safe for  the  pui-pose;  another  charge 
requested  by  plaintiff  was  given  to  the 
effect  that  if  the  box  used  was  such 
as  was  ordinarily  used  by  defendant, 
and  the  jury  should  believe  that  by 
reason  of  its  size  and  construction  it 
was  not  a  proper  appliance,  and  that 
defendant  was  negligent  in  using  such 
box,  and  by  reason  of  such  negligence 
plaintiff  was  caused  to  fall,  then  to 
find  for  plaintiff  and  another  charge 
requested  and  given  was  that  if  the 
jury  believed  that  the  box  commonly 
used  by  defendant  in  discharging  its 
passengers,  would,  by  reason  of  its 
size  and   construction,   tip,   slip,   and 


739 


FORMAL  MATTERS 


§416 


To  emphasize  by  repetition  an  idea  already  contained  in  a  charge 
may  be  as  harmful  as  a  charge  on  the  weight  of  evidence,"  and 
the  judge  ought  not  to  repeat  a  rule  of  evidence,  when  by  so  domg 
the  jury  may  be  led  to  believe  that  the  rule  has  not  been  com- 
plied with  in  the  case  before  them.'«  It  is  held,  however,  that,  bur- 
den of  proof  being  a  legal  principle,  not  a  fact  issue,  the  repetition 
of  such  principle  in  instructions  cannot  mislead  the  jury  nito  the 
belief  that  the  court  entertains  views  on  fact  issues  adverse  to  the 
plaintiff." 


turn  over,  that  by  reason  of  such  fact 
it  was  an  unsafe  appliance,  and  that 
defendant  was  neg:ligent  in  using  such 
lx)x,  then  to  find  for  plaintiff,  and  the 
evidence  was  such  that  it  would  au- 
thorize-a  verdict  either  way,  it  was 
held  that  the  two  special  charges 
were  sutficiently  covered  by  the  gen- 
eral charge,  and  that  the  repetition 
tended  to  impress  on  the  jury  the 
idea  that  the  box  was  possibly  an  un- 
safe appliance.  Missouri,  K.  &  T.  Ry. 
Co.  of  Texas  v.  Dunbar.  108  S.  W. 
500,  49  Tex.  Civ.  App.  12.  The  re- 
iterating, in  instructions,  in  an  action 
against  a  railway  company  for  run- 
ning over  a  pedestrian  on  its  tracks 
by  a  train,  of  the  principles  of  law 
applicable  to  the  issue  of  contributory 
negligence,  is  erroneous,  as  giving  it 
undue  prominence.  Kroeger  v.  Texas 
&  P.  Ry.  Co.,  69  S.  W.  809,  30  Tex. 
Civ.  App.  87.  In  an  action  on  a  note 
given  for  the  purchase  price  of  land, 
and  to  foreclose  a  vendor's  lien  which 
defendant  claimed  was  waived,  it  was 
error  for  the  court  to  reiterate  in 
its  charge  that  "it  was  not  necessary 
that  there  should  be  any  contract, 
verbal  or  in  writing,  in  order  to  create 
a  vendor's  lien,"  and  that  "the  burden 
of  proof  rested  on  defendants  to  show 
a   waiver  of  the  lien,"   and   thereby 


give  undue  prominence  to  such  propo- 
sitions. Cross  V.  Kennedy  (Tex.  Civ. 
App.)  66  S.  W.  318. 

Repetition  of  instructions  on 
measure  of  damages.  The  giving 
of  several  instructions  on  the  question 
of  damages  has  not  a  tendency  to  lead 
the  jury  to  think  the  court  believes 
plaintiff  should  have  a  verdict;  the 
court  cautioning  them  that  they  are 
to  make  no  such  deduction,  and  all 
but  one  of  the  instructions  being 
worded  to  prevent  the  giving  of  exces- 
sive damages  in  the  event  of  a  verdict 
for  plaintiff.  Johnston  v.  Beadle,  91 
P.  1011,  6  Cal.  App.  2.51. 

V-.  Frisby  v.  Withers,  61  Tex.  134. 

Emphasizing  preponderance  of 
evidence  rule.  Repeating  12  times 
in  the  charge  that  the  jui->'  must  be- 
lieve "from  a  preponderance  of  the 
evidence"  the  facts  alleged  by  plain- 
tiff tended  to  emphasize  the  burden 
cast  by  law  on  plaintiff,  and  was  prob- 
ably harmful.  Cook  v.  Urban  (Tex. 
Civ.  App.)   107  S.  W.  251. 

T6  Hays  V.  Hays,  66  Tex.  606,  1  S. 
W.  895. 

7  7  Beattv  V.  Metropolitan  West  Side 
Elevated  R.  Co..  141  111.  App.  92: 
Dallas  Waste  Mills  v.  Texas  Cake 
&  Linter  Co.  (Tex.  Civ.  App.)  204  S. 
W.  S6S. 


417 


INSTRUCTIONS  TO  JURIES 


740 


G.  Argumentative  Instructions 

§  417.     General  rule 

Instructions  argumentative  in   form  are  objectionable,  whether 
given  in  civil  '*  or  in  criminal  cases,'®  and  it  is  proper  for  the  court 


7  8  Ala.  Dillworth  v.  Holmes  Furni- 
ture &  Vehicle  Co..  73  So.  2SS.  15  Ala. 
App.  340;  Gulfport  Fertilizer  Co.  v. 
Joues,  73  So.  145.  15  Ala.  App.  280; 
Alabama  Great  Southern  R.  Co.  v. 
Loveman  Compress  Co.,  72  So.  311, 
196  Ala.  683;  City  of  Tuscaloosa  v. 
Hill.  69  So.  486,  14  Ala.  App.  541, 
certiorari  denied  Ex  parte  Hill.  69  So. 
598.  194  Ala.  559:  Southern  Rr.  Co. 
V.  B.  L.  Kendall  &  Co.,  69  So.  328,  14 
Ala.  App.  242,  certiorari  denied  Ex 
parte  Southern  Ry.  Co.,  69  So.  1020, 
193  Ala.  681;  Birminsham.  E.  &  B.  Rl 
Co..v.  Feast,  68  So.  294.  192  Ala.  410; 
Gulsby  V.  Louisville  &  K  R.  Co..  52 
So.  392.  167  Ala.  122;  Loveman  v. 
Birmingham  Ry.,  L.  &  P.  Co.,  43  So. 
411,  149  Ala,  515 :  Wisdom  v.  Reeves, 

110  Ala.  418,  18  So.  13. 

Ark.  St.  Louis  Southwestern  Rv. 
Co.  T.  Aydelott,  194  S.  W.  873, 128  ArlJ. 
479;  St.  Louis,  I.  M.  &  S.  Rv.  Co.  v. 
Coke,  175  S.  W.  1177,  118  Avk  49. 

Cal.  Pierce  v.  United  Gas  &  Elec- 
tric Co.,  118  P.  700,  161  Cal.  176. 

Ga.  Smith  v.  Hazlehurst,  50  S.  E. 
917.  122  Ga.  786. 

111.  Grove  v.  Link,  201  111.  App. 
393;  Stoutenborough  v.  Miller,  188 
111.  App.  220;  Bacon  v.  Walsh,  184 
111.  App.  377;  Dickey  v.  Ghere,  163 
111.  App.  641 ;  Elgin,  A.  &  S.  Traction 
Co.  v.  Brown,  129  111.  App.  62 ;  Thorp 
V.  Goewey,  85  111.  611. 

Ind.     J.  F.  Darmody  Co.  v.  Reed, 

111  X.  E.  317,  60  Ind.  App.  662 ;  Chi- 
cago &  E.  I.  R.  Co.  v.  Mitchell,  105  N. 
E.  .396.  .56  Ind.  App.  354:  Louisville 
&  S.  I.  Traction  Co.  v.  Short,  83  N. 
E.  205,  41  ■  Ind.  App.  570. 

Ky.    Wills  V.  Tanner,  18  S.  W.  166. 

Mich.  O'Dea  v.  Michigan  Cent.  R. 
Co.,  105  N.  W.  746,  142  Mich.  265. 

Mo.  Eads  V.  Gait  Telephone  Co. 
(App.)  190  S.  W.  710;  Ruch  v.  Prvor 
(App.)  190  S.  W.  1037;  Ryley-Wilson 
Grocer  Co.  v.  Seymour  Canning  Co., 
108    S.   W.   628,    129   Mo.    App.    325; 


Johnston  v.  Atchison,  T.  &  S.  F.  Ry. 
Co.,  93  S.  W.  866,  117  Mo.  App.  .308. 

N.  C.  Starling  v.  Selma  Cotton 
Mills,  88  S.  E.  242,  171  N.  C.  222. 

Pa.  Webb  V.  Lees,  149  Pa.  13,  24 
A.  169. 

Tex.  Hegman  v.  Roberts  (Civ. 
App.)  201  S.  W.  268;  Hedrick  v. 
Smith  (Civ.  App.)  146  S.  W.  305; 
State  V.  Halev  (Civ.  App.)  142  S.  W. 
1003;  Ft.  Worth  &  R.  G.  Rv.  Co.  v. 
Dial,  85  S.  W.  22,  38  Tex.  (jiv.  App. 
260;  Lumsden  v.  Chicago.  R.  I.  &  T. 
Ry.  Co..  67  S.  W.  168.  28  Tex.  Civ. 
App.  225:  Cordill  v.  Moore,  43  S.  W. 
298.  17  Tex.  Civ.  App.  217. 

Wash.  Cowie  v.  Citv  of  Seattle, 
62  P.  121,  22  Wash.  659. 

Wis.  Bodenheimer  v.  Chicago  &  N. 
W.  Ry.  Co.,  123  X.  W.  148,  140  Wis. 
623 ;  Jones  v.  Monson,  119  X.  W.  179, 
137  Wis.  478,  129  Am.  St.  Rep.  1082. 

Illustratioirs  of  argumentative 
instructions.  An  instruction,  in  ac- 
tion to  rescind  contract  for  fraud, 
that  contracts  are  presumed  fair,  and 
that  the  party  attacking  them  had 
the  burden  of  proving  fraud.  Under- 
wood V.  Jordan  (Tex.  Civ.  App.)  166 
S.  W.  88.  Instruction  that  plaintiff 
could  not  recover  for  injury  to  ship- 
ment of  stock  if  his  agent  knew  of 
a  defective  condition  in  the  car,  and 
should  have  known  that  the  injury 
would  be  thus  caused.  X^ashville.  C.  & 
St.  L.  Ry.  V.  Hinds,  60  So.  409,  9  Ala. 
App.  534.  Instiuctions  that  though 
defendant  carrier's  conductor  told 
plaintiff  passenger  to  take  a  seat  in 
the  rear  car,  the  passenger  was  not 
required  to  do  so  immediately,  or  un- 
til safe  to  do  so,  and  that  the  con- 
ductor could  assume,  in  the  absence 
of  notice  to  the  contrary,  that  plain- 
tiff would  not  attempt  to  go  if  mani- 
festly dangerous  to  a   man  of  ordi- 

7  0  See  note  79  on  page  744. 


741 


FORMAL  MATTERS 


§417 


to  refuse  such  an  instruction.^"    Such  instructions  are  improper,  for 


nary  prudence.  Birmingham  Ry., 
Light  &  Power  Co.  v.  Yates,  53  So. 
915,  109  Ala.  381.  An  instruction 
"that  the  law  does  not  impose  on  the 
railroad  company  the  duty  of  so  pro- 
viding for  the  safety  of  persons  go- 
ing from  the  train  to  the  boat,  in  this 
case,  that  they  will  encounter  no  pos- 
sible danger  and  meet  with  no  casu- 
alties in  the  use  of  the  appliances  pro- 
vided." Yazoo  &  M.  V.  R.  Co.  v.  Hill, 
216  S.  W.  1054,  141  Ark.  378.  An  in- 
struction, in  an  action  against  a  car- 
rier for  injuries  to  a  passenger,  that 
there  was  no  evidence  tending  to 
show  any  negligence  on  the  part  of 
the  motorraan  which  was  the  proxi- 
mate cause  of  plaintiff's  iniuiy. 
Mobile  Light  &  R.  Co.  v.  Walsh.  40 
So.  560,  146  Ala.  295.  An  instnic- 
tion,  in  an  action  for  injuries  to  a 
passenger  by  the  derailment  of  the 
train,  that  there  was  no  evidence 
that  there  was  anything  the  matter 
with  the  engine  that  caused  the 
wreck,  and  that  the  jury  could  not 
find  that  any  defect  in  the  engine 
caused  the  wreck ;  that  if  they  found 
for  the  passenger,  it  must  be  on  ac- 
count of  something  other  than  the 
condition  of  the  engine.  Texas  &  P. 
Ry.  Co.  V.  Mosley  (Tex.  Civ.  App.) 
124  S.  W.  485.  A  charge  that  contin- 
uance was  refused  only  because  plain- 
tiff agreed  to  admit  what  an  absent 
witness  would  swear,  and  that  it 
would  be  manifestly  unfair  for  the 
jury  not  to  give  his  evidence  the  same 
weight  as  if  he  had  been  present. 
Kansas  City,  M.  &  B.  R.  Co.  v.  Hen- 
son,  31  So.  590,  132  Ala.  528.  An  in- 
struction, in  an  action  by  a  firm  for 
corn  shipped  to  defendant  for  sale, 
that  the  contract  on  which  the  suit 
was  based  was  merged  into  the  writ- 
ten letters  of  a  partner  to  defendant 
and  the  letters  of  defendant  to  the 
partner,  and  that  the  jury  might  look 
to  the  letters  to  determine  with  whom 
the  contract  was  made.  Dorough  v, 
G.  M.  Harrington  &  Son.  42  So.  557, 
148  Ala.  305.  A  charge  that  the 
jury  could  not  assess  damages  for 
mental,  pain  and  anguish.  Western 
Union  Telegraph  Co.  v.  Griffith,  50 
So.  91,  161  Ala.  241.     An  instruction, 


in  an  action  for  negligent  death,  in 
which  the  issues  were  whether  a  set- 
tlement pleaded  in  defense  was  fraud- 
ulent and  whether  the  administratrix 
was  competent  to  make  it,  that  it  was 
the  policy  of  the  law  to  favor  private 
settlements.  Loveman  v.  Birmingham 
Ry.,  L.  &  P.  Co.,  43  So.  411,  149  Ala. 
515.  An  instruction,  in  an  action  for 
causing  death,  that  the  damages  re- 
coverable are  not  intended  to  com- 
pensate the  parents  for  the  death  of 
their  son,  but  would  be  siich  sum  as 
would  be  sufficient  to  punish  the  act 
done,  and  if  defendant's  engineer  ran 
the  engine  against  deceased  through 
mere  negligence  or  error  of  judgment 
plaintiff  ought  not  to  recover  as  much 
as  if  he  had  wantonly  or  intentional- 
ly nui  his  train  into  decedent.  South- 
ern Ry.  Co.  V.  Smith,  55  So.  913.  173 
Ala.  697.  An  instruction,  in  an  ac- 
tion for  personal  injuries,  that  de- 
fendant had  no  absolute  right  to  have 
tlie  plaintiff  examined  to  determine 
the  extent  of  her  injuries.  Birming- 
ham Ry.,  Light  &  Power  Co.  v.  King, 
42  So.  612,  149  Ala.  504.  A  charge 
that  "an  opprobrious  epithet,  convey- 
ing the  ideaj  of  a  lack  of  chastity, 
would  to  a  wanton  cause  no  pain, 
while,  applied  to  a  pure  and  gentle 
wife,  no  tongue  can  tell  the  anguish, 
the  shame,  the  sense  of  humiliation, 
it  would  bring."  Hanna  v.  Hanna,  3 
Tex.  Civ.  App.  51,  21  S.  W.  720.  In- 
structions, in  ejectment,  that  the  lo- 
cation of  the  land  was  a  physical  fact 
'to  be  determined  by  the  jury,  that  the 
testimony  of  certain  expert  Avitness- 
es  should  not  be  considered  as  that  of 
experts,  but  merely  as  that  of  wit- 
nesses t(>stifying  to  such  particular 
physical  facts,  and  that  as  to  physi- 
cal facts,  such  as  the  location'  of 
streams  or  bluffs  thereof  and  their 
meanderings.  the  testimony  of  those 
who  knew  the  facts  was  as  worthy  of 
belief  as  that  of  experts.  Chappell 
v.  Roberts,  43  So.  489,  150  Ala.  457. 
A  charge  that,  "when  plaintiff  come? 
into  court  and  undertakes  to  sustain 
his  case  by  oral  admissions  of  his  ad- 
versary after  the  suit  has  been  com- 

80  See  note  80  on  page  746. 


417 


INSTRUCTIONS  TO  JURIES 


742 


the  reason  that  they  violate  the  rule  that  they  should  be  clear  and 


raenced,  such  testimony  should  be  re- 
ceived with  caution,  because  of  the 
improbability  that  a  party  would 
pialie  statements  prejudicial  to  him- 
self, and  because  of  the  frailty  of 
memory  of  witnesses,  and  their  lia- 
bility to  misunderstand  the  words 
used."  Riddle  v.  Webb,  110  Ala.  599, 
18  So.  323.  A  charge  that  the  law 
abhors  fraud.  McClendon  v.  McKis- 
sack.  38  So.  1020,  143  Ala.  188.  A 
charge  that  an  accusation  of  slander 
is  easy  to  be  brought  and  hard  to 
defend,  though  the  defendant  be  in- 
nocent. McLaughlin  v.  Beyer,  61  So. 
62,  181  Ala.  427.  An  instruction,  in 
an  action  for  injuries  to  a  servant, 
that  the  burden  of  proof  is  on  plain- 
tiff, and  that,  if  the  jury  found  that 
there  was  a  disputed  fact  left  in 
doubt,  they  should  find  the  fact  for 
defendant.  Woodward  Iron  Co.  v. 
Sheehan,  52  So.  24,  160  Ala.  429.  An 
instruction,  in  an  action  for  death  of 
a  servant  while  riding  certain  cars 
down  an  incline,  that  no  duty  rested 
on  intestate's  foreman  to  instruct  him 
about  riding  the  cai*s  down  the  in- 
cline, if  the  danger  was  obvious  and 
intestate  was  sufficiently  developed 
to  understand  the  danger,  was  prop- 
erly refused  as  argumentative. 
Woodstock  Iron  Works  v.  Kline.  43 
So.  362,  149  Ala.  391.  An  instruc- 
tion, in  an  action  for  the  death  of  a 
child  stnick  by  a  train,  that  the  en- 
gineer did  not  discover  the  child  un- 
til he  became  aware  that  the  object 
he  saw  onj  the  track  was  a  hmnan 
being.  Southern  Ry.  Co.  v.  Smith,  50 
So.  390,  16:?  Ala.  174.  A  charge  that, 
if  any  individual  juror  should  believe 
that  decedent's  negligence  contributed 
in  the  slightest  degree  to  his  death, 
plaintiff  could  not  recover  on  certain 
counts.  Alabama  Great  Southern  R. 
Co.  T.  Hanbury,  49  So.  467,  161  Ala. 
358.  Instruction,  in  an  action  for 
death  of  a  child,  caused  by  falling 
into  a  drain  into  which  was  dis- 
charged hot  water  from  a  mill,  that 
it  was  not  necessary  to  prove  that 
the  pool  of  water  was  not  of  itself 
attractive  to  children  was  properly 
refused  as  argumentative.  Thompson 
v.  Alexander  City   Cotton   Mills  Co., 


67  So.  407,  190  Ala.  184,  Ann.  Cas. 
1917A,  721.  An  instruction  that  the 
law  is  that  one  who  has  by  his  neg- 
ligence proximately  contributed  to 
his  injury  cannot  recover  damages 
against  another  who  has  negligently 
caused  his  death,  and  that  the  rule  is 
applicable  though  the  person  injured 
is  under  14  years  of  age,  if  he  has  suf- 
ficient mental  capacity.  Moss  v.  Mos- 
ley,  41  So.  1012,  148  Ala.  168.  An  in- 
struction, in  a  suit  for  maintaining  a 
nuisance  by  allowing  filth  to  accumu- 
late near  plaintiff's  lot,  that  in  the 
nature  and  conditions  of  society  nu- 
merous annoyances  arise  which  do  not 
give  rise  to  liability,  that  the  injury 
must  be  real,  and  not  imaginary  or 
whimsical,  and  must  be  material,  and 
not  simply  inconvenience  or  trifling 
interruption,  and  that,  unless  such 
injury  had  been  inflicted,  the  jury 
should  find  for  defendant.  N.  K. 
Fairbank  Co.  v.  Nicolai,  47  N.  E.  360, 
167  111.  242.  An  instruction,  in  an  ac- 
tion for  damages  for  maintaining  a 
nuisance  by  discharging  oil  and  wa- 
ter into  the  street  and  upon  plain- 
tiff's property,  that,  even  though  the 
jury  find  that  plaintiff's  property  was 
located  in  a  manufacturing  district, 
defendant  would  be  liable  in  dam- 
ages if  the  jury  believed  that  it  was 
guilty  of  maintaining  a  nuisance 
close  to  plaintiff's  residence,  as  the 
terra  "nuisance"  was  therein  defined, 
and  that  plaintiff  suffered  inconveni- 
ence therefrom.  Continental  Oil  &  " 
Cotton  Co.  V.  Thompson  (Tex.  Civ. 
App.)  1.36  S.  W.  1178.  An  instruction, 
in  an  action  to  recover  compensation 
for  medical  services  rendered,  that 
there  is  nothhig  more  sacred  about  the 
account  of  a  physician  than  any  other 
indebtedness,  and  that  if,  from  the 
facts  in  the  case,  the  jury  find  that 
there  was  no  agreement  as  to  fee  to 
be  charged,  then  the  plaintiff  is  only 
entitled  to  a  reasonable  fee  for  serv- 
ices actually  rendered,  as  proven  by 
the  evidence.  Morrisette  v.  Wood,  26 
So.  307,  123  Ala.  384,  82  Am.  St.  Rep. 
127.  An  instruction,  in  an  action 
against  a  railroad  for  Injuries  to  a 
traveler  on  a  highway,  caused  by  his 
mule  taking  fright  at  a   mail   crane 


743  FORMAL  MATTERS  §  417 

concise,  presenting  only  the  point  or  matter  of  law  on  which  the 


erected  at  a  crossing,  that  the  term 
"a  mule  of  ordinary  gentleness,"  as 
used  in  the  complaint,  does  not  mean 
any  particular  mule  which  is  ordi- 
narily gentle,  but  means  a  mule  which 
is  as  gentle  as  ordinarily  gentle  mules. 
Western  Ily.  of  Alabama  v.  Cleghorn, 
39  So.  133,  143  Ala.  392.  A  charge 
that  the  degree  of  care  required  of 
one  entering  the  railroad  tracks  of 
defendant  to  discover  and  avoid  In- 
jury from  an  approaching  engine  was 
as  great  as  that  which  devolved  on 
defendant's  employt^s  to  discover  and 
avoid  injuring  plaintiff,  and,  if  the 
jury  believed  that  if  plaintiff  had  ex- 
ercised as  high  a  degree  of  care  to 
guard  against  injury  as  defendant's 
employes  should  have  observed  to 
avoid  injuring  plaintiff,  plaintiff 
would  not  have  been  injured,  he  could 
not  recover,  was  properly  refused  as 
argumentative.  Missouri,  K.  .  &  T. 
Ry.  Co.  of  Texas  v.  Owens  (Tex.  Civ. 
App.)  75  S.  W.  579.  An  Instruction, 
in  an  action  against  a  railroad  for  the 
destruction  of  cotton  by  sparks  al- 
leged to  have  been  emitted  from  an 
engine,  that  the  mere  fact  that  plain- 
tiff's property  was  discovered  to  be 
on  fire  soon  after  the  passage  of  one 
of  the  defendant's  engines  I'aised  no 
presumption  that  the  fire  originated 
by  sparks  escaping  from  such  engine. 
Alabama  Great  Southern  R.  Co.  v. 
Sanders,  40  So.  402,  145  Ala.  449. 
An  instruction,  in  an  action  against 
a  railway  company  for  a  fire  caused 
by  sparks  emitted  from  a  locomotive, 
that  the  company  was  required  to 
exercise  the  utmost  care  in  running 
through  a  town  where  wooden  build- 
ings were  situated  so  near  to  the 
track  as  to  be  exposed  to  fire"  that 
might  come  in  large  and  dangerous 
(luantities  from  its  locomotives,  and 
especially  so  if  at  the  time  the  wind 
was  blowing  towards  the  buildings, 
etc.  Sherrill  v.  Louisville  &  N.  R. 
Co.,  44  So.  1.j3,  148  Ala.  1.  An  in- 
struction, in  an  action  against  a  rail- 
road company  for  injuries  resulting 
from  a  fire  set  by  defendant's  engine, 
that  the  mere  fact  that  th(>  fire  orig- 
inated from  sparks  emitted  from  an 
engine  is  not  sufficient  to  fasten  a  li- 


ability upon  the  railroad  company, 
and/  that  the  mere  fact  that  a  fire 
occurred  along  tlie  line  of  defend- 
ant's road  does  not  raise  a  presump- 
tion that  it  was  caused  by  or  origi- 
nated from  defendant's  engine.  Bir- 
mingham Ry.,  Light  &  Power  Co.  v. 
Martin,  42  So.  618,  148  Ala.  8.  An  in- 
struction in  an  action  for  damages  for 
breach  of  a  written  warranty  as  to 
the  time  a  steel  cable  would  wear 
which  calls  specific  attention  as  to 
putting  otlier  cables  in  use.  Metro- 
politan St.  Ry.  Co.  v.  Broderick  & 
Bascom  Rope  Co.,  137  S.  W.  633,  150 
Mo.  App.  640.  An  instruction,  in  an 
action  to  recover  wagons,  obtain- 
ed by  defendants  from  a  third  per- 
son, that  defendant's  knowledge,  be- 
fore the  purchase  of  the  stock  of 
such  third  person,  that  defendants 
owed  plaintili  for  the  wagons,  was  not 
alone  sufficient  to  put  them  on  notice 
of  fraud  of  such  third  person  in  ob- 
taining the  wagons.  Parlin  &  Oren- 
dorff  Co.  V.  Glover,  118  S.  W.  731,  55 
Tex.  Civ.  App.  112.  An  instruction  of- 
fered by  street  railroad  in  a  personal 
injury  action,  that  it  could  only  be 
held  liable  for  a  defect  in  its  right  of 
way  if  the  defect  was  sucli  as  would 
make  its  codefendant,  the  citv,  liable. 
Fowler  v.  Chicago  Rys.  Co.,  120  N.  E. 
635,  285  111.  196,  affirming  judgment 
207  111.  App.  430.  An  instruction,  in 
an  action  for  damages  to  a  horse  and 
buggy  from  a  collision  with  a  team 
of  oxen  and  wagon  on  a  public  bridge, 
that  public  bridges  are  for  the  use 
of  oxen  and  drays  as  much  as  for 
horses  and  buggies.  Cohn  &  Gold- 
berg Lumber  Co.  v.  Robbins,  48  So. 
S.53,  159  Ala.  289.  An  instruction,  in 
an  action  for  delay  in  delivering  a 
telegram,  sent  by  plaintiff's  agent, 
that  it  was  possible  that  plaintiff 
understood  that  the  agent  was  acting 
for  her  when  he  went  to  send  the 
message,  but  the  evidence  must  show 
that  he  agreed  to  act  as  agent.  West- 
ern Union  Telegraph  Co.  v.  Xorthcutt, 
48  So.  553,  158  Ala.  539,  132  Am.  St. 
Rep.  38.  An  instruction,  in  an  action 
for  delay  in  delivering  a  death  tele- 
gram, that  the  jury  should  consider 
that  plaintiff  was  one  of  six  living 


§  417  INSTRUCTIONS  TO  JURIES  744 

party  asking  them  may  rely,*^  and  for  the  further  reason  that  they 


brothers,  and  that  five  of  them  and 
all  four  of  the  sisters  were  at  the 
burial,  in  determining  whether  plain- 
tiff suffered  great  mental  pain  as  a 
result  of  the  absence  of  the  sixth 
brother.  Western  Union  Telegraph 
Co.  V.  Benson,  48  So.  712,  159  Ala. 
254.  An  instruction,  in  an  action  for 
trespass  to  land  by  cutting  timber 
thereon,  that,  if  plaintiff  could  not 
read,  the  jury  should  more  carefully 
scrutinize  the  transaction  in  which  a 
deed  to  the  timber  to  defendant  was 
signed  by  her  and  her  husband,  and 
if  a  false  representation  Avas  made 
to  her  as  to  the  nature  of  the  deed, 
and  such  representations  were  made 
with  knowledge  of  their  falsity,  and 
plaintiff  believed  them  to  be  true,  the 
jury  should  find  the  deed  was  obtain- 
ed bv  fraud.  Davis  v.  Miller  Brent 
LumlDer  Co.,  44  So.  639,  151  Ala.  580. 
An  instruction,  in  an  action  for  inju- 
ries caused  by  the  pollution  of  a 
stream  with  coal  dust  and  other  for- 
eign matter,  which  by  overflow  of 
the  stream  were  deposited  on  the 
land  of  a  riparian  owner,  that  the 
law  takes  into  consideration  the 
fact  that  the  use  by  mining  com- 
panies of  streams  will  result  in  some 
impairment  of  the  quality  of  the  wa- 
ter, aud  that  if  the  use  by  defendant 
did  not  of  itself  greatly  impair  the 
quality  of  water  the  jury  must  find 
for  defendant,  was  properly  refused, 
as  argumentative.  Alabama  Consol. 
Coal  &  Iron  Co.  v.  Vines,  44  So.  377, 
151  Ala.  398.  An  instruction  that  the 
will  of  an  aged  and  weak-minded  per- 
son should  not  be  sustained,  unless  it 
appears  that  her  property  was  fairly 
and  voluntarily  disposed  of.  Shirley 
V.  Ezell,  60  So.  905,  180  Ala.  352.  A 
clause  in  an  instruction,  in  a  will  con- 
test on  the  grovuid  of  mental  in- 
capacity and  undue  Influence,  that 
wills  are  often  made  in  extremis,  and 
when  the  bodily  powers  are  broken 
and  mental  faculties  enfeebled.  Huff- 
man V.  Graves,  92  N.  E.  2S9,  245  111. 
440.  An  instruction  that  the  evidence 
of  the  attesting  witnesses  to  the  al- 
leged will  is  not  entitled  to  any  great- 
er weight  than  the  evidence  of  other 


witnesses  as  to  the  testamentary  ca- 
pacity of  testator.  Cummings  v.  Mc- 
Donnell, 66  So.  717,  189  Ala.  96. 

Instructions  Iield  not  argumen- 
tative. A  charge,  in  an  action  for 
wrongful  death  from  the  alleged  neg- 
(ligent  operation  of  an  automobile 
owned  by  the  defendant  father  and 
driven  by  the  defendant  son,  bearing 
on  alleged  negligence  of  son,  and 
pointing  out  items  of  negligence 
pleaded  on  which  alone  sufficient  evi- 
dence had  been  adduced.  Johnson  v. 
Smith,  173  N.  W.  675,  143  Minn.  350. 

7  9  Ala.  Burton  v.  State,  69  So.  913, 
194  Ala.  2;  Smith  v.  State,  69  So. 
402,  13  Ala.  App.  399.  certiorari  de- 
nied Ex  parte  Smith,  69  So.  1020,  193 
Ala.  680 ;  Roden  v.  State,  69  So.  366, 
13  Ala.  App.  105;  Jones  v.  State,  69 
So.  66,  193  Ala.  10;  Anderson  v. 
State  (Sup.)  68  So.  56;  Ragsdale  v. 
State,- 67  So.  783,  12  Ala.  App.  1; 
James  v.  State,  67  So.  773,  12  Ala. 
App.  16 ;  Maxwell  v.  State,  07  So.  772, 
12  Ala.  App.  212;  Ware  v.  State,  67 
So.  763.  12  Ala.  App.  101 ;  Rector  v. 
State,  66  So.  857.  11  Ala.  App.  333; 
Wise  V.  State,  66  So.  128,  11  Ala.  App. 
72;  Bryant  v.  State,  64  So.  333,  185 
Ala.  8 ;  Waldrop  v.  State,  64  So.  80, 
185  Ala.  20 ;  Clayton  v.  State,  64  So. 
76,  185  Ala.  13;  Mizell  v.  State,  63 
So.  1000,  184  Ala.  1©;  Brooks  v. 
State,  62  So.  569,  8  Ala.  App.  277, 
judgment  reversed  64  So.  295.  185  Ala. 
1;  Bone  v.  State,  62  So.  455,  S  Ala. 
App.  59;  Chestnut  v.  State,  61  So. 
609,  7  Ala.  App.  72;  Brock  v.  State 
(App.)  61  So.  474;  Gaston  v.  State, 
60  So.  805.  179  Ala.  1 ;  Black  v.  State, 
59  So.  692.  5  Ala.  App.  87;  Gardner 
V.  State,  58  So.  1001.  4  Ala.  App.  131 ; 
Barney  v.  State,  57  So.  598,  5  Ala. 
App.  302;  Savage  v.  State,  57  So. 
469,  174  Ala.  94 ;  Pope  v.  State,  57  So. 
245,  174  Ala.  63;  Fowler  v.  State, 
54  So.  115,  170  Ala.  65;  Turner  v. 
State,  49  So.  828,  160  Ala.  40 ;  Kirby 
V.  State,  44  So.  38,  151  Ala.  66;  Allen 
V.  State,  42  So.  1006,  148  Ala.  588; 
Simmons   v.    State,   40    So.    660,    145 

«i  Bray  v.  Ely,  105  Ala.  553,  17  So. 
ISO. 


745 


FORMAL  MATTERS 


417 


have  a  tendency  to  lead  the  court  to  invade  the  province  of  the 


Ala.  61;  Jefferson  v.  State,  110  Ala. 
89.  20  So.  434. 

Ark.  Mason  v.  State,  192  S.  W. 
207,  127  Ark.  289:  Stevens  v.  State, 
174  S.  W.  219.  117  Ark.  64;  Lee  v. 
State,  172  S.  W.  1025.  116  Ark.  588; 
Tiner  v.  State,  172  S.  W.  1010.  115 
Ark.  494;  Taylor  v.  State,  169  S.  W. 
341,   113   Ark.   520;     White   v.   State, 

152  S.  W.  163,  105  Ark.  098 ;  Boiling 
V.  State,  54  Ark.  588,  16  S.  W.  6G8. 

Cal.  People  v.  Lopez,  165  P.  722, 
33  Cal.  App.  530 ;    People  v.  Converse, 

153  P.  734,  28  Cal.  App.  687;  People 
V.  Clayber«:,  147  P.  994,  26  Cal.  App. 
614 ;  People  v.  Wilson,  138  P.  971,  23 
Cal.  App.  513 ;  People  v.  Cramley, 
138  P.  123.  23  Cal.  App.  340 :  People 
V.  Kawasaki,  137  P.  287.  23  Cal.  App. 
92;  People  v.  Hatch.  125  P.  907,  163 
Cal.  368 ;  People  v.  Smith,  110  P.  333, 
13  Cal.  App.  627 ;  People  v.  Howland, 
109  P.  894,  13  Cal.  App.  363 ;  People  v. 
Holden,  109  P.  495,  13  Cal.  App.  354 ; 
People  V.  Muhly,  104  P.  466,  11  Cal. 
App.  129 :  People  v.  McNamara,  94 
Cal.  509,  29  P.  953. 

Colo.  McQuearv  v.  People,  110  P. 
210.  48  Colo.  214,  21  Ann.  Cas.  560. 

Fla.  Wolf  V.  State.  73  So.  740; 
Bass  V.  State,  50  So.  531,  58  Fla.  1 ; 
Baldwin  v.  State,  35  So.  220,  40  Fla. 
115. 

Ga.  Harris  v.  State,  70  S.  E.  952, 
136  Ga.  107:  Jackson  v.  State,  64  S. 
E.  653,  132  Ga.  546;  IMiles  v.  State, 
93  Ga.  117.  19  S.  E.  805,  44  Am.  St. 
Rep.  140;  Beck  v.  State,  76  Ga.  452; 
lUyc:^  V.  State,  58  Ga.  35. 

Idaho.  State  v.  Marren,  107  P. 
993,  17  Idaho,  766;  State  v.  Fleming, 
106  P.  305,  17  Idaho,  471. 

111.  People  V.  Keating,  93  N.  E.  95, 
247  111.  76:  Zuckerman  v.  People,  72 
N.  E.  741.  213  111.  114;  Gent  v.  Peo- 
ple. 1.33  111.  App.  159. 

Micli.  People  v.  Janpma,  147  N. 
W.  600,  181  Mich.  62;  People  v.  Du- 
pree,  141  N.  W.  672,  175  Mich.  632; 
People  V.  Conlon,  114  N.  W.  1013,  151 
Mich.  200;  People  v.  Ilanaw,  65  IST, 
W.  231,  107  Mich.  337. 

Minn.  State  v.  Yates,  109  N.  W. 
1070,  99  Minn.  461. 

Mo.  State  v.  Brown  (App.)  193  S. 
W.  902;    State  v.  Chinn,  133  S.  W. 


1196,  153  Mo.  App.  611;  State  v. 
Ileetwood,  127  S.  W.  934,  143  Mo. 
App.  698;  State  v.  Sebastian,  114  S. 
W.  522,  215  IMo.  58. 

Nev.  State  V.  Buralli,  71  P.  532, 
27  Nev.  41. 

Okl.  Love  V.  State,  150  P.  913, 
12  Okl.  Cr.  1 ;  Miller  v.  State,  131  P. 
717.  9  Okl.  Cr.  255,  L.  R.  A.  1915A, 
3088 ;  Price  v.  State,  98  P.  447,  1  Okl. 
Cr.  358. 

Tenn.  Cooper  v.  State,  138  S.  W. 
826.  123  Tenn.  37. 

Tex.  Head  v.  State,  175  S.  W. 
1062,  76  Tex.  Cr.  R.  496 ;  Bradley  v. 
State,  132  S.  W.  484.  60  Tex.  Cl*.  .398. 

Utah.  State  v.  McCurtain,  172  P. 
481,  52  Utah,  63;  State  v.  Romeo,  128 
P.  530,  42  Utah,  46. 

Va.  Gottlieb  v.  Commonwealth, 
101  S.  E.  872,  126  Va.  807. 

Illustrations  of  instructions 
held  objectionable  Mirithin  rule. 
An  instruction  that  the  .jury  were  to 
decide  the  case  upon  the  law  given 
by  the  court  and  the  evidence  from 
the  witnesses  and  nothing  more. 
West  V.  State,  75  So.  709,  16  Ala.  App. 
117.  An  irLstruction  containing  a 
general  dissertation  on  the  rights  of 
accused  to  life  and  liberty,  the  du- 
ties of  jurors,  and  the  importance  of 
convicting  the  guilty,  informing  the 
jury  as  to  the  method  by  which  they 
were  chosen,  the  reason  why  they 
were  impaneled,  and  that  they  were 
selected  as  intelligent  and  qualified' 
jurors.  People  v.  Davidson,  88  N.  E. 
565,  240  111.  191.  An  instruction  that 
"No  exact  definition  of  an  overt  act 
can  be  given.  It  may  be  a  motion, 
a  gesture,  conduct  or  demonstration, 
or  anything  else  that  evidences  a 
present  design  to  take  the  life  of  de- 
fendant or  to  do  him  great  bodily 
harm.  Trifles,  light  as  air  when 
viewed  alone,  may  become  fraught 
with  deadly  meaning,  when  viewed 
in  connection  with  all  the  preceding 
facts  disclosed  and  with  all  the  evi- 
dence in  the  case."  GrifTm  v.  State, 
50  So.  962,  165  Ala.  29.  A  charge,  in 
a  prosecution  against  an  agent  for 
embezzling  two  sums,  made  up  of 
items  which  he  had  failed  to  ent-^r 
in  his  cash  book,  one  of  which  svims 


417 


INSTRUCTIONS   TO   JURIES 


746 


jury  in  determining-  the  weight,  probative  effect,  and  sufficiency 


lie  had  paid  back,  tliat  defendant  was 
not  being  tried  for  failing  to  do  his 
duty  in  regard  to  making  entries  in 
his  cash  book,  and  that,  if  the  jury 
had  a  reasonable  doubt  as  to  wiiether 
defendant  embezzled  the  sum  he  liad 
not  paid  back,  then  they  must  acquit 
him.  Willis  v.  State,  33  So.  226,  134 
Ala.  429.  A  charge,  in  an  instriiction 
for  murder,  that  there  is  no  evidence 
of  the  good  character  of  the  de- 
ceased, and  the  jury  may  look  to 
the  circumstances  of  the  caf^e  to  de- 
termine whether  deceased  was  a  tur- 
bulent and  violent  man.  Kennedy  v. 
State,  40  So.  65S,  147  Ala.  687.  A 
charge  that  the  .jury  were  not  requir- 
ed to  find  who  did  the  shooting,  unless 
they  should  be  convinced  beyond  a 
reasonable  doubt  that  defendant  did 
it.  Spraggins  v.  State,  35  So.  1000, 
139  Ala.  93.  A  charge,  in  a  prosecu- 
tion for  homicide,  that  the  jury  are 
to  try  the  case  according  to  the  law 
and  the  evidence,  and  not  according 
to  their  opinion  as  to  whether  public 
peace  and  good  order  would  be  pro- 
moted bv  conviction  of  accused.  Mc- 
Ghee  v.  State,  59  So.  573,  178  Ala.  4. 
An  instruction  that  the  mere  fact  that, 
if  any  one  of  the  witnesses  said  that 
they  had  not  talked  to  any  one  about 
the  evidence,  it  was  immaterial  evi- 
dence, and  should  not  be  considered 
in  disregarding  any  witness'  testimo- 
ny on  any  material  point,  or  in  dis- 
crediting a  witness'  testimony  on  any 
material  point.  Patton  v.  State,  46 
So.  862,  156  Ala.  23.  A  charge,  in  a 
prosecution  for  larceny  of  cheese,  that 
if  accused  was  employed  by  H.,  and  at 
time  he  put  the  cheese  on  the  wagon 
did  so  under  instruction  or  direction 
of  a  person  over  him,  and  did  so  open- 
ly and  notoriously,  a  strong  presump- 
tion arises  that  there  was  no  guilty 
intent  to  deprive  the  owner  of  the  uss 
thereof,  which  must  be  rebutted  by 
strong  and  convincing  evidence  to  the 
contrary  before  a  conviction  will  be 
authorized.  Hamilton  v.  State,  82 
So.  557,  17  Ala.  App,  109.  A  charge 
that  the  character  of  a  man  is  made 
from  his  whole  life,  etc.,  that  it 
would   make   no    difference    whether 


accused's  sister  had  gone  wrong  be- 
fore she  did  with  decedent,  yet  he 
had  the  right  to  reclaim  and  to  con- 
tinue his  efforts  in  that  direction,  and 
the  jury  have  the  right  to  look  to  all 
the  evidence  along  that  line  in  deter- 
mining the  conduct  of  decedent  and 
accused  at  the  time  decedent  was  kill- 
ed, and  that  accused  had  the  right 
to  consider  the  welfare  of  his  sister, 
and  to  use  all  means  for  her  good  that 
were  not  in  violation  of  law. '  Mnn- 
teith  V.  State,  49  So.  777,  161  Ala.  18. 

Instr-tictions  held  not  improper 
ivitliin  r-ale.  A  charge,  in  a  murder 
trial,  distinguishing  between  the  dis- 
eased and  deranged  condition  of  the 
mind  rendering  a  person  incapable  of 
distinguishing  between  right  and 
wrong,  constituting  insanity,  which 
the  law  recognizes  as  a  defense,  and 
mere  moral  insensibility,  passion,  etc., 
which  is  not  a  defense,  and  caution- 
ing the  jury  to  observe  the  distinc- 
tion. People  v.  Clark.  90  P.  549.  151 
Cal.  200.  An  instruction  that,  if  de- 
fendant's only  connection  with  the 
sale  was  in  depositing  a  package  be- 
hind a  counter,  and  in  chanEring  a  dol- 
lar for  the  upgro  who  sold  the  whis- 
ky, and.  if  he  in  no  way  aided  in  the 
sale  or  delivery,  the  jury  should  find 
for  defendant.  Tliomas  v.  State.  68 
So.  549.  12  Ala.  App.  293.  A  charge, 
on  a  trial  for  pursuing  the  busi- 
ness of  selling  liquors,  that  the  state 
was  not  required  to  show  that  such 
business  or  occupation  was  accus- 
ed's principal  business  or  occupa- 
tion, but  that  if,  although  engaged 
in  his  usual  occupation,  he  secretly 
sold  liquors,  he  would  be  guilty. 
Dickson  v.  Stnte,  146  S.  W.  914,  66 
Tex.  Cr.  R.  270. 

Effect  of  statute.  A  statute  de- 
claring that  it  is  beyond  the  prov- 
ince of  a  judge  sitting  in  criminal 
causes  to  use  any  argument  in  his 
charge  calculated  to  excite  the  sym- 
pathies or  passions  of  the  jury  does 
not  prohibit  argumentative  charges  to 
juries,  but  only  such  as  are  referred 
to.     Cesure  v.  State,  1  Tex.  App.  19. 

sou.  S.  (C.  C.  A.  Cal.)  San  Pedro, 
L.  A.  &  S.  L.  R.  Co.  v.  Thomas,  187  i^'. 


747 


FORMAL  MATTERS 


§417 


of  the  evidence,  and  what  inferences  of  fact  should  be  drawn  there- 
from.^^ 


790,  109  C.  C.  A.  638;  Northern 
Central  Coal  Co.  v.  Barrowman,  24G 
F.  90G,  159  C.  C.  A.  178. 

Ala.  Johnson  v.  Johnson,  77  So. 
335.  201  Ala.  41,  G  A.  L.  R.  1031; 
Boshell  V.  Cunningham,  76  So.  937, 
200  Ala.  579;  Wear  v.  Wear,  76  So. 
Ill,  200  Ala.  345 ;  Kelly  v.  Cook,  73 
So.  220,  15  Ala.  App.  350;  Alabama 
Fuel  &  Iron  Co.  v.  Baladoni,  73  So. 
205,  15  Ala.  App.  316;  Jackson  v. 
Roanoke  Banking  Co.,  72  So.  530,  197 
Ala.  349 ;  Hooper  v.  Herring,  70  So. 
308,  14  Ala.  App.  455 ;  Sibley  v.  Bar- 
clay, 70  So.  201,  14  Ala.  App.  422; 
certiorari  denied  Ex  parte  Barclay, 
70  So.  1012,  195  Ala.  694;  Orr  v. 
Stewart,  69  So.  649.  13  Ala.  App.  542 ; 
Birmingham  Ry.,  Licht  &  Power  Co. 
V.  Donaldson,  68  So.  596,  14  Ala.  App. 
160;  Moon  v.  Benton,  68  So.  589,  13 
Ala.  App.  473 ;  Manley  v.  Birming- 
ham Ry.,  Light  &  Power  Co.,  68  So. 
60.  191  Ala.  531;  Southern  Ry.  Co. 
V.  Harrison,  67  So.  597,  191  Ala.  43(3. 
Birmingham  Rv.,  Light  &  Power  Co. 
V.  Hass,  67  So.  504,  190  Ala.  273; 
Johnson  v.  Colvin,  65  So.  328.  186 
Ala.  538 ;  Southern  Ry.  Co.  v.  Smith, 
58  So.  429,  177  Ala.  367;  Penney  v. 
McCauloy,  57  So.  510,  3  Ala.  App. 
497;  Johnston  Bros.  Co.  v.  Brentlev, 
56  So.  742.  2  Ala.  App.  281;  Louis- 
ville &  N.  R.  Co.  V.  Young,  53  So.  213, 
168  Ala.  551;  Alabama  Steel  &  Wire 
Co.  V.  Tallant,  51  So.  835,  165  Ala. 
521 ;  Penry  v.  Dozier,  49  So.  909,  161 
Ala.  292;  Birmingham  Ry.,  Light  & 
Power  Co.  v.  Williams,  48  So.  93,  158 
Ala.  381 ;  Rutherford  v.  Dyer,  40  So. 
974,  146  Ala.  665;  Alabama  Great 
Southern  R.  Co.  v.  Sanders,  40  So. 
402,  145  Ala.  449;  Pullman  Co.  v. 
Krauss,  40  So.  .398.  145  Ala.  395,  4  L. 
R.  A.  (N.  S.)  103,  8  Ann.  Cas.  218; 
Kansas  City,  M.  &  B.  R.  Co.  v.  Mat- 
thews, ,39  So.  207,  142  Ala.  298; 
Louisville  &  N.  R.  Co.  v.  Sullivan  Tim- 
ber Co.,  35  So.  327,  138  Ala.  379; 
Southern  Ry.  Co.  v.  Howell,  34  So. 
6,  135  Ala.  639 ;  King  v.  Franklin,  31 
So.  467,  132  Ala.  559;  Pearson  v. 
Adams,  29  So.  977,  129  Ala.  157; 
Fuller  V.  Gray,  27  So.  458,  124  Ala. 


388 ;  Nelms  v.  Steiner,  22  So.  435,  113 
Ala.  562 ;  City  of  Birmingham  v. 
Starr,  112  Ala.  98,  20  So.  424 ;  Adams 
V.  Thornton,  82  Ala.  260,  3  So.  20; 
Adams  v.  Thornton,  78  Ala.  489,  56 
Am.  Rep.  49. 

Ark.  St.  Louis,  I.  M.  &  S.  Ry.  Co. 
v.  Howard.  188  S.  W.  14,  124  Ark. 
588 ;  American  Bauxite  Co.  v.  Dunn, 
178  S.  W.  934,  120  Ark.  1,  Ann.  Cas. 
1917C,  625;  Pine  Bluff  Natural  Gas 
Co.  V.  Guest,  177  S.  W.  917,  119  Ark. 
629 ;  Rector  v.  Robins,  102  S.  W.  209, 
82  Ark.  424. 

Cal.  Sellars  v.  Southern  Pac.  Co., 
166  P.  599,  33  Cal.  App.  701 ;  Pacific 
Improvement  Co.  v.  Maxwell,  146  P. 
900,  26  Cal.  App.  265;  In  re  Gird's 
Estate,  108  P.  499,  157  Cal.  534,  1.37 
Am.  St.  Rep.  131;  In  re  Dolbeer'a 
Estate.  86  P.  695,  149  Cal.  227,  9  Ann. 
Cas.  795;  Schander  v.  Gray,  86  P. 
695.   149  Cal.   227. 

Colo.  McCormick  v.  Parriott,  SO 
P.  1044,  33  Colo.  .382.  • 

Conn.  Radwick  v.  Goldstein.  OS  A. 
583,  90  Conn.  701 ;  Stedman  v.  O'Neil, 
72  A.  923.  82  Conn.  199,  22  L.  R.  A. 
(N.  S.)  1229. 

Fla.  Logan  Coal  &  Supply  Co.  v. 
Hasty,  67  So.  72.  68  Fla.  539;  E.s- 
cambia  County  Electric  Light  &  Pow- 
er Co.  V.  Sutherland.  55  So.  83,  61 
Fla.  167;  Florida  East  Coast  Rv. 
Co.  V.  Welch.  44  So.  250,  53  Fla.  145, 
12  Ann.  Cas.  210. 

Ga.  Western  &  A.  R.  Co.  v.  .Tar- 
rett,  96  S.  E.  17.  22  Ga.  App.  313; 
Brown  v.  Matheson,  83  S.  E.  98.  142 
Ga.  396  ;  Flemister  v.  Central  Georgia 
Power  Co.,  79  S.  E.  148,  140  Ga.  511 ; 
Macon  Ry.  &  Light  Co.  v.  Vining,  51 
S.  E   719.  123  Ga.  770. 

111.  Wickes  V.  Walden,  81  N.  E. 
798,  228  111.  56;  Pittsburgh,  C.  C.  & 
St.  L.  Ry.  Co.  v.  Banfill,  69  N.  E.  499, 
206  111.  5.53.  affirming  judgment  107 
111.  App.  254;  Pyle  v.  Pyle,  1.58  111, 
289.  41  N.  E.  999  ;  Thompson  v.  Force, 
65  111.  370 ;   McCormick  v.  Decker,  204 

82  Gehm  v.  People,  87  111.  App.  1,58; 
Wolff  V.  Carstens,  134  N.  W.  400,  148 
Wis.  178. 


§  417  INSTRUCTIONS  TO  JURIES  74& 

Thus  an  instruction  singling  out  certain  facts  and  calling  the 


111.  App.  554;  McDermott  v.  Eex 
Electric  Co.,  201  111.  App.  391;  Illi- 
rois  Cent.  R.  Co.  v.  McDaniel,  199 
111.  App.  2S2;  Gibbons  v.  Southern 
Illinois  Ry.  &  Power  Co.,  199  111.  App. 
154;  Born  v.  Schrieber,  199  111.  App. 
101;  Thomas  v.  Ohio  Coal  Co.,  199 
111.  App.  50 ;  Devine  v.  L.  Fish  Furni- 
ture Co.,  189  111.  App.  136;  Mengel- 
kamp  V.  Consolidated  Coal  Co.,  173 
111.  App.  370;  Schmalfeld  v.  Peoria 
&  E.  Rv.  Co.,  158  111.  App.  335 ;  Ran- 
ney  v.  Chicago  &  A.  R.  Co.,  158  111. 
App.  104;  Randall  v.  Sterling.  D.  & 
E.  Electric  Ry.  Co.,  158  111.  App.  56; 
Willison  V.  Bering  Coal  Co..  1.^.6  111. 
App.  209;  Ventriss  v.  Pana  Coal  Co., 
155  111.  App.  152;  Fisher  v.  City  or 
Geneseo,  154  111.  App.  288;  Dudley 
V.  Peoria  Ry.  Co.,  153  111.  App.  619; 
Orr  V.  Warner  &  Frame,  149  111.  App. 
539 ;  INIitchell  v.  Libby,  McNeill  &  Lib- 
hy,  149  111.  App.  201;  Swanson  v. 
Chicago  Citv  Ry.  Co.,  118  111.  App. 
135,  judgment  affirmed,  90  N.  E,  210, 
242  111.  388 ;  Penney  v.  Johnston,  142 
111.  App.  634;  Illinois  Steel  Co.  v. 
Koshinski,  135  111.  App.  587,  judgment 
affirmed  Koslunski  v.  Illinois  Steel 
Co.,  83  N.  E.  149,  231  111.  19S ;  Elgin, 
A.  &  S.  Traction  Co.  v.  Wilcox,  132 
111.  App.  446;  Conklin  Const.  Co.  v. 
Walsh,  131  111.  App.  609;  White  v. 
Kiggius,  1.30  111.  App.  404;  Chicago 
Union  Traction  Co.  v.  Nuetzel,  114 
111.  App.  466 ;  Chicago  Title  &  Trust 
Co.  V.  Ward,  113  111.  App.  327 ;  Cleve- 
land, C,  C.  &  St.  L.  Ry.  Co.  v.  Alfred, 
113  111.  App.  236;  Davenport,  R.  1. 
&  N.  W.  Ry.  Co.  V.  De  Yaeger,  112  111. 
App.  537;  Shickle-Harrison  &  How- 
ard Iron  Co.  V.  Beck,  112  111.  App. 
444;  People  v.  Peden,  109  111.  App. 
560;  Lake  Erie  &  W.  R.  Co.  v.  De- 
long,  109  111.  App.  241;  West  Chica- 
go St.  R.  Co.  V.  Lieserowitz,  99  111. 
App.  591,  judgment  affirmed  64  N.  E. 
718,  197  111.  607;  Griffin  Wheel  Co. 
V.  Marlvus,  79  111.  App.  82,  affirmed  54 
54  N.  E.  206,  ISO  111.  391. 

Iowa.  Strasberger  v.  Farmers' 
Elevator  Co.,  167  N.  W.  184,  184  Iowa, 
'66;  Case  v.  Chicago  Great  Western 
Ey.  Co.,  126  N.  W.  1037,  147  Iowa, 
747;  Gray  v.  Chicago,  R.  I.  &  P.  R. 
Co.,  121  N.  W.  1097,  143  Iowa.  26S. 


Md.  Fletcher  v.  Dixon,  68  A.  875, 
107  Md.   420. 

Mass.  Wyman  v.  Whicher,  60  N. 
E.  612,  179  Mass.  276. 

Mich.  Wood  V,  Standard  Drug 
Store,  157  N.  W.  403,  190  Mich.  654. 

Minn.  Duer  v.  G^gnon,  152  N.  W. 
880,  129  Minn.  517;  Reem  v.  St.  Paul 
City  Ry.  Co.,  84  N.  W.  652,  82  Minn. 
98. 

Mo.  Pasche  v.  South  St.  Joseph 
Town-Site  Co.  (App.)  190  S.  W.  30; 
Asbury  v.  Kansas  City,  144  S.  W.  127, 
161  Mo.  App.  496;  Melican  v.  Mis- 
souri-Edison Electric  Co.,  90  Mo.  App. 
595;  Flannen^  v.  St.  Louis,  I.  M.  &  S. 
Ry.  Co.,  44  Mo.  App.  396. 

Mont.  Albertini  v.  Linden,  123  P. 
400,  45  Mont.  398. 

N.  H.  Minot  v.  Boston  &  M.  R.  R., 
66  A.  825,  74  N.  H.  230. 

N.  C.  Daniel  v.  Dixon,  77  S.  E. 
305,  161  N.  C.  377. 

Ohio.  Jackson  Knife  &  Shear  Co. 
V.  Hathaway,  27  Ohio  Cir.  Ct.  R.  745. 

Or.  Gile  V.  Lasselle,  171  P.  741,  89 
Or.   107. 

R.  I.  Ribas  v.  Revere  Rubber  Co., 
91  A-  58,  37  R.  L  189. 

Tex.  Smith  v.  Bryan  (Civ.  App.) 
204  S.  W.  359;  El  Paso  Electric  Ry. 
Co.  V.  Benjamin  (Civ.  App.)  202  S.  W. 
996;  Hart-Parr  Co.  v.  Pame  (Civ. 
App.)  199  S.  W.  822 ;  Gulf,  C.  &  S.  F. 
Ry.  Co.  V.  Gentry  (Civ.  App.)  197  S. 
W.  482;  Gulf  States  Telephone  Co.  v. 
Evetts  (Civ.  App.)  188  S.  W.  289; 
Kansas  City,  M.  &  O.  Ry.  Co.  of  Tex- 
as V.  Corn  (Civ.  App.)  186  S.  W.  807 ; 
Cleburne  St.  Ry.  Co.  v.  Barber  (Civ, 
App.)  180  S.  AV.  1176;  W.  P.  Car- 
michael  Co.  v.  Miller  (Civ.  App.)  178 
S.  W.  976;  Miller  v.  Campbell  (Civ. 
App.)  171  S.  W.  251;  Kansas  City,  M. 
&  O.  Rv.  Co.  of  Texas  v.  Treadwell  & 
Wilkison  (Civ.  App.)  164  S.  W.  1089 ; 
Glover  v.  Houston  Belt  &  Terminal 
Ry.  Co.  (Civ.  App.)  163  S.  W.  1063; 
Bomar  v.  Munn  (Civ.  App.)  158  S.  W. 
1186;  Beckwith  v.  Powers  (Civ.  App.) 
157  S.  W.  177;  Hughes-Buie  Co.  v. 
Mendoza  (Civ.  App.)  156  S.  W.  328; 
Jordan  v.  Johnson  (Civ.  App.)  155  S. 
W.  1194;  Gilmore  v.  Brown  (Civ. 
App.)  150  S.  W.  984;  Gulf,  C.  &  S. 
F.  R.  Co.  V.  McGinnis  (Civ.  App.)  147 


749 


FORMAL  MATTERS 


417 


attention  of  the  jury  to  them,^^  by  telling  them  that  they  may 
consider  such  facts  for  certain  purposes,**  or  by  statmg  that  such 
facts  do  or  do  not  warrant  certain  conclusions,*^  are  m  the  nature 
of  an  argument,  and  are  properly  refused  for  that  reason. 

S.  W.  1188;  Galveston,  H.  &  S.  A. 
Rv  Co.  V.  Kurtz  (Civ.  App.)  147  S. 
W.'  658 ;  Houston  Belt  &  Terminal 
liy  Co.  V.  Johansen  (Civ.  App.)  143  S. 
W  1186 ;  Texas  &  P.  Ry.  Co.  v.  Boyd 
(civ.  App.)  141  S.  W.  1076;  Kansas 
Citv,  ^r.  &  O.  Ry.  Co.  of  Texas  v. 
Biiiham  (Civ.  App.)  138  S.  W.  432; 
Gulf,  C.  &  S.  F.  R.  Co.  v.  Farmer,  llo 

5  W  260,  102  Tex.  23.5,  reversing 
.iudsxment  (Civ.  App.)  108  S.  W.  729; 
Mi^ouri,  K.  &  T.  Ry.  Co.  of  Texas  v. 
Hibbitts,  109  S.  W.  228,  49  Tex.  Civ. 
App  419;  EasteiTi  Texas  R.  Co.  v. 
Moore  (Civ.  App.)  94  S.  W.  394 ;  Gal- 
veston, H.  &  S.  A.  Ry.  Co.  v.  Roberts 
(Civ.  App.)  91  S.  W.  375;  Missouri, 
K  &  T.  Rv.  Co.  of  Texas  v.  Carter, 
68  S.  W.  159,  95  Tex.  461:    Houston 

6  T.  C.  R.  Co.  V.  Harviu  (Civ.  App.) 
54  S.  W.  629;  Rice  v.  Ward  (Civ. 
App.)  54  S.  W.  318,  judgment  revers- 
ed 56  S.  W.  747,  93  Tex.  532;  Hurst 
V  McMullen  (Civ.  App.)  47  S.  W.  666, 
rehearing  denied  48  S.  W.  744 ;  Mc- 
Donald V.  International  &  G.  N.  Ry. 
Co.,  86  Tex.  1,  22  S.  W.  939,  40  Am. 
St  Rep.  803;  Mitchell  v.  Mitchell, 
SO  Tex.  101,  15  S.  W.  705;  Eqiutable 
Mortgage  Co.  v.  Norton,  71  Tex.  683, 
10  S.  W.  301. 

Utah.  Smith  v.  Gilbert,  164  P. 
1026,  49  Utah,  510. 

Wis.  Welting  v.  Town  of  Millston, 
77  Wis.  523,  46  N.  W.  879. 

83  Kirk  V.  Wolf  Mfg.  Co.,  118  111. 
567,  8  N.  E.  815;  Dangerfield  v.  Hope, 
157  111.  App.  63. 

S4  Ala.  Penney  v.  Grant,  79  So. 
271,  16  Ala.  App.  510;  Chappell  v. 
State,  73  So.  134,  15  Ala.  App.  227; 
Jones  V.  State,  57  So.  36,  174  Ala.  85; 
Louisville  &  N.  R.  Co.  v.  Holland,  55 
So.  1001,  173  Ala.  675;  Merrill  v. 
Sheffield  Co.,  53  So.  219,  169  Ala.  242; 
Alabama  Consol.  Coal  &  Iron  Co.  v. 
Heald,  53  So.  162,  168  Ala.  626 ;  Hill 
V.  State,  46  So.  864,  156  Ala.  3  ;  Logan 
V.  State,  46  So.  480,  155  Ala.  85; 
Loveman  v.  Birmingham  Ry.,  L.  &  P. 
Co.,  43  So.  411,  149  Ala.  515;  Wil- 
liams v.  State,  41  So.  992,  147  Ala.  10 ; 


Andrews  v.  Tucker,  29  So.  34, 127  Ala. 
602;  Dennis  v.  State,  23  So.  1002,  118 
Ala.  72. 

Tex.     Hurlbut  v.  Boaz,  4  Tex.  Civ. 
App.  371,  23  S.   vV.  446. 

Instructions  improper  within 
rule.  An  instruction  that,  if  plain- 
s'&  Ala.  Brand  v.  State,  69  So.  379, 
13  Ala.  App.  390;  Caldwell-Watson 
Foundry  &  Machine  Co.  v.  Watson,  62 
So.  859,  183  Ala.  326 ;  McCary  v.  Ala- 
bama Great  Southern  R.  Co.,  62  So. 
18,  182  Ala.  597 ;  Central  of  Georgia 
Ry.  Co.  V.  Bagley,  55  So.  894,  173  Ala. 
611 ;  Sweatt  v.  State,  47  So.  194,  156 
Ala,  85;  Carter  v.  State,  47  So.  191, 
156  Ala.  72. 

N.  J.     Cottrell  v.  Fountain,  77  A. 
465,  80  N.  J.  Law,  1. 

Instructions     improper     within 
rule.     A  charge,  in  a  prosecution  for 
murder,  that  if  it  is  not  shown  that 
the  dogs  could  take  up  and  carry  the 
trail  of  a  human  being  after  the  time 
shown    to    have    elapsed,    the    jury 
should  not  consider  the  trailing  of  the 
dogs   as    a    circumstance.      Jones   v. 
State,  74  So.  843,  16  Ala.  App.  7,  cer- 
tiorari denied  75  So.  1003,  200  Ala. 
696.     A  charge,  in  a  prosecution  for 
pei-mitting  stock  to  be  at  large  in  a 
stock  law  district,  that,  as  a  person 
not  living  iu  a  stock  law  district  has 
a  right  to  let  his  stock  run  at  large, 
and  not  keep  a  guard  for  them,  de- 
fendant would  not  be  guilty  unless  he 
had  knowledge.     Blalock  v.  State,  63 
So.  26,  8  Ala.  App.  349.    A  charge,  in 
a  prosecution  for  uttering  a  fraudu- 
lent prospectus,  which  submitted  the 
effect  of  affidavits  of  defendant  stat- 
ing that  the  land  was  grazing  land, 
and  which  stated  that  if  defendant 
believed  that  there  was   oil  in  said 
land,  but  there  had  been  no  discovery, 
he  had  a  legal  right  to  make  such  affi- 
davit, yet  under  such  circumstances 
he  would  have  a  right  to  state  in  the 
prospectus  that  such  lands  contained 
oil.    People  v.  Merritt,  122  P.  839,  18 
Cal.  App.  58,  rehearing  denied  122  P. 
844,  18  Cal.  App.  58. 


§  417 


INSTRUCTIONS  TO  JURIES 


75a 


The  court  is  not  bound  to  give  an  instruction  argumentative  in 
form,  although  the  argument  is  a  legitimate  one,*^  and  although 
the  instruction  states  the  legal  proposition  involved  correctly.*' 

An  instruction  with  respect  to  the  weight  and  credibility  of  ex- 
pert testimony  should  not  be  argumentative.** 

§  418.     Application  of  rule  in  criminal  cases 

In  a  criminal  prosecution  the  trial  court  should  not  argue  the 
law  of  the  case  in  its  charge  to  the  jury.**  The  defense  cannot  in- 
sist that  the  judge  shall  charge  the  jury  argumentatively,  or  com- 
ment on  the  evidence,  or  point  out  the  weak  points  in  the  case 
for  the  prosecution.*"  A  charge  that  every  citizen,  no  matter  how 
humble,  has  a  lawful  right  to  bear  arms  in  defense  of  his  person,*^ 


tiff  was  entitled  to  any  damages,  the 
jury  sliould  consider  the  fact  tliat 
defendant's  son  was  being  beaten  over 
tlie  head  by  plaintiff  and  that  such 
son  was  bloody,  if  the  jury  should 
hud  that  he  was  bloody.  ^lorris  v. 
McClellan.  45  So.  641,  154  Ala.  639,  16 
Ann.  Cas.  .305.  An  instruction,  in  suit 
for  injuries  to  a  child  of  10  or  12 
from  contact  with  an  electric  light 
wire,  that  the  jury,  in  determining 
contributory  negligence,  must  "consid- 
er the  fact  that  the  plaintiff  in  this 
case  has  lived  all  his  life  in  a  city, 
where  they  had  electric  lights  and 
electric  wires,  and  the  fact  that  the 
plaintiff  thus  had  opportunities  to 
learn  and  appreciate  the  dangers  of 
such  agencies."  Potera  v.  City  of 
Brookhaven,  49  So.  617,  95  Miss.  774. 
An  instruction,  in  a  prosecution  for 
homicide,  in  which  there  was  no  evi- 
dence that  deceased  had  had  inter- 
course with  others  than  accused,  her 
husband,  that,  if  the  jury  believed  be- 
yond a  reasonable  doubt  that  accused 
was  .guilty  of  murder  in  the  first  de- 
gree, they  might  consider  the  fact,  if 
they  believed  from  the  evidence  that 
it  was  a  fact,  that  deceased,  to  the 
knowledge  of  accused,  had  been  en- 
gaged in  illicit  relations  with  others, 
solely  for  the  purpose  of  fixing  the 
punishment  which  the  jury  should  im- 
pose on  accused.  Thomas  v.  State.  43 
So.  371,  150  Ala.  31.  An  instruction, 
that  if  defendant  was  too  drunk  to 
form  a  design  the  jury  might  look  to 
that  fact  in  determining  whether  he 
provoked  the  difficulty.  Davis  v. 
State,  44  So.  561,  1-52  Ala.  25.    An  in- 


struction that,  in  determining  plain- 
tiff's contributory  negligence,  his  fa- 
miliarity with  the  sidewalk,  the  time 
of  day,  and  condition  of  the  weather, 
should  be  considered.  City  of  Bon- 
ham  V.  Crider  (Tex.  Civ.  App.)  27  S. 
W.  419. 

8  6  lu  re  Clark's  Estate,  181  P.  639, 
180  Cal.  395. 

87  Village  of  Brocton  v.  Wiese,  204 
111.  App.  556 ;  Southern  Traction  Co. 
V.  Kirksey  (Tex.  Civ.  App.)  222  S.  W. 
702 ;  State  v.  Burns,  168  P.  955,  51 
Utah.  73. 

8  8  Miller  v.  State,  131  P.  717,  9  Okl. 
Cr.  255,  L.  R.  A.  1915A,  1088. 

Instrnctions  held  argumenta- 
tive. An  instruction  that  testimo- 
ny of  experts  dependent  on  hj-potheti- 
cal  questions  is  unsatisfactory  be- 
cause it  cannot  convey  the  precise 
reason  why  the  conclusions  were 
reached,  and  is  unreliable  because 
frequently  based  on  speculation,  and 
that  such  opinions  are  not  entitled  to 
as  much  weight  as  facts,  and  that 
opinions  based  on  the  same  facts  are 
often  diametrically  opposed  to  each 
other,  is  erroneous  as  being  an  argu- 
ment why  the  testimony  was  unrelia- 
ble and  unsatisfactory.  In  re  Blake's 
Estate,  68  P.  827,  136  Cal.  306,  89 
Am.  St.  Rep.  135. 

89  State  V.  Ardoin,  22  So.  620,  49 
La.  Ann.  1145,  62  Am.  St.  Rep.  678. 

9  0  People  V.  Crawford,  48  Mich.  498, 
12  N.  W.  673. 

91  Gibbs  V.  State,  47  So.  65, 156  Ala. 
70.  See  Carwile  v.  State,  39  So.  220, 
148  Ala.  576. 


751 


FORMAL  MATTERS 


418 


or  that,  where  a  man  is  free  from  fault  in  bringing  on  a  difficulty, 
he  is  justified  in  using  such  violence  as  is  necessary  to  protect  him- 
self against  bodily  harm,"^  or  that  it  is  better  that  the  guilty  should 
go  free  than  that  the  innocent  should  be  punished,^^  or  that  the 
state  is  as  much  interested  in  the  acquittal  of  the  innocent  as  in 
the  punishment  of  the  guilty ,^^  is  properly  refused  as  argumenta- 
tive. 

So  the  objection  of  argumentativeness  lies  against  instructions 
not  to  discriminate  against  the  defendant  because  of  his  race,^^  that 
there  is  no  duty  to  convict  to  elevate  the  colored  race,^^  that  it  is 
a  principle  of  law  that  justice  should  be  tempered  with  mercy ,^''^  that 
if  the  jury  find  the  accused  guilty  it  is  no  more  their  moral  duty 
under  the  law  to  hang  him  than  to  sentence  him  to  the  peniten- 
tiary,^* that  the  fact  that  the  jurors  have  said  on  oath  they  would 
convict  on  circumstantial  evidence  does  not  mean  that  the  jury 
must  convict,^^  that  the  guilt  of  defendant  of  other  offenses  than 
that  charged  does  not  justify  conviction,^  that  a  juror  is  not  re- 
quired to  return  a  verdict  contrary  to  his  own  judgment  of  the  evi- 
dence and  the  law  given  him  by  the  court,^  that  if  there  is  reason- 


9  2  Murray  v.  State,  69  So.  354.  13 
Ala.  App.  175. 

83  Ala.  McGhee  v.  State,  59  So, 
573,  178  Ala.  4;  Burkett  v.  State,  45 
So.  682,  154  Ala.  19 :  Parham  v.  State, 
42  So.  1.  147  Ala.  57 ;  Bell  v.  State, 
37  So.  281,  140  Ala.  57;  Walker  v. 
State,  35  So.  1011.  139  Ala.  56  ;  Barnes 
V.  State,  111  Ala.  56,  20  So.  565; 
Lowe  V.  State,  88  Ala.  8,  7  So.  97; 
Perry  v.  State,  6  So.  42.5,  87  Ala.  30; 
Garden  v.  State,  84  Ala.  417,  4  So. 
823. 

Cal.  People  v.  Currie,  117  P.  941, 
16  Cal.  App.  731;  People  v.  Nunlev, 
76  P.  45,  142  Cal.  441;  Id.,  75  P. 
676,  142  Cal.  105 :  People  v.  Ebanks, 
49  P.  1049,  117  Cal.  652,  40  L.  R.  A. 
269. 

Ga.  INIixon  v.  State,  51  S.  E.  580, 
]23  Cxa.  581,  107  Am.  St.  Rep.  149. 

Idaho.  State  v.  xteel.  113  P.  721, 
19  Idaho,  463 ;  State  v.  Fleming,  106 
P.  305,  17  Idaho,  471. 

111.  Seacord  v.  People,  121  111.  623, 
13  N.  E.  194 ;  People  v.  Darr,  179  lU. 
App.  130,  judgment  affirmed  104  N, 
E.  389,  262  111.  202. 

Ind.  Coleman  v.  State,  111  Ind. 
563,  13  N.  tj.  100. 


Mont.  Ten-itory  v.  Burgess,  8 
Mont.  57,  19  Pae.  558,  1  L.  R.  A.  808. 

Neb.  Parrish  v.  State,  14  Neb.  60, 
15  N.  W,  357. 

Va.  McCue  v.  Commonwealth,  49 
S.  E.  623,  103  Ya.  870. 

9*  Adkins  v.  State,  76  So.  465,  16 
Ala.  App.  181;  Smith  v.  State,  51 
So.  610,  165  Ala.  50  ;  Parker  v.  State, 
51  So.  260,  165  Ala.  1:  People  v. 
Smith,  110  P.  333,  13  Cal.  App.  627. 

95  Johnson  v.  State,  73  So.  210.  15 
Ala.  App.  298,  certiorari  denied  Ex 
parte  Johnson.  73  So.  1000.  198  Ala. 
692;  Pope  v.  State,  57  So.  245,  174 
Ala.  63;  Pope  v.  State,  53  So.  292, 
168  Ala.  33 ;  Barker  v.  State,  28  So. 
589,  126  Ala.  83. 

9  6  Pope  V.  State,  34  So.  840, 137  Ala. 
56. 

9  7  Hankins  v.  State,  74  So.  400,  15 
Ala.  App.  581. 

9  8  Thomas  v.  State,  43  So.  371,  150 
Ala.  31. 

9  9  PhilUps  V.  State,  50  So.  194,  162 
Ala.  14. 

1  Kirkwood  v.  State,  62  So.  1011,  8 
Ala.  App.  108,  certiorari  denied  63 
So.  990.  184  Ala,  9. 

-  Anderson  v.  State,  49  So.  460,  160 
Ala.  79. 


§418 


INSTRUCTIONS  TO  JURIES 


752 


able  ground  to  believe  from  the  evidence  that  another  could  have 
killed  the  deceased  to  find  the  defendant  not  guilty,*  or  that  it  is 
improper  to  consider  whether  the  defendant  might  be  pardoned  after 
conviction.'*  In  a  criminal  case  it  is  proper  to  refuse  charges  hav- 
ing no  other  office  than  to  refute  arguments  of  the  prosecuting 
attorney.^ 

On  the  other  hand,  a  charge  is  not  argumentative  merely  because 
a  correct  statement  of  the  law  contained  therein  is  adverse  to  the 
hypothesis  of  innocence.®  Instructions  are  not  argumentative  be- 
cause they  impress  upon  the  jury  a  sense  of  their  high  responsi- 
bility to  the  public  as  well  as  to  the  accused,'  nor  because  they  ad- 
monish the  jury  that  the  gravity  or  magnitude  of  the  punishment 
prescribed  by  law  for  the  oflense  charged  should  not  be  allowed 
to  affect  their  judgment.* 

The  rule  against  argumentative  instructions  applies  to  cautionary 
instructions  with  respect  to  the  credibility  of  the  testimony  of  police 
officers,  detectives,  or  informers,^  to  instructions  with  respect  to  the 
extent  of  corroboration  of  the  testimony  of  accomplices,*®  to  in- 
structions cautioning  the  jury  against  considering  the  failure  of  the 
accused  to  testify,**  to  instructions  upon  the  effect  of  flight  as  evi- 


3  Wright  V.  State,  72  So.  564,  15 
Ala.  App.  91. 

4  McClain  v.  State,  62  So.  241,  182 
Ala.  67. 

5  Smith  V.  State,  51  So.  632,  165 
Ala.  74 ;  Tribble  v.  State,  40  So.  938, 
145  Ala.  23 ;  White  v.  State,  32  So. 
139,  133  Ala.  122:  IMltehell  v.  State, 
30  So.  348,  129  Ala.  23. 

When  reversible  error.  Where 
the  court,  in  apparently  direct  re- 
sponse to  the  argument  of  counsel  for 
accused,  emphasized  the  difference 
between  the  rules  as  to  felonies  and 
misdemeanors,  whereby  the  instruc- 
tion became  argumentative,  it  was 
ground  for  reversal.  Ballard  v. 
State.  74  S.  E.  846,  11  Ga.  App.  104. 

6  Nowell  V.  State,  88  S.  E.  909,  18 
Ga.  App.  143. 

7  State  V.  Sehon,  68  So.  221,  137  La. 
83. 

Instructions  proper  xtrithin  rule. 
In  a  prosecution  for  embezzlement, 
remarks  by  the  court,  introductory  to 
the  instructions,  that  the  offense 
charged  is  a  grave  one,  involving  the 
betrayal  and  breach  of  trust  repo.sed 
in  a  trusted  employe;  that  the  busi- 
ness of  coii^orations  must  be  intrust- 


ed to  employes,  and  it  is  a  matter  of 
great  importance  that  they  shall  hon- 
estly care  and  faithfully  account  for 
what  is  committed  to  them  ;  that  per- 
sons can  protect  their  property  from 
strangers,  but  not  from  trusted  em- 
ployes; and  that  the  case  is  also  im- 
portant to  defendant,  because  it  in- 
volves his  personal  libprty  and  his 
reputation  and  character,  and  impor- 
tant to  the  state,  because  it  is  charged 
with  the  grave  duty  of  apprehending 
and  punishing  criminal  offenses, 
wherefore  the  court  asks  the  jury's 
careful  attention  to  the  instructions — ■ 
are  not  erroneous,  as  amounting  to  an 
argument  for  the  state.  Secor  v. 
State,  95  N.  W.  942,  118  Wis.  621. 

8  State  V.   Baldes,   110  N.    W.  440, 

133  Iowa,  158. 

9  Harmon  v.  State,  62  So.  438,  8  Ala. 
App.  311,  certiorari  denied  Ex  parte 
Harmon,  64  So.  1018,  185  Ala.  672; 
Sapp  V.  State,  56  So.  45,  2  Ala.  App. 
190 ;  City  of  Everett  v.  Simmons,  150 
P.  414,  86  Wash.  276. 

10  Crittenden  v.  State,  32  So.  273, 

134  Ala.   145. 

11  ^Matthews  v.  State,  79  So.  507,  16 
Ala.  App.  514;    Barden  v.  State,  40 


753 


FORMAL  MATTERS 


418 


dence  of  guilt,^''  to  instructions  on  circumstantial  evidence,"  to  in- 
structions on  'the  effect  of  good  character  of  accused  ^^  and  to  in- 
structions on  the  doctrine  of  reasonable  doubt.^^ 


So    94S,    145    Ala.    1;     Ledbetter    v. 
State  (Ala.)   39  So.  618. 

i2Kirkwood  v.  State,  62  bo. 
1011,  8  Ala.  App.  108;  certiorari  de- 
nied 63  So.  990,  184  Ala.  9;  Young 
V  State,  40  So.  656.  147  Ala.  687; 
Mitchell  V.  State,  32  So.  132,  133  Ala. 

C5. 

13  Miller  v.  State,  74  So.  840,  16 
Ala.  App.  3;  Willis  v.  State,  33  So. 
'^^Q  134  Ala.  429 ;  Spraggins  v.  Same, 
.35  So.  1000,  1.39  Ala.  93;  State  v. 
Romeo.  128  P.  530.  42  Utah,  46. 

Instruction  lield  not  argumen- 
tative. An  instruction  that  circum- 
stantial evidence  is  to  be  regarded  in 
all  cases,  and  is  mnny  times  as  con- 
clusive as  direct  evidence  of  eyewit-  , 
nesses,  that  when  it  is  strong  and  sat- 
isfaftory,  tlie  jury  should  consider  it, 
neither  enlarging  or  belittling  Its 
force,  and  if,  when  it  is  all  taken  as 
a  whole,  and  fairly  and  candidly 
weighed,  it  convinces  the  guarded 
.iud.srment,  the  jury  should  convict, 
but  they  are  not  to  fancy  situations 
or  circumstances  which  do  not  appear 
in  the  evidence,  but  are  to  make  those 
.iust  and  reasonable  inferences  from 
circumstances  proven,  whicli  the 
guarded  .iud.gment  of  a  reasonable 
man  \Aould  ordinarily  make  under 
like  circumstances,  is  not  open  to  the 
objection  of  being  an  argument  in 
favor  of  circumstantial  evidence. 
State  v.  Hassan,  128  N.  W.  960,  149 
Iowa.  518. 

14  Watkins  v.  State.  32  So.  627,  133 
Ala.  88;  Naugher  v.  State,  23  So.  26, 
116  Ala.  463. 

Instructions  improper  within 
rule.  Instructions  that,  no  matter 
how  conclusively  the  other  evidence 
considered  by  itself  might  point  to 
guilt,  proof  of  good  charaf^ter  might 
create  a  reasonable  doubt,  where 
doubt  would  not  otherwise  exist,  and 
might  lead  the  jury  to  believe,  in 
view  of  tbe  probabilities,  that  one  of 
such  gootl  character  would  not  be 
guilty  and  the  other  evidence  was  not 
true,  or  tbat  the  witnesses  in  some 
way  might  be  mistaken ;  that  good 
Inst.to  Juries — 48 


character  is  an  important  fact  with 
every  man,  and  never  more  so  than 
when  he  is  on  trial  for  an  ofCense  ren- 
dered improbable  by  a  uniform  course 
of  life,  etc.     State  v.  Meyers,  117  K 
818,  59  Or.  537.     A  charge  that  good 
character,    when    proven,    is    a    good 
thing,  and  that  the  jury  could  look  to 
defendant's  good  character,  and  con- 
sider it  in  connection  with  other  facts 
and  circumstances,  even  to  generate 
a  doubt ;   that  the  law  recognizes  love 
of  life  as  a  natural  and  legitimate 
sentiment,  and,  while  it  cannot  be  con- 
trolled or  molded  by  notions  of  chiv- 
alry,   it    pei-mits    every    one    who    is 
without  fault,  and  who  has  adopted 
every  reasonable  expedient  to  avert 
the  necessity,  to  take  the  life  of  his 
assailant  rather  than  lose  his  own; 
that  the  divine  law  did  not  require 
that   we   should   love   our   neighbor.s 
better    tban     ourselves.       Parker     v. 
State,  45  So.  248,  153  Ala.  25.    An  in- 
struction in  a  murder  trial  that  the 
fact,  if  it  was  a  fact,  that  accused's 
character  was  not  discussed  until  aft- 
er he  was   accused  of  the  homicide, 
was  not  evidence  that  his  character 
was  not   good,    since  under  the  law 
the  best  character  is  generally  that 
least  talked  of,  such  fact  being  neg- 
ative evidence  of  good  character  fre- 
quentlv  of  the  most  satisfactory  kind. 
Way  v.  State,  46  So.  273,  1.55  Ala,  52. 
A  charge  in  a  piosecution  for  hom- 
icide tbat   good   character  is  an   im- 
portant fact,  and  never  more  so  tban 
when  a  man  is  on  trial  with  an  of- 
fense  which   is   rendered    improbable 
by  a  uniform  course  of  life  inconsist- 
ent with  such  crime,  and  that  there 
are  cases  where  it  becomes  a  man's 
sole  dependence,  and  may  prove  suf- 
ficient  to   outweigh    evidence   of   the 
most    positive    character,    the    most 
clear    and    satisfactory    cases    being 
sometimes  rebutted  by  it,  etc.     State 
V.  Stentz,  74  P.  588,  33  Wash.  444. 

15  Ala.  Pinson  v.  State,  78  So.  876, 
201  Ala.  522;  Cunningham  v.  State, 
69  So.  982,  14  Ala.  App.  1;  INIoore  v. 
State,  07  So.   789,  12  Ala.  App.  243; 


§  419 


INSTRUCTIONS  TO  JURIES 


754 


§  419.     Statement  of  contentions  of  partis  or  of  undisputed  facts 

A  statement  in  detail  of  the  contentions  of  the  parties,  the  jury 
being  told  that  they  are  the  judges  of  the  facts/«  is  not  objection- 
able as  argumentative.  Thus  instructions,  in  a  criminal  case,  stat- 
ing the  contentions  of  the  state  and  the  defendant  are  ordinarily 
not  objectionable  as  argumentative,^'  but  an  instruction  which  re- 
peats the  substance  of  the  testimony  for  the  state  and  submits  it 
to  the  jury,  with  the  argumentative  deductions  drawn  therefrom  by 
the  prosecuting  attorney  as  the  issues  in  the  case,  is  erroneous. ^^ 


Collins  V.  State,  58  So.  80,  3  Ala.  App. 
64;  Humphries  v.  State,  56  So.  72.  2 
Ala.  App.  1;  Bailey  v.  State,  53  So. 
296,  390,  168  Ala.  4;  Smith  v.  State, 
51  So.  632,  165  Ala.  74;  Gaston  v. 
State,  49' So.  876,  161  Ala.  37. 

Instructions  held  improper 
within  rule.  A  charge  in  a  prosecu- 
tion for  murder  that  the  defendant 
should  not  be  convicted  simply  be- 
cause they  believed  beyond  a  reason- 
able doubt  the  truth  of  certain  in- 
criminating facts,  but  that  they  must 
believe  beyond  a  reasonable  doubt 
that  these  facts  established  defend- 
ant's guilt.  Pope  V.  State,  53  So.  292, 
168  Ala.  33.  An  instruction  that  it 
is  not  the  duty  of  the  jury  to  convict 
defendant  to  vindicate  the  law,  or 
improve  public  morals,  imless  the  evi- 
dence was  so  convincing  as  to  lead 
their  minds  to  the  conclusion  that 
defendant  could  not  be  innocent.  Lo- 
vett  V.  State,  64  So.  643,  10  Ala.  App. 
72.  An  instruction,  in  a  prosecution 
against  an  agent  for  embezzlement, 
that,  on  the  question  of  criminal  in- 
tent, the  jury  might  consider  the 
fact,  if  the  evidence  showed  it  to  be 
such,  that  defendant  offered  to  pay 
all  that  might  be  due,  if  ascertained, 
and  that  if  the  jury  were  not  con- 
vinced, beyond  all  reasonable  doubt 
and  to  a  moral  certainty,  that  defend- 
ant retained  money,  the  property  of 
his  principal,  with  a  criminal  intent, 
they  .should  acquit.  Willis  v.  State,  33 
So.  226,  134  Ala.  429.  An  instruction, 
on  a  trial  for  homicide,  that  the  jury 
was  not  called  on  to  avenge  the  mur- 
der of  deceased,  and  that  before  a 
verdict  of  guilt  would  be  authorized 
they  must  believe  from  the  evidence 


beyond  a  reasonable  doubt  and  to  a 
moral  certainty  that  accused  was 
guilty.  Saulsberry  v.  State,  59  So. 
476,  178  Ala.  16.  A  charge  that  while 
it  was  true  that  guilt,  when  properly 
proven  beyond  all  reasonable  doubr, 
should  be  punished  yet  that,  unless 
guilt  is  shown  by  testimony  which 
comes  up  to  the  high  standard  pre- 
scribed for  the  trial  of  a  crime,  ac- 
cused should  be  acquitted,  and  that 
it  was  better  that  the  guilty  go  un- 
punished than  that  the  innocent,  or 
those  not  shown  guilty  beyond  a  rea- 
sonable doubt,  should  be  punished. 
Smith  V.  State,  51  So.  610,  165  Ala. 
50.  An  instruction  that  the  require- 
ment of  belief  beyond  a  reasonable 
doubt  was  not  a  fiction  of  law,  but 
intended  as  a  shield  against  convic- 
tion until  that  degree  of  proof  is  made 
which  leads  the  jury  to  believe  that 
defendant  cannot  reasonably  be  inno- 
cent from  the  evidence.  Watts  v. 
State,  59  So.  270,  177  Ala.  24. 

iG  Asplund  v.  Calumet  &  Hecla 
Mining  Co.,  143  N.  W.  633,  177  Mich. 
529. 

17  Wilkes  V.  State,  84  S.  E.  721,  16 
Ga.  App.  185. 

18  Rouse  V.  State,  58  S.  E.  416,  2 
Ga.  App.  184;  Thomas  v.  State,  95 
Ga.  484,  22  S.  E.  315. 

Empliasizing  testimony  favora- 
able  to  state.  The  court  may  re- 
view the  evidence,  but  if  its  charge 
is  argumentative,  emphasizing  testi- 
mony favorable  to  the  state,  discred- 
iting the  case  and  the  testimony  of 
defendant,  he  is  not  given  such  a  tri- 
al as  is  guaranteed  by  the  Constitu- 
tion and  laws.  State  v.  Almos,  142 
X.  W.  801.  122  Minn.  479. 


755  FORMAL  MATTERS  §  421 

A  statement  of  undisputed  facts  cannot  be  objected  to  as  argu- 
mentative.^" 

§  420.     Repetition  as  constituting  argument 

A  repetition  of  a  proposition  in  different  instructions  may  be  of 
such  a  character  as  to  be  in  the  nature  of  an  argument.-**  How- 
ever, an  instruction  is  not  argumentative  merely  because  it  con- 
tains unnecessary  repetition.^^ 

§  421.  Effect  of  argumentative  instructions  as  ground  for  reversal 
The  giving  of  an  argumentative  charge  is  not  ground  for  re- 
versal, unless  the  party  complaining  thereof  is  injured  thereby,^^ 
and  if  an  argumentative  instruction  asserts  a  correct  proposition 
of  law  and  one  not  entirely  abstract,  and  its  misleading  tendencies 
can  be  remedied  by  an  explanatory  charge,  it  will  not  work  a  re- 
versal;  ~^  but  if  such  instructions  are  prejudicial  to  the  party  coni- 
plaining  of  theni,~*  or  the  verdict  is  clearly  the  result  thereof,"" 
they  will  be  cause  for  reversal,  and  in  a  criminal  case,  where  the 
natural  effect  of  a  charge  is  to  operate  as  a  powerful  argument  for 
conviction,  and  to  no  longer  leave  the  minds  of  the  jury  open  to 
the  convincing  force  of  the  evidence,  and  to  that  alone,  a  convic- 
tion will  be  set  aside."** 

In  Alabama  it  has  been  held  that  the  giving  or  refusing  of  ar- 
gumentative instructions  rests  largely  in  the  discretion  of  the  trial 
court,-'  and  there  are  some  decisions  in  this  jurisdiction  to  the 
effect  that  the  giving  of  an  argumentative  instruction  which  states 
the  law  correctly  is  not  a  ground  of  error,-^  but  it  is  not  appre- 

19  Davis  V.  Michigan  Cent.  R.  Co.,      per.  Ct.  376. 

Ill  N.  W.  76,  147  Mich.  479.  23  Steed   v.    Knowles,   97  Ala.   573, 

20  Nelson  V.  Chicago  City  Ry.  Co.,      12  South.  75. 

163  111.  App.  98;  Chisum  v.  Chesnutt  2*  Cothran  v,   Mcore,   1   Ala.   423; 

(Tex.  Civ.  App.)  36  S.  W.  758.  Wabash  Ry.  Co.  v.  Perkins,  137  111. 

21  Baltimore  &  O.  S.  W.  R.  Co.  v.  App.  514.  judgment  affirmed  Perkins 
Walker,  84  N.  E.  730,  41  Ind.  App.  v.  Wabash  R.  Co..  84  N.  E.  677,  233 
588.  111.  4.58 ;    Illinois  Cent.  R.  Co.  v.  Col- 

22  Ala.  Baldwin  V.  State,  111  Ala.  lison,  134  111.  App.  443;  Dazey  v. 
11,  20  So.  528;    Payne  v.  Crawford,  Stairwalt,  123  111.  App.  489. 

102  Ala.  387,  14  South.  854;    Trufant  25  Qrudzinski  v.   Chicago  City   Ry. 

V.  White.  99  Ala.  526,  13  So.  83 ;    Bell  Co.,  165  111.  App.  152. 

V.   Kendall,   93   Ala.   4S9,   8   So.   492;  26  Commonwealth  v.  Garvey,  65  Pa. 

Waxelbaum  v.  Bell,  91  Ala.  331,  8  So.  Super.  Ct.  56. 

571.  27Whaley  v.  Sloss-Sheffield  Steel  & 

Ga.     August  V.  State,  76  S.  B.  164,  Iron  Co..  51  So.  419,  164  Ala.  216,  20 

11  «a.  App.  798.  Ann.    Cas.    822;     Karr   v.    State,    106 

ni.     Collins  Ice  Cream  Co.  v.  Ste-  Ala.  1,  17  South,  328. 

phens,  59  N.  E.  524,  189  111.  200.  28  Council  v.  Mayhew,  55   So.  314, 

Neb.     Carleton    v.    State,    43    Neb.  172    Ala.    295;     Thompson    v.    State, 

373,  61  N.  W.  699.  26   So.   141,   122  Ala.   12;    Coghill  v. 

Pa.     Thrall  v.  Wilson,  17  Pa.  Su-  Kennedy,  24  So.  459,  119  Ala.  &41. 


422 


INSTRUCTIONS  TO  JURIES 


756 


bended  that  this  court  would  refuse  to  reverse  on  the  ground  of 
such  an  instruction,  shown  to  be  harmful  to  an  appellant. 


H.  Confused  or  Misle;ading  Instructions 

§  422,     General  rule. 

It  is  proper  to  refuse  instructions  calculated  to  mislead  or  con- 
fuse the  jury,^^  and  the  giving  of  such   instructions   constitutes 


29  u.  S.  (C.  C.  A.  Colo.)  Union 
Pac.  Ky.  Co.  v.  O'Brien,  49  Fed.  538, 
1  C.  C.  A.  354 ;  (C.  C.  A.  Mo.)  Blanton 
V.  United'  States,  213  F.  320,  130  C.  C. 
A.  22,  Ann.  Cas.  1914D,  1238 ;  (C.  C. 
A.  Pa.)  Weiss  v.  Bethlehem  Iron  Co., 
88  F.  23,  31  C.  C.  A.  363;  (C.  C.  A. 
Va.)  Pulaski  Mining  Co.  v.  Hagan, 
396  F.  724,  116  C.   C.  A.  352. 

Ala.  Birniinaham  By.,  Light  & 
I'ower  Co.  v.  Milbrat,  78  So.  224,  201 
Ala.  368;  Johnson  v.  Johnson,  77  So. 
335,  201  Ala.  41,  6  A.  L.  R.  1031; 
Louisville  &  N.  R.  Co.  v.  Martin,  73 
So.  909,  198  Ala.  540 ;  Miller  v.  State, 
72  So.  506,  15  Ala.  App.  4 ;  Spinks  v. 
State,  71  So.  623,  14  Ala.  App.  75; 
White  V.  State,  71  So.  452,  195  Ala. 
681 ;  Burton  v.  State,  69  So.  913,  194 
Ala,  2;  Moon  v.  Benton,  68  So.  58y, 
13  Ala.  App.  473 ;  Fortner  v.  State, 
67  So.  720,  12  Ala.  App.  179;  John- 
son V.  Colvin,  65  So.  328,  186  Ala. 
5.38;  Hale  v.  State,  64  So.  530,  10 
Ala.  App.  22 ;  Birmingham  Ry.,  Light 
&  Power  Co.  v.  Long.  59  So.  382,  5 
Ala.  App.  510;  Faulk  v.  State,  59 
So.  225.  4  Ala.  App.  177;  Bailey  v. 
State,  .53  So.  296,  .390,  168  Ala.  4; 
Ix>uisvillo  &  N.  R.  Co.  v.  Johnson,  .50 
So.  300,  162  Ala.  665;  Pehry  v.  Do- 
zier.  49  So.  909.  161  Ala.  292;  Hays 
V.  State,  46  So.  471,  155  Ala.  40 ;  Sim- 
mons V.  State,  40  So.  660,  145  Ala. 
61;  Nordan  v.  State,  .39  So.  406,  143 
Ala.  13;  Pitts  v.  State,  37  So.  101, 
140  Ala.  70;  Vaughn  v.  State.  .30  So. 
669.  130  Ala.  18;  Southern  Ry.  Co. 
V.  Lynn,  29  So.  573.  128  Ala.  297; 
Ra gland  v.  State,  27  So.  983.  125  Ala. 
12;  Lafayette  Ry.  Co.  v.  Tucker,  27 
So.  447,  124  Ala.  514;  Morris  v.  State, 
27  So.  336,  124  Ala.  44;  Bomar  v. 
Rosser,  26  So.  510,  123  Ala.  641 ;  Mc- 
Leroy  v.  State,  25  So.  247,  120  Ala. 
274;    Ix)uisville  &  N.  R.  Co.  v.  Cow- 


herd, 23  So.  793,  120  Ala.  51 ;  Sullivan 
V.  State,  23  So.  678,  117  Ala.  214; 
Hooper  v.  State,  106  Ala.  41,  17  So. 
679 ;  Wills  v.  State,  74  Ala.  21 ;  CUf- 
ton  V.  State,  73  Ala.  473;  Wills  v. 
State,  73  Ala.  362;  Woodbury  v. 
State.  69  Ala.  242,  44  Am.  Rep.  515 ; 
Dotson  V,  State,  62  Ala.  141,  34  Am. 
Rep.  2 ;  Adams  v.  State,  52  Ala.  379 ; 
Clark  V.  State,  49  Ala.  37;  Salomon 
V.  State,  28  Ala.  S3  ;  Swallow  v.  State, 
22  Ala.  20. 

Cal.  People  V,  Cox,  155  P.  1010, 
29  Cal.  App.  419 ;  Arbunich  v.  United 
Railroads  of  San  Francisco,  152  P, 
51,  28  Cal.  App.  291;  Estrella  Vine- 
yard Co.  V.  Butler,  57  P.  980,  125  Cal. 
232;  People  v.  Strange,  61  Cal.  496; 
People  V.  Best,  39  Cal.  690;  People 
V,  Maxwell,  24  CaL  14;  People  v, 
Hobsou,  17  Cal.  424. 

Fla.  Bass  v.  State,  50  So,  531,  58 
Fla.  1 ;  Minor  v.  State,  45  So.  816,  55 
Fla.  71;  Jacksonville  Electric  Co.  v. 
Sloan,  42  So.  516,  52  Fla.  257 ;  Jack- 
sonville Electric  Co.  v.  Adams,  39  So, 
183,  50  Fla.  429,  7  Ann.  Cas.  241. 

111.  Illinois,  I.  &  M.  Ry.  Co.  v. 
Freeman,  71  N,  E.  444,  210  111.  270; 
Eggmann  v.  Nutter,  169  111.  App.  116 ; 
Chicago  City  Ry.  Co.  v,  Phillips,  138 
111.  App.  438 ;  Illinois  Cent.  R,  Co.  v. 
Becker,  119  111.  App.  221;  Zipkie  v. 
City  of  Chicago,  117  111.  App.  418; 
Baxter  v.  People,  8  111.  (3  Oilman)  368. 

Ind.  American  Motor  Car  Co.  v. 
Bobbins,  103  N.  E.  641,  181  Ind.  417 ; 
Dean  v.  State,  130  Ind,  237,  29  N,  E. 
911. 

Iowa.  State  v.  Fleming,  86  Iowa, 
294.  53  N.  AV.  234. 

Kau.  State  v.  Arch,  157  P.  1198, 
98  Kan.  404. 

Md.  Rosman  v.  Travelers'  Ins. 
Co.  of  Hartford,  Conn..  96  A.  875,  127 
Md.  689,  Ann.  Cas.  1918C,   1047. 


757 


FORMAL  MATTERS 


§422 


error  30  which  will  work  a  reversal^i  in  the  absence  of  a  showing 
that  ihe  jury  were  not  misled  thereby.^'^     An  error  in  givmg  con- 


Mass.  Dixon  V.  New  England  R. 
Co..  179  Mass.  242,  60  N.  E.  581. 

Micli.  Holland  v.  Rea,  12  N.  W. 
167  4S  Mieb.  21S ;  Kelirig  v.  Peters, 
41  Mich.  475,  2  N.  W.  801;  Schoen- 
berg  V.  Voigt,  36  Mich.  310 ;  McKerch- 
er  V.  Curtis.  35  Mich.  478. 

Minn.  Pearson  v.  United  States 
Fidelity  &  Guaranty  Co.,  164  N  W 
919,  138  Minn.  240 ;  Fransen  v.  Falk 
Paper  Co.,  160  N.  W.  789,  135  Minn. 
284;  Nichols  v.  Atwood,  149  N.  vv. 
672,  127  Minn.  425;  Shartle  v.  City 
of    Minneapolis,    17    Minn.   308    (GU- 

"  Mo.  Martin  v.  Wiglesworth  (App.) 
im  S  W  906;  Scott  v.  Boeekeler 
Lumber  Co.  (App.)  186  S  W  1104; 
Knapp  V.  Hanley,  132  S.  W.  74<,  15o 
AIo.  App.  169;  Price  v.  Town  of 
Breckenridge,  92  Mo.  378,  5  S.  W.  20 ; 
State  V.  Ott,  49  Mo.  326;  Deere  v. 
Plant,  42  Mo.  60;  Kaw  Brick  Co.  v. 
Hogsett,  82  Mo.  App.  546;  Sharp  v. 
Sturgeon,  75  Mo.  App.  651;  Wood  v. 
White,  e  Mo.  App.  592,  memorandum  ; 
Carlin  v.  Russell,  5  Mo.  App.  583, 
memorandum. 

Mont.  State  v.  Postal  Telegraph 
Cable  Co.,  161  P.  953,  53  Mont.  104. 

Nev.  Colquhoun  v.  Wells,  Fargo  & 
Co.,  21  Nev.  459,  33  P.  977. 

Ohio.  Adams  v.  State,  29  Ohio  St. 
412;    Callahan  v.   State,  21  Ohio  St. 

Okl.  Frisco  Lumlier  Co.  v.  Spivey, 
140  P  157.  40  Okl.  633 ;  Friedman  v. 
Weisz,  58  P.  613,  8  Okl.  392. 

Pa.  Commonwealth  v.  De  Leo,  89 
A.  584.  242  Pa.  510. 

S  C.  Kuobeloch  v.  Germania  bav. 
Bank,  27  S.  E.  962,  50  S.  C.  259. 

Utah.  P.  A.  Sorensen  Co.  v.  Den- 
ver &  R.  G.  R.  Co.,  164  P.  1020. 

Va.  McCov  V.  Norfolk  &  C.  R.  Co., 
37  S.  E.  788,  99  Va.  132 ;  Levasser  v. 
Washburn,  11  Grat.  572. 

Wash.  Johansen  v.  Pioneer  Min- 
ing Co.,  137  P.  1019,  77  Wash.  421; 
Hanstad  v.  Canadian  Pac.  Ry.  Co.,  87 
P    832,  44  Wash.  505. 

W  Va.  Bartley  v.  Western  Mary- 
land Rv.  Co.,  95  S.  E.  443,  81  W.  Va. 
795-  Brogan  v.  Union  Traction  Co., 
86  S  E.  753,  76  W.  Va.  698 ;  Laraway 
v.  Croft  Lumber  Co.,  S4  S.  E.  333,  75 


W  Ya  510 ;  Walker  v.  Strosnider,  67 
S.'e.  1087,  67  W.  Va.  39,  21  Ann.  Cas. 
1-  Stewart  v.  Doak,  52  S.  E.  90,  58 
W  Va.  172:  State  v.  Greer,  22  W.  Va 
800:  Wheeling  Gas  Co.  v.  City  of 
Wheeling.  8  W.  Va.  320;  Henry  v. 
Davis.  7  W.  Va.  715.  .  x  •*    « 

Wis.  Weidner  v.  Standard  Life  & 
Accident  Ins.  Co.,  113  N.  W.  50,  132 
Wis.  624;  Odegard  v.  North  Wiscon- 
sin Lumber  Co.,  110  N.  W.  809,  130 
Wis.  659.  .  ,      ^. 

Instructions  held  misleading 
within  rule.  Where  defendant,  on 
prosecution  for  aggravated  assault, 
pleads  a  former  conviction  of  fighting 
in  a  public  place,  an  instruction  that, 
unless  the  jury  believe  that  the  offense 
charged  in  the  case  before  them  is  the 
same  offense  charged  in  the  former 
cvT^e  the  plea  of  former  conviction  can- 


oo  See  note  30  on  page  758. 

31  111.  Ilanecy  v.  McLaughlin,  159 
111.  App.  408. 

Ky.  American  Book  Co.  v.  Archer, 
186  S.  W.  672,  170  Ky.  744;  Illinois 
Cent.  R.  Co.  v.  Tandy,  107  S.  W.  715, 
32  Kv.  Law  Rep.  962. 

Mich.     Dodge  v.  Brown,  22  Mich. 

446. 

Mo.     Klamp  v.  Rodewall,   19  Mo. 

449 

Neb.  Mutual  Hail  Ins.  Co.  of  Wis- 
consin V.  Wilde,  8  Neb.  427,  1  N.  TN  . 

384. 

Ohio.  Washington  Mut.  Ins.  Co.  v. 
Merchants'  &  Manufacturers'  Mut. 
Ins.  Co..  5  Ohio  St.  4.50. 

Pa.  Renn  v.  Tallman,  25  Pa.  Su- 
per. Ct.  503:  Stuart  v.  Line,  11  Pa. 
Super.  Ct.  345. 

Tex.  Kalamazoo  Nat.  Bank  v. 
Sides  (Civ.  App.)  28  S.  W.  918. 

Va.  Gordon  v.  City  of  Richmond, 
83  Va.  436,  2  S.  E.  727;  Ragland  v. 
Butler,  18  Grat  323. 

Conflicting  evidence.  Where  the 
evidence  is  conflicting,  a  misleading 
charge  will  not  be  held  harmless. 
Finks  V.  Cox  (Tex.  Civ.  App.)  30  S. 
W.  512.  ^    ^^       ^ 

32  Furgeson  v.  Brown,  1  Mo.  App. 
Rep'r  458;  Gulf,  C.  &  S.  F,  Ry.  Co. 
V.  Greenlee,  62  Tex.  344;  Hudson  v. 
Morriss,  55,  Tex.  595. 


§422 


INSTRUCTIONS   TO  JURIES 


758 


fusing  and  misleading  instructions  is  not  cured  by  the  fact  that 
their  general  tenor  is  undul}^  favorable  to  the  complaining  party.^^ 


not  avail,  is  misleading.  Lawson  v. 
State  (Tex.  Cr.  App.)  32  S.  W.  895.  A 
charge  authorizing  the  jury  to  con- 
vict without  regard  to  the  evidence  as 
to  venue,  or  as  to  when  the  offense 
was  committed.  Shackleford  v.  State, 
79  Ala.  26.  An  instruction  that  if  an 
offense  is  committed  on  the  boundary 
of  two  counties,  or  if  it  is  uncertain 
where  the  boundary  is,  a  conviction 
could  be  had  in  either  county,  is  mis- 
leading, when  there  is  no  proof  that 
the  offense  was  committed  on  such 
boundary,  or  that  the  location  thereof 
was  uncertain,  and  the  only  uncer- 
tainty was  as  to  the  place  where  the 
offense  was  committed.  Jones  v. 
State,  54  Ark.  371,  15  S.  W.  1026.  An 
instruction  that  "no  circumstance  in- 
troduced in  evidence  can  be  used  by 
vou  as  a  basis  for  any  inference  of 
guilt  against  the  defendants  unless 
such  circumstance  is  first  proven  to 
your  entire  satisfaction;  and  every 
circumstance  in  the  case  which  is  not 
proven  to  your  entire  satisfaction 
should  be  wholly  dismissed  from  your 
consideration,  and  must  not  be  per- 
mitted to  influence  you  to  any  extent 
against  the  defendants.  Any  circum- 
stance which  is  essential  to  a  conclu- 
sion of  guilt  against  the  defendants 
should  be  established  beyond  all  rea- 
sonable doubt,  and  to  a  moral  certain- 
ty, before  it  can  be  used  by  the  jury 
against  the  defendants" — is  mislead- 
ing, since  it  would  be  proliably  be  un- 
derstood to  mean  that  guilt  must  be 
proved  beyond  the  possilnlity  of  a 
doubt.  Ciudrat  v.  People,  138  111. 
103.  27  N.  E.  1085.  A  charge  that  "all 
evidence  is  more  or  less  circumstan- 
tial, the  difference  being  in  the  degree, 
find  it  is  sufficient  for  the  purpose 
when  it  excludes  disbelief,  that  is, 
actual  and  not  technical  disbelief; 
for  he  who  is  to  pass  on  the  question 
is  not  at  liberty  to  disbelieve  as  a 
iuror,  while  he  Iw^lieves  as  a  man." 
'state  V.  rratt,  20  Iowa,  267. 

A  charge  in  a  criminal  prosecution 
that,  "while  the  law  seeks  to  punish 
the  guilty,  and  to  check  crime,  it 
never  attempts  to  check  crime  by  pun- 
i.^hing  the  innocent,  or  even  the  rea- 


sonably doubtful  innocent."  Shelby 
V.  State,  97  Ala.  87,  11  So.  727.  An 
instruction  that  it  is  not  for  the  jury- 
to  say  whether  defendant  did  wrong 
or  not ;  that  they  are  only  to  consider 
the  wrong  charged  in  the  indictment, 
Dryman  v.  State,  102  Ala.  130,  15  So. 
433.  A  charge  that  the  jury  has  no 
right  to  pardon  any  one,  for  any  of- 
fense whatever,  and,  if  you  are  ssjtis- 
fied,  beyond  a  reasonable  doubt,  that 
the  defendant  is  guilty  in  manner  and 
form  as  charged  in  the  indictment, 
then  it  would  be  a  gross  violation  of 
your  duty  as  sworn  jurors  to  acquit 
him  through  sympathy  or  a  spirit  of 
condonation  of  his  offense,  nor  have 
you  any  right  to  disregard  any  testi- 
mony tending  to  establish  any  fact  in 
controversy  in  this  case,  it  being  your 
duty  to  consider  all  the  evidence,  fair- 
ly and  impartially,  with  the  view  of 
ascertaining  the  real  tiiith."  Smith 
V.  State,  55  Ark.  259,  18  S.  W.  237. 
An  instruction  that  "proof  of  con- 
tradictory statements  or  declarations 
on  material  points  made  by  a  witness 
may  be  sufficient  to  raise  a  reasonable 
doubt  in  the  minds  of  the  jury." 
Washington  v.  State,  58  Ala.  3.55.  A 
charge,  in  a  prosecution  of  a  person 
for  wrecking  a  train,  "that  in  deter- 
mining their  verdict  they  are  not  cir- 
cumscribed nor  confined  to  the  testi- 
mony of  witnesses,  but  that  they  can 
consider  all  the  circumstances  sur- 
rounding the  case,  and  that  it  is  not 
necessary  to  prove  the  actual  facts  of 
the  conspiracy  to  wreck  a  train,  but 
that  it  may  be  collected  from  collat- 
eral circumstances,  if  any,  which  may 
in  evidence."  Nail  v.  State,  70  Miss, 
32, 11  So.  793.  A  charge,  on  an  indict- 
ment for  murder,  that  if  any  reason- 
able doubt  exist  in  the  minds  of  the 
jury  as  to  the  credibility  of  any  wit- 
ness, they  must  give  the  benefit  of  the 
doubt  to  the  prisoner.  Shipp  v.  Com- 
monwealth, 86  Va.  746,  10  S.  E.  106.5. 
3  0  Ala.  Citizens'  Light,  Heat  & 
Power  Co.  v,  Lee,  62  So,  199,  182  Ala. 

33  Chicago,  B,  &  Q.  R.  Co.  v.   An- 
derson, 38  Neb.  112,  56  N,  W,  794. 


759 


FORMAL   MATTERS 


§423 


§  423.     Specific  applications  of  rule 

An   instruction   which   is   correct  as  an   abstract  proposition   of 
law  may  be  misleading  in  view  of  the  evidence,  and  properly  re- 


561 ;    Southern  Rv.  Co.  v.  Hobson,  58 
So.  751,  4   Ala.  App.  408. 

Ark.  Bates  v.  Ford,  162  S.  W. 
1097,  110  Ark.  567. 

Cal.  Thompson  v.  Los  Angeles  & 
S.  D.  B.  Ry.  Co.,  134  P.  709,  165  Cal. 
748. 

Colo.  Trimble  v.  Collins,  172  P. 
421,  64  Colo.  464. 

Ga.  Sea])oarcl  Air  Line  Ry.  v.  Ar- 
rant, 87  S.  E.  714,  17  Ga.  App.  489; 
Hilton  V.  Svlvania  &  G.  R.  Co.,  68  S. 
E.  746,  8  Ga.  App.  10;  Nelson  v. 
Spence,  58  S.  E.  697,  129  Ga.  35. 

111.  Douvia  V.  City  of  Ottawa,  200 
111.  App.  131;  Weltz  v.  Counell.  196 
111.  App.  211;  Hostettler  v.  Mush- 
rush,  194  111.  App.  58 ;  Howell  v.  Em- 
pire State  Surety  Co.,  183  111.  App. 
220;  Driza  v.  Jones  &  Adams  Coal 
Co.,  171  111.  App.  139;  Dickey  v. 
Ghere,  163  111.  App.  641 ;  Stufflebeam 
V.  Jewell,  155  111.  App.  108. 

Ind.  Bump  v.  McGrannahan,  111 
N.  E.  640,  61  Ind.  App.  136 ;  Vauda- 
lia  Coal  Co.  v.  Coakley  (App.)  108  N. 
E.  382;  Shilling  v.  Braniff,  58  N.  E. 
855,  25  Ind.  App.  676. 

Iowa.  Merchants'  Transfer  &  Stor- 
age Co.  V.  Chicago,  R.  I.  &  P.  Ry. 
Co.,  150  N.  W.  720,  170  Iowa,  378. 

Ky.  Cincinnati,  N.  O.  &  T.  P.  Ry. 
Co.  V.  McElroy,  142  S.  W.  1009,  146 
Ky.  668 ;  Dorsey  v.  Commonwealth. 
17  S.  W.  183 ;  Ix)uisville  &  N.  R.  Co. 
V.  Logan,  9  Ky.  Law  Rep.  (abstract) 
893. 

Md.  Doggett  V.  Tatham,  81  A.  376, 
116  Md.  147. 

Mo.  Bean  v.  Lucht,  145  S.  W. 
1171,  165  Mo.  App.  173;  State  v. 
Owslev,  111  Mo.  450,  20  S.  W.  194; 
Wheeler  v.  Chestnut,  69  S.  W.  621,  95 
Mo.  App.  546. 

Neb.  Faulkner  v.  Gilbert,  86  N.  W. 
1074,  62  Neb.  126,  denying  rehearing 
85  N.  W.  843,  61  Neb.  602. 

N.  Y.  Gourd  v.  Healy,  150  N.  Y.  S. 
1006,  165  App.  Div.  288 ;  Dale  v.  In- 
terborough  Rapid  Transit  Co.  (Sup.) 
131  N.  Y.  S.  590. 

N.  C.  Morton  v.  Washington  Light 
&  Water  Co.,  86  S.  E.  294,  169  N.  C. 


468 ;    Bragaw  v.   Supreme  Lodge,  32 
S.  E.  544,  124  N.  C.  154. 

Pa.  Pennsylvania  R.  Co.  v.  Berry, 
68  Pa.    (18  P.  F.   Smith)  272. 

S.  C.  Gillian  v.  Southern  Ry.  Co., 
93  S.  E.  865,  108  S.  C.  195 ;  Cathcart 
V.  Matthews,  89  S.  E.  1021,  105  S.  C. 
329. 

Tex.  Missouri,  K.  &  T.  Ry.  Co.  of 
Texas  v.  Robertson  (Civ.  App.)  189  S. 
W.  284;  Kansas  City,  M.  &  O.  Ry.  Co. 
of  Texas  v.  Hall  (Civ.  App.)  152  S.  W. 
445;  Power  State  Bank  v.  Carver 
(Civ.  App.)  14S  S.  W.  341 ;  Hazard  v. 
Western  Commercial  Travelers'  Ass'n, 
116  S.  W.  625,  54  Tex.  Civ.  App.  110 ; 
Champion  v.  Johnson  County  (Civ. 
App.)  109  S.  W.  1146;  St.  Louis 
Southwestern  Ry.  Co.  of  Texas  v. 
Groves,  97  S.  W.  1084,  44  Tex.  Civ. 
App.  63;  Magee  v.  Oklahoma  City  & 
T.  R.  Co.  (Civ.  App.)  95  S.  W.  1092; 
Patterson  v.  State  (Cr.  App.)  60  S.  W. 
557. 

Va.  Pocahontas  Consol.  Collieries 
Co.  V.  Hairston,  S3  S.  E.  1041,  117  Va. 
118 ;  Whealtou  &  Wisherd  v.  Dough- 
ty, 82  S.  E.  94,  116  Va.  566 ;  Kinche- 
loe  V.  Tracewells,  11  Grat.  587. 

Wash.  Revilla  Fish  Products  Co. 
V.  American-Hawaiian  S.  S.  Co.,  137 
P.  337,  77  Wash.  49. 

"W.  Va.  State  v.  Davis,  51  S.  E. 
230,  58  W.  Va.  94;  Parrish  v.  Citv  of 
Huntington,  50  S.  E.  416,  57  W.  Va. 
286;  State  v.  Sutfln,  22  W.  Va.  771 : 
State  v.  Rolnnson,  20  W.  Va.  713,  43 
Am.  Rep.  799 ;  State  v.  Cain,  20  W. 
Va.  679. 

Wis.  J.  H.  Clark  Co.  v.  Rice,  106 
N.  W.  231,  127  Wis.  451.  7  Ann.  Cas. 
505  ;  Sullivan  v.  Collins,  83  N.  W.  310. 
107  Wis.  291;  Buel  v.  State,  80  N. 
W.  78.  104  Wis.  132. 

Illustrations  of  instrnctions  ob- 
jectionable ^vitbin  rule.  An  in- 
struction referring  to  a  certain  con- 
tingency, but  not  stating  the  nature 
of  the  contingency,  and  unintelligible 
for  want  of  such  explanation.  Gam- 
brill  V.  Schooley,  52  A.  500,  95  Md. 
2G0,  63  L.  R.  A.  427.  In  a  prosecu- 
tion for  as.sault  with  intent  to  ravish, 
requested  instructions  charging  jury 


§423 


INSTRUCTIONS  TO  JURIES 


760 


fused  for  that  reason.^*    After  a  proper  instruction  has  been  given, 
it  is  error  to  Sfive  another  instruction  which  modifies   it  or  ob- 


that   if   they   believed    the   evidence 
they  must  "acquit"  defendant  of  an 
assault  with  intent  to  ravish,  in  place 
of  instructing  them  that  they  could 
not  find  him  guilty  of  that  offense, 
was  misleading,  as  it  was  liable  to  im- 
press the  jury  that,  being  acquitted, 
he  could  not  be  found  guilty  of  as- 
sault.    Pitman  v.    State,  42  So.  993, 
148  Ala.  612.    An  instruction  that  the 
burden  of  showing  that  a  sectional  line 
was  not  a  straight  line  was  upon  the 
party  claiming  that  fact,  and,  if  the 
evidence  as  to  the  line  being  straight 
or   otherwise   was   of    equal   weight, 
then    the    presumption    that    it    was 
straight    would    not    be    overthrown. 
North  V.  Jones,  100  N.  E.  84,  53  Ind. 
App.   203.     An   instiiiction  confusing 
two    distinct    rules    as    to    damages. 
Louisville  &  N.  R.  Co.  v.  Hughes,  84 
S.  E.  451,   143  Ga.  206.     Instruction 
that  burden  of  proof  was  on  plaintiff 
to  prove  case  by  preponderance  of  evi- 
dence, and  on  defendants  to  prove  de- 
fense by  preponderance  of  evidence. 
Quanah,    A.    &    P.    Ry.    Co.    v.    Novit 
(Tex.  Civ.  App.)   199   S.   W.  496.     A 
charge  that,  if  the  jury  was  unable  to 
harmonize  the  testimony  of  plaintiff 
and  defendant  and  was  unable  to  say 
who  was  telling  the  truth  as  to  the 
contract  in  controversy,  they  should 
not  find  for  plaintiff.    Johnston  Bros. 
Co.  V.  Bentley,  56  So.  742,  2  Ala.  App. 
281.    An  instruction  that  the  jury,  in 
determining  the  cause  of  an  injury, 
might  "look  to  the  size  and  shape  of 
the  evidence  of  injury  on  the  plain- 
tiff's shoulder."     Southern  Bell  Tele- 
phone &  Telegraph  Co.  v.  Mayo,  33 
So.  16,  134  Ala.  641.     An  instruction, 
which  reciuired  the  jury  to  determine 
what  the  negligence  charged  in   the 
complaint  was.     Western  Union  Tele- 
graph  Co.   V.   Northcutt,  48    So.   553, 
158  Ala.   539,   132   Am.    St.   Rep.   38. 
An  instruction  that  the  burden  was  on 
defendant   to   prove    the    defense   of 
payment  for  sers'ices,  and  if  defc^nd- 
ant  had  failed  to  so  prove  to  the  rea- 
sonable satisfaction  of  the  jury  they 
should  not   find   against  plaintiff  on 
that  account.     Cole  v.  Waters,  147  S. 
W.  552,  164  Mo.  App.  567.    An  instruc- 


tion, in  an  action  on  a  contract  where- 
by defendant  guaranteed  the  payment 
to  plaintiff  of  an  indebtedness  of  a 
decedent,  that  if  plaintiff  accepted  a 
certain  sum  of  money  in  settlement  of 
his  claim  "by  and  without  the  con- 
sent of  the  defendant,"  this  oper- 
ates to  discharge  said  M.  as  guar- 
antor. Marx  v.  Ely,  41  So.  411,  148 
Ala.  659.  A  charge,  in  a  prosecu- 
tion for  keeping  a  saloon  open  and 
selling  intoxicating  liquors  on  Sun- 
day, that  if  accused  kept  open 
his  saloon  and  sold  intoxicating  liq- 
uors at  any  time  prior  to  midnight 
on  the  day  immediately  preceding  the 
Sunday  in  question,  he  should  be  ac- 
quitted, was  misleading  and  confus- 
ing, since  it  in  effect  told  the  jury 
that  even  though  accused  kept  his 
saloon  open  and  sold  liquors  between 
midnight  on  Saturday  and  six  o'clock 
of  the  following  Monday  morning  he 
should  be  acquitted  if  at  any  time 
prior  to  midnight  of  Saturday  he  alsa 

34  Ala.  Lawson  v.  State,  46  So. 
259,  155  Ala.  44. 

Cal.  People  v.  Arnold,  127  P.  1060, 
20  Cal.  App.  35. 

Ga.  Hagood  v.  State,  62  S.  E.  641, 
5  Ga.  App.  SO;  Holland  v.  State,  60 
S.  E.  205,  3  Ga.  App.  465. 

111.  Lindberg  v.  Chicago  City  Ry. 
Co..  S3  111.  App.  433. 

Iowa.  Gray  v.  Chicago,  R..  I.  &  P. 
Ry.   Co.,  139  N.  W.  934,  160  Iowa,  1. 

Kan.     State  v.  Ingram,  16  Kan.  14. 

Me.    Gilmore  v.  McNeil,  45  Me.  599. 

Md.  Baltimore  &  O.  R.  Co.  v. 
Boyd,  67  Md.  32,  10  A.  315,  1  Am.  St. 
Rep.  362. 

Nev.  Zelavin  v.  Tonopah  Belmont 
Development  Co.,  149  P.  188,  39  Nev.  1. 

N.  Y.  Hills  v.  Interborough  Rapid 
Transit  Co.,  163  N.  Y.  S.  1010,  176 
App.  Div.  754. 

In  Alabama,  however,  it  is  not  re- 
versible error  to  give  a  charge  that 
states  a  true  proposition  of  law,  which, 
as  applied  to  the  facts,  might  be  mis- 
leading, where  the  party  objecting 
thereto  offers  no  explanatory  charge. 
Forst  V.  Leonard,  22  So.  481,  116  Ala. 
82. 


761 


FORMAL  MATTERS 


§423 


scures  its  meaning.^"     An   instruction  may  be  so  verbose   as  to 
be  misleading.^" 

In  a  criminal  prosecution  an  instruction  containing  several  defi- 
nitions of  the  crime  charged  against  the  defendant  is  erroneous, 
because  confusing.^"  An  instruction  submitting  an  undisputed 
fact  to  the  jury  may  be  erroneous,  and  cause  for  reversal,  as  caus- 
ing the  jury  to  doubt  the   existence  of  such  fact.'*     The  court 


kept  it  open  and  sold  liquors.  O'Gra- 
dy  V.  People.  95  P.  346,  42  Colo.  312. 
An  instruction  that  one  who  owns 
property  along  the  railroad  must 
know  that  trains  are  expected  to  run 
with  re.anil'Trity,  and  if  there  are  spe- 
cial risks  from  no  want  of  care  in 
the  proper  equipment  of  the  trains, 
those  risks  are  incident  to  the  situa- 
tion, and  the  extra  care  they  demand 
devolves  upon  the  other  party,  and 
the  consequence  of  not  exercising  it 
must  fall  on  him  because  the  railroad 
is  not  in  fault.  Florida  East  Coast 
Ry.  Co.  V.  Welch,  44  So.  250,  53  Fla. 
145,  12  Ann.  Cas.  210. 

Illustrations  of  instructions  held 
not  misleading.  An  instruction,  in 
an  action  for  breach  of  contract  to 
thresh  a  crop  of  rice,  that  if  the  jury 
believed  that  there  was  no  contract 
of  threshing,  as  alleged  in  the  peti- 
tion, or  if  plaintiff's  damage  was 
caused  by  his  neglect,  or  the  crop 
was  not  properly  cut,  bound,  and 
shocked,  and  the  water  was  not  sviffi- 
ciently  drained  off  the  land,  etc.,  the 
verdict  must  be  for  defendants.  Kerr 
V.  Blair,  105  S.  W.  548,  47  Tex.  Civ. 
App.  406.  The  use  of  the  words  "evi- 
dence" and  "testimony"  in  instruc- 
tions without  regard  to  technical  dif- 
ference in  meaning.  Scherrer  v.  City 
of  Seattle,  100  P.  144,  52  Wash.  4. 
An  instruction  that,  when  a  man  and 
wife  contract  to  sell  their  homestead, 
the  wife  may  up  to  the  last  moment 
before  her  privy  acknowledgment  is 
completed  retract  and  thereby  defeat 
the  sale.  London  v.  Crow,  102  S.  W. 
177,  46  Tex.  Civ.  App.  190.  An  in- 
struction that  the  jury  should  find 
there  was  no  contributory  negligence 
if  there  was  no  evidence  thereon  or  it 
was  evenly  balanced,  and,  if  there  was 
no  evidence  of  a  balance  or  a  pre- 
ponderance against  negligence  of  de- 
fendant, they  should  find  him  not 
guilty   of  negligence.     Wellington   v. 


Reynolds,  97  N.  R  155,  177  Ind.  49. 
Instructions,  in  an  action  to  recover 
an  advance  payment  on  a  purchase  of 
seed  corn,  that  the  purchaser  could 
not  recover  without  an  express  war- 
ranty, and  that,  if  the  corn  was  sold 
without  an  express  warranty,  and 
was  reasonably  fit  for  seed  corn,  de- 
fendant might  recover  on  his  counter- 
claim. Totten  V.  Stevenson,  135  N. 
W,  715,  29  S.  D.  71.  An  instruction 
that,  when  the  jury  "have  reached  a 
conviction  under  tlie  evidence"  and 
the  law,  they  must  write  it  in  their 
verdict.  The  use  of  the  word  "convic- 
tion," taken  in  connection  with  the 
context,  could  not  have  misled  the 
jury  to  believe  that  the  court  had 
reference  to  the  conviction  of  accused, 
rather  than  to  the  conviction  in  their 
own  minds.  Flannigan  v.  State,  79 
S.  E.  745.  13  Ga.  App.  663. 

35  Ward  V.  Brown,  44  S.  E.  488,  53 
W.  Va.  227. 

3  6  Idaho.  Thatcher  v.  Quirk,  4 
Idaho,  267,  38  P.  652. 

111.  Scott  V.  Parlin  &  Orendorff 
Co.,  146  111.  App.  92;  Adams  v.  Smith, 
58  111.  417. 

Ind.  Jeffersonville  Rlfg.  Co.  v. 
Holden,  102  N.  E.  21,  1.80  Ind.  301. 

Mo.     Stid  V.  Missouri  Pac.  Rv.  Co., 

139  S.  W.  172,  236  Mo.  382;   Williams 

V.  Ranson.  136  S.  W.  349.  234  Mo.  55. 

Okl.      Friedman    v.    Weisz,    58   P. 

613,  S  Okl.  392. 

3  7  People  V.  Monahan,  59  Cal.  389. 
3  8  Seaboard    Air    Line   Rv.    Co.    v. 
Hess,  74  So.  500,  73  Fla.  494. 

Harmless  error.  That  a  clause  in 
a  charge,  used  simply  as  an  hypoth- 
esis for  submitting  the  main  issue 
in  the  case,  submitted  an  undii^puted 
fact  cannot  be  held  to  be  misleading 
as  causing  the  jury  to  doubt  such 
fact,  when  its  existence  was  shown 
beyond  the  shadow  of  a  doulit  by 
positive  and  undisputed  evidence, 
making  it  impossible  for  the  jury  to 


§  423  INSTRUCTIONS   TO  JURIES  •  7G2 

should  not  use  the  facts  of  another  case  as  an  illustration  in  its 
charg^e,   since    a   slight   variance    in   the   facts   might   mislead    the 

An  instruction  using  a  word  in  different  senses,*"  or  an  instruc- 
tion susceptible  of  two  constructions,  one  of  which  is  calculated 
to  confuse  and  mislead  the  jury,*i  is  erroneous  and  may  be  re- 
fused,"*- although  where  an  instruction  is  given  in  a  certain  sense- 
and  acted  upon  by  the  jury  in  the  sense  intended,  and  is  otherwise 
correct,  judgment  will  not  be  reversed  because  the  language  used, 
strictly  construed,  might  have  a  different  meaning.*^  An  instruc- 
tion that  if  the  jury  do  not  believe  the  evidence  they  should  find 
the  defendant  not  guilty  is  obscure  and  properly  refused.** 

§  424.     Limitations  of  rule 

Under  the  above  rule  instructions  need  not  be  the  most  simple 
and  direct  that  can  be  given  in  the  case.  If  they  are  such  as  may 
be  readily  understood,  and  are  not  misleading  to  the  ordinary  mind, 
they  are  sufficient,*^  and  an  instruction  which  correctly  states  a 
pertinent  rule  of  law  should  not  be  refused,  because  the  language 
used  is  not  the  most  precise  and  elegant  English,  if  it  is  not  mis- 
leading to  an  intelligent  jury.*^ 

x\mbiguity  or  lack  of  clearness  in  an  instruction  will  not  be 
cause  for  reversal,  if  it  is  apparent  that  the  jury  were  not  misled,*' 
or,  if  there  is  no  good  reason  to  suppose  that  the  jury  did  not  un- 
derstand the  meaning  intended  to  be  conveyed.**  While  the  in- 
advertent use  of  a  wrong  word  or  the  inadvertent  omission  of  a 
word  may  render  an  instruction  misleading  and  constitute  reversi- 


bolieve  the  contrary.     Kelsey  v.'  Col-  child  until  "cured"  is  not  erroneous, 

lins,  108  S.  W.  793,  49  Tex.  Civ.  App.  because,  her  limb  having  been  ampu- 

230.  tated,    defendant    claims    she    would 

3  0  State  V.  Tapp,  89  S.  E.  394,  105  never  be  cured,  as  "cured"  means  the 
S.  C.  55.^  act  of  healing,  to  heal  a  wounded  limb, 

4  0  Neff  V.  City  of  Cameron,  111  S.  and  the  jury  could  not  have  construed 
W.  1139,  213  Mo.  350,  18  L.  R.  A.  (N.  it  as  contended.  Ft.  Worth  &  D.  C. 
S.)  320.  127  Am.  St.  Rep.  606.  .Ry.  Co.  v.  Wininger  (Tex.  Civ.  App.) 

■ti  Virginia  Cent.  R.  Co.  v.  Sanger,  159  S.  W.  881. 

1.")  Grat.   (Va.)  230;    White  v.   Sohn,  44  Leonard  v.  State,  43  So.  214,  150 

59  S.  E.  890,  63  W.  Va.  80.  Ala.  89. 

4  2  Rolston  v.  Langdon.  20  Ala.  660;  45  Carson  v.  Old  Nat.  Bank,  79  P. 

Wheeling  Gas  Co.  v.  City  of  Wheel-  927,  37  Wash.  279. 

ing,  8  W.  Va.  320.  46  Tiggerman  v.  City  of  Butte,  119 

43  Pnrkhurst  v.  Masteller,  57  Iowa,  P.   477,  44  Mont.  138. 

474,  10  N.  W.  804.  47  Hoitt  v.   Holcomb,  32  N.  H.  185. 

Double  meaning  of  "cured."     An  4s  Lackawanna  &  B.  R.  Co.  v.  Cho- 

iiist ruction  allowing  compensation  for  newitli,  52  Pa.   (2  P.  F.   Smith)  382, 

nursing    and    attention    to    plaintilFs  91  Am.  Dec.  168. 


763 


FORMAL  MATTERS 


§424 


ble  error,**  this  will  not  necessarily  be  so,^*  as  where  the  word  ''de- 
fendant" is  used  for  "plaintiff,"  or  vice  versa.^^ 

The  use  of  a  word  in  an  instruction  cannot  be  objected  to  as  am- 
biguous or  misleading,  if  it  is  used  in  connection  with  a  word 
which  makes  its  meaning  definite  and  certain,^'^  and  the  granting" 
of  a  special  instruction  which  is  too  technical  and  apt  to  mislead 
the  jury  is  not  reversible  error,  if  the  court  in  its  charge  correctly 
instructs  the  jury  on  the  subject  of  the  special  request  and  re- 
moves any  ambiguity .^^  If  instructions  taken  separately  are  prop- 
er, a  contention  that  when  taken  together  they  have  a  tendency 
to  mislead  is  not  tenable. ^^ 

In  determining  whether  an  instruction  is  misleading,  the  plead- 
ings and  the  evidence  should  be  considered,^*^  and  the  court  will 
credit  the  jury  with  common  discernment  and  common  sense.^ 
Whether  an  instruction  is  misleading  depends,  not  on  the  mean- 
ing which  the  ingenuity  of  counsel  can,  at  leisure,  wrest  from  it, 
but  on  how  and  in  what  sense,  under  the  evidence  and  the  circum- 
stances of  the  trial,  ordinary  men  would  undesrtand  it,^'  and  a  con- 
tention that  an  instruction  is  misleading  may  be  untenable,  in 
view  of  the  findings  of  fact  of  the  jury  showing  that  they  were  not 
misled.^*     In  some  jurisdictions  a  judgment  will  not  be  reversed 


4  9  Marklev  v.  Western  Union  Tele- 
graph Co.,  132  N.  W.  37,  151  Iowa, 
612 ;  Galveston  Land  &  Improvemont 
Co.  V.  Lew,  30  S.  W.  504,  10  Tex. 
Civ.  App.  104. 

5  0  Rt.  Louis,  I.  M.  &  S.  Rv.  Co.  v. 
Dav,  110  S.  W.  220,  86  Ai-lc.  104;  Lake 
Erie  &  AV.  R.  Co.  v.  Hobbs,  SI  N.  E. 
90,  40  Ind.  App.  511;  Lee  v.  Wild 
Rice  Lumber  Co.,  112  N.  W.  SS7,  102 
Minn.  74;  Texas  &  P.  Ry.  Co.  v. 
Johnson,  106  S.  W.  773,  48  Tex.  Civ. 
App.  135. 

51  Benton  v.  Harley,  94  S.  E.  46,  21 
Ga.  App.  168 ;  Majrowan  v.  Kentucky 
Utilities  Co.,  200  S.  W.  367,  179  Ky. 
114;  Campbell  v.  Sprinsfleld  Trac- 
tion Co.,  163  S.  W.  287,  178  Mo.  App. 
520. 

52  Harris  v.  Welch,  70  Iowa,  80,  29 
N.  W.  811. 

53  O'Dwver  v.  Northern  Market 
Co.,  30  App.  D.  C.  244. 

5  4  People  V.  Scarbak,  92  N,  E.  286, 
245  111.  435.  Compare  Galveston,  H. 
&  S.  A.  Ry.  Co.  V.  Eaten  (Tex.  Civ. 
App.)  44  S.  W.  562. 

5  5  Aldrich  Mining  Co.  v.  Pea  roe,  68 


So.  900,  192  Ala.  195;  Bowles  v.  Low- 
ery,  62  So.  107,  181  Ala.  603 ;  Georgia 
Southern  &  F.  Ry,  Co.  v.  Hamilton 
Lumber  Co.,  58  So.  838,  63  Fla.  150. 

5G  Chicago  &  G.  T.  Ry.  Co.  v.  Smith, 
124  111.  App.  627;  Chicago  City  Ry. 
Co.  V.  Same,  124  111.  xVpp.  627,  judg- 
ment affirmed  SO  N.  E.  716,  226  111. 
178. 

Instmictions  framed  in  tecliui- 
cal  language.  The  appellate  court 
will  not  reverse  on  the  ground  that  a 
charge,  though  correct  in  law,  is  so 
framed  as  not  to  be  readily  vuider- 
stood  except  by  a  lawyer,  when  there 
is  reason  to  believe  that  a  jury  of 
average  intelligence  would  not  be  mis- 
led thereby,  and  it  appears  that  no 
request  to  present  the  issues  more 
fully  was  made  by  counsel  in  the 
court  below.  Blum  v.  Stein,  68  Tex. 
608,  5  S.  W.  454. 

5  7  Young  V.  City  of  Fairfield,  173 
111.  App.  311;  Eckels  v.  Cooper,  136 
111.  App.  60;  Bickel  v.  Martin,  115 
111.  App.  367. 

5  8  Citizens'  St.  Ry,  Co.  v.  Merl,  59 
N.  E.  491,  26  Ind.  App.  284. 


§425 


INSTRUCTIONS  TO  JURIES 


76* 


merely  upon  the  ground  that  an  instruction  is  calculated  to  mis- 
lead the  jury,  when  the  party  aggrieved  fails  to  ask  to  have  the 
same  modified,  or  an  additional  instruction  given.^^ 

§  425.     Misstatements  of  evidence 

A  misstatement  by  the  trial  judge  with  respect  to  the  evidence- 
bearing  on  a  material  fact  introduced  on  behalf  of  either  party, 
whether  such  misstatement  is  as  to  the  quality  or  character  of 
the  evidence  or  as  to  the  facts  testified  to,  constitutes  error,'''*' 
which  may  be  ground  for  reversal,*^  as  being  unfair  and  mislead- 
ing,^' and  a  request  for  an  instruction  involving  the  danger  of  a 
misstatement  of  the  evidence  may  properly  be  refused."^     Such  a 


5  9  U.  S.  Baltimore  &  P.  R.  Co.  v, 
Mackey.  157  U.  S.  72,  15  Sup.  Ct.  491, 
39  L.  Ed.  624:  (C.  C.  Mass.)  Locke 
V.  United  States,  Fed.  Cas.  No.  8,442, 
2  Cliff.  574. 

Ala.  Evans  v.  State,  82  So.  625, 
17  Ala.  App.  141 ;  Johnson  v.  Louis- 
ville &  N.  R.  Co.,  82  So.  100,  203  Ala. 
86;  National  Supply  Co.  v.  J.  T. 
Plorne  Veneer  Co.,  81  So.  856,  17  Ala. 
App.  78 :  Lmpii-e  Clothing  Co.  v.  Ham- 
mons,  81  So.  838,  17  Ala.  App.  60 ;  Ex 
parte  Hill,  69  So.  598,  194  Ala.  559, 
denying  certiorari  City  of  Tuscaloosa 
V.  Hill,  69  So.  486.  14  Ala.  App.  541 ; 
Reeves  v.  State,  68  So.  569.  13  Ala. 
App.  1 ;  Loeh  v.  City  of  Montgomery, 
61  So.  642,  7  Ala.  App.  325;  George  F. 
Craig  &  Co.  v.  Pierson  Lumber  Co., 
53  So.  803,  169  Ala.  548 ;  Millender  v. 
State,  46  So.  756,  155  Ala.  17 :  Hen- 
ingbur?  v.  State,  45  So.  246,  153  Ala. 
13;  Chandler  v.  .Tost,  96  Ala.  596,  11 
So.  6.36;  Wilhoyte  v.  Udell,  9  So. 
5.50,  93  Ala.  302 ;  Waxelbaum  v.  Bell, 
91  Ala.  .331,  8  So.  571;  Birmingham 
Fire  Brick  Works  v.  Allen,  86  Ala. 
18.5,  5  So.  454;  Callan  v.  McDaniel, 
72  Ala.  96;  Whilden  v.  Merchants' 
&  Planters'  Nat.  Bank,  64  Ala.  1,  38 
Am.  Rep.  1 ;  Durr  v.  Jackson,  .59  Ala. 
203;  Smith  v.  Fellows,  .58  Ala.  467; 
Hart  v.  Bray,  50  Ala.  446 ;  Abraham 
V.  Nunn,  42  Ala.  51 ;  Sharp  v.  Bums, 
35  Ala.  653;  Partridge  v.  Forsyth,  29 
Ala.  200 ;  Kenan  v.  Holloway,  16  Ala. 
53,  50  Am.  Dee.  162 ;  Casky  v.  Havi- 
land,  13  Ala.  314;  Borum  v.  Garland, 
9  Ala.  4.52. 

Ga.     iniis  v.  Smith,  10  Ga.  2.5,3. 

Ind.  Hullock  V.  Iglehart,  30  Ind. 
327. 


111.  Warner  v.  Dunnavan,  23  IlL 
380. 

■Minn.  McCormick  v.  Louden,  64 
Minn.  509,  67  N.  W.  366. 

N.  Y.  Springsteed  v.  Lawson,  14 
Abb.  Prac.  328. 

Or.  Schoellhamer  v.  Rometsch,  2Q 
Or.  394,  38  P.  344. 

Pa.  Peirson  v.  Duncan,  162  Pa. 
187,  29  A.  733,  34  Wkly.  Notes  Cas. 
456. 

Wash.  McQuillan  v.  City  of  Seat- 
tle, 13  Wash.  600,  43  P.  893;  Box  v. 
Kelso,  5  Wash.  360,  31  P.  973. 

6  0  Ala.  American  Oak  Extract  Co. 
V.  Ryan,  104  Ala.  267,  15  So.  807. 

Ark.  Boren  v.  Bettis,  194  S.  W. 
850,  128  Ark.  457. 

Conn.  Fengar  v.  Brown,  57  Conn. 
60.  17  A.  321. 

Neb.  Barton  v.  Shull,  97  N.  W. 
292,  70  Nelx  324 ;  Stephens  v.  Patter- 
son, 29  Neb.  697,  46  N.  ^Y.  154. 

N.  Y.  Tuffey  v.  Brooklyn  Union 
Gas  Co.,  92  N.  Y.  S.  489,  102  App. 
Div.  416. 

Pa.     Yerkes  v.  Wilson,  *81  Pa.  9. 

Tex.  Downey  v.  Dennis  (Civ. 
App.)  128  S.  W.  667. 

61  Van  Valkenberg  v.  Van  Valken- 
berg,  90  Ind.  433 ;  Orris  v.  Chicago, 
R.  I.  &  P.  Ry.  Co.,  214  S.  W.  124,  279' 
Mo.  1;  Steinbrunner  v.  Pittsburgh  & 
W.  Ry.  Co.,  146  Pa.  504,  23  A.  2-39,  28 
Am.  St.  Rep.  806,  29  Wkly.  Notes  Cas. 
173 ;  Gregory  v.  Baugh,  2  Leigh  (Va.) 
665. 

6  2  Idaho  Mercantile  Co.  v.  Kalan- 
quin,  60  P.  933,  8  Idaho,  101 ;  Hutch- 
inson V.  Grain,  3  111.  App.  20. 

6  3  Northern  Central  Coal  Co.  v. 
Barrowman  (C.  C.  A.  Mo.)  246  F.  906, 


765 


FORMAL  MATTERS 


§426 


misstatement  will  not,  however,  constitute  reversible  error,  in  the 
absence  of  anything  to  show  prejudice  therefrom  to  the  party  com- 
plaining of  it,®*  and,  as  is  shown  more  fully  in  another  chapter,  it 
is  the  duty  of  a  party,  affected  by  such  a  serious  mistake  in  quot- 
ing testimony,  to  call  the  attention  of  the  court  to  it  immediately 
after  the  charge,  in  order  that  the  court  may  have  an  opportunity 
to  correct  it.*'^ 

§  426.  Comments  by  court  on  the  justice  or  validity  of  rules  of 
law  stated  by  it 
It  is  not  improper  for  the  court  to  characterize  a  rule  of  law 
stated  by  it  as  the  rule  of  common  sense,^  but  it  is  error  for  the 
trial  judge  to  express  disapproval  of  the  law  given  to  the  jury,®* 
or  to  take  away  its  eft'ect  by  observations  which  may  inflame  the 
jury  into  disregarding  it.®^ 


159  C.  C.  A.  178;  Tuckwood  v.  Haw- 
thorn, 67  Wis.  326,  30  N.  W.  705. 

G4  Cal.  Knowles  v.  Murphy,  107 
Cal.  107,  40  P.  111. 

Kan.  Bellew  v,  Ahrburg,  23  Kan. 
287. 

Mass.  Mclntire  v.  Leland,  118  N. 
E.  605.  229  Mass.  348. 

N.  Y.  Looram  v.  Third  Ave.  R. 
Co..  6  X.  Y.  S.  504. 

Pa.  Richards  v.  Willard,  176  Pa. 
ISl,  35  A.  114,  38  Wldy.  Notes  Cas. 
400;  Udderzook  v.  Harris,  140  Pa. 
236,  21  A.  395;  Penn  Mut.  Ins.  Co. 
V.  Snyder,  3  Wkly.  Notes  Cas.  269; 
Roherts  v.  Halstead,  9  Pa.  32,  49  Am, 
Dec.  541;  Hamet  v.  Dundass,  4  Pa. 
178 :    Dennis  v.  Alexander,  3  Pa.  50. 

Tex.  Goocli  y.  Addison,  13  Tex. 
Civ.  App.  76,  35  S.  W.  83. 

Assumption  that  jury  not  mis- 
led. Where  a  judge  told  the  jury 
that  there  was  nothing  said  concern- 
ing a  particular  item,  overlooking  the 
fact  that  there  was  evidence  given 
regarding  such  item,  it  will  be  assum- 


ed, notwithstanding,  that  the  jury 
had  that  evidence  in  mind  when  con- 
sidering the  verdict.  Herst  v.  De 
Comeau,  31  N.  Y.  Super.  Ct.  590. 

G5  Mann  v.  Cowan,  8  Pa.  Super.  Ct. 
30. 

6  6  Henry  v.  Klopfer,  147  Pa.  178, 
23  A.  338,  29  Wklv.  Notes  Cas.  331; 
Id.,  147  Pa.  178,  23  A.  337,  29  Wkly. 
Notes  Cas.  331. 

6  7  Kennedy  v.  Bebout,  62  Ind.  363; 
Fitzgerald  v.  St.  Paul,  M.  &  M.  Ry. 
Co.,  29  Minn.  336,  13  N.  W.  168,  43 
Am.  Rep.  212. 

Instructions  not  improper  ivitli- 
in  rule.  Language  in  a  charge  as 
follows:  "It  is  my  duty  to  charge  you 
the  law  as  it  is  declared  to  be  by  our 
supreme  court,  without  reference  to 
my  own  personal  opinion  in  regard  to 
the  matter,"  followed  by  a  statement 
of  the  law  as  decided  by  the  supreme 
court,  is  not  error.  Dial  v.  Agnew,  28 
S.  C.  454,  6  S.  E.  295. 

6  8  McFadden  v.  Reynolds  (Pa.)  11 
A.  638. 


427 


INSTRUCTIONS  TO  JURIES 


766 


I.  Inconsistent  or  Contradictory  Instructions 

§  427.     Rule  that  such  instructions  are  erroneous 

It  is  error  to  give  conflicting  or  contradictory  instructions  on 
material    issues,''^    and    such    instructions    are    properly    refused.'" 

6  0  TJ.  S.  Deserant  v.  Cerillos  Coal 
R;  Co.,  20  S.  Ct.  967,  178  U.  S.  409, 
44  L.  Ed.  1127,  reversing  judgment 
Same  v.  Cerillos  Coal  R.  Co.,  55  P. 
290,  9  N.  M.  495;  (C.  C.  A.  N.  T.) 
J.  H.  Sullivan  Co.  v.  Wingerath,  203 
F.  460,  121  C.  C.  A.  584. 

Ala.  Hai-vey  v.  State,  73  So.  200, 
15  Ala.  App.  311 ;  Clinton  Mining  Co. 
V.  Bradford,  69  So.  4,  192  Ala.  576. 

Ark.  Simmons  v.  Lusk,  194  S.  W. 
11,  128  Ark.  336;  Swearingeu  v.  C. 
W.  Bulger  &  Son,  176  S.  W.  328,  117 
Ark.  557;  Turquett  v.  McMurrain,  161 
S.  W.  175,  110  Ark.  197 ;  Cliicago  Mill 
&  Lumber  Co.  v.  Johnson,  147  S.  W. 
86,  104  Ark.  67;  Wells  v.  State.  145 
S.  W.  531,  102  Ark.  627 ;  Helena  Hard- 
wood Lumber  Co.  v.  Maynard,  138  S. 
W.  469,  99  Ark.  377;  St.  Louis,  I.  M. 
&  S.  Ry.  Co.  V.  Hudson,  130  S.  W. 
534,  95  Ark.  506 ;  Jones  v.  State,  116 
S.  W.  230,  89  Ark.  213 ;  Kansas  City 
Southern  Ry.  Co.  v.  Brooks,  105  S. 
W.  93,  84  Ark.  233. 

Cal.  National  Bank  of  San  Mateo 
V.  Whitney,  183  P.  789,  181  Cal.  202, 
8  A.  L.  R.  298;  People  v.  Ross,  126  P. 
375, 19  Cal.  App.  469 ;  Hayden  v.  Con- 
solidated Mining  &  Dredging  Co.,  84 
P.  422,  3  Cal.  App.  136;  Haight  v. 
Vallet,  89  Cal.  245,  26  P.  897,  23  Am. 
St.  Rep.  465 ;  Aguew  v.  Kimball,  9  P. 
91,  68  Cal.  xix;  Monroe  v.  Cooper,  6 
P.  378,  66  Cal.  xviii ;  Aguirre  v.  Alex- 
ander, 58  Cal.  21 ;  People  v,  Messer- 
.smith,  57  Cal.  575;  Bank  of  Stockton 
V.  Bliven,  53  Cal.  70S;  McCreery  v. 
Everding.  44  Cal.  246 ;  Brown  v.  Mc- 
Allister, 39  Cal.  573. 

Colo.  Barr  v.  Colorado  Springs  & 
I.  Ry.  Co.,  168  P.  263,  63  Colo.  556; 
San  Miguel  Consol.  Gold  Mln.  Co.  v. 
Stubbs,  90  P.  842,  39  Colo.  359;  Ar- 
nctt  V.  Iluggins,  70  P.  765,  18  Colo. 
App.  115. 

Ga.  Savannah  Electric  Co.  v.  Mc- 
Clelland, 57  S.  E.  91,  128  Ga.  87; 
Cress  V.  State,  55  S.  E.  491,  126  Ga. 
.564. 


Idaho.  State  v.  Webb,  55  P.  892,  6 
Idaho,  428;  Giffen  v.  City  of  Lewis- 
ton,  55  P.  545,  6  Idaho,  231;  Holt  v. 
Spokane  &  P.  R.  Co.,  3  Idaho  (Hash.) 
703,  35  P.  39. 

ni.  Chicago,  B.  &  Q.  R.  Co.  v. 
Payne,  49  111.  499 ;  Chicago  &  A.  Ry. 
Co.  v.  Henline.  120  111.  App.  134 ;  Tur- 
ner V.  Owen,  122  111.  App.  501 ;  Wood 
v.  Olson,  117  111.  App.  128;  Chicago 
&  A.  Ry.  Co.  V.  Jennings,  114  111.  App. 
622;  Thomas  v.  Riley,  114  111.  App. 
.520 ;  Dauchy  Iron  Works  v.  Toles, 
107  111.  App.  216;  Fessenden  v.  Doane, 
89  111.  App.  229,  judgment  affirmed  58 
N.  E.  974,  188  111.  228;  Knowlton  v. 
Fritz,  5  111.  App.  217. 

Ind.  Cleveland,  C,  C.  &  St.  L.  Ry. 
Co.  V.  Lynn,  85  N.  E.  999,  171  Ind. 
589,  reversing  judgment  (App.)  83  N. 
E.  1135,  judgment  affirmed  on  rehear- 
ing 86  N.  E.  1017,  171  Ind.  589 ;  Wen- 
ning  V.  Teeple,  144  Ind.  189,  41  N.  E. 
600;  McDougal  v.  State,  88  Ind.  24; 
Bitting  V.  Ten  Eyck,  82  Ind.  421,  42 
Am.  Rep.  505 ;  Somers  v.  Pumphrey, 
24  Ind.  231. 

Iowa.  Peterson  v.  McManus,  172 
N.  W.  460,  187  Iowa,  522;  State  v. 
Glaze,  159  N.  W.  260,  177  Iowa,  457; 
Adams  v.  Junger,  139  N.  W.  1096,  158 
Iowa,  449 ;  Blake  v.  Miller,  112  N.  W, 
158,  135  Iowa,  1 ;  Brusseau  v.  Lower 
Brick  Co.,  110  N.  W.  577,  133  Iowa, 
245 ;  Kerr  v.  Topping,  80  N.  W.  321, 
109  Iowa,  150. 

Ky-.  Eagle  Coal  Co.  v.  Patrick's 
Adm'r,  170  S.  W.  960,  161  Ky.  333; 
Ferguson  v.  Fox's  Adm'r,  1  Mete.  83. 

La.     State  v.  Hogg,  53  So.  225,  126 

7  0  Sweeney  v.  Erving,  33  S.  Ct.  416, 
228  U.  S.  233,  57  L.  Ed.  815,  Ann. 
Cas.  1914D,  905,  affirming  judgment 
35  App.  D.  C.  57,  43  L.  R.  A.  (N.  S.) 
734 ;  Michigan  City  v.  AYerner,  114  N. 
E.  636,  186  Ind.  149;  Southern  Ry. 
Co.  V.  Weidenbrenner,  109  N.  E.  926. 
61  Ind.  App.  314;  Advance  Transfer 
Co.  v.  Chicago,  R.  I.  &  P.  Ry.  Co. 
(:Mo.  App.)  195  S.  W.  506.  ^ 


767 


FORMAL  MATTERS 


§427 


The  tendency  of  contradictory  instructions  is  necessarily  to  con- 


La.  1053,  29  L.  R.  A.  (N.  S.)  S30,  21 
Anu.  Cas.  124. 

Mass.  Mooar  v.  Harvey,  125  Mass. 
574. 

Mich.  Grogitzki  v.  Detroit  Ambu- 
lance Co.,  152  N.  W.  923,  186  Midi. 
374;  Kennedy  v.  Ford,  149  N.  W. 
1013.  183  Mich.  481;  Haves  v.  City  of 
St.  Clair,  1.39  N,  W.  1037,  173  Mich. 
631;  Lake  Shore  &  M.  S.  R.  Co.  v. 
Miller,  25  Mich.  274. 

Minn.  McCormick  v.  Kelly,  28 
Minn.  135,  9  N.  W.  675. 

Miss.  Illinois  Cent.  R.  Co.  v.  Mc- 
Gowan,  46  So.  55,  92  Miss.  603 ;  Solo- 
mon V.  City  Compress  Co.,  69  Miss. 
319,  12  So.  339;  Kansas  City,  M.  & 
B.  R.  Co.  v.  Lilly,  8  So.  644;  Hern- 
don  V.  Henderson,  41  Miss.  584. 

Mo.  Padgett  v.  Pence,  178  S.  W. 
205;  Gourley  v.  American  Hardwood 
Lumber  Co.,  170  S.  W.  339,  185  Mo. 
App.  360;  Stid  v.  Missouri  Pac.  Rv. 
Co.,  139  S.  W.  172,  236  Mo.  382;  Kel- 
ley  V.  United  Rys.  Co.  of  St.  Louis, 
132  S.  W.  269,  153  Mo.  App.  114 ;  Por- 
ter V.  Missouri  Pac.  Ry.  Co.,  97  S.  W. 
880,  199  Mo.  82:  Hurst  v.  St.  Louis 
&  S.  F.  R.  Co.,  94  S.  W.  794,  117  Mo. 
App.  25 ;  Vei-million  v.  Parsons,  94  S. 
W.  298,  lis  Mo.  App.  260;  Roberts, 
•Johnson  &  Rand  Shoe  Co.  v.  Shep- 
herd, 96  Mo.  App.  698,  70  S.  W.  931; 
Edmon.ston  v.  Jones,  69  S.  W.  741,  96 
Mo.  App.  83 ;  Hoover  v.  Mercantile 
Town  Mut.  Ins.  Co.,  69  S.  W.  42,  93 
.Mo.  App.  Ill;  Spillane  v.  Missouri 
Pac.  Ry.  Co.,  Ill  Mo.  555,  20  S.  W. 
293 ;  Falh  v.  Tower  Grove  &  L.  Ry., 
105  Mo.  537,  16  S.  W.  913,  13  L.  R. 
A.  74;  State  v.  Ilerrell,  97  Mo.  105, 
10  S.  W.  .387,  10  Am.  St.  Rep.  289; 
Stone  v.  Hunt,  94  Mo.  475,  7  S.  W, 
431 ;  Otto  V.  Bent,  48  Mo.  23;  S.tate  v. 
Bonden,  31  Mo.  402;  Schneer  v.  Lemp, 
17  Mo.  142;  Sharp  v.  Sturgeon,  75  Mo. 
App.  651 ;  Union  Bank  of  Trenton  v. 
First  Nat.  Bank,  64  Mo.  App.  253; 
Jones  V.  Chicago,  B.  &  K.  C.  Ry.  Co., 
59  Mo.  App.  137 ;  Kvers  v.  Shumaker, 
57  Mo.  App,  454;  Martinovvsky  v.  City 
of  Hannibal,  35  Mo.  App.  70 ;  Legg  v. 
Johnson,  23  Mo.  App.  590 ;  Swan  v. 
Lullman,  12  Mo.  App.  .584,  memoran- 
dum; Lampert  v.  Laclede  Gaslight 
Co.,  12  Mo.  App.  576,  memorandum. 


Mont.  State  v.  Jones,  139  P.  441, 
48  Mont.  505 ;  State  v.  Peel,  59  P.  169, 
23  Mont.  3.58,  75  Am.  St.  Rep.  529; 
Kelley  v.  Cable  Co.,  7  Mont.  70,  14 
P.  633. 

Neb.  Peterson  v.  Chicago,  M.  & 
St.  P.  Ry.  Co.,  161  N.  W.  1043.  101 
Neb.  3 ;  Bryant  v.  Modern  Woodmen 
of  America.  125  N.  W.  621,  86  Neb. 
372,  27  L.  R.  A.  (N.  S.)  326,  21  Ann. 
Cas.  365;  Omaha  St.  Ry.  Co.  v.  Boe- 
son,  94  N.  W.  619,  68  Neb.  437 ;  Town 
of  Denver  v.  Myers,  88  N.  W.  191,  63 
Neb.  107. 

N.  Y.  Hartman  v.  Joline  (Sup.) 
112  N.  Y.  S.  1057. 

N.  C.  A.  Blanton  Grocery  Co.  v. 
Taylor.  78  S.  E.  276,  162  N.  C.  307; 
Edwards  v.  Atlantic  Coast  Line  R. 
Co.,  39  S.  E.  730,  129  N.  C.  78. 

Okl.  Firebaugh  v.  Du  Bois,  158  P. 
924,  59  Okl.  2.36;  Kansas  City,  M.  & 
O.  Ry.  Co.  V.  Roe,  150  P.  1035,  50 
Okl.  105 ;  Payne  v.  McCormick  Har- 
A'esting  Mach.  Co.,  66  P.  287,  11  Okl. 
318. 

Or.  Malloy  v.  Marshall- Wells 
Hardware  Co.,  173  P.  267,  90  Or.  303, 
.judgment  affirmed  on  rehearing  175 
P.  659,  90  Or.  303. 

Pa.  Commonwealth  v.  Deitrick.  70 
A.  275,  221  Pa.  7 ;  Elk  Tanning  Co.  v. 
Brennan,  .52  A.  246,  203  Pa.  2.32;  Gear- 
ing V.  Lacher.  146  Pa.  397,  23  A.  229, 
30  Wkly.  Notes  Cas.  414;  Seliu  v. 
Snyder,  11  Serg.  &  R.  319. 

R.  I.  G.  W.  McNear,  Inc.,  v.  Amer- 
ican &  British  Mfg.  Co.,  107  A.  242, 
42  R.  I.  302. 

S.  C.  Warren  v.  Wilson,  71  S.  E. 
818,  89  S.  C.  420,  appeal  dismissed  on 
petition  for  rehearing  71  S.  E.  992,  89 
S.  C.  420. 

S.  D.  Coulter  v.  Gudehus,  139  N. 
W.  3.30,  30  S.  D.  616. 

Tex.  Merka  v.  State,  199  S.  W. 
1123,  82  Tex.  Cr.  R.  550;  Walker  v. 
State,  181  S.  W.  191,  78  Tex.  Cr.  R. 
237;  Park  v.  Pyle  (Civ.  App.)  157  S. 
W.  445 ;  Renfro  v.  Texas  Cent.  Rv. 
Co.  (Civ.  App.)  141  S.  W.  820;  St. 
Louis  Southwestern  Ry.  Co.  of  Texas 
V.  Anderson.  124  S.  W.  1002,  61  Tex. 
Civ.  App.  374;  Williamson  v.  D.  M. 
Smith  &  Co.  (Civ.  Ai»p.)  79  S.  W. 
51 ;    Eddy  v.  Bosley,  78  S.  W.  565,  34 


§  427  INSTRUCTIONS  TO  JURIES  768 

fuse  and  mislead  the  jury.''-     Such  instructions  are  further  ob- 


Tex.  Civ.  App.  116;  Kraus  v.  Haas,  6 
Tex.  Civ.  App.  665,  25  S.  W.  1025. 

Utah.  Connell  v.  Oregon  Sliort 
Line  R.  Co.,  168  P.  337,  51  Utah,  26 ; 
Konold  V.  Rio  Grande  W.  Ry.  Co.,  60 
P.  1021,  21  Utah,  379,  81  Am.  St.  Rep. 
603. 

Va.  Roanoke  Ry.  &  Electric  Co.  v. 
Carroll,  72  S.  E.  125,  112  Va.  598; 
Southern  Ry.  Co.  v.  Hansbrough's 
Adm'x,  60  S.  E.  58,  107  Va.  733 ;  City 
of  Winchester  v.  Carroll,  40  S.  E.  37, 
99  Va.  727 ;  Chesapeake  &  O.  Ry.  Co. 
V.  Jennings,  34  S.  E.  986,  98  Va.  70. 

W.  Va.  Stuck  V.  Kanawha  &,  M. 
Ry.  Co.,  89  S.  E.  280,  78  W.  Va.  490 ; 
Tower  v.  Whip,  44  S.  E.  179,  53  W. 
Va.  158,  68  L.  R.  A.  937;  Ward  v. 
Ward,  35  S.  E.  873,  47  W.  Va.  766; 
Reese  v.  Wheeling  &  E.  G.  R.  Co.,  42 
W.  Va.  333,  26  S.  E.  204  ;  McKelvey  v. 
Chesapeake  &  O.  Ry.  Co.,  35  W.  Va. 
500,  14  S.  E.  261 ;  State  v.  Cain,  20  W. 
Va.  679 ; '  McIMechen  v.  Mc:Mechen,  17 
W.  Va.  683,  41  Am.  Rep.  682. 

Wis.  Bleiler  v.  Moore,  69  N.  W. 
164,  94  Wis.  385;  Gove  v.  White,  23 
Wis.  282. 

Illustrations  of  contradictory 
instructions.  A  charge,  in  a  pros- 
ecution for  adultery,  that  if  the  jury 
believed  beyond  a  reasonable  doubt 
that  prosecutrix  was  pregnant,  they 
should  consider  such  fact  in  connec- 
tion with  other  evidence  as  tending 
to  connect  defendant  with  the  crime 
or  corroborate  prosecutrix's  testi- 
mony, but  that  such  pregnancy  was 
not  of  itself  any  evidence  that  de- 
fendant had  had  sexual  intercourse 
with  prosecutrix.  State  v.  Thomp- 
son, 87  P.  709,  31  Utah,  228.  Instruc- 
tions, in  action  to  establish  boundary 
line,  that  burden  was  on  plaintiff  to 
show  alleged  true  line  by  greater 
weight  of  evidence,  and  that  defend- 
ant, contending  that  another  line  was 
true  dividing  line,  had  burden  of  es- 
tablishing it.  Tillotson  v.  Fulp.  90 
S.  E.  .500,  172  N.  C.  499.  Instruction 
that  one  furnishing  plans  for  a  build- 
ing was  an  independent  contractor, 
and  a  charge  that  owner  should  fur- 
nish correct  plans.  Bavne  v.  Ever- 
ham,  103  N.  W.  1002,  197  Mich.  181. 
Instruction,   in  action  against  carri- 


ers for  delay  in  transportation,  that 
neither  carrier  was  responsible  for 
damagei  not  directly  or  proximately 
caused  by  it,  and  another  instruction 
that  the  initial  carrier  was  responsi- 
ble for  the  delay  on  any  of  the  con- 
necting carriers,  and  therefore  en- 
titled to  recover  over  against  the  car- 
rier responsible.  Texas  &  P.  Ry.  Co. 
V.  Cauble  (Tex.  Civ.  App.)  168  S.  W. 
369.  An  instruction,  in  an  action  for 
injuries  to  a  passenger  carried  beyond 
her  station,  that  she  had  a  right  to 
walk  back  without  assuming  the  risks 
incident  thereto,  and  which  leaves  to 
the  jury  to  say  whether  she  was  jus- 
tified in  electing  to  walk  back.  St. 
Louis,  I.  M.  &  S.  Ry.  Co.  v.  Bright,  159 
S.  W.  33,  109  Ark.  4.  A  charge  that  a 
conviction  cannot  be  had  upon  an  ac- 
complice's testimony,  unless  the  jury 
believe  it  to  be  true  and  that  it  shows 
or  tends  to  show  accused's  guilt,  and 
a  charge  that  if  the  jury  are  satisfied 
that  certain  witnesses  were  accom- 
plices, or  have  a  reasonable  doubt 
whether  they  were  or  were  not,  they 
cannot  convict  upon  their  testimony, 
unless  they  believe  the  witnesses' 
testimony  true,  and  that  it  shows  ac- 
cused guilty  as  charged  in  the  indict- 
ment, and  unless  there  is  other  evi- 
dence tending  to  connect  accused  with 
the  commission  of  the  offense,  are  in 
direct  confiict;  and  the  first  one,  er- 
roneously stating  that  accomplice 
testimony  need  only  tend  to  connect 
accused  with  the  offense,  was  not 
cured  by  the  other,  stating  the  correct 
rule.  Tate  v.  State,  110  S.  W.  604,  55 
Tex.  Cr.  R.  397;    Id.  (Tex.  Cr.  App.) 

71  Farnsworth  v.  Tampa  Electric 
Co.,  57  So.  233,  62  Fla.  166;  Catan- 
zaro  Di  Giorgio  Co.  v.  F.  W.  Stock  & 
Sons,  81  A.  385,  116  Md.  201 ;  Eyre- 
Shoemaker  Const.  Co.  V.  Mackin,  81 
A.  267,  116  Md.  58;  Pullman  Co.  v. 
Custer  (Tex.  Civ.  App.)  140  S.  W.  847. 

Conflict  between  main  charge 
and  requested  instructions.  A 
mere  conflict  between  instructions  in 
chief  and  those  given  at  the  request 
of  a  party  does  not  necessarily  mis- 
lead.' Eyser  v.  Weissgerber,  2  Iowa, 
463. 


769  FORMAL  MATTERS  §  427 

jectionable,  because  they  devolve  upon  the  jury  the  duty  of  de- 


116  S.  W.  606,  607;    Taylor  v.  State 
(Tex.  Cr.  App.)  116  S.  W.  606.    An  in- 
struction, in  ejectment,  ttiat  plaintiffs 
were  suing  only  foi-  land  lying  north 
and  "east"  of  a  certain  slough,  and 
that  they  could  not  recover  any  land 
•"east"  of  the  slough.    Grady  v.  Royar 
(Mo.)  ISl  S.  W.  428.    Instruction  that, 
where  a  person's  acts  necessarily  op- 
erate to  defraud  others,  he  must  be 
deemed  to  have  intended  a  fraud,  and 
instructions  stating  that  fraud  could 
not  be  presumed.     Barrows  v.  Case, 
165  P.  779.  63  Colo.  266.     Where,  un- 
der an  indictment  for  assault  with  in- 
tent to  kill,  the  jury  were  authorized 
imder   the   charge    to   convict   of   ag- 
gravated  assault,   a   further  instruc- 
tion that,   if   the  jury   found   that  a 
companion  of  accused  was  guilty  of 
an     aggravated     assault,     defendant 
should  be  acquitted,  or,  if  they  had  a 
reasonable  doubt,  they  should  acquit 
liim  of  any  charge  whatever,  was  er- 
roneous,   as    contradictory    and    mis- 
leading.     Henry   v.    State    (Tex.    Cr. 
App.)  54  S.  W.  592.    Instructions  that 
mere  excitement  or  agitation  does  not 
destroy  the  element  of  deliberation  in 
murder  in  the  first  degree,  and  that, 
in  passing  on  defendant's  motives  and 
intentii'ons,    and    the    reasonableness 
and    good    faith    thereof,    the    jury 
should    take    into    consideration   any 
agitation  and  excitement,  if  such  were 
shown,  were  inconsistent,  and  calcu- 
lated to  mislead.     State  v.  Grugin,  47 
S.  W.  105S.   147  Mo.  39.  42  L.  R.  A. 
774.  71  Am.  St.  Rep.  553.     In  a  pros- 
ecution for  murder,  in  which  it  a.j>- 
peared  that  defendant's  wife  M'as  kill- 
ed  while   he   and   another    were   en- 
gaged in  a  shooting  affray,  an  instruc- 
tion  that  evidence   tending   to   show 
that  defendant  shot  at  the  other  per- 
son engaged  in  the  affray  could  not 
be  considered  as  any  evidence  of  the 
guilt  of  the  defendant,  but   that,   if 
the    jury    believed    defendant    killed 
deceased,    they   might  consider    such 
evidence  as  showing  the  condition  of 
defendant's  mind  at  the  time  he  fired 
and  the  intent  with  which  he  did  so, 
is  erroneous,  as  eontradictorv.     Ben- 
nett V.  State  (Tex.  Cr.  App.)  75  S.  W. 
314.    On  a  prosecution  for  murder,  an 
Inst. TO  Juries — 49 


instruction  that,  if  the  jury  believed 
beyond  a  reasonable  doubt  that  the 
facts  neces.sary  to  establish  guilt  were 
nrovon,  it  was  their  duty  to  convict, 
though  they  might  doubt  whether  one 
or  more  of  the  circumstances  attempt- 
ed to  be  proved  had  been  established. 
Brady    v.    Commonwealth,    11    Bush 
(Ky.)  282.    In  a  prosecution  for  homi- 
cide,  it  was  error   to  charge  in   one 
instruction  that  if  defendant  was  led 
to  commit  the  homicide  from  learn- 
ing  that   decedent   had   insulted   his 
wife,  and  also  that  the  decedent  had 
used  violent  language  to  and  threat- 
ened defendant  with  bodily  harm,  he 
was  only  guilty  of  manslaughter,  and 
in  the  next  that,  in  order  to  reduce 
his  offense  to   manslaughter,   it  was 
only  necessary  for  the  jury  to  believe 
that  he  was  led  to  commit  the  homi- 
cide from  learning  that  decedent  had 
insulted   his  wife.     Barbee  v.   State, 
124   S.   W.   961,   58  Tex.   Cr.   R.   129. 
An  instruction  which,  if  the  killing  is 
shown,  assumes  a  crime  to  be  murder, 
and  requires  proof  of  the  lower  de- 
gree to  be  mffde  by  the  defendant  be- 
fore the  jury  can  reduce  the  degree 
to  manslaughter,  is  inconsistent  with 
an    instruction    that    the    burden    of 
proof  never  shifts,  but  remains  with 
the  state  throughout  the  trial.     Ken- 
nison  v.  State,  115  N.  W.  289,  SO  Neb. 
688.     On  a  trial  for  illegally  selling 
intoxicating    liquors,    an    instruction 
directing   a  verdict   of  guilty  if  the 
sale   was  made  within  a  year  prior 
to  filing  the  information  and  an  in- 
struction   directing   an    acquittal   un- 
less the  sale  was  made  on  a  certain 
date  as  testified  to  by  a  state's  wit- 
ness.    State  V.  Fellers,  127  S.  W.  95, 
140    Mo.    App.    723.      An    instruction 
that  concurrence  in  the  minds  of  the 
parties,  in  pursuance  of  a  decision  to 
commit  a  theft,  renders  them  all  alike 
guilty,    whether    they    were    in    fact 
present  at  the  theft  or  not,  and  an 
instruction  that  defendant  would  not 
be  found  guilty  if  there  was  a  reason- 
able doubt  as  to  his  presence  at  the 
place  where  the  offense  was  commit- 
ted.    Criner  v.   State,  53  S.  W.  873, 
41  Tex.  Cr.  R.  290.    In  a  prosecution 
for    grand    larceny,    an    instruction. 


§  427  INSTRUCTIONS   TO   JURIES  770 

termining  which  of  two  kinds  of  instructions  shall  be  followed,  or 


wliich  ill  oue  clause  told  the  jurors 
that  they  might  use  their  own  knowl- 
edge in  determining  any  fact  in  the 
case,  and  in  another  paragraph  told 
them  that  they  must  determine  the 
facts  from  the  evidence  introduced. 
State  V.  Blaine,  124  P.  516',  45  Mont. 
482.  Instructions,  authorizing  recov- 
ery if  plaintilf's  deceased  was  injured 
by  rock  falling  from  one  of  main  en- 
tries in  defendant  employer's  coal 
mine  and  another  denying  recovery 
unless  plaintiff  proved  that  injury 
occurred  at  point  specified  in  com- 
plaint. State  ex  rel.  Central  Coal  & 
Coke  Co.  V.  Ellison,  195  S.  W.  722.  270 
Mo.  645,  quashing  judgment  (App.) 
Goode  v.  Central  Coal  &  Coke  Co.,  186 
S.  W.  1122.  An  instruction  that  all 
persons  engaged  in  the  same  v^^ork  are 
fellow  servants,  though  one  may  be 
a  foreman,  and  an  instruction  that 
where  a  man  has  power  to  control 
men,  whether  called  a  superintendent 
or  foreman,  for  whose  negligence  the 
master  is  liable.  Petroleum  Iron 
Works  Co.  V.  Bullington,  161  P.  538, 
61  Okl.  311.  A  charge,  in  effect  in- 
structing the  jury  that  if  they  do  not 
believe  a  witness  as  to  one  material 
part  of  his  evidence  they  must  believe 
him  as  to  other  parts.  Southern  Rv. 
Co.  V.  Penney,  51  So.  392,  164  AJa.  188. 
Instructions  Iield  not  inconsist- 
ent. In  an  action  for  death  of  an 
employ^  in  falling  from  a  scaft'old 
constructed  by  the  master,  instruc- 
tions that,  if  decedent  did  not  use 
ordinary  care,  the  finding  should  be 
for  defendant,  and  that  if  the  jury 
found  defendant's  negligence  to  have 
been  the  proximate  cause  of  dece- 
dent's fall,  the  finding  should  be  for 
the  plaintiff,  were  not  inconsistent. 
Storey  v.  J.  C.  Mardis  Co.,  173  N.  W. 
11.5,  186  Iowa,  809.  Instructions  that 
if  the  jury,  from  a  consideration  of 
all  the  evidence,  were  .satisfied  of  de- 
fendant's guilt  beyond  a  reasonable 
doubt,  it  was  their  duty  to  find  him 
guilty,  and  that,  as  the  evidence  was 
circumstantial,  each  material  circum- 
stance must  be  proven  to  the  jury's 
satisfaction  beyond  a  reasonable 
doubt,  or  they  should  acquit,  were  not 
in   conflict.     People   v.   AVeber,  86   P. 


671,  149  Cal.  325.  A  charge  that: 
"Defendant  is  charged  in  the  second 
count  of  the  indictment  with  the 
crime  of  assault  with  intent  to  kill, 
without  malice,  and  this  is  the  only 
matter  for  your  determination ;  the 
other  two  counts  being  withdrawn 
from  your  consideration.  *  *  * 
'Malice,'  as  above  used,  means  the  in- 
tentional doing  of  a  wrongful  act 
without  just  cause  or  excuse," — and  a 
subsequent  charge  that  if  defendant 
purposely  and  intentionally  made  an 
assault  on  the  prosecuting  witness, 
and  shot  him  with  Intent  to  kill,  he 
was  guilty  of  an  assault  with  intent 
to  kill,  were  not  objectionable  as 
contradictory,  and  as,  when  taken  to- 
gether, authorizing  the  jury  to  find 
malice  to  be  an  ingredient  of  the  of- 
fense. State  V.  Moore,  68  S.  W.  358, 
168  Mo.  432.  A  charge  directing  an 
acquittal  if  the  jury  believed  accus- 
ed's story,  and  a  charge  that,  if  there 
was  any  doubt  after  weighing  the  tes- 
timony, they  must  give  accused  the 
benefit  of  it,  are  not  inconsistent. 
State  v.  Kroll,  93  A.  571,  87  N.  J. 
Law.  330.  An  instruction  that,  before 
the  jury  could  acquit,  they  must  find 
defendant  was  laboring  under  such  a 
defect  of  reason  from  disease  of  the 
mind  as  to  not  know — that  is,  as  not 
to  have  sufficient  mental  capacity  to 
know — the  nature  and  quality  of  the 
act  he  was  doing,  or,  if  he  did  know 
it,  that  he  did  not  know  he  was  doing 
wrong,  and  an  instruction  that,  before 
the  jury  could  acquit  on  the  ground 
of  insanity,  it  must  appear  defendant 
was  affected  with  insanity  to  such  a 
degree  as  to  create  an  uncontrollable 
impulse  to  do  the  act  charged  by 
overriding  his  reason  and  judgment, 
are  not  inconsistent,  though  from  the 
vague  language  used  the  jury  might 
reasonably  infer  that  defendant  had 
the  burden  of  establishing  his  insan- 
ity. State  V.  Crowe,  102  P.  579.  39 
Mont.  174,  18  Ann.  Cas.  643.  An  in- 
struction on  manslaughter  that  "in- 
sulting words  or  gestures  or  an  or- 
dinary as.sault  and  battery  so  slight 
as  to  show  no  intention  to  inflict  pain 
or  injury  are  not  deemed  adequate 
cause"  is  proper,  and  not  contradic- 


771  .  FORMAL  MATTERS  §  427 

what  rule  of  law  shall  control  the  case,''-  and  because  it  cannot 


tory  of  a  further  instruetiou  that 
"any  condition  or  circumstance  whicli 
is  capable  of  creating  and  does  create 
sudden  passion,  sucli  as  anger,  rage, 
sudden  resentment,  or  terror  render- 
ing the  mind  incapable  of  cool  reflec- 
tion, whether  accompanied  by  bodily 
pain  or  not,  is  deemed  adequate  cause," 
etc.  Davis  v.  State,  124  S.  W.  104,  57 
Tex.  Cr.  R.  545.  On  a  prosecution  for 
robbery  an  instruction  that  if  the 
property  was  feloniously  taken,  and 
was  received  into  the  possession  of  de- 
fendant shortly  thereafter,  any  failure 
of  defendant  to  account  for  such  pos- 
session was  a  ciraamstance  tending  to 
show  his  guilt  and  he  was  bound  to 
explain  the  possession  in  order  to 
remove  the  effect  thereof,  was  not  in 
conflict  with  another  instruction  that 
possession  of  stolen  property,  unex- 
plained, was  not,  of  itself,  suflicient 
to  justify  a  conviction,  but  was  a  cir- 
cumstance to  be  considered  in  con- 
nection with  other  testimony.  Peo- 
ple V.  Wilson,  67  P.  322,  135  Cal.  331. 
An  instruction  that  the  jury  are  the 
exclusive  judges  of  the  weiglit  of  the 
testimony  and  the  credibility  of  the 
witnesses  is  not  inconsistent  with  a 
charge  that  a  conviction  cannot  be 
liad  on  tlie  uncorroborated  testimony 
of  the  accomplice.  Barrett  v.  State, 
115  S.  W.  11S7,  55  Tex.  Cr.  R.  1S2. 

Instructions  on  character  of  ac- 
cused. An  instiiiction  that  evidence 
tending  to  show  accused's  bad  char- 
acter is  not  evidence  that  accused  is 
guilty  of  the  offense  charged  is  not 
inconsistent  witli  an  instruction  that 
good  character  does  not  excuse  crime 
but  that  the  jury  may  consider  evi- 
dence of  good  character  in  determin- 
ing the  guilt  or  innocence  of  accused. 
State  v.  Priest,  114  S.  W.  949,  215  Mo. 
1.  Where  the  court,  at  the  request 
of  defendant,  instructed  the  jury  that, 
if  defendant  has  proved  a  good  char- 
acter as  a  man  of  peace,  such  good 
character  may  be  sufficient  to  cause 
a  reasonable  doubt  of  liis  guilt, 
though  no  such  doubt  would  have  ex- 
isted without  such  proof ;  and  that 
proof  of  good  character  was  relevant 
to  the  question  of  guilt,  to  be  con- 
sidered with  the  other  facts  in   the 


case,  it  was  held  that  an  addition  by 
the  court  that,  if  the  jury  believed 
defendant  guilty,  then  proof  of  such 
good  character  would  be  of  no  avail 
to  him,  did  not  conflict  with  the  pre- 
vious instruction.  State  v.  Levigne, 
30  P.  10S4,  17  Nev.  435. 

Instructions  upon  drunkenness 
of  accused  as  affecting  intent. 
Wliere,  in  a  prosecution  for  assault 
with  intent  to  kill,  defendant  claimed 
that  he  was  too  drunk  at  the  time 
to  form  an  intent,  and  the  court 
charged  that  drunkenness  in  itself 
was  no  defense,  but  that,  if  defendant 
was  so  completely  intoxicated  that  he 
was  incapable  at  the  time  of  forming 
an  intent,  he  could  not  be  found 
guilty,  and  another  instruction  charg- 
ed that,  if  the  liquor  had  merely  in- 
flamed defendant's  passion  while  he 
was  still  able  to  distinguish  right 
from  wrong  and  knew  at  the  time  he 
was  doing  wrong,  drunkenness  would 
be  no  defense,  it  was  held  that  such 
instructions  were  not  objectionable  as 
inconsistent.  State  v.  Yates,  109  N. 
W.  1005,  132  Iowa,  475. 

Instructions  on  reasonable 
doubt.  Where,  at  the  request  of  the 
state  the  jury  were  instructed  that  a 
doubt,  to  authorize  an  acquittal, 
should  be  a  reasonable  doubt,  fairly 
arising  from  the  evidence  as  a  whole, 
and  that  a  mere  possibility  that  the 
defendant  might  be  innocent  would 
not  warrant  an  acquittal,  and  at  the 
request  of  the  accused  the  jury  were 
instructed  tliat  it  is  not  enough  to 
justify  a  verdict  of  guilty  that  there 
may  be  a  strong  suspicion,  or  even  a 
strong  probability,  of  the  guilt  of  de- 
fendant ;  that  the  law  requires  proof 
by  legal  and  credible  evidence, — such 
as,  when  all  considered,  produces  a 
clear  conviction  of  the  defendant's 
guilt  beyond  a  reasonable  doubt ;  that 
if  the  jury  entertain  any  reasonable 
doubt  as  to  whether  defendant  was 
excusable  and  justified  in  the  acts 
complained  of,  or  if  any  one  of  the 

-2  Fowler  v.  Wallace.  31  N.  E.  53, 
131  Ind.  347 ;  W.  B.  Johnson  &  Co.  v. 
Central  Vermont  Ry.  Co.,  79  A.  1095, 
84  Vt.  4S6. 


§  428  INSTRUCTIONS  TO  JURIES  ,  772 

usually  be  determined  from  the  verdict  which  of  the  inconsistent 
instructions  has  been  followed.'^  Such  rule  applies,  even  although 
one  of  the  instructions  is  incorrect,  and  the  other  is  a  correct  in- 
struction, given  to  remedy  the  first.'* 

§  428.     Specific  applications  of  rule 

An  instruction  that  all  men,  sane  or  insane,  "act  from  motive," 
and  that,  if  the  accused  had  no  motive,  it  might  be  considered  as 
a  circumstance  in  favor  of  his  plea  of  insanity,  is  self-contradic- 
tory.'^ So,  in  a  prosecution  for  homicide,  instructions  on  the  is- 
sue of  insanity  based  solely  on  the  "right  and  wrong  test"  are  in 
irreconcilable  conflict  with  others  based  on  that  test  as  modified 
by  the  "irresistible  impulse  test." '^  So  a  charge  that,  if  the  jury 
have  a  doubt  arising  from  the  evidence  or  lack  of  evidence  as  to  all 
the  material  allegations  of  the  indictment,  they  will  give  the  defend- 
ant the  benefit  thereof  and  find  him  guilty  of  such  degree  of  crime 
as  from  the  evidence  beyond  a  reasonable  doubt  they  believe  him 
to  be  guilty  of,  and  that  he  should  be  acquitted  if  he  is  guilty  of 
no  crime,  is  erroneous,  as,  if  the  jury  have  a  reasonable  doubt  as 
to  all  the  material  facts,  they  cannot  convict  the  defendant  of  any 
degree  of  crime." 

§  429.     Submitting  opposing  theories  of  case 

Instructions  which  correctly  state  the  law  are  not  contradictory 
merely  because  the  application  of  each  instruction  to  the  case  de- 
pends upon  the  view  which  the  jury  may  take  of  the  evidence.'* 
Instructions  stating  the  law  applicable  to  opposite  theories  of  the 
case  often  become  necessary,  because  one  party  tries  his  case  on 
one  theory  of  the  law  and  the  evidence,  while  the  other  party  tries 
his  side  of  the  case  upon  a  dift'erent  theory ;  '^  and  while,  in  some 
jurisdictions,  a  plaintiff  cannot  go  to  the  jury  on  two  distinct  and 
entirely  contradictory  grounds,  and  it  is  error  to  submit  a  case  to 

jnry,  after  having:  considered  all  the  14,  134  Ark.  575 ;    Rector  v.  Robins, 

evidence,    and    after    a    consultation  86  S.  W.  667.  74  Ark.  437;    City  of 

with  his  fellow  .iurymen.  entertains  Lincoln  v.  Heinzel,  134  111.  App.  439. 
a    roasoiial)lo    doubt,    accused    should  "5  Blume  v.  State,  56  N.  E.  771,  154 

be  acquitted,  it  was  held  that  such  in-  Ind.  343. 

struct! ons  were  not  conflicting.    State  ~^  State    v.    Keerl.    75    P.    362,    29 

V.  Moore.  56  S.  W.  883,  156t  Mo.  204.  Mont.  508,  101  Am.  St.  Rep.  579. 

73  Gardner  v.  Metropolitan  St.  Ry.  7?  Cook  v.  State,  35  So.  665,  46  Fla, 

Co..  122  S.  W.  1068,  223  Mo.  .389.  18  20. 

Ann.  Cas.  1166;    Kelly  v.  Lewis  Inv.  7  8  City  of  Richmond  v.  Gentry,  68 

Co..  1.33  P.  826.  66  Or.  1,  Ann.  Cas.  S.  E.  274,  111  Va.  160. 
1915B,  568:    Weld-Neville  Cotton  Co.  7o  Keim  v.  Oilmore  &  P.  R.  Co.,  131 

V.  Lewis  (Tex.  Civ.  App.)  163  S.  W.  P.   656,    23    Idaho,    511;     Hendrix    v. 

667.  Corning,  214  S.  W.  253,  201  Mo.  App. 

7  4  Harkrider  v.  Howard,  203  S.  W.  555. 


773 


FORMAL  MATTERS 


§430 


the  jury  on  conflicting  theories,  and  tell  them  that  they  may,  if 
the  evidence  warrants,  find  for  the  plaintiff  on  either  theory,**"  in 
other  jurisdictions  a  plaintiff  may  rely  upon  inconsistent  grounds 
of  recovery,  and  where  he  may  prevail  upon  either  he  can  have 
both  submitted  to  the  jury,  such  submission  being  in  the  alterna- 
tive and  making  it  plain  that  a  recovery  may  be  had  upon  only 
one.*^ 

§  430.     Effect  of  such  instructions  as  ground  for  reversal 

The  giving  of  conflicting  instructions  is  ground  for  the  reversal 
of  a  judgment,*'  where  they  are  calculated  to  mislead  the  jury  as 
to  matters  material  to  the  issues,*^  or  leave  them  in  doubt  as  to 
the  law,»*  unless  the  evidence  is  such  that  the  jury  could  not  have 
been  misled,*^  or  unless  the  appellate  court  is  satisfied  that  the 
appellant  was  not  injured  by  the  error,*^  and  in  some  jurisdictions 
the  giving  of  conflicting  instructions  is  generally  presumed  to  prej- 
udice the  party  complaining.*' 

Where  however,  no  harm  has  come  from  such  conflict  to  the 
party  complaining  thereof,**  and  the  jury  has  not  been  misled, 


80  Anderson  v.  Oscamp  (Ind.  App.) 
35  N.  E.  707 ;  Winchell  v.  Latbam  (N. 
Y.)  6  Cow.  6S2. 

81  Texas  &  P.  Ry.  Co.  v.  Matkin, 
107  Tex.  125,  174  S.  W.  1098,  affirm- 
ing judgment  (Civ.  App.)  142  S.  W. 
604. 

Evidence  supporting  only  one 
theory..  The  presentation  of  two  in- 
consistent tlieories  of  plaintifC's  case 
to  the  jury,  on  one  of  which  he  was 
entitled  to  recover,  and  on  the  oth- 
er of  which  he  could  not  recover  with- 
out a  disregard  of  all  the  evidence  in- 
troduced by  him,  was  reversible  er- 
ror. Behen  v.  St.  Louis  Transit  Co., 
85  S.  W.  34©,  186  Mo.  430. 

8  2  Cal.  Clark  v.  McElvy,  11  Cal. 
154. 

Fla.  Florida  East  Coast  Ry.  Co. 
V.  Jones,  62  So.  898,  66  Fla.  51. 

111.  Illinois  Linen  Co.  v.  Hough, 
91  111.  63. 

Ind.  Watts  v.  Chicago  &  E.  I.  R. 
Co.,  104  N.  E.  42,  61  Ind.  App.  51; 
Sunimeiiot  v.  Hamilton,  121  Ind.  87, 
22  N.  E.  973. 

Mo.  Carder  v.  Primm,  60  Mo.  App. 
423 ;  Frank  v.  Grand  Tower  &  C.  Ry. 
Co..  57  Mo.  App.  181. 

N.  Y.  Clarke  v.  Schmidt,  104  N. 
E.  613,  210  N.  Y.  211,  reversing  judg- 


ment 132  N.  Y.  S.  1124,  148  App.  Div. 
895. 

Tex.  Trinity  &  Brazos  Valley  Ry. 
Co.  v.  Lunsford  (Civ.  App.)  160  S.  W. 
677. 

Va.  Powhatan  Lime  Co.  v.  Af- 
fleck's Adm'r,  79  S.  E.  1054,  115  Va. 
643;  Norton  Coal  Co.  v.  Hanks' 
Adm'r,  62  S.  E.  335,  108  Va.  521. 

8  3  Illinois  Match  Co.  v.  Chicago,  R. 
I.  &  P.  Ry.  Co.,  95  N.  E.  492,  250  111. 
396,  reversing  judgment  153  111.  App. 
568;  Cummings  v.  Holland,  130  111. 
App.  315;  Pendleton  v.  Chicago  City 
Ry.  Co.,  120  111.  App.  405;  State  v. 
Dudley,  91  N.  E.  605,  45  Ind.  App. 
674  ;  Canton  Lumber  Co.  of  Baltimore 
City  V.  Miller,  76  A.  415,  112  Md.  2.58. 

8*4  Steele  v.  Michigan  Buggy  Co., 
95  N.  E.  435,  50  Ind.  App.  635. 

8  5  Escambia  County  Electric  Light 
&  Power  Co.  v.  Sutherland,  55  So.  83, 
61  Fla.  167. 

8  6  Randall  v.  Northwestern  Tel.  Co., 
54  Wis.  140,  11  N.  W.  419,  41  Am.  Rep. 
17. 

8  7  Producers'  Coal  Co.  v.  Mifflin 
Coal  IMining  Co.,  95  S.  E.  948,  82  W. 
Va.  311. 

8  8  Nuckolls  V.  Gaut,  12  Colo.  363, 
21  P.  41. 


431 


INSTRUCTIONS  TO  JURIES 


774 


such  inconsistency  will  not  constitute  ground  for  reversal.^®  Thus 
inconsistency  between  different  instructions  is  harmless  error, 
where  the  inconsistency  arises  from  error  in  the  instruction  in 
favor  of  the  appellant-'*'^  and  the  court  may  present  the  various 
phases  of  the  case  suggested  by  the  evidence  or  the  contentions  of 
the  parties,  although  they  are  inconsistent  with  each  other,  when 
from  the  instructions  as  a  whole  the  jury  cannot  be  misled.^^ 

J.  Singling  Out  or  Giving  Undue  Prominence  to  Particular 

Facts  or  Matters 

Singling  out  matters  as  invasion  of  province  of  jury,  see,  ante,  §  44. 

§431.     General  rule 

It  is  improper  to  single  out  a  particular  issue  or  defense,  so  as 
to  impress  the  jury  with  the  idea  that  it  is  the  controlling  one,  or 
to  lead  them  to  attach  undue  prominence  to  such  issue  or  de- 
fense,^' or  to  emphasize  the  theory  of  one  party  as  compared  with 


8  9Carrington  v.  Pacific  Mail  S.  S. 
Co.,  1  Cal.  475;  Robbins  v.  Roth,  95 
111.  464;  Garey  v.  Sangstou,  64  Md. 
31,  20  A.  1034;  Maier  v.  Massachu- 
setts Ben.  Ass'n,  107  Mich.  6S7,  65 
N.  W.  552;  Jansen  v.  Williams,  36 
Neb.  S69,  55  N.  W.  279,  20  L.  R.  A. 
207. 

90  Williams  v.  Southern  Pac.  R.  Co., 
110  Cal.  457,  42  P.  974;  Graybeal  v. 
Gardner,  14G  111.  337,  34  N.  E.  528, 
affirming  48  111.  App.  305  ;  Hillebrant 
V.  Green,  93  Iowa,  061,  62  N.  W.  32. 

91  Votaw  V.  McKeever,  92  P.  1120, 
76  Kan.  870. 

92  Fla.  Jacksonville  Electric  Co.  v. 
Adams,  39  So.  183,  50  Fla.  429,  7  Ann. 
Cas.  241. 

III.  Zoeller  v.  Court  of  Honor,  168 
111.  App.  562. 

Neb..  Rising  v.  Nash,  48  Neb.  597, 
67  N.  W.  460. 

Ohio.  Lake  Shore  &  M.  S.  Ry.  Co. 
V.  Whidden,  23  Ohio  Oir.  Ct.  R.  85. 

Tex.  Munsev  v.  Marnet  Oil  &  Gas 
Co.  fCiv.  App.)  199  S.  W.  686;  Van 
Geem  v.  Cisco  Oil  Mill  (Civ.  App.)  1.52 
S.  W.  1108 ;  Huber  v.  Texas  &,  P.  Ry. 
Co.  (Civ.  App.)  113  S.  W.  984;  Bu- 
chanan v.  Mi.ssouri,  K.  &  T.  Ry.  Co. 
of  Texas,  107  S.  W.  552,  48  Tex.  Civ. 
App.  299;  Dnlhis  &  O.  C.  El.  Ry.  Co. 
v.  Harvey  fCiv.  App.)  27  S.  W.  423. 

Instructions  Iield  not    inrproper 


within  rule.  Where  in  an  action  for 
the  death  of  a  trolley  car  passenger 
who  jumped  from  the  car  on  a  par- 
rallel  track  in  front  of  an  approaching 
car  on  that  track  to  avoid  danger  of 
a  collision  by  another  car  running 
into  the  car  on  which  he  was  riding, 
the  theory  of  plaintiff  was  that  de- 
fendant had  negligently  placed  dece- 
dent in  a  perilous  position,  and  the 
theory  of  defendant  was  that  dece- 
dent had  not  been  placed  in  a  posi- 
tion of  imminent  peril,  an  instruction 
that  the  basis  of  the  action  was  neg- 
ligence which  could  not  be  presumed 
from  the  mere  fact  that  decedent  was 
run  over  by  a  car,  but  that  before 
plaintiff  could  recover  he  must  prove, 
not  only  that  defendant  was  negligent, 
but  that  the  negligence  charged  was 
the  proximate  cause  of  decedent's 
death,  was  not  objectionable  as  di- 
recting the  attention  of  the  jury  to 
the  count  of  the  declaration  charging 
negligence  in  the  operation  of  the  car 
which  struck  decedent.  Adamson's 
Adm'r  v.  Norfolk  &  P.  Traction  Co., 
69  S.  E.  1055,  111  Va.  556.  In  an  ac- 
tion for  injuries  to  plaintiff's  wife  in 
alighting  from  a  car,  where  the  de- 
fendant pleaded  contributory  negli- 
gence, in  that  she  loft  the  car  on  the 
side  opposite  the  depot,  and  that  she 
attempted  to  leave  it  with  a   lot  of 


775 


FORMAL  MATTERS 


§431 


the  theory  of  his  adversary,^^  and  instructions,  objectionable  be- 
cause of  such  emphasis,  are  properly  refused,  however  correct 
they  may  be  as  legal  propositions.^* 

It  is  improper  to  give  an  instruction  which  singles  out,  and  calls 
undue  attention  to,  a  particular  part  of  the  testimony  or  a  partic- 


ijundles   and   packages  in   her   arms, 
rendering  her  unable  to  use  the  rail- 
intr,  whereby  she  was  caused  to  lose 
he^r  balance"  and  fall,  special  instruc- 
tions on  the  subject  of  contributory 
negligence  conformable  to  these  phas- 
es," given  in  addition  to  a  charge  in 
general  terms  on  contributory  negli- 
gence, were  not  erroneous  as  gi\'ing 
undue  prominence  to  the  issue.    Ram- 
ble V.  San  Antonio  &  G.  R.  R.,  100  S. 
W.    1022,    45    Tex.    Civ.    App.    422. 
Where   the  court  stated  in  the  gen- 
eral charge  that  the  burden  of  proof 
was  on  plaintiff  to  establish  the  ma- 
terial allegations  of  his  petition,  the 
giving  of  a  special  charge  that,  if  a 
passenger  is  injured  while  alighting 
from  a  train,  he  cannot  recover  there- 
for, unless  it  is  shown  by  a  preponder- 
ance of  evidence  that  the  injury  was 
caused  by  the  failure  of  the  company 
to  exercise  the  proper  degree  of  care, 
was  not  objectionable  as  giving  undue 
prominence    to   the    rule   of    law   ex- 
prtssed.     Ramble  v.   San  Antonio   & 
G.  R.  R.,  100  S.  W.  1022,  45  Tex.  Civ. 
App.  422.     The  court  not  having  told 
the  jury  on  whom  the  burden  of  proof 
rested  to  prove  whether  insured  met 
his  death  in  a  violation,  or  attempted 
violation,    of   law,   but   only    that    to 
find  for  defendant  they  must  believe 
that  insured,  without  justification  and 
iu  violation  of  law.  made  an  assault 
to  uiurdcr  K.,  and  iu  the  course  of  the 
difficulty  was  shot,  plamtiff  was  en- 
titled to  a   charge  that  such  burden 
was    on    defendant;     so    that    giving 
plaintiffs'  charge  that  the  burden  was 
on   defendant    to    show    that   insured 
met  his  death  in  a  violation,  or  an 
attempted  violation,  of  law.  could  not 
be    complained    of    as    giving    undue 
prominence  to  the  necessity  of  defend- 
ant making  such  showing  by  a  prepon- 
derance  of   the  evidence.     Woo<lmon 
of  the  World  v.  McCoslin.  120  S.  W. 
.^94,  59  Tex.  Civ.  App.  574.     Where, 
in  an  action  against  -an  iron  compa- 
ny for  injuries  to  plaintiff  while  em- 


ployed in  the  construction  of  a  build- 
ing, one  of  the  issues  was  whether  the 
building  was  being  constructed  by  tlie 
iron  company  or  by  a  realty  company 
organized  by  the  same  persons  that 
owned  and  controlled  the  iron  com- 
pany, and  there  was  evidence  that 
before  plaintiff's  injury  the  officers 
and  stockholders  of  the  iron  company 
determined  to  organize  the  realty 
company,  but  that  the  realty  company 
was  not  incorporated  until  after  a 
building  permit  had  been  issued  for 
the  building  on  which  plaintiff  was 
injured,  the  permit  being  taken  out 
by  the  agent  of  the  iron  company,  an 
instruction  that  the  realty  company 
.  was  not  incorporated  until  a  date 
specified,  which  was  the  date  shown 
by  the  evidence  as  the  date  of  the  in- 
corporation, was  not  objectionable  as 
giving  undue  prominence  to  the  date 
of  the  incorporation  of  the  realty  com- 
panv.  Kim  v.  E.  E.  Southern  Iron 
Co.,"l24  S.  W.  45,  140  Mo.  App.  451. 

93  Weiss  V.  Bethlehem  Iron  Co.  (C. 
C.  A.  Pa.)  SS  F.  23,  31  C.  C.  A.  363 ; 
In  re  Townsend's  Estate,  97  N.  W. 
IIOS,  122  Iowa,  246;  St.  Louis  South- 
western Ry.  Co.  of  Texas  v.  Terhune 
(Tex.  Civ.  App.)  81  S.  W.  74;  Barton 
V.  Stroud-Gibson  Grocer  Co.  (Tex. 
Civ.  App.)  40  S.  W.  1050. 

94  111.,  Slack  v.  Harris,  65  N.  E. 
669,  200  111.  90,  affirming  judgment 
101  111.  App.  527. 

Mass.  Kenny  v.  Town  of  Ipswich, 
59  N.  E.  1007,  178  Mass.  368. 

Minn.  Fransen  v.  Falk  Paper  Co., 
160  N.  W.  789,  135  Minn.  284.  "^ 

N.  H.  Davis  v.  Concord  &  M.  R. 
R..  44  A.  388,  68  N.  H.  247. 

R.  I.  Revnolds  v.  Narragansett 
Electric  Lighting  Co.,  59  A.  393,  26 
R.  I.  457. 

Tex.  Jacksonville  Ice  &  Electric 
Co.  V.  Moses.  134  S.  W.  379,  63  Tex. 
Civ.  App.  496. 

Wis.  W'atson  v.  IMlb.vaukee  &  M. 
R.  Co.,  57  Wis.  332,  15  N.  W^  468. 


8  431  INSTRUCTIONS  TO  JURIES  77G 

ular  part  of  the  evidence,*^  or  at  least  the  giving  of  such  an  in- 


9  5  u.  S.  (C.  O.  A.,  Ark.)  Western 
Coal  &  Mining  Co.  v.  Berberich,  94 
F.  329,  36  C.  C.  A.  364;  (C.  C.  A. 
Colo.)  Trumbull  v.  El-ickson,  97  F. 
S91.  38  C.  C.  A.  536 ;  (C.  C.  A.  Minn.) 
Minneapolis  General  Electric  Co.  v. 
Cronon,  166  F.  651,  92  C.  C.  A.  345, 
20  L.  R.  A.  (N.  S.)  816. 

Ala.  Birmingbam  Ry.,  Light  & 
Power  Co.  v.  Kyser,  82  So.  151,  203 
Ala.  121;  Minor  v.  Coleman,  74  So. 
841,  16  Ala.  App.  5;  Dillworth  v. 
Holmes  Furniture  &  Vehicle  Co.,  73 
So.  288,  15  Ala.  App.  340;  Stinson  v. 
Faircloth  Byrd  Co.,  57  So.  143,  3  Ala. 
App.  607;  Western  Union  Telegraph 
Co.  V.  Robbins,  56  So.  879,  3  Ala.  App. 
234;  Duncan  v.  St.  Lrouis  &  S.  F.  K. 
Co.,  44  So.  418,  152  Ala.  118;  Aber- 
crombie  v.  Fourth  Nat.  Bank,  39  So. 
606 ;  Birmingham  Ry.  &  Electric  Co. 
V.  Mason,  39  So.  590,  144  Ala.  387, 
6  Ann.  Cas.  929;  Central  of  Georgia 
Ry.  Co.  V.  Larkins,  37  So.  660,  142 
Ala.  375;  Louisville  &  N.  R.  Co.  v. 
Jones,  30  So.  586.  130  Ala.  456 ;  Pear- 
son V.  Adams,  29  So.  977,  129  Ala. 
157;  Decatur  Car  Wlieel  &  Mfg.  Co. 
V  Mehaffey,  29  So.  646,  128  Ala.  242 ; 
Louisville  &  N.  R.  Co.  v.  Orr,  26  So. 
35  121  Ala.  489;  Williamson  v.  Ty- 
son, 105  Ala.  644,  17  So.  .336;  Wads- 
worth  V,  Williams,  101  Ala.  264,  13 
So.  755;  Steed  v.  Knowles,  97  Ala. 
573,  12  So.  75. 

Ark.  St.  Louis  Southwestern  Ry. 
Co.  V.  Aydelott,  194  S.  W.  873,  128 
\rk  479;  Western  Coal  &  Mining 
Co.  V.  Jones,  87  S.  W.  440,  75  Ark. 
76. 

Ga.  Stiles  V.  Shedden,  58  S.  E.  515, 
•J  Ga.  App.  317. 

ni.  Helbig  V.  Citizens'  Ins.  Co., 
'84  N.  E.  897.  234  111.  251,  affirming 
judgment  Citizens'  Ins.  Co.  v.  Helbig, 
138  111.  App.  115;  Funston  v.  Hoff- 
man, 83  N.  E.  917,  232  111.  360 ;  Wick- 
es  v.  Walden,  81  X.  E.  798.  228  111. 
56;  Chicago  Anderson  Pressed  Brick 
Co.  v.  Reinneiger,  140  111.  334,  29  N. 
E.  1106,  33  Am.  St.  Rep.  249;  Pro- 
tection Life  Ins.  Co.  v.  Dill,  91  111. 
174;  Martin  v.  Johnson,  89  111.  537; 
Hatch  V.  Marsh,  71  111.  370;  M.  H. 
Boals  Planing  Mill  Co.  v.  Cleveland, 


C,  C.  &  St.  L.  Ry.  Co.,  211  111.  App. 
125;    McCormick  v.  Decker,  204  111. 
App.  554;    Trainer  v.  Baker,  195  111. 
App.  216;  Ballah  v.  Peoria  Life  Ass'n, 
159  111.  App.  222 ;  Harvey  v.  McQuirk, 
158  111.  App.  50 ;  Ventriss  v.  Pana  Coal 
Co.,  155  111.  App.  152;    Karkowski  v. 
La  Salle  County  Carbon  Coal  Co.,  154 
111.  App.  399,  judgment  affirmed  (1911) 
93  N.  E.  780,  248  111.  193;    Fisher  v. 
City   of  Geneseo,   154   111.   App.  288;  ■ 
Gash  V.  Home  Ins.  Co.  of  New  York, 
153   111.   App.    31;     Penney   v.    John- 
ston,  142    111.   App.   634;     Aygarn    v. 
Rogers  Grain  Co.,  141  111.  App.  402; 
Hughes  V.  Hughes,  133  111.  App.  654; 
Trustees   of   Schools,    etc.,    St.    Clair 
County    V.    Yoeh,    133    111.    App.    32; 
Long  V.  Long.  132  111.  App.  409 ;    Pur- 
cell    V.    McKeel,    129    111.    App.    428; 
Turner   v.   Lord    &  Tliomas,   124    111. 
App.  117 ;   Springfield  Consol.  Ry.  Co. 
V  Gregory,  122  111.  App.  607;   Turner 
V.  Righter,  120  111.  App.  131;    Beyer 
V.  Martin,  120  111.  App.  50;    Chicago 
City  Ry.  Co.  v.  Lowitz,  119  111.  App. 
360,  judgment  affirmed  75  N.  E.  755, 
218  111.  24;    New  Ohio  Washed  Coal 
Co.   V.   Hindman,   119   111.   App.   287; 
Scott   V.    Snyder.    116   111.   App.   393; 
Chicago  Hydraulic  Press  Brick  Co.  v. 
Campbell,  116  111.  App.  322;    Hart  v. 
Carsley  Mfg.  Co.,  116  111.  App.  159,  re- 
versed 77  N.  E.  897.  221  111.  444,  112 
Am.   St.  Rep.   189.  5  Ann.   Cas.   720; 
Munford    v.    Miller,    7    111.    App.    62; 
Anderson  v.  Warner,  5  111.  App.  416 ; 
Wright  V.  Bell.  5  111.  App.  352 :  Hutrh- 
chinson  v.  Grain,  3  111.  App.  20. 

Ind.  North  v.  Jones,  100  N.  E.  84, 
53  Ind.  App.  203. 

Iowa.  Haman  v.  Preston,  173  N. 
W.  894.  186  Iowa,  1292;  In  re  Evel- 
eth's  Will,  157  N.  W.  257,  177  Iowa, 
716;  Whitman  v.  Chicago  Great 
Western  Ry.  Co.,  153  N.  W.  1023,  171 
Iowa,  277;  Kelly  v.  Chicago,  R.  I.  & 
P.  Ry.  Co.,  114  N.  W.  536,  138  Iowa, 
273,  128  Am.  St.  Rep.  195. 

Kan.  Honick  v.  Metropolitan  St. 
Ry.  Co.,  71  P.  265,  66  Kan.  124. 

Ky.  Stearns  Coal  &  Lumber  Co.  v. 
Williams,  186  S.  W.  931,  171  Ky.  46; 
Bennett  v.  Knott,  112  S.  W.  849; 
Drake  v.  Holbrook,  92  S.  W.  297,  28 


777 


FORMAL  MATTERS 


§431 


Kv.  Law  Rep.  1319 ;  South  Covington 
&  C.  St.  Ry.  Co.  V.  Schilling.  89  S.  W. 
220,  28  Ky.  Law  Rep.  309 ;  Louisvilh' 
Rv.  Co.  V.  Hartman's  Adm'r,  S3  S.  W. 
570.  26  Kv.  Law  Rep.  1174;  Crab- 
tree  V.  Dawson,  83  S.  W.  557,  119  Ky. 
148.  26  Ky.  Law  Rep.  1046,  67  L.  R. 
A.  565,  115  Am.  St.  Rep.  243 ;  Louis- 
ville &  X.  R.  Co.  V.  Banks,  33  S.  W. 
627;  Ohio  R.  Co.  v.  Finney,  15  Ky. 
T/aw  Rep.  (abstract)  29 ;  Kentucky 
Tobacco  Ass'n  v.  Ashley,  5  Ky.  Law 
Rep.    (abstract)  184. 

Md.  Safe-Deposit  &  Trust  Co.  v. 
Berrv,  49  A.  401,  93  Md.  560 ;  Iliggins 
v.  Grace,  59  Md.  365. 

Mass.  Quinlan  v.  Hugh  Nawn 
Contracting  Co.,  126  N.  E.  3G9.  235 
Mass.  190;  Neafsey  v.  Szemeta,  126 
N.  E.  368,  235  Mass.  160;  O'Brien  v. 
Shea,  95  N.  E.  99.  208  Mass.  528, 
Ann.  Cas.  1912A.  1030 ;  O'Leary  v. 
Boston  Elevated  Ry.  Co.,  95  N.  E.  85. 
209  Mass.  62;  Woodburv  v.  Sparrell 
Print,  84  N.  E.  441.  198  Mass.  1; 
Packer  v.  Thomson-Hbuston  Electric 
Co.,  56  N.  E.  704,  175  Mass.  496; 
Moseley  v.  Washburn,  45  N.  E.  753, 
167  Mass.  .345;  Troeder  v.  Hyams, 
153  Mass.  536.  27  N.  E.  775 ;  Packer 
V.  Hinckley  Locomotive  Works.  122 
Mass.  484 ;  Littlefield  v.  Huntress. 
106  Mass.  121;  Howe  v.  Howe,  99 
Mass.  88 ;  Stebbins  v.  Miller,  12  Allen, 
591. 

Micli.  First  Nat.  Bank  v.  Union 
Trust  Co.,  122  N.  W.  547,  158  Mich. 
94.  133  Am.  St.  Rep.  362 ;  McKinnon 
Boiler  &  Machine  Co.  v.  Central  Mich- 
igan Land  Co.,  120  N.  W.  26,  156  Mich. 
11 :  Webster  v.  Sibley,  40  N.  W.  772, 
72  Mich.  630;  People  v.  Colerick,  34 
N.  W.  683,  67  IMich.  362. 

Minn.  Geddes  v.  Van  Rhee,  148 
N.  W.  549,  126  Minn.  517;  Taubert 
V.  Taubert,  114  N.  W.  763,  103  Minn. 
247 ;  Atwood  Lumber  Co.  v.  Watkins, 
103  X.  W.  .3.32,  94  Minn.  464. 

Miss.  Hooks  V.  Mills,  57  So.  545, 
101  Miss.  91. 

Mo.  Robinson  v.  Cruzen  (App.) 
202  S.  W.  449 ;  Fitzsimmons  v.  Com- 
merce Trust  Co.  (App.)  200  S.  W.  437 ; 
Greenbrier  Distillery  Co.  v.  Van 
Frank,  126  S.  W.  222,  147  Mo.  App. 
204 ;  Gibler  v.  Quincy,  O.  &  K.  C.  R. 
Co.,  107  S.  W.  1021,  129  Mo.  App.  93 ; 
Zander  v.  St.  Louis  Transit  Co.,  103 


S.  W.  1006,  206  Mo.  445;  Spohn  v. 
Missouri  Pac.  Ry.  Co.,  87  Mo.  74; 
Pine  V.  St.  Ix)uis  Public  Schools,  39 
Mo.  59;  McAlister  v.  Irvine,  69  Mo. 
App.  442 ;  Chaney  v.  Phoenix  Ins.  Co., 
G2  Mo.  App.  45;  Dobbs  v.  Gates'  Es- 
tate, 60  Mo.  App.  658. 

Neb.  Kleutsch  v.  Security  Mut. 
Life  Ins.  Co.,  100  N.  W.  139,  72  Neb. 
75;  City  of  South  Omaha  v.  Wrzen- 
sinski,  92  N.  W.  1045,  66  Neb.  790 ; 
Martens  v.  Pittock,  92  N.  W.  1038,  3 
Neb.  (Unof.)  770;  Markel  v.  Moudy, 
11  Neb.  213,  7  N.  W.  853. 

Pa.  Reichenbach  v.  Ruddach,  127 
Pa.  564,  IS  A.  432,  24  Wkly.  Notes 
Cas.  476. 

S.  C.  Pearl stine  v.  Westchester 
Fire  Ins.  Co.,  49  S.  E.  4,  70  S.  C.  75. 

Tex.  McDonald  v.  Stafford  (Civ. 
App.)  213  S.  W.  732 ;  First  Nat.  Bank 
of  Garner,  Iowa,  v.  Smith  (Civ.  App.) 
183  S.  W.  862;  Yealock  v.  Yealock 
(Civ.  App.)  141  S.  W.  842;  Gallagher. 
V.  Neilon  (Civ.  App.)  121  S.  W.  564; 
McKay  v.  Peterson,  113  S.  W.  981,  52 
Tex.  Civ.  App.  195 ;  Raywood  Rice, 
Canal  &  Milling  Co.  v.  Wells,  77  S.  W. 
253,  33  Tex.  Civ.  App.  545 ;  Laferiere 
V.  Richards,  67  S.  W.  125,  28  Tex. 
Civ.  App.  63;  New  York  &  T.  Land 
Co.  V.  Gardner  (Civ.  App.)  25  S.  W. 
737. 

Utah.  Kent  v.  Ogden,  L.  &  I.  Rv. 
Co.,  167  P.  666,  50  L'tah,  32S. 

Vt.  Vaillancourt  v.  Grand  Trunk 
Ry.  Co.  of  Canada,  74  A.  99,  82  Vt. 
416. 

Va.  CerrigUo  v.  Pettit,  75  S.  E. 
303,  113  Va.  533;  Douglas  Land  Co, 
V.  T.  W.  Thayer  Co.,  58  S.  E.  1101, 
107  Va.  292. 

W.  Va.  Parkersburg  Nat.  Bank  v. 
Ilannaman,  60  S.  E.  242,  63  W.  Va. 
358;  Dclmar  Oil  Co.  v.  Bartlett,  59 
S.  E.  634,  62  W.  Va.  700;  Bice  v. 
Wheeling  Electrical  Co.,  59  S.  E.  626, 
62  W.  Va.  685  ;  McMechen  v.  McMech- 
en,  17  W.  Va.  683,  41  Am.  Rep.  682. 

Instructions  held  erroneous  as 
in  violation  of  x>ule.  An  instruc- 
tion, in  an  action  on  a  note  executed 
to  a  decedent  in  which  defendant 
pleaded  payment  and  produced  sev- 
eral receipts  acknowledging  payment 
for  money  advanced,  that  the  produc- 
tion of  the  receipts  signed  by  deced- 
ent  was   a   complete   defense   unless 


431 


INSTRUCTIONS   TO   JURIES 


778 


overcome  by  proof  showing  that  the 
payments  were  in  fact  not  made. 
Steltemeier  v.  Barrett,  122  S.  W.  1095, 
145  Mo.  App.  534.  An  instruction  as 
to  the  measure  of  damages  for  negli- 
gent Ivilling,  that  "in  arriving  at  this 
the  jury  may  take  into  consideration 
the  age  of  decedent  and  the  probable 
duration  of  his  life."  Louisville  & 
N.  R.  Co.  V.  Shoemake's  Adm'r,  171 
S.  W.  383.  161  Ky.  746.  An  instruc- 
tion that  tlie  refusal  of  plaintifC  to 
submit  to  a  physical  examination  by 
defendant's  physician  may  properly 
be  considered  by  the  jury.  Simpson 
V.  Peoria  Ry.  Co.,  179  111.  App.  307. 
An  instruction  referring  to  the  effect 
of  agitation  and  excitement  upon  an 
ordinarily  prudent  person  while  act- 
ing in  an  emergency.  St.  Louis  &  S. 
F.  R.  Go.  V.  Casselberry  (Tex.  Civ. 
App.)  139  S.  W.  1161.  An  instruc- 
tion, in  a  personal  injury  suit,  which 
'gives  undue  prominence  to  physical 
disabilities  and  infirmities  of  the 
plaintiff.  Geary  v.  City  of  Chicago, 
161  111.  App.  461.  An  instruction  in 
ejectment,  which  calls  especial  atten- 
tion to  the  fact  that  plaintiff  and  his 
grantor  denied  that  they  had  agreed 
on  the  division  line,  is  unfair  to  de- 
fendant, who  testified  that  they  had 
so  agi'eed'.  Clayton  v.  Feig,  54  N.  E. 
149,  179  111.  534.  An  instruction,  in 
an  action  on  a  life  ijolicy,  precluding 
recovery  if  insured  was  seen  alive  aft- 
er a  particular  date.  Springmeyer  v. 
Sovereign  Camp,  Woodmen  of  the 
World,  143  S.  W.  872,  163  Mo.  App. 
3.38.  Instruction,  in  an  action  for 
malicious  prosecution,  that  the  jury 
might  look  to  the  fact  that  defend- 
ant caused  the  prosecution  to  be  dis- 
missed against  plaintiff  as  a  circum- 
stance tending  to  show  malice,  and 
that,  if  defendant  was  not  actuated 
by  malice,  the  verdict  must  be  for 
defendant.  Rutherford'  v.  Dyer,  40 
So.  974,  146  Ala.  6G5.  An  instruction, 
in  an  action  by  a  railway  brakeman 
for  injuries,  where  life  tables  were 
read  as  evidence,  that  if  the  jury  con- 
sidered the  tables,  it  should  also  con- 
sider the  hazardous  nature  of  plain- 
tiff's employment  as  tending  to  deter- 
mine the  length  of  his  life  and  the 
duration    of    his    ability     to     labor. 


Louisville  &  N.  R.  Co.  v.  Irby,  132  S. 
W.  393,  141  Kv.  145,  judgment  mod- 
ified 1.34  S.  W.  139,  142  Ky.  273. 
An  insti'uction,  in  an  action  for  in- 
juries on  the  paved  street  of  a  large 
city,  as  to  care  required  of  plain- 
tiff' emphasizing  the  fact  that  the 
accident  ocairred  between  street  in- 
tersections. Rugenstein  v.  Otten- 
heimer,  140  P.  747,  70  Or.  600.  An 
instruction,  in  suit  for  injuries  to  a 
child  of  10  or  12  from  contact  with 
an  electric  light  wire,  that  the  jury  in 
determining  contributory  negligence 
must  "consider  the  fact  that  the 
plaintiff  in  this  case  has  lived  all  his 
life  in  a  city,  where  they  had  electric 
lights  and  electric  wires,  and  the  fact 
that  the  plaintiff  thus  had  opportuni- 
ties to  learn  and  appreciate  the  dan- 
gers of  such  agencies."  Potera  v.  City 
of  Brookhaven.  49  So.  617,  95  Miss. 
774.  An  instruction  in  an  action  for 
injuries  to  plaintiff  at  a  I'ailroad 
crossing  that,  if  the  evidence  was 
evenly  balanced  as  to  the  speed  of 
an  engine  and  the  witnesses  as  to  this 
matter  were  equally  credible,  it  was 
the  jury's  duty  to  give  credence  to 
those  witnesses  who  testified  that  the 
speed  did  not  exceed  five  miles  per 
hour.  Southern  Ry.  Co.  v.  Weather- 
low,  51  So.  381,  164  Ala.  151.  An  in- 
struction, in  an  action  upon  notes  giv- 
en to  plaintiff  in  payment  of  machin- 
•ery  purchased  for  defendants,  charg- 
ing that  the  giving  of  the  notes  was 
not  a  relinquishment  of  defendants" 
claim  for  excess  charges  upon  the 
machinery.  Robinson  v.  Silver,  87  A. 
699,  120  Md.  41.  An  instruction,  in 
an  action  to  recover  wagons,  obtained 
by  defendants  from  a  third  person, 
that  defendant's  knowledge  before  the 
purchase  of  the  stock  of  such  third 
person  that  he  owed  plaintiff  for  the 
wagons  was  not  alone  sufficient  to  put 
defendants  on  notice  as  to  any  fraud 
of  such  third  person  in  obtaining  the 
wagons.  Parlin  &  Orendorff  Co.  v. 
Glover,  118  S.  W.  731,  55  Tex.  Civ. 
App.  112.  A  charge,  in  an  action 
for  breach  of  warranty,  that  it  was 
the  duty  of  the  jury  to  look  to  the 
time  when  the  buyer  made  complaint 
to  the  seller  to  determine  whether  any 
defect  existed  at  the  time  the  machin- 


779 


FORMAL  MATTERS 


431 


erv   was   sold.     W.  T.   Adams   Macli. 
Co    V.   Turner.  50   So.   308.   162   Ala. 
3.51,  136  Am.  St.  Rep.  28.    An  instruc- 
tion that  actual  sale  of  property  by 
a  trustee  in  bankruptcy  is  evidence 
of  its  market  value.     Herzberg  v.  Rid- 
dle, 54  So.  635,  171  Ala.  368.     An  in- 
struction, on  the  trial  of  a  question 
of  will  or  no  will,  that,  if  the  jury  be- 
lieve there  is  gross  inequality  in  the 
distribution  of  the  estate  by  the  in- 
strument and  that  no  reason  therefor 
exists   thev  may  c-onsider  such  fact  in 
connection  with  all  the  other  circum- 
stances proven  in  the  case  m  deter- 
minins;  whether  such  paper  is  in  fact 
the   testator's   will.      Stokes'    Ex'r   v. 
Shippen,  13  Bush  (Ky.)  180.     An  in- 
struction that  the  jury  might  consider 
the  adequacy  of  the  amount  paid  for 
a   release  in  determining  the  compe- 
tency of  plaintiff.    Robinson  v.  Chica- 
lo   R    I.  &  P.  Ry.  Co.,  150  P.  636,  96 
ICan.  137.   judgment   affirmed   on   re- 
hearing 153  P.  494,  96  Kan.  6o4.     In- 
structions, in  suit  for  work  and  ma- 
terials in  improving  property  defend- 
ant   was    superifitendlng,    specifically 
calling  the  jury's  attention  to  wheth- 
er he  was  an  independent  contractor 
and    only    slightly    referring    to    the 
question  of  whether  credit  was  given 
defendant  or  the  owner,   which  was 
the  final  criterion  of  liability.    Lam- 
bert V.  Phillips  &  Son,  64  S.  E.  945, 
109  Va.  632. 

Instructions  held  not  objection- 
able within  rule.     Where  a  charge 
after  setting  out  every  condition  on 
v.-hich  plaintiff's  right  to  recover  de- 
pended concluded  with  the  statement 
lia    unless  the  jury  found  the  aflirm- 
■itive  of  each  and  every  fact  svibmit- 
ied  in  that  paragraph  of  the  charge, 
he  \^^rdict  should  be  for  defenaant. 
was  not  objectionable  as  giving  undue 
empha^'s.  and  tending  to  indicate  the 
Vulge's  view  of  a  P-'ti-lar  feature 
of  the  evidence.     Houston  c^:  i.  ^^i^- 
ci  V   Rutland.  101  S.  W   529,  45  Tex 
Piv     \pp    621.     An  instruction   that 
if   the   jury   believed    the   defendant, 
at  the  time  of  the  alleged  injury,  was 
en-o^ced    in    running    street    cars,    it 
,va"s  l>ound   to   use   the   utmost   cara 
and   diligence  for   the   safety    of  its 


passengers,  and  is  liable  for  in.inrie^ 
to  its  passengers,  occasioned  by  the 
slightest   neglect,   against   which  hu- 
man   pnidence    and    foresight   might 
have  guarded,   does  not  call  the  at- 
tention of  the  jury  to  any  part  of  the 
evidence   on  the   questions   of  negli- 
gence    or     contributory     negligence. 
Blue   Ridge   Light    &   P^^wer    Co_v. 
Price,    62    S.    E.    938,    108    Va.    652. 
Where  the  isfTue  was  whether  a  con- 
tract was  mutually  rescinded  in  June, 
as  alleged  by  plaintiff,  and  the  proof 
showetl  that   in  November  following 
he  served  on  defendant  a  notice  of 
rescission,  and  the  court  charged,  at 
his  request,  that,  if  defendant  aban- 
doned the  contract  before  the  notice, 
the  giving  of  it  did  not  restore  to  him 
any 'rights  under  his  contract,  an  in- 
struction that,  if  plaintiff  did  not  con- 
sider the  contract  abandoned  until  he 
gave  the  notice,  a  verdict  should  De 
rendered  for  defendant,  was  not  ob- 
jectionable as  calling  the  juiT  s  at- 
ention  to  a  particular  part  of  the  evi- 
dence.    Darst  V.  Devini.   102    S    W. 
787    46  Tex.  Civ.  App.  311.     Where, 
in  libel,  defendant  relied  on  the  de- 
fense of  privilege  in  publishing  a  fair 
report  of  a  judicial  proceeding,  and  it 
appeared  that  a  part  of  the  proceed- 
ini  favorable  to  plaintiff  was  omit- 
ted   an  instruction  that  if  defendant 
omitted  the  favorable  matter  to  mis- 
lead the  public,  and  not  through  inad- 
vertence,   was   not    objectionable    as 
singling    out    one    item    of    evidence, 
ivrpvi  wether      v.      Publishers:       Oeo. 
Knapp  1  Co.,  123  S.  W.  1100,  224  Mo. 
617      An  instruction  on  the  question 
of  contributory  negligence  of  one  who 
having   crossed   from   the  south   side 
of  a  street  to  the  north  side  and  put 
a  letter  in  the  mail  box  of  an  east- 
bound  car,  was  struck  while  recross- 
in-  the  street,  and  just  after  emerg- 
ing from  behind  such  car,  by  an  east- 
bound  car,  which  tells  the  jury  they 
will  consider,   as  shown  by   the  evi- 
deuce,  certain  enumerated  facts  and 
circumstances,  together  with  any  oth- 
er fact  or  circumstance  shown  on  the 
tri'il    bearing  on   the   question,    held 
not  to  single  out  facts  favorable  to 
Plaintiff.     Dow   v.   Des   Momes   City 
Ry   CoT  126  N.  W.  918,  148  Iowa,  429. 


431 


INSTRUCTIONS  TO  JURIES 


780 


struction  is  not  good  practice,^^  and  it  is  proper  to  refuse  it;' 


9  8  Still  V.  San  Francisco  &  N.  W. 
Ry.  Co.,  98  P.  672,  154  Cal.  559,  20 
L.  R.  A.  (N.  S.)  322.  129  Am.  St.  Rep. 
177;  Anfenson  v.  Banks,  163  N.  W. 
608.  ISO  Iowa.  1066,  L.  R.  A.  1918D, 
482 ;  Gray  v.  Chicago,  R.  I.  &  P.  Ry. 
Co.,  139  N.  W.  934,  160  Iowa,  1; 
State  V.  Newlin,  182  P.  133,  92  Or. 
589. 

9  7  U.  S.  Rio  Grande  W.  Ry.  Co. 
V.  Leak,  163  U.  S.  280,  16  S.  Ct.  1020, 
41  L.  Ed.  160;  (C.  C.  A.  Kan.)  Con- 
necticut Mut.  Life  Ins.  Co.  v.  Hillmon, 
107  F.  834.  46  C.  C.  A.  668,  reversed' 
23  S.  Ct.  294,  188  U.  S.  208,  47  L.  Ed. 
446 ;  (C.  C.  A.  :\Iich.)  Arnold  v.  Hor- 
rigan,  238  F.  39,  151  C.  C.  A.  115; 
(C.  C.  A.  Minn.)  Chicago,  M.  &  St.  P. 
Ry.  Co.  V.  Anderson,  168  F.  901,  94 
C.  C.  A.  241 ;  (C.  C.  A.  Mo.)  Northern 
Central  Coal  Co.  v.  Barrowman,  246 
F.  906,  159  C.  C.  A.  178. 

Ala.  Kuykendall  v.  Edmondson, 
77  So.  24,  200  Ala.  650;  Huntsville 
Knitting  Mills  v.  Butner,  76  So.  54, 
200  Ala.  288;  Southern  Ry.  Co.  v. 
Hayes,  73  So.  945,  198  Ala.  601 ;  Kel- 
leit  V.  Jones  &  Weeden,  72  So.  89,  196 
Ala.  417 ;  Councill  v.  Mayhew,  55  So. 
314,  172  Ala.  295;  Alabama  Steel  & 
Wire  Co.  v.  Tallant.  51  So.  835,  165 
Ala.  521;  Western  Union  Telegraph 
Co.  V.  Benson,  48  So.  712,  159  Ala. 
254;  Drennen  v.  Satterfield,  24  So. 
723,  119  Ala.  84. 

Ark.  Jenkins  v.  Quick,  151  S.  W. 
1021,  105  Ark.  467. 

Conn.  Pratt  v.  Dunlap,  82  A.  195, 
85  Conn.  180;  Tetreault  v.  Smedley 
Co.,  71  A.  786,  81  Conn.  556. 

D.  C.  Sullivan  v.  Capital  Traction 
Co.,  34  App.  D.  C.  358;  Turner  v. 
American  Security  &  Trust  Co.,  29 
App.  D.  C.  460. 

Ga.  Georgia  Ry.  &  Electric  Co.  v. 
(iatlin,  82  S.  E.  888,  142  Ga.  293. 

ni.  Nolle  V.  Nolte,  190  III.  App. 
409;  Martini  v.  Donk  Bros.  Coal  & 
Coke  Co..  100  111.  App.  139 ;  Nave  v. 
Gross,  162  111.  App.  83;  Haywood  v. 
Dering  Coal  Co.,  145  111.  App.  506; 
Wilkinson  v.  iEtna  Life  Ins.  Co.,  144 
111.  App.  38,  judgment  affirmed  88  N. 
E.  550,  240  111.  205.  25  L.  R.  A.  (N.  S.) 
12.56,  130  Am.  St.  Rep.  269. 


Ind.  Cottrell  v.  Shadley,  77  Ind. 
348. 

Iowa.  Case  v.  Chicago  Great  West- 
ern Ry.  Co.,  126  N.  W.  1037,  147  Iowa, 
747 ;  Hanrahan  y.  O'Toole,  117  N.  W. 
675,  139  Iowa,  229. 

Kan.  Kerr  v.  Coberly,  105  P.  520, 
81  Kan.  376 ;  Smart  v.  Missouri  Pac. 
Ry.  Co.,  102  P.  253,  80  Kan.  438. 

Ky.  Chesapeake  &  O.  Ry.  Co.  v. 
Lang's  Adm'x.  133  S.  W.  570,  141  Ky. 
592;  Louisville  &  N.  R.  Co.  v.  Uelt- 
schi's  Ex'rs,  97  S.  W.  14,  29  Ky.  Law 
Rep.  1136. 

Md.  Earp  v.  Phelps,  87  A.  806, 
120  Md.  282;  Stouffer  v.  Alford,  7S 
A.  387,  114  Md.  110. 

Mass.  Dohertj'  v.  Phoenix  Ins.  Co., 
112  N.  E.  940,  224  Mass.  310;  Grier 
V.  Guarino,  101  N.  E.  981,  214  Mass. 
411;  O'Brien  v.  Shea,  95  N.  E.  99, 
208  Mass.  528,  Ann.  Cas.  1912A,  1030 ; 
Carroll  v.  Boston  Elevated  Ry.  Co., 
86  N.  E.  793,  200  Mass.  527;  Lufkin 
v.  Lufkin,  65  N.  E.  840,  182  Mass. 
476,  dismissed'  192  II.  S.  601,  24  S.  Ct. 
849,  48  L.  Ed.  583;  Gunthor  v.  Gun- 
ther.  63  N.  E.  402,  181  Mass.  217; 
Peck  V.  Clark,  142  Mass.  436,  8  N.  E. 
335. 

Mich.  Wood  V.  Standard  Drug 
Store,  157  N.  W.  403,  190  Mich.  654 ; 
Silverstone  v.  London  Assur.  Corpo- 
ration, 153  N.  W.  802,  187  Mich.  333  ; 
Philpott  V.  Kirkpa trick,  137  N,  W. 
232,  171  Mich.  495;  Beurmann  v. 
Van  Buren,  7  N.  W.  67.  44  Mich.  496. 

Minn.  Brown  v.  Chicago  &  N.  W. 
Ry.  Co.,  152  N.  W.  729,  129  Minn. 
347 ;  Froberg  v.  Smith,  118  N.  W.  57, 
106  Minn.  72. 

Mo.  Pasche  v.  South  St.  Joseph 
Town-Site  Co.  (App.)  190  S.  W.  30; 
Smith  V.  Jefeerson  Bank,  126  S.  W. 
810.  147  Mo.  App.  461;  Lowenstein 
V.  Missouri  Pac.  Ry.  Co.,  119  S.  W. 
430,  134  Mo.  App.  24 ;  Lohmever  v. 
St.  Louis  Cordage  Co.,  119  S.  W.  49, 
137  Mo.  App.  624,  transferred  from 
the  Supreme  Court  113  S.  W.  1108, 
214  Mo.  685 ;  Dobbs  v.  Gates'  Estate, 
60  :Mo.  App.  658. 

Mont.  Albertini  v.  Linden,  123  P. 
400,  45  Mont.  398. 

N.  H.  Minot  v.  Boston  &  M.  R.  R., 
66  A.  825,  74  N.  H.  230. 


781 


FORMAL  MATTERS 


431 


this  rule  applying  in  criminal  cases.^     Such  instructions  tend  to 
invade  the  province  of  the  jury  and  to  mislead  them.^^ 


Or.  Service  v.  Snmpter  Valley  Ry. 
Co.,  171  P.  202,  88  Or.  554;  Crossen 
V.  Oliver,  69  P.  308,  41  Or.  505. 

S.  C.  Carr  v.  Mouzon,  68  S.  E. 
661,  86  S.  C.  461. 

Tenn.  Gulf  Compress  Co.  v.  Insur- 
ance Co.  of  Pennsylvania,  167  S.  W. 
859.  129  Tenn.  586. 

Tex.  Panhandle  &  S.  F.  Ry.  Co.  v. 
Morrison  (Civ.  App.)  191  S.  W.  138; 
Houston  &  T.  C.  R.  Co.  v.  Lindsey 
(Civ.  App.)  175  S.  W.  708 ;  Van  Zandt- 
Moore  Iron  Works  v.  Axtell,  126  S.  W. 
930,  58  Tex.  Civ.  App.  353;  Galves- 
ton, H.  &  S.  A.  Rv.  Co.  v:  Fitzpatrick 
(Civ  App.)  91  S.  W.  355. 

Vt.  G.  R.  Bianchi  Granite  Co.  v. 
Torre  Haute  Monument  Co.,  99  A.  875, 
91  Vt.  177;  Maidment  v.  Frazier,  9S 
A.  987,  90  Vt.  520. 

Va.  New  York.  P.  &  N.  R.  Co.  v. 
Thomas,  92  Va.  606,  24   S.  E.  264. 

W.  Va.  Daniels  v.  Charles  Boldt 
Co.,  88  S.  E.  613,  78  W.  Va.  124. 

Wis.  Mickuczauski  v.  Helmholz 
Mitten  Co.,  134  N.  W.  369,  148  Wis. 
153;  Fidelity  Trust  Co.  v.  Wiscon- 
sin Iron  &  Wire  Works,  129  N.  W. 
615.  145  Wis.  385. 

9  8  U.  S.  Perovich  v.  United  States, 
27  S.  Ct.  456,  205  U.  S.  86,  51  L.  Ed. 
722 :  Bird  v.  United  States,  23  S.  Ct. 
42,  187  U.  S.  118,  47  L.  Ed.  100;  (C. 
C.  A.  Mo.)  Colburn  v.  United  States, 
223  F.  590.  139  C.  C.  A.  136,  certiorari 
denied  36  S.  Ct.  163,  239  U.  S.  643,  60 
L.  Ed.  483;  Weddel  v.  United  States, 
213  F.  208,  129  C.  C.  A.  552  ;  (C.  C.  A. 
Okl.)  Dosset  V.  United  States,  248  F. 
902,  161  O.  C.  A.  20 ;  Stout  v.  United 
States,  227  F.  799,  142  C.  0.  A.  323, 
certiorari  denied  36  S.  Ct.  549,  241  U. 
S.  664,  60  L.  Ed.  1227. 

Ala.  Madry  v.  State,  78  So.  866. 
201  Ala.  512;  Franklin  v.  State,  78 
So.  411,  16  Ala.  App.  417 ;  Lawson  v. 
State,  76  So.  411,  16  Ala.  App.  174; 
MiUer  v.  State,  75  So.  819,  16  Ala. 
App.  143;  Fealy  v.  City  of  Birming- 
ham, 73  So.  296,  15  Ala.  App.  367; 
Coplon  V.  State,  73  So.  225,  15  Ala. 
App.  331,  certiorari  denied  74  So. 
1005,  199  Ala.  698;  Brown  v.  State, 
72  So.  757,  15  Ala.  App.  180,  writ  of 


certiorari  denied  73  So.  999,  198  Ala. 
689;  Madison  v.  State,  71  So.  706, 
196  Ala.  590 ;  Cunningham  v.  State, 
69  So.  982,  14  Ala.  App.  1 ;  Burton  v. 
State,  69  So.  913,  194  Ala.  2;  James 
V.  State.  69  So.  569,  193  Ala.  55,  Ann. 
Cas.  1918B,  119;  Ezzell  v.  State,  68 
So.  578,  13  Ala.  App.  156;  Ragsdale 
v.  State,  67  So.  783,  12  Ala.  App.  1; 
Maxwell  v.  State,  67  So.  772,  12  Ala. 
App.  212;  McWilliams  v.  State,  67 
So.  735,  12  Ala.  App.  92;  Henderson 
V.  State,  65  So.  721,  11  Ala.  App.  37 ; 
Hooten  v.  State,  64  So.  200,  9  Ala. 
App.  9;  Clayton  v.  State,  64  So.  76, 
185  Ala.  13  ;  Eaton  v.  State,  63  So.  41, 
8  Ala.  App.  136;  Brooks  v.  State,  62 
So.  569,  8  Ala.  App.  277,  judgment  re- 
versed 64  So.  295,  185  Ala.  1 ;  Dunn  v. 
State,  62  So.  379,  8  Ala.  App.  382; 
Jones  V.  State,  61  So.  434,  181  Ala. 
63;  Parker  v.  State,  60  So.  995,  7 
Ala.  App.  9;  Hosey  v.  State,  59  So. 
549,  5  Ala.  App.  1;  Kirby  v.  State, 
59  So.  374,  5  Ala.  App.  128 ;  Gardner 
V.  State,  58  So.  1001,  4  Ala.  App.  131 ; 
Pope  V.  State,  57  So.  245,  174  Ala.  63 ; 
Montgomery  v.  State,  56  So.  92,  2 
Ala.  App.  25 ;  Herndon  v.  State,  56  • 
So.  85,  2  Ala.  App.  118;  Goodwin  v. 
State,  56  So.  29,  1  Ala.  App.  136; 
Cardwell  v.  State,  56  So.  12,  1  Ala. 
App.  1;  Coates  v.  State,  56  So.  6,  1 
Ala.  App.  .35 ;  Bailey  v.  State,  53  So. 
296,  390,  168  Ala.  4 ;  Griffin  v.  State, 
50  So.  962,  165  Ala.  29;  Degg  v. 
State,  43  So.  484,  150  Ala.  3 ;  Tribble 
v.  State,  40  So.  938,  145  Ala.  23; 
Teague  v.  State,  40  So.  312,  144  Ala. 
42:  Whatley  v.  State,  39  So.  1014,  144 
Ala.  68;   Nordan  v.  State,  39  So.  406, 

9  9  111.  Chesney  v.  Meadows,  90  111. 
430. 

Iowa.  Doyle  v.  Burns,  114  N.  W. 
1,  138  Iowa,  439. 

Kan.  Haines  v.  Goodlander,  84  P. 
986,  73  Kan.  183. 

Ky.  Jones  v.  Jones,  43  S.  W.  412, 
102  Ky.  450,  19  Ky.  Law  Rep.  1516. 

N.  Y.  Kennedy  v.  National  Jewel- 
ers' Board  of  Trade,  162  N.  Y.  S.  635, 
175  App.  Div.  735 ;  McKenna  v.  Snare 
&  Triest  Co.,  133  N.  Y.  S.  107,  147 
App.  Div.  855. 


431 


INSTRUCTIONS  TO  JURIES 


782 


143  Ala.  13;  Ross  v.  State,  36  So.  718, 
139  Ala.  144 ;  Thayer  v.  State,  35  So. 
406,  138  Ala.  39 ;  Vaughn  v.  State,  30 
So.  669,  130  Ala.  18;  Willingham  v. 
State,  30  So.  429,  130  Ala.  35 ;  Mitch- 
ell v.  State,  30  So.  348,  129  Ala.  23; 
Huskev  V.  State,  29  So.  838,  129  Ala. 
94;  Frost  v.  State,  27  So.  550,  124 
Ala.  71 ;   McLeroy  v.  State,  25  So.  247, 

120  Ala.  274;  King  v.  State,  25  So. 
178,  120  Ala.  329;  Durrett  v.  State, 
62  Ala.  434. 

Ark.  McKinney  v.  State,  215  S. 
W.  723,  140  Ark.  529;  Lee  v.  State, 
172  S.  W.  1025,  116  Ark.  588;  Jack- 
son V.  State,  145  S.  W.  559,  103  Ark. 
21 :   Newton  v.  State,  37  Ark.  333. 

Cal.  People  v.  Layden,  153  P.  1164, 
28  Cal.  App.  805;  People  v.  Morrell, 
153  P.  977,  28  Cal.  App.  729;  People 
V.  Converse,  153  P.  734.  28  Cal.  App. 
687 ;  People  v.  Hawes,  98  Cal.  648,  33 
P.  791. 

Fla.  Hall  v.  State,  83  So.  513,  78 
Fla.  420,  8  A.  L.  R.  1234;  Graham  v. 
State,  73  So.  594,  72  Fla.  510 ;  Hisler 
V.  State,  42  So.  002,  52  Fla.  30;  Wil- 
son V.  State,  36  So.  580,  47  Fla.  118; 
Baldwin  v.  State,  35  So.  220,  46  Fla. 
115. 

Ga.     Harrell  v.  State,  49  S.  E.  703, 

121  Ga.  007;  Hodgkins  v.  State,  89 
Ga.  761,  15  S.  E.  695. 

111.  People  V.  Pezutto,  99  N.  E. 
677,  255  111.  583:  People  v.  Strauch, 
93  N.  E.  126,  247  111.  220 ;  People  v. 
Campbell,  84  N.  E.  1035,  234  111.  391, 
123  Am.  St.  Rep.  107,  14  Ann.  Cas. 
186;  Clark  v.  r-eople,  79  N.  E.  941.  224 
111.  554 ;  Sanders  v.  People,  124  111. 
218,  16  N.  E.  81 :  Hoge  v.  People,  117 
111.  35,  6  N.  E.  796;  Mullins  v.  Peo- 
ple, 110  111.  42;  People  v.  Whalen, 
151  111.  App.  16;  Graff  v.  People,  108 
111.  App.  168,  judgment  affirmed  70 
N.  E.  299,  208  111.  312;  Ohei-mark  v. 
People,  24  111.  App.  259. 

Ind.  Leseuer  v.  State,  95  N.  E. 
239,  176  Ind.  448;  Wachstetter  v. 
State,  99  Ind.  290,  50  Am.  Rep.  94. 

Iowa.  State  V.  Wilson,  144  N.  W. 
47,  166  Iowa,  309.  rehearing  denied 
147  N.  W.  739,  166  Iowa,  309. 

Kan.  State  v.  Adams,  132  P.  171, 
89  Kan.  674. 

Ky.  Ware  v.  Commonwealth,  131 
S.  W.  209,  140  Ky.  534;  Stuart  v. 
Commonwealth,  105  S.  W.  170,  31  Ky. 


Law  Rep.  1343;  Commonwealth  v. 
Thomas.  104  S.  W.  326,  31  Ky.  Law 
Rep.  899;  Tines  v.  Commonwealth, 
77  S.  W.  363,  25  Ky.  Law  Rep.  1233 ; 
Ray  V.  Commonwealth,  43  S.  W.  221, 
19  kr.  Law  Rep.  1217;  Commonwealth 
V.  Gray,  30  S.  W.  1015,  17  Ky.  Law 
Rep.  354  ;  Commonwealth  v.  Delaney, 
29  S.  W.  616,  16  Ky.  Law  Rep.  509; 
Commonwealth  v.  Hourigan,  89  Ky. 
305,  12  S.  W.  550;  Arnold  v.  Com- 
monwealth, 3  Ky.  Law  Rep.  (abstract) 
394. 

La.  State  v.  Mehojovich,  43  So. 
660,  118  La.  1013. 

Mass.  Commonwealth  v.  Sherman, 
124  N.  E.  423,  234  Mass.  7;  Common-, 
wealth  V.  Borasky,  101  N.  E.  377,  214 
Mass.  313 ;  Commonwealth  v.  Min 
Sing,  88  N.  E.  918.  202  Mass.  121; 
Commonwealth  v.  Kronick,  82  N.  E. 
39,  196  Mass.  286;  Commonwealth  v. 
Cosseboom,  155  Mass.  298,  29  N.  E. 
463. 

Mich.  People  v.  Finley,  38  Mich. 
482. 

Mo.  State  v.  Bowman,  213  S.  W. 
64,  278  Mo.  492;  State  v.  Pate,  188 
S.  W.  139.  268  Mo.  431;  State  v.  Lew- 
is, 175  S.  W.  60,  264  Mo.  420 ;  State  v. 
Rogers,  161  S.  W.  770,  253  Mo.  399; 
State  V.  Raftery,  158  S.  W.  585,  252 
Mo.  72;  State  v.  Holmes,  144  S.  W. 
417,  239  Mo.  469;  State  v.  Chinn, 
133  S.  W.  1196,  153  Mo.  App.  611; 
State  V.  Mitchell,  129  S.  W.  917,  229 
Mo.  683.  138  Am.  St.  Rep.  425 ;  State 
V.  Shelton,  122  S.  W.  732.  223  Mo. 
118:  State  v.  Hibler,  149  Mo.  478,  51 
S.  W.  85;  State  v.  Cantlin,  118  Mo. 
100,  23  S.  W.  1091. 

Mont.  State  v.  Jones,  80  P.  1095, 
32  Mont.  442. 

Neb.  Chapman  v.  State,  86  N.  W. 
907,  61  Neb.  888. 

Nev.  State  v.  Ward,  19  Nev.  297, 
10  P.  133. 

N.  J.  State  V.  Labriola,  67  A.  386, 
75  N.  J.  Law,  483. 

Or.  State  V.  Ausplund,  167  P. 
1019,  86  Or.  121.  judgment  affirmed  on 
rehearing  171  P.  395,  87  Or.  649. 

Pa.  Commonwealth  v.  Meads,  29 
Pa.  Super.  Ct.  321. 

Tex.  Collins  v.  State,  178  S.  W.' 
345,  77  Tex.  Cr.  R.  156 ;  De  Rossett  v. 
State,  168  S.  W.  531,  74  Tex.  Cr.  R. 
235 ;   Cunningham  v.  State,  166  S.  W. 


783 


FORMAL   MATTERS 


431 


510,  73  Tex.  Cr.  R.  565;  Gillespie  v. 
State,  166  S.  W.  135,  73  Tex.  Cr.  R. 
585;  Miutei-  v.  State,  159  S.  W.  2S6, 
70  Tex.  Cr.  R.  634;  Tucker  v.  State, 
150  S.  W.  190,  67  Tex.  Cr.  R.  510; 
Barber  v.  State,  142  S.  W.  577,  64 
Tex.  Cr.  R.  96 ;  AUeu  v.  State,  141  S. 
W.  983,  64  Tex.  Cr.  R.  225;  Harrel- 
son  V.  State,  132  S.  W.  783,  60  Tex. 
Cr.  R.  534;  Roquemore  v.  State,  129 
S.  W.  1120,  59  Tex.  Cr.  R.  568 ;  Moore 
V.  State,  128  S.  W.  1115,  59  Tex.  Cr. 
R.  361;  Cauon  v.  State,  128  S.  W. 
141,  59  Tex.  Cr.  R.  398;  Watlkins  v. 
State,  124  S.  W.  959,  58  Tex.  Cr.  R. 
110,  137  Am.  St.  Rep.  922,  21  Abu. 
Cas.  556;  Brown  v.  State,  124  S.  W. 
101,  57  Tex.  Cr.  R.  570;  Green  v. 
State,  111  S.  W.  933,  54  Tex.  Cr.  R. 
3 ;  Green  v.  State,  105  S.  W.  205,  52 
Tex.  Cr.  R.  44;  Carroll  v.  State,  98 
S.  W.  859,  50  Tex.  Cr.  R.  485,  123 
Am.  St.  Rep.  851,  14  Ann.  Cas.  426; 
Preston  v.  State,  53  S.  W.  127,  41 
Tex.  Cr.  R.  300.  rehearing  denied  53 
S.  W.  881,  41  Tex.  Cr.  R.  300;  Smith 
V.  State  (Cr.  App.)  49  S.  W,  583. 

Va.  Montgomery  v.  Common- 
wealth, 37  S.  E.  1,  98  Va.  852. 

Wash.  State  v.  Sefrit,  144  P.  725, 
82  Wash.  520. 

W.  Va.  State  v.  Dodds,  46  S.  E. 
228,  54  W.  Va.  289;  State  v.  Morri- 
son, 38  S.  E.  481,  49  W.  Va.  210;  State 
V.  Morgan,  35  W.  Va.  260,  13  S.  E.  385. 

Illustrations  of  instructions  im- 
proper within  rule.  In  a  murder 
prosecution,  where  the  state's  theory 
was  that  decedent  was  intoxicated 
and  had  created  a  disturbance  among 
accused's  tenants,  but  was  departing 
peaceably  and  without  disturbance 
when  accused  shot  him,  an  instruction 
that,  though  decedent  went  upon  ac- 
cused's premises  uninvited  and  creat- 
ed a  disturbance,  if  he  had  ceased  to 
make  a  disturbance  and  was  leaving 
peaceably,  accused  could  not  shoot 
him  for  the  previous  disturbance,  and, 
if  he  willfully,  of  his  malice  afore- 
thought, shot  decedent  while  he  was 
leaving  the  premises  because  of  the 
previous  trouble,  he  would  be  guilty 
of  murder,  was  erroneous  as  unduly 
emphasizing  parts  of  the  evidence. 
Gordon  v.  State,  49  So.  609,  95  Miss. 
543.  Where  the  court  in  its  charge  on 
manslaughter  did  not  limit  the  provo- 


cation to  the  time  of  the  killing,  but 
directed  the  jury  to  consider  all  the 
facts  in  evidence  in  determining 
whether  accused's  mind  was  moved 
by  that  degree  of  anger,  rage,  sudden 
resentment,  or  terror,  as  to  render  it 
incapable  of  cool  reflection,  it  was  not 
error  to  refuse  to  specially  charge 
that  the  jury  should  consider  the 
threats  made  by  decedent  against  ac- 
cused, and  thus  select  out  of  a  large 
number  of  circumstances  detailed  in 
evidence  a  particular  circumstance. 
Giles  V.  State,  132  S.  W.  359,  60  Tex. 
Cr.  R.  436.  An  insti-uction  on  a  trial 
of  a  registered  pharmacist  for  keep- 
ing a  drug  store  for  the  unlawful 
sales  of  liquors  that  if  he  sells  intoxi- 
cating liquors  indiscriminately  and 
for  a  beverage,  he  is  guilty,  and  it  is 
his  duty  to  make  such  sales  as  the 
law  permits  "in  perfect  good  faith — 
mark  the  language,  not  good  faith, 
but  perfect  good  faith" — is  erroneous 
for  emphasizing  the  requirement  of 
good  faith  in  making  sales.  People 
V.  Thompson,  111  N.  W.  96,  147  Mich. 
444.  In  a  prosecution  for  theft, 
where  a  letter  claimed  to  have  been 
written  by  defendant  and  placed  in  a 
room  of  the  owner  of  the  stolen  prop- 
erty was  introduced  in  evidence, 
wherein  defendant  admitted  taking 
the  ring  and  stated  what  disposition 
he  made  of  it,  etc.,  a  requested  charge 
that  unless  the  jury  Relieved  that  de- 
fendant wrote  the  letter  and  that  it 
was  intended  for  the  owner  of  the 
ring,  there  being  nothing  in  the  letter 
indicating  that  fact,  it  should  not  be 
considered  as  in  evidence,  was  errone- 
ous, as  singling  out  an  isolated  fact 
and  charging  the  jury  thereon;  the 
court  having  elsewhere  properly 
charged  on  the  doctrine  of  reasonable 
doubt.  Kauffman  v.  State,  109  S.  W. 
172,  53  Tex.  Cr.  R.  209. 

Instructions  held  not  objection- 
able within  rule.  In  prosecution 
for  abortion,  an  instruction  that 
weight  of  expert  testimony  as  to  con- 
dition of  an  anatomical  exhibit  de- 
pended on  whether  or  not  a  substitu- 
tion or  alteration  had  been  effected, 
did  not  warrant  a  reversal  on  ground 
that  it  singled  out  and  unduly  em- 
phasized that  feature  of  matter. 
State  V.  Patterson,  181  P.  609,  105 


432 


INSTRUCTIONS  TO  JURIES 


784 


§  432.     Applications  of  rule 

It  is  error  to  single  out  certain  facts  and  state  their  effect  apart 
froin  the  rest  of  the  evidence,^  and  an  instruction  which  does  this 


Kan.  9.  On  a  prosecution  for  assault 
with  intent  to  rape,  wliere  the  fact 
that  defendant  induced  prosecutrix  to 
enter  liis  buggy  by  a  promise  to  talse 
her  home  after  she  had  refused  was 
undisputed,  and  the  defendant  testi- 
fied that  his  purpose  in  taking  her  to 
ride  was  to  solicit  her  to  intercourse, 
a  charge  that  if  the  jury  were  satis- 
fied beyond  a  reasonable  doubt  from 
the  evidence  that  defendant  induced 
prosecutrix  to  enter  his  buggy  under 
the  inducement  tliat  he  would  take 
her  home,  and  that  after  he  got  her 
in  the  buggy  he  took  hold  of  her  with 
intent  to  have  intercourse  with  her, 
and  against  her  will,  and  with  an  in- 
tent to  accomplish  his  object  at  all 
events,  by  his  strength  and  power, 
against  any  resistance  she  might  of- 
fer, then  he  was  guilty  of  assault 
with  intent  to  rape,  whether  he  suc- 
ceeded in  his  purpose  or  not,  was  not 
objectionable  as  giving  undue  promi- 
nence to  the  fact  that  defendant  in- 
duced prosecutrix  to  enter  his  buggy 
under  a  promise  to  take  her  home. 
Donovan  v.  People,  74  N.  E.  772,  215 
111.  520. 

1  Ala.  Brand  v.  State,  69  So.  379, 
13  Ala.  App.  390;  Donald  v.  State, 
67  So.  624,  12  Ala.  App.  61;  MaxweU 
V.  State,  65  So.  732,  11  Ala.  App.  53 ; 
Birmingham  Ry.,  Light  &  Power  Co. 
V.  Hunnicutt,  57  So.  262,  3  Ala.  App. 
448;  Rickert  v.  Touart,  56  So.  70S, 
174  Ala.  107;  Flowers  v.  State,  56 
So.  36,  1  Ala.  App.  262 ;  Birmingham 
Ry.,  Light  &  Power  Co.  v.  Wright,  44 
So.  1037.  153  Ala.  99;  Aaron  v.  State, 
39  Ala.  684. 

Cal.  People  V.  Sanders,  46  P.  153, 
114  Cal.  216. 

D.  C.  Bradford  v.  National  Ben. 
Ass'n,  26  App.  D.  C.  268. 

Idaho.  State  v.  Jones,  154  P.  378, 
28  Idaho,  428. 

111.  Logg  V.  People,  92  111.  598; 
Johnson  v.  City  of  Chicago,  189  111. 
App.  32 ;  Chicago  L'nion  Traction  Co. 
V.  Ertrachter,  130  111.  App.  602,  judg- 
ment afiirmed  81  N.  E.  816,  228  111. 
114;   Faulkner  v.  Birch,  120  111.  App. 


281 ;    Strehmann  v.  City  of  Chicago, 
93  lU.  App.  206. 

Kan.  Warren  Mortg.  Co.  v. 
Schick,  107  P.  536,  82  Kan.  90. 

Ky.  Williams  v.  Commonwealth, 
9  Bush,  274;  Maden  v.  Common- 
wealth, 4  Ky.  Law  Rep.  45. 

Mass.  Commonwealth,  v.  Gay,  153 
Mass.  211,  26  N.  E.  571. 

Miss.  Stringer  v.  State,  38  So.  97. 
Mo.  State  v.  Shaffer,  161  S.  W. 
805,  253  Mo.  320;  Hatfield  v.  Swift, 
161  S.  W.  359,  174  Mo.  App,  705 ;  Dis- 
brow  V.  People's  Ice,  Storage  &  Fuel 
Co.,  119  S.  W.  1007,  138  Mo.  App.  56; 
State  V.  Williams,  136  Mo.  293,  38  S. 
W.  75 ;  Meyer  v.  Pacific  R.  R.,  40  Mo. 
151. 

Or.  Kellogg  V.  Ford,  139  P.  751, 
70  Or.  213. 

S.  C.  Finch  v.  Atlantic  &  C.  Air 
Line  Ry.,  69  S.  E.  208,  87  S.  C.  190. 

Tex.  Hahn  v.  State,  165  S.  W.  218, 
73  Tex.  Cr.  R.  409  ;  Brewster  v.  State 
(Cr.  App.)  165  S.  W.  224;  Smith  v. 
State,  164  S.  W.  825,  73  Tex.  Cr.  R. 
129;  Miras  v.  State,  153  S.  W.  321, 
68  Tex.  Or.  R.  432;  Moore  v.  State, 
128  S.  W.  1115,  59  Tex.  Cr.  R.  361; 
Hawkins  v.  State,  126  S.  W.  268,  58 
Tex.  Cr.  R.  407,  137  Am.  St.  Rep.  970 ; 
Beard  v.  State,  123  S.  W.  147,  57  Tex. 
Cr.  R.  323 ;  Green  v.  State,  120  S.  W. 
1002,  56  Tex.  Cr.  R.  599;  Cordes  v. 
State,  112  S.  W.  943,  54  Tex.  Cr.  R. 
204 ;  Rice  v.  State,  94  S.  W.  1024,  49 
Tex.  Cr.  R.  569 ;  Howard  v.  State,  18 
Tex.  App.  348. 

"W.  Va.  Parfitt  v.  Sterling  Veneer 
&  Basket  Co.,  69  S.  E.  985,  68  W.  Va. 
438. 

Instructions  objectionablei  with- 
in mle.  An  instruction  that  testa- 
trix had  previously  executed  similar 
wills  and  was  then  of  sound  mind, 
and  that  such  fact  did  not  necessarily 
establish  her  sanity  when  executing 
the  will  in  question.  In  re  Clark's 
Estate  (Cal.)  181  P.  689.  Where  de- 
fendant charged  with  larceny  in  com- 
pelling the  delivery  to  her  of  money 
alleged  to  have  been  stolen  from  her, 
proved  declarations  tending  to  show 


785 


FORMAL  MATTERS 


432 


is  properly  refused.'  Instructions  singling  out  certain  facts  bear- 
ing on  an  issue,  and  telling  the  jury  that  they  may  or  should  con- 
sider   such   facts    in   determining   such    issue,^   although    the   jury 


the  absence  of  felonious  intent  on 
her  part,  an  instruction  that  absence 
of  felonious  intent  was  a  question  for 
the  jury,  but  that  "her  mere  declara- 
tion was  not  conclusive  evidence 
thereof,"  was  erroneous  as  giving  un- 
due prominence  to  the  particular  evi- 
dence. State  v.  Brandau,  76  Mo. 
App.  305. 

Instructions  not  improper  ivitlL- 
in  rule.  It  being  in  evidence  that 
deceased  was  killed  with  a  knife,  an 
instruction  that  an  intention  to  kill 
might  be  inferred  from  the  "use  of 
a  knife  capable  of  inflicting  a  mor- 
tal wound,"  with  which  four  or  five 
wounds  were  made,  so  that  deceased 
died  almost  immediately,  but  that, 
if  death  had  resulted  from  some  oth- 
er cause,  "the  inference  of  the  intent 
to  kill  might  well  be  different,"  does 
not  single  out  the  evidence  nor  give 
it  too  much  emphasis.  Evans  v. 
State,  62  Ala.  6. 

Stating  effect  of  particular  fact 
"independently  of  any  other  tes- 
timony." Instructions  to  the  jury 
as  to  the  effect  of  a  particular  fact 
in  the  case,  "independently  of  any 
other  testimony,"  and  other  sugges- 
tions as  to  the  insufficiency  of  such 
fact  for  a  particular  purpose,  with- 
out other  evidence,  are  not  to  be  re- 
garded as  erroneous,  although  there 
was  other  evidence  on  the  point  in 
question,  where  the  court  in  other 
parts  of  the  charge  distinctly  refer- 
red! such  evidence  to  the  jury,  and 
there  was  no  request  for  further  or 
more  specific  instructions,  nor  any 
suggestion  that  the  case  had  been  so 
presented  as  to  lead  the  jury  to  over- 
look or  disregard  such  evidence. 
Wass  V.  Atwater,  33  Minn.  83,  22  N. 
W.  8. 

Effect  of  direction  to  consider 
all  tie  evidence.  The  court,  after 
directing  the  jury  to  consider  all  the 
evidence,  does  not  err  in  singling  out 
certain  matters,  and  saying  that  these 
in  themselves  are  insufficient  to  es- 
tablish either  claim  of  contestant. 
Inst. TO  Juries— 50 


In  re   Goldthorps   Estate,  88   N.   W. 
944,  115  Iowa,  430. 

2  U.  S.  Coffin  V.  United  States,  162 
U.  S.  664,  16  Sup.  Ct.  943,  40  L.  Ed. 
1109;  (C.  O.  A.  Mass.)  Boston  Ele- 
vated Ry.  Co.  v.  Teele,  248  F.  424, 
160  C.  C.  A.  434;  (C.  C.  A.  Teun.) 
Louisville  &  N.  R.  Co.  v.  Bell,  206 
F.  395,  124  C.  C.  A.  277. 

Ala.  Montgomery  Moore  Mfg.  Co. 
V.  Leeth,  50  So.  210,  162  Ala.  246; 
Hays  V.  State,  46  So.  471,  155  Ala.  40; 
Parrish  v.  State,  36  So.  1012,  139  Ala. 
16. 

Ark.  Holland  Banking  Co.  v. 
Booth,  180  S.  W.  978,  121  Ark.  171. 

Cal.  People  v.  Owens,  56  P.  251, 
123  Cal.  482;  People  v.  Reed,  52  P. 
835,  120  Cal.  xvii. 

111.  Eckels  v,  Muttschan,  82  N. 
E.  872,  230  111.  462:  Healy  v.  Chi- 
cago City  Ry.  Co.,  196  111.  App.  1; 
Schoch  V.  Egan,  144  111.  App.  214. 

MA.  United  Rys  &  Electric  Co.  v. 
Corbin,  72  A.  606.  109  Md.  442. 

Mass.  Jacobsen  v.  Simons,  111  N. 
E.  46,  222  Mass.  449;  Nicholson  v. 
Feindel,  107  N.  E.  353,  219  Mass.  490 ; 
Roach  V.  Hinchclife,  101  N.  E.  383, 
214  Mass.  267;  Morrin  v.  Manning, 
91  N.  E.  308,  205  Mass.  205 ;  Old  Col- 
ony Trust  Co.  V.  Bailey,  88  N.  E.  898, 
202  Mass.  283. 

Mo.  Bovce  V.  Chicago  &  A.  Ry. 
Co.,  96  S.  W.  670,  120  Mo.  App.  168. 

Tex.  Wolf  Cigar  Stores  Co.  v, 
Kramer,  109  S.  W.  990,  50  Tex.  Civ. 
App.  411. 

Utah.  Condie  v.  Rio  Grande  West- 
ern Ry.  Co.,  97  P.  120.  34  Utah,  237. 

Wis.  Hackett  v.  Wisconsin  Cent, 
Ry.  Co.,  124  N.  W.  lOlS,  141  Wis.  464. 

3  Ala.  Chappell  v.  State,  73  So. 
134,  15  Ala.  App.  227:  Strother  v. 
State,  72  So.  566,  15  Ala.  App.  100; 
Ragsdale  v.  State,  67  So.  783,  12  Ala. 
App.  1 ;  Sandlin  v.  Anders,  65  So.  376, 
187  Ala.  473 ;  Smith  v.  State,  62  So. 
184,  182  Ala.  38 ;  Powell  v.  State,  59 
So.  530,  5  Ala.  App.  75 ;  Pope  v.  State, 
53  So.  202.  168  Ala.  33 ;  McDonald  v. 
State,  51  So.  629.  165  Ala.  85;    Mon- 


432 


INSTRUCTIONS   TO  JURIES 


7SG 


are  also  told  that  they  should  consider  such  facts  along  with  all 
the  other  evidence,*  are  erroneous,  and  are  properly  refused. 


teith  V.  State,  49  So.  777,  161  Ala.  IS 
Davis  V.  State.  44  So.  561,  152  Ala 
25 ;   Kirby  v.  State,  44  So.  38,  151  Ala 
66;    GrifBn  v.  State,  4.3  So.  197,  150 
Ala.  49 ;   Montgomery  St.  Ry.  v.  Rice 

38  So.  857,  142  Ala.  674,  144  Ala.  610 
Southern  Bell  Telephone  &  Telegraph 
Co.  V.  Mayo.  33  So.  16,  134  Ala.  641 
Postal  Tel.  Cable  Co.  v.  Jones,  32  So 
500,  1.33  Ala.  217  ;  Winter  v.  State,  31 
So.  717,  132  Ala.  32  ;  Gilmore  v.  State, 
28  So.  595,  126  Ala.  20;  Hicks  v. 
State,  26  So.  .337,  123  Ala.  15 ;  Jeffer- 
son V.  State.  110  Ala.  89,  20  So.  4.34 ; 
Williams  v.  State,  98  Ala.  52.  13  So. 
333;  Hussey  v.  State,  86  Ala.  34,  5 
So.  484. 

Ark.  Gilchrist  v.  State,  140  S.  W. 
260,  100  Ark.  330. 

Cal.  In  re  Martin's  Estate,  151  P. 
138,  170  Cal.  657:  People  v.  Loomis, 
149  P.  581,  170  Cal.  347. 

111.      Coon   Y.   People.   99   111.   368, 

39  Am.  Rep.  28 ;    Illinois  Cent.  R.  Co. 
V.  Whiteaker,  122  111.  App.  333. 

Iowa.  Swiney  v.  American  Ex- 
press Co.,  115  N.  W.  212,  144  Iowa, 
342. 

Ky.  International  Harvester  Co. 
of  America  v.  Commonwealth.  146  S. 
W.  12,  147  Ky.  795.  judgment  re- 
versed 34  S.  Ct.  853,  2.34  U.  S.  216,  58 
L.  Ed.  1284;  International  Harvester 
Co.  of  America  v.  Commonwealth,  144 
S.  W.  1064,  147  Ky.  564;  Id.,  147  S. 
W.  1199.  148  Ky.  572,  judgment  re- 
versed 34  S.  Ct.  853,  234  U.  S.  216. 
58  L.  Ed.  1284;  Parker  v.  Common- 
wealtli.  51  S.  W.  573,  21  Ky.  Law  Rei>. 
400;  Elswick  v.  Commonwealth,  13 
Bush,  155. 

Miss.  Lucas  V.  State,  67  So.  851, 
109  Miss.  82. 

Mo.  State  v.  Malloch,  190  S.  W. 
266,  269  Mo.  235. 

Tex.  Stewart  v.  State,  153  S.  W. 
11.50.  69  Tex.  Cr.  R.  .337;  Parnell  v. 
State,  103  S.  W.  907,  51  Tex.  Cr.  R. 
620:  Dobbs  v.  State,  100  S.  W.  946, 
51  Tex.  Cr.  R.  113;  Galveston,  H.  & 
S.  A.  Ry.  Co.  V.  Kutac,  76  Tex.  473, 
13  S.  W.  327. 

Instructions  held  improper 
within  rnle.  An  instruction,  that  if 
accused  attempted  to  corrupt  witness- 


es for  the  state,  or  to  pay  them  to 
absent  themselves,  and  thus  deprive 
the  state  of  their  testimony,  it  was 
the  jury's  duty  to  consider  such  mat- 
ters in  determining  defendant's  guilt 
or  innocence.  State  v.  Tawney,  105 
P.  218,  81  Kan.  162,  135  Am.  St.  Rep. 
355.  Instructions,  in  a  murder  trial 
that,  in  determining  whether  accus- 
ed's flight  from  the  scene  of  the  hom- 
icide was  from  a  sense  of  guilt,  the 
jury  should  consider  the  fact,  if  it 
was  a  fact,  together  with  all  the  evi- 
dence in  the  case,  that  accused  sur- 
rendered himself  to  a  deputy  sher- 
iff, and  that  the  fact,  if  it  was  a 
fact,  that  the  state  failed  to  prove  a 
motive  on  accused's  part  for  the  hom- 
icide, was  a  circumstance  to  which 
the  jury  might  look  in  connection 
with  all  the  evidence.  Way  v.  State, 
46  So.  273,  155  Ala.  52.  In  murder 
prosecution,  defended  on  ground  of 
temporary  insanity,  instruction  that 
jury,  in  determining  whether  defend- 
ant was  overcome  by  sudden  passion 
upon  seeing  deceased,  should  consider, 
if  it  found  such  facts,  that  defend- 
ant on  that  day  attended  to  business 
affairs  rationally,  and  Immediately 
before  and  after  homicide  was  observ- 
ed to  be  calm  and  unconcerned,  was 
improper,  giving  undue  prominence  to 
particular  facts.      Stephens  v.   State, 

4  Ala.  Stewart  v.  State.  34  So.  818, 
137  Ala.  33 ;  Birmingham  Southern 
R.  Co.  v.  Cuzzart,  31  So.  979,  133  Ala. 
262. 

Cal.  Still  V.  San  Francisco  &  N. 
W.  Rv.  Co.,  98  P.  672.  1.54  Cal.  5.59.  20 
L.  R.  A.  (N.  S.)  322,  129  Am.  St.  Reix 
177. 

111.  Scott  V.  People,  141  111.  195, 
30  N.  E.  329;  Wallace  v.  Citv  of 
Farmington,  S3  N.  E.  180,  231  111.  232. 

Ky.  Stokes'  Ex'r  v,  Shippen,  13 
Bush,  180. 

Mo.  Landrum  v.  St.  Louis  &  S.  F. 
R.  Co.,  112  S.  W.  1000,  132  Mo.  App. 
717. 

Contra,  Engvall  v.  Des  Moines  Citv 
Ry.  Co.,  121  N.  W.  12,  145  Iowa,  5C0": 
(Jordon  v.  Burris,  54  S.  W.  546,  153 
-Mo.  223. 


787 


FORMAL  MATTERS 


§432 


In  a  criminal  case  an  instruction  should  not  single  out  a  part 
only  of  the  facts  testified  to  and  make  guilt  dependent  on  them 
alone,^  and  it  is  not  the  duty  of  the  court  to  point  out  isolated 
items  of  evidence,  and  instruct  the  jury  that  these  several  items 
do  not  authorize  conviction.®  Where  a  charge  asked  isolates  cer- 
tain enumerated  facts  or  circumstances,  and  invokes  instructions 
of  the  court  on  them  as  circumstances  to  be  specially  w'eighed  in 
the  case,  the  court,  if  it  gives  the  charge,  should  accompany  it 
with  a  fair  and  candid  statement  of  any  facts  and  circumstances 
pointing  in  an  opposite  direction.'  The  above  rule  has  been  applied 
to  instructions  which  single  out  the  proof  of  motive  or  absence 
of  motive,*  and  to  instructions  singling  out  and  giving  undue  prom- 
inence to  evidence  on  the  defense  of  alibi  ^  and  on  the  good  char- 
acter of  the  defendant.^**  Under  this  rule  an  instruction  that  the 
jury  may,  on  the  issue  of  the  insanity  of  the  accused,  consider  his 


176  p.  579,  20  Ariz.  37.  A  charge,  in 
a  carpenter's  action  for  personal  in- 
juries by  the  roof  of  a  building  on 
which  he  was  working  falling  upon 
him,  that  the  jury  should  look  to 
plaintiff's  evidence,  in  connection  with 
the  other  evidence,  that  he  thought 
it  was  dangerous  to  remain  under 
the  roof  while  unfastening  the  last 
joist,  in  order  to  determine  whether 
plaintiff  acted  prudently  in  removing 
the  fastenings  while  under  the  roof. 
Louisville  &  N.  R.  Co.  v.  Handley,  56 
So.  539,  174  Ala.  593.  An  instruction 
that  in  determining  whether-  a  motor- 
man  used  ordinary  care  they  could 
take  into  consideration  "the  darkness 
of  the  night,  the  presence  of  weeds 
or  grass,  the  speed  of  the  car,  the  nat- 
ural excitement  under  which  an  or- 
dinary person  would  labor  in  coming 
suddenly  upon  a  person  in  so  great 
a  peril."  Rice  v.  Jefferson  City 
Bridge  &  Transit  Co.  (Mo.)  216  S.  W. 
746.  A  charge,  in  prosecution  for 
carnal  abuse  of  a  16  year  old  girl, 
that,  in  passing  on  prosecutrix's  age, 
the  jury  could  consider  "her  size,  de- 
velopment, and  mature  appearance," 
with  other  circumstances.  Clark  v. 
State,  205  S.  W.  975,  135  Ark.  569. 

5  Godwin  v.  State,  73  Miss.  873,  19 
So.  712. 

6  Gatlin  v.   State,  49  S.  W.  87,   40 
Tex.  Cr.  R.  116. 

7  Barber  v.   State,  43   So.  SOS,  151 


Ala.  56 ;   Durrett  v.  State,  62  Ala.  434. 

8  Scott  V.  State,  159  S.  W.  1095,  109 
Ark.  391. 

9  People  V.  Bolik,  89  N.  E.  700,  241 
111.  394. 

10  Ala.  Pippin  v.  State,  73  So.  340, 
197  Ala.  613;  De  Wyre  v.  State,  67  So. 
577,  190  Ala.  1 ;  Clavton  v.  State,  64 
So.  76,  1S5  Ala.  13 ;  Reid  v.  State,  61 
So.  324,  181  Ala.  14;  Robinson  v. 
State,  58  So.  121,  4  Ala.  App.  1 ;  Col- 
lins V.  State,  58  So.  80,  3  Ala.  App. 
64 ;  Bell  v.  State,  54  So.  116.  170  Ala. 
16;  Dorsey  v.  State,  110  Ala.  38,  20 
So.  450. 

Ark.  Fowler  v.  State,  197  S.  W. 
568,  130  Ark.  365. 

Cal.  People  v.  Piner,  105  P.  780, 
11  Cal.   App.  542. 

Neb.  Sweet  v.  State,  106  X.  W. 
31,  75  Neb.  263. 

OMo.  State  v.  Hare,  100  N.  E. 
825,  87  Ohio  St.  204. 

Instructions  improper  within 
rule.  An  instruction,  in  a  criminal 
case,  that,  if  accused  has  proven  a 
good  character,  the  same  may  be  suf- 
ficient to  create  a  reasonable  doubt  of 
his  guilt,  though  no  such  doubt  would 
have  existed  but  for  the  good  char- 
acter, is  properly  refused,  because  it 
gives  too  much  prominence  to  a  par- 
ticular fact  in  evidence,  and  preter- 
mits a  consideration  of  that  evidence 
in  connection  with  all  the  evidence. 
Pate  V.  State,  43  So.  343,  150  Ala.  10. 


432 


INSTRUCTIONS  TO  JURIES 


788 


general  conduct,  condition,  appearance,  and  language  is  properly- 
refused."  On  the  other  hand,  an  instruction  in  a  criminal  case 
should  not  single  out  evidence  of  circumstances  against  the  de- 
fendant, and  give  it  a  marked  prominence  by  calling  the  attention  of 
the  jury  thereto  and  directing  them  to  consider  it  in  determining  the 
question  of  his  guilt.^^  Thus  an  instruction  in  a  homicide  case  ad- 
monishing the  jury  to  reach  a  determination  on  the  evidence,  in- 
cluding the  dying  declaration  of  the  deceased,  is  improper.^* 

It  is  error  to  single  out  and  group  certain  parts  of  the  evidence 
favorable  to  one  party,  to  the  disparagement  or  ignoring  of  other 
relevant  and  material  facts  favorable  to  his  adversary,^*  and  in 
a  criminal  prosecution  it  is  error  for  the  court  to  bring  out  the 
strong  points  of  the  evidence  for  the  state,  or  to  forcibly  impress 
the  jury  with  the  circumstances  tending  to  implicate  the  accused, 
without  at  the  same  time  making  a  corresponding  statement  of 
the  points  insisted  upon  by  the  defendant  and  giving  similar  em- 
phasis to  the  evidence  on  his  behalf.^^  An  instruction  which  lays 
greater  stress  upon  the  duty  of  the  jury  to  convict  if  the  facts 
constituting  the  offense  charged  are  proven  beyond  a  reasonable 
doubt  than  upon  their  duty  to  acquit  if  they  are  not  so  proven  is 
erroneous.^® 


11  State  V.  Driggers,  66  S.  E.  1042, 
84  S.  C.  526.  137  Am.  St.  Rep.  855,  19 
Ann.  Cas.  1166. 

12  McAdorv  v.  State,  62  Ala.  154; 
Holt  V.  State.  62  Ga.  314;  State  v. 
Rutherford,  53  S.  W.  417,  152  Mo. 
124. 

18  Jones  V.  Com.,  216  S.  W.  607,  186 
Ky.  283. 

14  Griswold  v.  Home,  165  P.  318, 
19  Ariz.  56,  L.  R.  A.  1918A,  862; 
Flowers  v.  Flowers,  92  Ga.  688,  18  S. 
E.  1006 ;  McBride  v.  Des  Moines  Cit.v 
Ry.  Co.,  109  N.  W.  618,  134  Iowa, 
398 ;  Demara  v.  Rhode  Island  Co.  (R> 
I.)  103  A.  708 ;  Coman  v.  Wunderlich, 
99  N.  W.  612,  122  Wis.  138. 

Stating  substance  of  testimony 
of  witness.  When  the  court  at- 
tempts to  state  to  the  jury  the  sub- 
stance of  a  witness'  testimony,  it 
should  state  that  wliich  supports  the 
theories  of  both  parties,  and  not  give 
imdue  prominence  to  that  favorable 
to  one  party  only.  Banner  v.  Schles- 
singer,  109  Mich.  262,  67  N.  W.  116. 

15  Ga.  Baldwin  v.  State,  47  S.  B. 
558,  120  Ga.  188;  Brantley  v.  State, 
41  S.  E.  695,  115  Ga.  229. 


Mich.  People  v.  Clarke,  105  Mich. 
1G9,  62  N.  W.  1117;  People  v.  Mur- 
ray. 40  N.  W.  29,  72  Mich.  10. 

Miss.  Prine  v.  State,  73  Miss.  838, 
19  So.  711. 

N.  Y.  People  v.  Becker,  104  N.  E. 
396,  210  N.  Y.  274. 

S.  C.  State  V.  Johnson,  67  S.  E. 
453,  85  S.  C.  265. 

Instructions  not  erroneous  with- 
in rule.  Where  the  court  in  its 
charge  directed  an  acquittal  if  the 
jury  believed  accused's  theory,  a 
charge,  following  a  statement  of  the 
respective  theories  of  the  state  and 
accused,  that  the  above  were  the  in- 
sistences of  the  state  and  of  accused, 
that  the  jury  need  not  accept  either 
or  any  part  of  them,  but  that  if  the 
state's  theory  was  a  reasonable  de- 
duction from  all  the  evidence  taken 
as  a  whole,  and  the  same  established 
the  guilt  of  accused  beyond  a  reason- 
able doubt,  a  verdict  of  guilty  should 
be  rendered,  was  not  objectionable  as 
giving  undue  prominence  to  the 
state's  theory.  Cooper  v.  State,  138 
S.  W.  826,  123  Tenn.  37. 

16  State  v.  Jones,  147  N.  W.  822,  126 
Minn.  45. 


789  FORMAL  MATTERS  §  433 

The  principle  which  authorizes  the  court,  in  all  proper  cases, 
to  advise  the  jury  with  reference  to  the  relative  value  of  certain 
species  or  classes  of  evidence  does  not  authorize  one  item  of  the 
evidence  to  be  singled  out  and  made  the  subject  of  special  com- 
mendation.^'' Thus  an  instruction  that  uncontradicted  physical 
facts  at  variance  with  oral  testimony  are  entitled  to  the  greater 
consideration  is  erroneous.**  So,  where  the  written  examination 
of  a  witness  is  put  in  evidence  by  the  state,  in  a  criminal  prosecu- 
tion, it  gives  too  much  prominence  to  it  to  charge  that  such  evi- 
dence should  be  regarded  as  evidence  in  the  case,  and  should  be 
considered  like  the  evidence  of  other  witnesses  testifying  before 
the  jury,*^  So  an  instruction  is  erroneous  which  unduly  impresses 
the  jury  with  the  weight  of  dying  declarations,^"  and  it  is  improp- 
er to  charge  that  the  theory  of  the  law  in  admitting  dying  decla- 
rations is  that  a  person  would  be  just  as  sure  to  make  a  truthful 
statement  when  he  is  in  the  article  of  death  as  if  under  the  obli- 
gation of  an  oath.^*  It  is  only  proper  to  single  out  the  confession 
of  defendant  in  the  instructions  for  the  purpose  of  submitting  any 
issue  as  to  whether  warning  was  given  to  the  defendant  before  he 
made  his  confession  and  as  to  whether  it  was  voluntary .^^ 

§  433.     Singling  out  testimony  of  particular  witnesses 

Singling  out  particular  witnesses  for  purpose  of  instructing  as  to  credibility, 

see  ante,  §§  183.  184. 
Singling  out  party  for  comment  as  to  credibility  as  witness,  see  ante,  §  165. 
Singling  out  accused  for  comment  as  to  credibility  as  witness,  see  ante,  §  168. 

As  an  ofifshoot  of  the  above  rule  it  can  be  laid  down  as  a  gen- 
eral principle  that  it  is  improper  to  give  undue  prominence  to 
the  testimony  of  particular  witnesses,  by  singling  them  out  for 
comment  as  to  their  testimony,  or  by  authorizing  the  jury  to 
reach  certain  conclusions  if  their  testimony  is  believed,"'  and  such 

17  In  re  Knox's  Will,  98  N.  W.  468,  So.  21,  1  Ala.  App.  178:    Wingate  v. 

123  Iowa,  24.  State,   55    So.   953,    1   Ala.    App.   40; 

isGharst  v.  St.  Louis  Transit  Co.,  Johnson  v.  State,   55  So.  321,  1  Ala. 

91  S.  W.  4.53,  115  Mo.  App.  403.        '  App.  102;    Louisville  &  N.  R.  Co.  v. 

19  Wilson  V.  State  (Tex.  Or.  App.)  Hurt.  101  Ala.  34,  13  So.  1.30;  Gibson 
36  S.  W.  587.  V.  J.  Snow  Hardware  Co.,  94  Ala.  346, 

20  Sewell  V.  State,  83  S.  E.  934,  142  10  So.  .304;  Alabama  G.  S.  R.  Co.  v. 
Ga.  708  ;  Pyle  v.  State,  62  S.  E.  540,  Hill,  93  Ala.  514,  9  So.  722,  30  Am.  St. 
4  Ga.  App.  811;    State  v.  Summers,  Rep.  65;    East  Tennessee  V.  &  G.  R. 

92  S.  E.  328,  173  N.  C.  775.  Co.  v.  Deaver,  79  Ala.  216 ;   Adams  v. 

21  Darby  v.  State,  84  S.  E.  724,  16  Thornton,  78  Ala.  489,  56  Am.  tlep. 
Ga.  App.  171;    Baker  v.  State,  77  S.      49;   Jordan  v.  Pickett,  78  Ala.  331. 

E.  884.  12  Ga.  App.  553.  Conn.     John.son  County  Sav.  Bank 

2  2  Jordan  v.  State,  101  S.  W.  247,  51  v.  Walker,  72  A.  579,  82  Conn.  24. 

Tex.  Cr.  R;  145.  Ga.    Black  v.  Thornton,  30  Ga.  361. 

23  Ala.     Olive  V.  State,  63  So.  36,  111.     Grube  v.  Nichols,  36  HI.  92; 

8  Ala.  App.  178;    Boswell  v.  State,  56  Tanner  v.  Clapp,  139  111.   App.  353; 


§  433  INSTRUCTIONS  TO  JURIES  790 

an  instruction  is  properly  refused.^*    To  say  that  the  case  depends 


Chicago  B.  &  Q.  E.  Co.  v.  Kuster,  22 
111.  App.  188. 

Iowa.  State  v.  Asbury,  154  N.  W. 
915,  172  Iowa,  606,  Ann.  Cas.  1918A, 
856. 

Mich.  J.  Richardson  &  Co.  v.  No- 
ble,  107  N.   W.  274,   143  Mich.  546. 

Minn.  State  v.  Yates,  109  N.  W. 
1070.   99   Minn.   461. 

Miss.  Brown  v.  State,  32  Miss. 
433. 

Mo.  Duncan  v.  St.  Louis  &  S.  F. 
R.  Co..  165  S.  W.  1116,  178  Mo.  App. 
164 ;  State  v.  Chinn,  1.33  S.  W.  1196. 
1.53  Mo.  App.  611;  Spohn  v.  Missouri 
Pac.  Ry.  Co.,  87  Mo.  74;  Iron  Moun- 
tain Bank  of  St.  Louis  v.  Murdock, 
62  Mo.  70;  Meyer  v.  Pacific  R.  Co.,  45 
Mo.    137. 

N.  C.  Wallace  v.  Norfolk  South- 
ern R,.  Co.,  93  S.  E.  731,  174  N.  C. 
171:  State  v.  Home,  88  S.  E.  4.33,  171 
N.  0.  787;  Starling  v.  Selma  Cotton 
Mills,  88  S.  E.  242,  171  N.  C.  222; 
Bowman  v.  Fidelity  Trust  &  Develop- 
ment Co.,  87  S.  E.  46,  170  N.  C.  301; 
State  V.  Rogers,  93  N.  C.  523. 

Or.  Church  v.  Melville,  17  Or.  413, 
21  P.  387. 

Tex.  Farnandes  v.  Schiermann,  55 
S.  W.  378,  23  Tex.  Civ.  App.  343. 

Wash.  Sexton  v.  School  Dist.  No. 
34  of  Spokane  County,  9  Wash.  5, 
36  P.  1052. 

W.  Va.  Storrs  v.  Feick,  24  W.  Va. 
606. 

Instructions  objectionable  TO'itb- 
in  rule.  A  charge  that  the  evidence 
of  the  engineer  should  be  fairly  and 
impartially  weighed  by  his  intelli- 
gence, his  manner,  the  consistency  of 
his  story,  its  probability  or  improb- 
ability, and  all  other  tests  which  do 
or  do  not  convince,  and,  if  the  jury 
believed  that  his  evidence  was  true, 
they  should  find  for  defendant. 
Southern  Ry.  Co.  v.  Reaves,  29  So. 
.594.  129  Ala.  457.  It  is  not  error  to 
refuse  to  instruct  to  acquit  if  there 
is  a  reasonable  doubt  whether  accus- 
ed was  presout  at  another  place  as 
testified  by  him,  when  the  alleged  of- 
fense was  committed ;  such  an  in- 
struction being  calculated  to  give  un- 
due prominence  to  defendant's  testi- 
mony. Lodge  V.  State,  26  So.  200,  122 
Ala.  107. 


Ignoring  important  facts  in 
case.  It  is  improper  to  put  a  partic- 
ular witness  into  undue  prominence 
by' charging  the  jury  to  find  accord- 
ing to  their  belief  in  his  evidence, 
where  such  a  charge  tends  to  ignore 
important  facts  in  the  case.  Chase 
V.  Buhl  Iron  Works,  55  Mich.  139,  20 
N.  W.  S27. 

Instructions  held  not  erroneous 
within  rule.  A  contention  that  the 
court  erred  in  giving  undue  promi- 
nence to  the  testimony  of  one  particu- 
lar witness  was  without  merit,  where 
his  name  was  mentioned  in  the  charge 
but  once,  and  that  on  an  issue  which 
was  answered  as  a  proposition  of  law 
under  an  instruction  of  the  court. 
Lance  v.  Butler,  47  S.  E.  488,  135  N. 
C.  419.  Where,  in  an  action  for  ejec- 
tion from  a  car,  a  number  of  disin- 
terested witnesses  gave  contradictory 
testimony,  and  different  from  that  of 
the  passenger,  as  to  what  occurred 
between  the  passenger  and  the  con- 
ductor, it  was  not  error  to  instruct 
the  jury  to  consider  the  probability 
or  improbability  of  such  testimony,  as 
singling  out  this  phase  of  the  case  to 
defendant's    prejudice.      Bowsher    v. 

24  Ala.  Davis  v.  State,  44  So.  545, 
1.52  Ala.  82 ;  Louisville  &  N.  R.  Co.  v. 
Perkins,  .39  So.  305,  144  Ala.  325; 
Wells  v.  State,  31  So.  572,  131  Ala. 
48;  Louisville  &  N.  R.  Co.  v.  Morgan, 
22  So.  20,  114  Ala.  449. 

Colo.  City  and  County  of  Denver 
V.  Monroe,  121  P.  684,  21  Colo.  App. 
312. 

111.  Donahue  v.  Egan,  85  111.  App. 
20 ;  Johnston  v.  Hirschberg,  85  111. 
App.  47. 

Ky.  Paducah  Water  Supply  Co.  v. 
Paducah  Lumber  Co.,  14  Ky.  Law 
Rep.  (abstract)  141. 

Mich.  Silverstone  v.  London  As- 
sur.  Corporation,  142  N.  W.  776.  176 
Mich.  525 ;  People  v.  Pope,  108  Mich. 
361,  66  N.  W.  213. 

Miss.  Mississippi  Cent.  R.  Co.  v. 
Hardy,  41  So.  505,  88  Miss.  732. 

Neb.  Souchek  v.  Karr,  120  N.  W. 
210.  83  Neb.  649. 

N.  C.  Cogdell  V.  Southern  Ry.  Co., 
40  S.  E.  202,  129  N.  C.  398;  State  v. 
Shields,  110  N.  C.  497,  14  S.  E.  779. 


791 


FORMAL   MATTERS 


§433 


upon  the  truth  or  falsity  of  the  evidence,  of  a  single  witness,  al- 
though he  may  have  possessed  extraordinary  opportunities  to 
know  of  the  matter  concerning  which  he  testifies,  is  generally  to 
gi\e  too  much  prominence  to  a  part  of  the  case  only.'^^  While, 
however,  it  is  always  advisable  for  the  court  to  avoid  the  mention 
of  witnesses  by  name,  the  circumstances  may  be  such,  in  some  in- 
stances, that  such  mention  will  not  be  prejudicial  to  the  party 
complaining  thereof.'^ 


Chifatro,  B.  &  Q.  R.  Co.,  84  N.  W.  958, 
11.".  Iowa.  13.  Whore.  <iii  the  tiial  of 
two  clefendaut.s,  indicted  for  an  af- 
fray, each  gave  testimony  tending  to 
excuse  himself  and  incriminate  the 
othin-,  and  the  court  charged  the  jury 
to  acquit  one  of  the  defendants  if 
they  lielieved  his  version,  and  to  con- 
vict both  if  they  believed  a  third 
witness'  version  :  but  that,  if  all  the 
evidence  did  not  satisfy  tliem  that  de- 
fendant fought  willingly,  they  should 
acquit  him,  it  was  held  not  erroneous, 
as  giving  undue  prominence  to  tho 
testimony  of  one  witness  conflicting 
with  others.  State  v.  Weathers,  98 
N.  C.  68.5,  4  S.  E.  512.  Where  expert 
witnesses  for  defendant  railroad  com- 
pany testified  that  the  speed  at  which 
a  train  was  running  was  not  equal 
to  the  rate  prohibited  by  ordinance, 
which  was  contradicted  by  plaintiff's 
witnesses,  who  were  his  fellow  pas- 
sengers, and  also  engaged  in  the  same 
business,  and  a  general  instruction 
.stated,  inter  alia,  that  the  jury,  in  de- 
tei'mining  the  credibility  of  each  -Rit- 
ness,  might  take  into  consideration 
"his  relationship  to  the  p;irties  in 
this  suit,"  it  was  held  that  the  in- 
struction is  not  objectionable  on  the 
ground  that  it  singles  out  and  covert- 
ly attacl^s  defendant's  witnesses,  who 
were  its  employees,  since  it  applies  as 
well  to  the  possible  relationship  be- 
tween plaintiff  and  his  witnesses. 
Chicago  &  A.  R.  Co.  v.  Winters,  51  N. 
E.  901.  175  111.  29.3.  In  an  action  for 
personal  injuries  by  a  married  wo- 
man, in  which  plaintiffs  husband 
testified  in  her  behalf,  an  instruction 
that  a  husband  is  a  competent  wit- 
ness to  testify  in  behalf  of  his  wife, 
and  that,  if  the  testimony  given  by 
him  appears  to  be  fair,  is  not  unrea- 
sonable, and  is  consistent  with  itself, 
and  the  witness  has  not  been  in  any 
manner  impeached,  the  jury  have  no 


right  to  disregard  the  testimony  of 
such  witness  merely  from  the  fact 
that  he  is  related  by  marriage  to  the 
plaintiff,  was  not  erroneous  as  tend- 
ing to  give  undue  emphasis  to  his 
testimonv.  Noith  Chicago  St.  R.  Co. 
V.  Wellner,  69  N.  E.  6,  206  111.  272. 

Emphasizing  testimony  of  ac- 
complice. Where  only  one  witness 
was  an  accomplice,  an  instruction  that 
accused  might  be  convicted  on  the  un- 
corroborated testimony  of  an  accom- 
plice, and,  if  the  jury  believed  that 
the  testimony  of  the  witness  was  true, 
they  could  act  on  it  as  true,  and  that 
the  jury  should  act  on  the  testimony 
of  an  accomplice  with  caution,  etc., 
was  not  erroneous  as  attaching  undue 
importance  to  the  testimony  of  the 
accomplice.  People  v.  Frankenberg, 
86  N.  E.  128,  236  111.  408.  W^here 
there  is  but  one  accomplice  who  testi- 
fies in  a  prosecution  for  larceny,  an 
instruction  that  a  conviction  may  be 
had  upon  the  uncorroborated  testimo- 
ny of  such  accomplice  (naming  her)  is 
not  erroneous  because  it  .singles  out 
the  testimony  of  a  partiailar  witness. 
People  v.  Thompson,  113  N.  E.  322, 
274  111.  214.  In  prosecution  for  rol> 
bery,  a  charge  on  issue  whether  de- 
fendant was  present,  stating  his  de- 
nial and  his  reason  for  being  at  an- 
other place,  and  that  it  conflicted 
with  the  testimony  of  the  accomplice, 
referring  to  defendant's  interest  and 
his  relation  to  a  "gang,"  with  an  ar- 
gumentative statement  as  to  the  cred- 
it to  be  given  to  the  accomplice's  tes- 
timony, was  prejudicial  to  defendant, 
as  giving  undue  emphasis  and  credit 
to  testimonv  of  the  accomplice.  State 
v.  Dallas,  176  N.  W.  491,  145  Minn.  92. 

25Taubert  v,  Tanbcrt,  114  X.  W. 
763.  103  Minn.  247;  Murphy  v.  Jones 
(Pa.)  6  A.  726. 

2  8  Dyas  V.  Southern  Pac.  Co.,  73  P. 
972,  140  Cal.  296 ;    State  v.  Mclver,  94 


§  434  INSTRUCTIONS  TO  JURIES  792 

§  434.     Limitations  of  rule 

The  court  may  direct  the  attention  of  the  jury  to  the  real  is- 
sues in  the  case,^'  or  to  certain  features  of  the  evidence,  making 
no  attempt  to  give  particular  prominence  to  any  part,-*  and,  aj, 
explained  in  a  preceding  section,^^  the  court  may  tell  the  jury  that 
they  may  consider  certain  matters  in  determining  the  credibility 
of  witnesses.^" 

The  mere  fact  that  an  instruction  is  based  upon  a  hypothetical 
state  of  facts  authorized  by  the  evidence  does  not  render  it  liable 
to  the  objection  that  it  gives  undue  prominence  to  a  part  of  the 
evidence,^^  and  the  rule  that  instructions  must  not  give  undue 
prominence  to  a  particular  theory  is  subject  to  the  one  that  each 
party  to  a  cause  is  entitled  to  instructions  hypothetically  outlining 
the  evidence  and  state  of  the  case  upon  which  he  relies  for  ob- 
taining a  verdict,  and  directing  the  jury  to  find  for  the  party  in 
whose  favor  they  find  the  facts  constituting  either  the  cause  of 
action  or  the  defense.^^  Undue  prominence  is  not  given  to  the 
contentions  of  a  party  merely  by  stating  them  at  greater  length 
than  those  of  his  opponent,^*  and  when  the  theory  of  each  party, 
as  well  as  the  testimony  in  support  of  it,  is  fairly  presented,  one 
party  cannot  complain  that  the  testimony  of  the  other  assumes 
more  prominence  in  the  charge,  if  this  is  due  to  the  nature  and 
quality  of  the  testimony  itself.^* 

The  fact  that  an  instruction  gives  special  prominence  to  par- 
ticular evidentiary  facts  is  not  cause  for  reversal,  if  the  facts  so 
emphasized  are  of  controlling  importance,^^  and  the  general  rule 

S.    E.  682,  175  N.  C.  761 ;    Ward  v.  Ky.     Louisville  &  N.  R.  Co.  v.  Kine's 

Brown,  44  S.  E.  4S8.  53  W.  Va.  227.  Adm'r,  115  S.  W.  196,  131   Ky.  347; 

27  Clark  Pressed  Brick  Co.  v.  Ains-  Goldstein's  Adm'r   v.   Louisville   Ry. 

worth,  194  S.  W.  852,  129  Ark.  583.  Co.,  115  S.  W.  194. 

2  8  state  V.  Stewart,  212  S.  W.  853,  Mo.     Gardner  v.  Metropolitan   St. 

278  Mo.  177;    Secard  v.  Rhinelander  Ry.  co.,  152  S.  W.  98,  167  Mo.  App. 

Lighting  Co.,  133  N.  W.  45,  147  Wis.  605. 

^^t  Ante.  §§  153-156.  ^  ''  f  °^^«^_T-  ^tat^'.  "^  W^^A  ^f 

so  TToio,   \r    «!tnto    Oft   Qn    o^d    lOM       ^^-  ^PP-  6o4 ;   Phinizy  V.  Bush,  70  S. 

^^30  Hale    v.    State,   26   So.   236,   122       ^    243,  135  Ga.  678:    Millen  &  S.  W. 

"    3icrowell  V.  People,  60  N.  E.  872,  ?^J^\7-  ^^^^^  ^}  I"  ^  ^f^'  ^^^ -^^^ 

100  111.  508;   Black  v.  Commonwealth  ^^J^  59'lT'oS;  loo^b^  6^'  ""'       ''' 

15G  S.  W.  1043,  154  Ky.  144 ;   Central  ^^^'  ^^  ^-  ^-  ^-'  ^^^  ^^-  ^^• 

Pass.   Ry.  Co.  v.  Chatterson,  14  Ky.  ^*  Irvin  v.  Kutruff,  152  Pa.  609,  25 

Law  Rep.  6G3 ;    Fletcher  v.  Louisville  ^-  '^^^'  ^^  Wkly.  Notes  Cas.  485. 

&  N.  R.  Co.,  49  S.  W.  739,  102  Tenn.  1.  S5  Boswell  v.  Thompson,  49  So.  73, 

32  ni.     Chicago  &  N.  W.  Ry.  Co.  v.  160  Ala.  306 ;    Harding  v.   St.  Louis 

Snyder,  117  111.  376,  7  N.  E.  604;  Rax-  Nat    Stockyards,    149    111.    App.    370, 

worthy  v.  Heisen,  191  111.  App.  457;  judgment  affirmed  90  N.  E.  205,  242 

Chicago  City  Ry.  Co.  v.  Math,  114  III.  111.  444 ;    State  v.  May,  57  S.  E.  366, 

App.   350.  62  W.  Va.  129. 


793  FORMAL  MATTERS  §  434 

does  not  prevent  the  court,  in  charging  on  a  particular  issue,  from 
singling  out  a  particular  fact  which  is  the  only  fact  adduced  upon 
such  issue,^^  nor  does  it  prevent  the  court  from  submitting  to 
the  jury  whether  certain  material  facts  may  be  inferred  from  tes- 
timony given,^'  nor  from  charging  singly  with  respect  to  a  par- 
ticular substantive  defense,^*  nor  from  instructing  on  the  legal 
effect  of  evidence  offered  in  bar  of  a  defense,-"^*  nor  from  singling 
out  evidence  for  the  purpose  of  limiting  its  effect.'** 

Since  the  charge  must  cover  every  phase  of  the  case,  if  one  of 
these  phases  depends  on  certain  particular  facts  or  group  of  facts, 
these  may  be  alluded  to,  in  order  to  convey  to  the  jury  a  prac- 
tical idea  of  the  law  of  the  case.*^  The  court  may  tell  the  jury 
not  to  accord  to  certain  opinion  evidence  undue  weight,  as  being 
that  of  experts  or  of  persons  especially  qualified  to  testify,  but 
that  it  is  entitled  -to  such  consideration  as  is  due  the  testimony  of 
competent  witnesses  in  ordinary  cases,*^  and  in  some  jurisdictions 
an  instruction  which  calls  attention  to  particular  facts,  ignoring 
others,  is  not  therefore  improper,  if  it  does  not  have  the  effect  of 
limiting  the  evidence  to  be  considered  in  the  finding  of  any  fact 
in  the  case.^* 

A  charge  stating  a  correct  proposition  of  law  with  reference  to 
the  presumption  arising  from  certain  facts,  although  such  facts 
are  undisputed,  is  not  objectionable  as  giving  undue  prominence 
to  such  presumption.'**  Where  there  is  circumstantial  evidence 
as  well  as  direct  evidence  in  a  criminal  prosecution,  an  instruction 
that  the  jury  can  convict  on  circumstantial  evidence  alone  is  not 
erroneous,  as  singling  out  particular  evidence.*^ 

A  supplemental  instruction,  covering  an  issue  concerning  which 
the  main  charge  is  silent,*^  or  a  new  instruction  on  a  particular  issue, 

36  Pellv  V.  Denison  &  S.  Ry.  Co.  Neb.  Thomas  v.  Shea,  134  N.  W. 
(Tex.  Civ.  App.)  7R  S.  W.  542.                  as:'.,   90   Neb.    S23,   Ann.   Cas.    1913B, 

37  Marion  v.  State.  20  Neb.  233.  29      695. 

N.  W.  911,  57  Am.  Rep.  825;   Scheuer  41  Harris  v.  State,  92  S.  B.  224,  19 

V.    Manitowoc    &    Northern    Traction  Ga.  App.  741 :    State  v.  Irvine,  52  So. 

Co..  1.59  N.  W.  901.  104  Wis.  .333.  567.  126  Ta\.  434. 

38  Sheridan  v.  Chicajro  &  Oak  Park  *-  Oldfather  v.  Ericsson.  112  N.  W. 
Elevated  R.  Co.,  1.53  111.  App.  70.  3.56.  79  Xch.  1. 

39  Stewart  v.  Sparkman,  75  Mo.  43  state  v.  Williams,  92  N.  W.  652. 
App.  106.                                 •  lis  Iowa.  494:    State  v.  Watson,  SI 

4  0  Ala.     .Tackson   v.    State,   57   So.  Iowa.  380,  46  N.  W.  S6S. 
594.  5  Ala.  App.  ,306 ;    Hale  v.  State,  44  Smith  v.  State,  124  S.  W.  679,  57 

26    So.   236,   122  Ala.   85 ;     Smith    v.  Tex.  Cr.  R.  585. 
State,  7  So.  52,  88  Ala.  73.  .  45  People  v.  Fox,  110  N.  E.  26,  269 

Cal.    People  v.  Neary,  104  Cal.  373,  111.  300. 
37  P.  943.  4  0  Missoiiri.    K.    &   T.    Ry.    Co.    of 

111.    People  V.  Casey,  83  N.  E.  278,  Texas  v.  Coffey  (Tex.  Civ.   App.)   68 

231  111.  261.  S.  W^  721. 


§  434  INSTRUCTIONS  TO  JURIES  794 

given  at  the  request  of  the  jury/"   does  not  make  the  issue   so 
covered  unduly  prominent. 

The  argument  of  counsel  may  be  such  as  to  warrant  the  court 
in  emphasizing  that  portion  of  its  instructions,  showing  the  fal- 
lacy and  impropriety  of  such  argument."**  Allusion  to  a  particular 
witness  may  be  rendered  proper  by  the  character  of  the  conten- 
tions of  counsel  with  respect  to  his  testimony,*^  and  it  may  be 
proper  to  refer  to  the  testimony  of  a  particular  witness  for  the 
purpose  of  identifying  a  certain  feature  of  the  evidence. ^° 

\Vhere  there  is  no  material  conflict  in  the  testimony,  and  the 
testimony  of  the  defendant  presents  his  case  in  the  most  favorable 
light  to  himself,  the  court  may  properly  single  out  his  testimony 
and  charge  the  jury,  in  a  proper  case,  that  if  they  believe  the 
statement  of  the  defendant  the  plaintiff  is  entitled  to  a  verdict;^* 
and  it  is  not  improper,  where  plaintiff,  to  avoid  a  continuance, 
stipulates  that  certain  facts  are  true,  to  charge  that  the  jury 
should  take  such  facts  as  true.^- 

Summarizing  the  matter  contained  in  voluminous  and  compli- 
cated records  introduced  in  evidence  does  not  give  undue  weight 
to  such  evidence.^^ 

Instructions  erroneous  as  unduly  emphasizing  certain  matters 
will  not  work  a  reversal,  where  the  complaining  party  suiters  no 
harm  therefrom.^* 

§  435.     Effect  of  repetition 

In  submitting  issues  of  fact  to  the  jury,  the  trial  judge  may 
state  the  rules  of  law  appurtenant  to  the  case  both  in  the  abstract 
and  in  the  concrete,  without  giving  undue  prominence  to  the  mat- 
ter in  question.^-^  However,  the  repetition  of  an  instruction  involv- 
ing a  particular  point,  while  not  necessarily  objectionable  as  giv- 
ing undue   prominence  to  it,^  may  be  so,   as   shown  in   another 

*-  Lum.sden  v.  Chicago.  R.  I.  &  T.  ss  Hubert  v.  New  Tork.  N.  H.  &  H. 

Ry.  Co.,  73  S.  W.  428,  31  Tex.   Civ.       R.  Co.,  90  A.  967,  90  Conn.  261. 

'^''^''^^Xmiu  V.  Walton.  183  P.  529.  ..r.Tf'???'   j'.  ^k*"'  S  .^\iV' 

181  Cal.  11.5:  Neff  v.  City  of  Cameron,  ]%  fj!,-  f/'    ^'-^^0^1  v.  State,  32  ^o. 

Ill  S.  W.  11.39,  213  Mo.  3.50.  IS  L.  R.  j;'^'  ^^-i    \^  V   ^^"^^      W^^  ?  ^i^"" 

A.  (N.  S.)  320,  127  Am.  St.  Rep.  006.  ^^^  ^V,  "^^^    i^'l'"'^'!}''^?  ?^PP^^   ^^•' 

*o  Walker  v.  State,  73  S.  E.  .308.  137  J.f  v\n,?f.  %  Vn  ?  ''^^a'*'  c;  ?' 
Qa    393  Co.  T.  Horan,  23  111.  App.  2-39;    State 

^'oRoilins  y.   Schawacker,  153   Mo.  ^-  ^*^^^^'  ^^  ^-  ^-  S5,  149  Mo.  478. 
App.  284.  133  S.  W.  409.  '-^  San  Antonio  &  A.  P.  Rv.  Co.  v. 

51  White  V.  Barnes,  112  X.  C.  32.3,  Martin. '108  S.   W.  981,  49  Tex.   Civ. 

16  S.  E.  922.  •  App.   197. 

=  2  Galveston,  II.  &  S.  A.  Rr.  Co.  v.  se  uiloa  v.  State,  163  S.  W   73^    73. 

Lynes  (Tex.  Civ.  .\pp.)  65  S.  W.  1119.  Tex.  Cr.   R.   41. 


795  FORMAL  MATTERS  §  437 

place,'*'  and  the  court  should  be  on  its  guard  against  emphasizing 
particular  matters  by  frequently  recurring  to  them  in  the  charge."^ 

§  436.  Duty  to  avoid  distinguishing  certain  matters  by  arbitrary 
or  mechanical  devices  . 
The  practice  of  underscoring  particular  words  in  an  instruction 
is  objectionable,  as  giving  undue  weight  to  them."^  There  is  no 
merit,  however,  in  an  objection  that  part  of  an  instruction  is  writ- 
ten with  a  pen,  while  the  remainder  is  typewritten,^**  or  that  cer- 
tain instructions  are  printed  upon  a  regular  printing  press,  while 
others  are  typewritten,^^  and  it  does  not  constitute  reversible  error 
to  emphasize  an  instruction  by  placing  it  at  the  head  of  the  court's 
charge.®'  It  is  not  improper  for  the  court  to  mark  instructions 
given  on  its  own  initiative,  so  as  to  indicate  that  such  is  the  case.*^ 

K.  Time  for  Giving  Instructions 

Right  or  duty  of  court  to  give  instructions  after  submission  of  cause  to  jury, 

see  post,  §  444. 
Proper  time  for  making  special  requests  for  instructions,  see  post,  §§  462-4GG. 

§  437.     Limitation  of  time  by  statute  or  rule  of  court 

In  the   absence  of  any  statutory  provision  on   the  subject,   the 
court  may  fix  the  time  for  giving  instructions  by  rule>^*  but  fre- 

57  Ante,  §  416.  State,  72   S.  W.  195,  44  Tex.  Cr.  R. 

5  8  Ark.     Furlow     v.     United     Oil  460;    Irvine  v.  State,  20  Tex.  App.  12. 

Mills,  149  S.  W.  60.  104  Ark.  489,  45  so  state  v.  Cater,  69  N.  W.  880,  100 

L.  R.  A.  (X.  S.)  .872.  Iowa,  .501. 

111.     Gehrig  v.  Chicago  &  A.  R.  Co.,  Printing    abstract    propositions 

201  111.  App.  287 ;    Richter  v.  Village  in  larger  type.     The  fact  that  cer- 

of  Maywood,  191  111.  App.  475 ;    Nel-  tain  instructions  on  abstract  proposi- 

son  v.  Cliicago  City  Ry.  Co.,  16S  111.  tions  of  law,  given  for  the  people  in 

App.  98.  a  prosecution  for  rol)bery,  are  print- 

Tex.     Rodgers  v.  Texas  &  P.  Ry.  ed  in  larger  type  than  the  remaining 

Co.  (Civ.  App.)   172  S.  W.  1117  ;    Ft.  portion  of  the  charge,  is  not  reversible 

Worth  &  R.  G.  Ry.  Co.  v.  Crannell  error.     Featherstone  v.  People,  62  N. 

(Civ.   App.)    149   S.    W.  351 ;     McCul-  E.  684, 194  111.  325. 

lough  Hardware  Co.  v.  Burdett  (Civ.  so  Kinvon  v.  Chicago  &  N.  W.  Rv. 

App.)  142  S.  W.  612 ;    Continental  Oil  Co.,  92  N.  W.  40,  118  Iowa.  349,  96 

&  Cotton  Co.  V.  Thompson  (Civ.  App.)  Am.  St.  Rep.  382;    State  v.  Kelly,  73 

136  S.  W.  1178:    Waggoner  v.  Sneed,  Mo.  608. 

118  S.  W.  547.  53  Tex.  Civ.  App.  278;  eipeople  v.  Dressen,  1.58  111.  App. 

Malone  v.  Texas  &  P.  Ry.  Co.,  109  S.  139. 

W.  430,  49  Tex.  Cr.  R.  ,398  ;    Herring  C2  state  v.  Clark,  163  N.  W.  250,  ISO 

V.  Galveston,  H.  &  S.  A.  Ry,  Co,  (Civ.  Iowa,  477. 

App.)   108    S.   W.    977,   writ  of  error  63  Bracey   v.   McGary,   106   A.   622, 

dismissed   Galveston,   H.   &   S.   A.   R.  134  Md.  267, 

Co.  V.  Herring,  113  S.  W.  521,  102  Tex.  64  State  v.   Cobbs,  40  W.  Va.  718, 

100;     ^tna    Ins.    Co.    of    Hartford,  22  S.  E.  310. 

Conn.,  V.  Brannon  (Civ.  App.)  101   S.  Discretion   of  court.      Tlie    order 

W.   1020;    Adams  v.  Weakley,  80   S.  in  which  requested  instructions  sh.ill 

W.  411,  35  Tex.  Civ,  App,  371 ;   Lee  v.  be  given,  whether  before  or  after  the 


§  437  INSTRUCTIONS  TO  JURIES  796 

quently  such  time  is  regulated  by  statute.  In  one  jurisdiction 
where  the  court,  in  civil  cases,  is  required  to  give  special  requests 
before  the  arguments  of  counsel,  and  its  general  charge  after  such 
arguments,  it  is  held  that  the  court  has  no  discretion  to  give  gen- 
eral instructions  after  the  evidence  is  closed,^^  and  that  the  fail- 
ure to  give  special  requests  at  the  time  specified  by  the  statute 
is  not  cured  by  giving  them  in  the  general  charge  after  the  argu- 
ments of  counsel,®^  and  that  if  a  request  made  before  argument 
correctly  states  the  law  and  is  pertinent  to  one  or  more  of  the 
issues  in  the  case,  and  the  same  subject  has  not  been  covered  by 
other  charges  given  before  argument,  it  will  be  error  to  refuse 
such  request  before  argument,  although  the  language  of  the  re- 
quest is  not  exactly  what  the  court  would  have  selected.®'  In  this 
jurisdiction  the  rule  in  criminal  cases  is  that  the  court  is  author- 
ized, but  not  required,  at  the  conclusion  of  the  evidence  and  upon 
the  request  of  the  state  or  the  accused,  to  charge  the  jury  before 
argument  upon  the  points  of  law  requested  and  pertinent  to  the 
case.®* 

While  the  court  has  the  right  to  reserve  its  decision  as  to  what 
instructions  shall  be  given  to  the  jury  until  the  evidence  is  all  in,^* 
it  is  not  error  for  the  trial  judge,  in  the  absence  of  any  regulation 
to  the  contrary,  to  instruct  the  jury,  before  any  evidence  is  intro- 
duced, as  to  their  duties.'^®  Under  the  regulations  existing  in 
some  of  the  states,  the  instructions  of  the  court  are  required  to 
be  given  before  the  arguments  of  counsel  or  before  their  conclu- 
sion.'i 

§  438.     Mandatory  character  of  such  regulations 

In  one  state  a  statutory  provision  requiring  the  court  to  in- 
struct the  jury  before  argument  is  deemed  to  be  mandatory,'^ 
except  in  a  prosecution  for  a  misdemeanor.'^  As  a  general  rule, 
however,  regulations  as  to  the  time  of  giving  instructions  will  not 
prevent   the   court   from    giving   additional    instructions   in    open 

general   cliarj?e   of  the   court,  or  in-  «»  Wertenberger  v.  State,  124  N.  E. 

structions  given  at  the  request  of  the  243,  99  Ohio  St.  353. 

opposite  party.  Is  a  matter  withip  the  eo  People  v.   McCallam,   103  N.   Y. 

discretion  of  the  trial  court.     Knight  587,  9  N.  E.  502. 

V.  State,  32  So.  110,  44  Fla.  94.  to  state  v.  McGee,  33  S.  E.  353,  55 

esCleveland  &  E.  Electric  R.  Co.  v.  S.  C.  247,  74  Am.  St.  Rep.  741 ;   Ryan 

Hawkins,  GO  N.  E.  558,  04  Ohio   St.  v.  State,  83  Wis.  486,  53  N.  W.  836. 

391.  71  Foster  v.  Turner,  31  Kan.  58,  1 

6«  Root  V.  Incorporated  Village  of  P.  145. 

Monroevillo.  16  Ohio  Cir.  Ct.  R.  617,  ^2  International  &  G.  N.  Ry,  Co.  v. 

4  O.  C.  D.  53.  Parke  (Tex.  Civ.  App.)  169  S.  W.  397. 

07  Chesrown    v.    Bevier    (Ohio)    128  73  Robison  v.  State,  179  S.  W.  1157, 

N-  E.  94.  77  Tex.  Cr.  R.  556. 


jQY  FORMAL  MATTERS  §  439 

court  after  the  cause  has  been  fully  argued,  and  before  the  jury 
retire  or  before  the  rendition  of  their  verdict,  where  the  demands 
of  justice  require  them.''*  Under  this  principle  additional  instruc- 
tions may  be  given  after  the  arguments  of  counsel  for  the  purpose 
of  correcting  or  qualifying  any  statement  of  counsel  which  is  liable 
to  mislead  the  jury'«  or  for  the  purpose  of  curing  misconduct 
therein  '«  and  the  action  of  the  court  in  directmg  the  jury  to  re- 
turn an  answer  to  a  special  issue  does  not  violate  a  requirement 
with  respect  to  giving  instructions  before  the  arguments  of  coun- 
sel '" 

The  chiving  of  an  instruction  at  an  improper  time  will  not  work 
a  reversal,  if  it  cannot  be  harmful.-^^  and  delay  of  the  court  until 
several  davs  after  the  case  is  submitted  to  the  jury  m  telling  them 
that  a  verdict  may  be  returned  by  a  less  number  than  twelve  is 
not  prejudicial."* 

L.   Ll^NGTH  AND   NUMBER   OF   INSTRUCTIONS 

8  439      Rule  against  multiplying  instructions 

Instructions  should  not  be  unnecessarily  volummous*"  but 
«;hould  be  clear  and  brief,  in  order  that  the  jury  may  readily  un- 
derstand   them.8i      The   practice   of   requesting   an   unnecessarily 

7  4  Ark      Slim  and  Shorty  v.  State,  7  5  Kellogg  v.  Lewis,  28  Kan.  535; 

iRfi^  W   4s   l4   \rk    5S3.  Weant  v.  Southern  Trust  &  Deposit 

^%!:  Perdue  i:%^:  54  S.  E.  820,  Co..  77  A.  289,  112  Md^  463. 

lof  Pa    119  7 G  Yore    v.    Mueller    Coal,    Hea\> 

Ky.    Paducah  Traction  Co.  v.  Sine,  Hauling  &  Transfer  Co.,  49  S.  W.  855, 

111  S.  W.  356,  33  Ky.  Law  Rep.  792.  147  Mo.  679. 

Mo.     Citv  of  Charleston  v.  Coker,  7  7  Richardson  v    Wilson  (Tex.  Civ. 

184   S    W.  *1181.   195  Mo.  App.   159;  App.)  178  S.  W.566.                      . 

ioplin  Waterworks  Co.  v.  City  of  Jop-  78  Cluskey  v.  City  of  St.  Louis.  oO 

lin    76  S    W.  960,  177  Mo.  496;    Bog-  Mo.  89.                                     o    t.   -i 

gess  V.  Metropolitan  St.  Ry.  Co.,  118  7o  Ashland   Coal    Iron   &   Railway 

Mn   -^OQ   o-?  s    w    159,  24  S.  W.  210;  Co.  v.  -^  allaoe  s  Adm  r.  42  S.  W    744, 

^^^.i'^SV^Sr^,^  P.  314,  "^^^r^Jle^^^s^  66 

^  ?^^of  ?;  State,  64  Miss.  761,  2  ^'^o^^^^^- ^SST^'  ^^• 

Instructions     requested     during  HI.     Fisher  v.  Stevens   16  111.  397 ; 

closing  argument.     Where   certain  Casey  v.  J.  W.  Reedy  EleAator  Mfg. 

instructions    requested    by    the    state  Co    166  111.  App.  595. 

during  defendant's  closing  argument  Mo.     Blanton  v.  Dold,  109  Mo.  64, 

were  not  submitted  to  defendant's  at-  18  S.  W.  1149.          _        _,            „„„^ 

Torneys,  and  they  were  given  no  oi>  Va       Southern   Ry.    Co_  v.    Hans- 

portunity  either  to  refer  or  reply  to  brough's  Adm'x,  60  S.  E.  o8,  107  \  a. 

them,  it  was  error  for  the  court  to  733.                                    ^/.^  c   xxr  ino 

'ive  them.     Bovkin   v.  State,  38  So.  ^i  Moore  v.  Damron,  164  S.  W.  lOo, 

725,  86  I^Iiss.  481.  157  Ky.  799. 


§  439 


INSTRUCTIONS  TO  JURIES 


798 


large  number  of  instructions  is  condemned  by  the  courts  on  the 
grounds  that  they  are  calculated  to  confuse  the  jury,  that  they 
cannot  be  critically  examined  by  the  court,  and  that  they  afford 
greater  opportunities  for  error,*'  and  on  the  further  ground  that 
the  jury  is  liable  to  obtain  the  impression  that  the  court  is  in- 
structing strongly  in  favor  of  the  party  at  whose  instance  such  in- 
structions are  given,*^  and  it  is  not  error  for  the  court,  so  long 
as  it  does  not  act  arbitrarily,**  to  place  a  reasonable  limit  upon  the 
number  of  instructions  which  the  trial  judge  will  consider  in  be- 
half of  either  party.*® 


S2  Fla.  Florida  East  Coast  Ry.  Co. 
V.  Knowles,  67  So.  122,  68  Fla.  400; 
Atlautic  Coast  Line  R.  Co.  v.  Whitney, 
61  So.  179,  6.5  Fla.  72;  Gracy  v.  At- 
lantic Coast  Line  R.  Co.,  42  So.  903, 
53  Fla.  3.50. 

111.  People  V.  Popovich.  121  N.  E. 
729,  2S6  111.  405;  Lichtenstein  v.  L. 
Fish  Furniture  Co.,  Ill  X.  E.  729.  272 
111.  191.  Ann.  Cas.  1918A,  1087 ;  Peo- 
ple V.  Hotz,  103  X.  E.  1007,  261  111. 
239 ;  People  v.  Warfield,  103  X.  E.  979, 
261  111.  293,  reversing  judgment  172 
111.  App.  1 ;  Citv  of  Salem  v.  Webster, 
61  X.  E.  323,  192  111.  369;  Chatelle 
V.  Illinois  Cent.  R.  Co.,  210  111.  App. 
475 ;  Loras  v.  Independent  Breweries 
Co.,  199  111.  App.  60;  Thompson  v. 
Sprague,  197  111.  App.  197;  Xix  v. 
Brunswick-Balke-Collender  Co.,  191 
111.  App.  503 ;  Duggan  v.  Wells  Bros. 
Co.,  191  111.  App.  499 ;  La  Salle  Coun- 
ty Carbon  Coal  Co.  v.  Eastman,  99  111. 
App.  495. 

Mich.  Brown  v.  McCord  &  Brad- 
field  Furniture  Co.,  32  X.  W.  441.  65 
Mich.  360;  Kimball  &  Austin  Mfg. 
Co.  V.  Yroman,  35  ilich.  310,  24  Am. 
Rep.  558. 

Mo.  Friend  v.  Jones  (App.)  185  S. 
W.  11.59;  Barrie  v.  St.  Louis  Transit 
Co.,  96  S.  W.  2.33.  119  Mo.  App.  38; 
Crawshaw  v.  Sumner,  56  Mo.  517. 

R.  I.  Facconda  v.  Rhode  Island 
Co.,  110  A.  001. 

W.  Va.  McCray  v.  Town  of  Fair- 
mont, 33  S.  E.  245.  46  W.  Va.  442. 

Dnty  of  appellate  court.  It  is 
not  reasonable  to  require  a  critical 
examination  of  many  requested  in- 
structions, and  neither  under  .such 
circumstances  should  an  appellate 
court  examine  critically  those  refus- 


ed in  order  to  discover  one  that  might 
have  been  appropriately  given.  If  the 
case  were  fairly  submitted  under  the 
instructions  given,  nothing  more 
should  be  required.  Bergeman  v.  In- 
dianapolis &  St.  L.  R.  Co.,  104  Mo. 
77,  15  S.  W.  992. 

S3  Bartholomew  v.  Illinois  Valley 
Ry.  Co..  1.54  111.  App.  .512 ;  i  Mutual 
Benefit  Life  Ins.  Co.  v.  French,  2  Cin. 
R.  321.  13  Ohio  Dec.  927. 

84  111.  Chicago  Union  Traction  Co. 
v.  Hanthoru,  71  X.  E.  1022,  211  111. 
367;  Chicago  City  Ry.  Co.  v.  O'Don- 
nell,  70  X.  E.  294,  208  111.  267,  rehear- 
ing denied  70  X.  E.  477,  208  111.  267, 
reversing  judgment  108  111.  App.  385 ; 
Kravitz  v.  Chicago  City  Ry.  Co..  210 
111.  App.  287 ;  Daily  v.  Smith-Hippen 
Co.,  Ill  111.  App.  319;  The  Fair  v. 
Hoffmann,  101  111.  App.  500.  judgment 
affirmed  70  X.  E.  622,  209  111.  330; 
Chicago  Union  Traction  Co.  v.  Lud- 
low, 108  111.  App.  357;  Cobb  Choco- 
late Co.  v.  Knudson,  107  111.  App.  GQS. 
judgment  affirmed  69  X.  E.  816,  207 
111.  452 ;  Chicago  Union  Traction  Co. 
V.  Mommsen,  107  111.  App.  353. 

Unreasonable  limit.  Where  de- 
fendant at  the  proper  time  requested 
40  instructions  as  to  the  law,  it  was 
error  for  the  court  to  arbitrarily  re- 
fuse to  examine  more  than  20  instruc- 
tions and  decide  whether  they  con- 
tained propositions  of  law  proper  to 
be  submitted  to  the  jurv.  Crane  Co. 
V.  Hogan,  81  X.  E.  1032.  228  111.  .338. 

8  5  Chicago  &  A.  R.  Co.  v.  Kellv,  25 
111.  App.  17,  affirmed  127  111.  637,  21 
X.  E.  203;  Yazoo  &  M.  V.  R.  Co.  v. 
Dees.  83  So.  613,  121  Mi.ss.  439; 
O'Xeil  V.  Dry  Dock,  E.  B.  &  B.  R. 
Co.,   129  N.  T.  125,   29  X.   E.  84,  26 


799 


FORMAL  MATTERS 


§440 


§  440.     Effect  of  length  or  brevity  of  instructions 

The  number  of  instructions  requested  may  be  such  that  it  ^vill 
be  proper  for  the  court  on  that  ground  alone  to  refuse  all  of 
them,**'  and  an  instruction  which  is  of  such  inordinate  length  as 
to  confuse  the  jury  will  be  ground  for  reversal.*'  However,  nei- 
ther the  length  nor  the  brevity  of  instructions  is  necessarily  prej- 
udicial to  a  party.** 

The  fact  that  a  charge  is  somewhat  brief  and  without  amplifica- 
tion is  not  in  itself  a  ground  for  complaint,*®  and,  on  the  other 
hand,  the  mere  fact  that  a  charge  is  rather  lengthy,  or  might  have 
been  somewhat  shorter  and  more  compact,  does  not  make  it  er- 
roneous,**"  where  the  court  cannot  say  that  a  fairly  intelligent  jury 
would  be  likely  to  mistake  the  real  issues  submitted,®^  and  a  charge 
composed  of  a  large  number  of  instructions,  which  are  short  and 
clear  and  of  a  character  to  enlighten  the  jury,  is  preferable  to 
a  charge  composed  of  a  few  that  are  long,  diffuse,  and  compli- 
cated.®^ 


Am.  St.  Rep.  512,  distinguishing 
Chapman  v.  McCorraicli,  86  N.  Y.  479, 
and  affirming  O'Neil  v.  Dry  Doclf,  E. 
B.  &  B.  R.  Co.,  59  N.  Y.  Super.  Ct. 
123,  15  N.  Y.  84:  Craddock  Lumber 
Co.  V.  Jenljins.  97  S.  E.  817,  124  Va. 
167.  See  Marquez  v.  Koch,  161  S.  W. 
648,  176  Mo.  App.  143. 

8  6  U.  S.  MacFadden  v.  United 
States,  165  F.  51,  91  O.  C.  A.  89,  cer- 
tiorari denied  29  S.  Ct.  693,  214  U.  S. 
511,  53  L.  Ed.  1062. 

D.  C.  Ryan  v.  Washington  &  G. 
R.  Co.,  8  App.  D.  C.  542. 

111.    Canon  v.  Grigsby,  116  111.  151, 

5  N.  E.  362,  56  Am.  Rep.  769 ;  Chica- 
go City  Ry.  Co.  v.  Sandusky,  99  111. 
App.  164,  judgment  affirmed  64  N.  E. 
990.  198  111.  400:  Chicago  Athletic 
Ass'n  V.  Eddy  Electric  Mfg.  Co.,  77 
111.  App.  204. 

Md.  Maryland  Steel  Co.  v.  Fugle- 
man, 61  A.  314,  101  Md.  661. 

Mo.  Cutts  V.  Davison  (App.)  184 
S.  W.  921;  Castle  v.  Wilson  (App.) 
183  S.  W.  1106 :   Doan  v.  St.  Louis,  K. 

6  N.  W.  Ry.  Co.,  43  Mo.  App.  450; 
Flynn  v.  St.  Louis  &  S.  F.  Ry.  Co., 
43  Mo.  App.  424 ;  Norton  v.  St.  Louis 
&  H.  Ry.  Co.,  40*Mo.  App.  642;  Mc- 
Allister V.  Barnes,  35  Mo.  App.  668 ; 
Kinney  v.  City  of-  Springfield,  35  Mo. 
App.  97 ;    City  of  Hannibal  v.  Rich- 


ards, 35  Mo.  App.  15;  Desberger  v. 
Harrington,  28  Mo.  App.  632. 

Contra,  Andrews  v.  Runyon,  65 
Cal.  629,  4  P.  669 ;  McCaleb  v.  Smith, 
22  Iowa,  242. 

87  Bartz  V.  Chicago  City  Ry.  Co.. 
116  ni.  App.  554 ;  Sidway  V.  Missouri 
Land  &  Live  Stock  Co.,  63  S.  W.  705, 
163  Mo.  342 ;  Hanson  v.  Kont  &  Pur- 
dy  Paint  Co.,  129  P.  7,  3©  Okl.  583. 

8  8  Graham's  Adm'r  v.  Illinois  Cent. 
R.  Co.,  215  S.  W.  60.  185  Ky.  370: 
State  V.  Steele,  126  S.  W.  406,  220 
Mo.  583 ;  Mosso  v.  E.  H.  Stanton  Co., 
148  P.  594,  85  Wash.  499. 

8  9  Jones  v.  Lanham,  93  S.  E.  399, 
147  Ga.  241. 

80  Iowa.  Smith  v.  Sioux  Citj-,  93 
N.  W.  81,  119  Iowa,  50. 

Kan.  Park  View  Hospital  Co.  y. 
Randolph  Lodge,  No.  216,  I.  O.  O.  F., 
162  P.  302,  99  Kan.  488. 

Mo.  Laird  y.  Keitbley,  201  S.  T^^ 
1138;  Naylor  v.  Chinn,  82  Mo.  App. 
160. 

Xeb.  Coffey  "v.  Omaha  &  C.  B.  St. 
Ry.  Co.,  112  N.  W.  589,  79  Neb.  280. 

Wash.  Rust  V.  Washington  Tool  tt 
Hardware  Co.,  172  P.  840,  101  Waslx 
552. 

9^  Alaska  S.  S.  Co.  v.  Pacific  Coast 
Gypsum  Co.,  138  P.  875,  78  Wash.  247. 

9  2  Chicago  City  Ry.  Co.  v.  Abler. 
107  III.  App.  .397. 


§  441  INSTRUCTIONS  TO  JURIES  800 

M.  Necessity  of  Written  Instructions 

Necessity  that  requests  for  instructions  be  in  writing,  see  post,  §§  485,  486. 

1.  Rule  in  Absence  of  Statutory  Regulation 

§  441.     Instructions  may  be  oral 

In  the  absence  of  any  statutory  provisions  to  the  contrary,  it 
is  proper  for  the  court  to  charge  the  jury  orally.^^  although  it  is 
considered  to  be  the  better  practice  to  reduce  instructions  to  writ- 
ing,^* particular!}'  in  criminal  cases. ^^  Where  it  is  within  the  dis- 
cretion of  the  court  to  give  oral  instructions,  they  may  be  partly 
oral  and  partly  in  writing.^® 

§  442.     Right  or  duty  of  party  desiring  to  except  to  instructions 

Where  the  court  exercises  its  power  to  give  oral  instructions,  it 
is  the  right,^'  or  duty,  of  one  who  desires  to  except  to  an  instruc- 
tion to  have  it  reduced  to  writing.^* 

2.  Rule  under  Statutes 
§  443.     In  general 

In  the  majority  of  the  states  legislation  has  been  enacted  which 
has  modified  or  taken  away  altogether  the  common-law  power 
of  the  court  to  give  oral  instructions,  both  in  civil  ^*  and  in  crim- 
inal cases.^     In   some  jurisdictions  such   statutes  have  only  had 

3  3  Rosenkovitz    v.    United    Rys.    &  Ga.    Bowden  v.  Achor,  95  Ga.  243, 

Electric  Co.  of  Baltimore  City,  70  A.  22  S.  E.  254. 

108,  108  Md.  306;    Hussey  v.  Ryan,  m.     Dailv  v.  Boudreau,  83  N.  E. 

64  Md.  420.  2  Atl.  729.  54  Am.  Rep.  218,  231  111.  228 ;    Hu^lies  v.  Eldorado 

772 ;    Harden   v.   Wheelock,   1   Mont.  Coal  &  Minlni?  Co.,  197  111.  App.  259 ; 

49 ;    Newton   v.    Consolidated   Const.  Elgin  Citv  Banking  Co.  v.  Chicago.  M. 

Co..    150   N.    W.   348,    184   Mich.    63;  &   gt.  P.^Ry.  Co.,  160  111.  App.  364; 

Sheahan  v.  Barry,  27  Mich.  217.  Chicago  Hydraulic  Press  Brick  Co.  v. 

f- 4  Mutual   Life   Ins.    Co.    of   Baltl-  Campbell,  116  111.  App.  322. 

more  v.  Rain,  70  A.  87,  108  Md.  353.  t..,;i      ivr^n-  ^   rr^^^^^   oo  tvt   t:^  ko- 

00  Munson  v.  State,  213  S.  W.  916,  .f,^^'    ?!?,".%'                  ^     ' 

141  Tenn   522  ^^* 

9  0  Warren  Bros.  Co.  v.  Wright  (O.  ..1°^^'    ^^'"''^^  ^-  ^^^^^'  ^  ^'  Greene, 

C.  A.  W.  Va.)  239  F.  71,  152  C.  C.  A.  ^^„ 

121.                                .  Mo'     Belk  V.   Stewart,  142   S.   W. 

"97  Smith  V.  Crichton,  33  Md.  103.  ^S.o,    160    Mo.    App.    706;     Peck    v. 

98Keithler  v.  State,  10  Smedes  &  Springfield  Traction   Co.,   110   S.   W. 

M.  (Miss.)  192.  "^^'  1^^  ^^^-  ^PP-  134. 

»»Colo.      Lee  v.  Stahl,  9  Colo.  208,  Neb.     Hartwig  v.  Gordon,  37  Neb. 

11   P.  77 ;    .Montelius  v.  Atherton,   6  657,  56  N.  W.  324. 

Colo.  224.  lAla.     Richardsbn  v.  State,  75  So. 

Fla.      Southern    Exp.    Co.    v.    Van  629,  16  Ala.  App.  81. 

Meter,  17  Fla.  783,  35  Am.  Rep.  107;  Fla.     McKinney  -  v.    State,    76    So. 

Doggett  V.  Jordan,  2  Fla.  541.  333,  74  Fla.  25. 


801 


FORMAL  MATTERS 


§443 


the  effect  of  requiring  requested  instructions  to  be  reduced  to 
writing,^  but,  under  many  of  these  statutes,  a  request  for  written 
instructions  or  an  objection  to  oral  instructions  by  a  party  will 
make  it  error  for  the  court  to  charge  orally,^  and  under  other  stat- 
utes the  giving  of  oral  instructions  is  authorized  only  when  written 
instructions  are  expressly  waived  by  the  parties,*  and  it  is  a  gen- 
eral rule  under  such  statutes,  that  the  giving  of  oral  instructions 


Iowa.  State  v.  Birmingham,  74 
Iowa,  407,  38  N.  W.  121. 

Kan.     State  v,  Huber,  8  Kan.  447. 

Ky.  Fersuson  v.  Commonwealth, 
132  S.  W.  1030.  141  Ky.  457 ;  Coppage 
V.  Commonwealth,  3  Bnsh,  532. 

Mont.  State  v.  Tudor,  131  P.  632, 
47  Mont.  ISo. 

N.  M.  Leonardo  v.  Territory,  1  N. 
M.  291. 

Okl.  Rea  V.  State,  105  P.  386,  3 
Okl.  Cr.  281,  rehearing  d'enied  106 
P.  982,  3  Okl.  Cr.  281. 

Tenn.  Huddleston  v.  State,  1 
Baxt,  109. 

Tex.  Coley  v.  State,  150  S.  W. 
789,  68  Tex.  Cr.  R.  14;  Winfrey  v. 
State,  56  S.  W.  919,  41  Tex.  Cr.  R. 
538. 

Wis.  Penberthy  v.  Lee,  51  Wis. 
261.  8  N.  W.  116. 

2Bapr  V.  Rooks  CC.  C.  A.  Ind.  T.) 
50  Fed.  898.  2  C.  C.  A.  76;  Gulf,  C 
&  S.  F.  R.  Co.  V.  Childs,  49  Fed.  358, 
1  C.  C.  A.  297;  Gulf,  C.  &  S.  F.  R. 
Co.  V.  Campbell,  49  Fed.  354,  1  C. 
C.  A.  293. 

s  Colo.  Tvler  v.  McKenzie,  95  P. 
943,  43  Colo.  233. 

Conn.  Allen  v.  Rundle,  50  Conn.  9, 
47  Am.  Rep.  599. 

Ga.  Forrester  v.  Cocke,  65  S.  E, 
1063,  6  Ga.  App.  829 ;  Homer  v.  State, 
65  S.  E.  701,  6  Ga.  App.  667 ;  Strick- 
land V.  State,  65  S.  E.  300,  6  Ga.  App. 
536 ;  Central  of  Georgia  Ry.  Co.  v. 
Perkersou,  41  S.  E.  1018,  115  Ga.  547. 

111.  Concord  Apartment  House 
Co.  V.  Alaska  Refrigerator  Co.,  78 
111.  App.  682;  Harvey  v.  Keegan,  78 
111.  App.  475. 

Ind,  Stephenson  v.  State,  110  Ind. 
358,  11  N.  E.  360,  59  Am.  Rep.  216; 
Shafer  v.  Stinson,  76  Ind.  374;  Da- 
vis V.  Foster,  68  Ind.  238. 

Iowa.  Head  v.  Langworthy,  15 
Inst.to  Juries— 51 


Iowa,  235;  Stratton  v.  Paul,  10 
Iowa,  139. 

Kan.  Scruton  v.  Hall,  50  P.  964,  6 
Kan.  App.  714;  Jenkins  v.  Levis,  23 
Kan.  255. 

Ky.  Traders'  Deposit  Bank  v. 
Henry,  49  S.  W.  536.  20  Ky.  Law  Rep. 
1506,  105  Kv.  707 ;  Louisville  &  N,  R. 
Co.  V.  Banks,  33  S.  W.  637. 

I/a.  Kellar  v.  Belleaudeau,  5  La. 
Ann.  609. 

N.  C.  Sawver  v,  Roanoke  R.  & 
Lumber  Co.,  55  S.  E.  84,  142  N.  C.  162; 
.Jenkins  v.  Wilmington  &  W.  R.  Co., 
110  N.  C.  438.  15  S.  E.  193 ;  Drake  v. 
Connelly,  107  N.  C.  463,  12  S.  E.  251. 

Ohio.  Householder  v.  Granby,  40 
Ohio  St.  430;  Hardy  v.  Turney,  9 
Ohio  St.  400. 

Okl.  Bogirs  V.  United  States,  65  P. 
927.  10  Okl.  424,  11  Okl.  139;  Id.,  63 
P.  969,  10  Okl.  424. 

Tex.  Sharman  v.  Newsome  iPc 
Johnston  (Civ.  App.)  101  S.  W.  1020. 

Wash.  Mcintosh  v.  Sawmill  Phtje- 
nix,  94  P.  930,  49  Wash,  152. 

In  Texas,  under  an  earlier  statute 
than  the  present  one,  the  requirement 
of  written  instructions  was  held  to 
be  merely  directory,  and  the  omission 
to  put  a  charge  in  writing  was  no 
ground  for  a  reversal  of  judgment. 
Reid  V.  Reid.  11  Tex.  585 ;  Boone  v. 
Thompson,  17  Tex.  605 ;  Toby  v.  Hei- 
denheimer,  1  White  &  W.  Civ.  Cas. 
Ct.  App.  §  795;  Gulf,  C.  &  S.  F.  Ry. 
Co.  V.  Holt,  Id.  §  835. 

4  Forszen  v.  Ilurd,  126  N.  W.  224, 
20  N.  D.  42 ;  Gordon  Jones  Const.  Co. 
V.  Lopez  (Tex.  Civ.  App.)  172  S.  W. 
987;  Dalton  v.  Dalton  (Tex.  Civ. 
App.)  143  S.  W.  241;  Gonzales  v. 
State,  110  S.  W.  740,  53  Tex.  Cr.  R. 
430;  Schwartzlose  v.  Mehlitz  (Tex. 
Civ.  App.)  81  S.  W.  68. 


§44^ 


INSTRUCTIONS  TO  JURIES 


802 


in  a  criminal  case  without  the  consent  of  the  defendant  is  error ;  ^ 
such  rule  applying-  even  in  a  prosecution  for  a  misdemeanor.^ 

Such  statutory  provisions  are  regarded  as  mandatory  in  some 
jurisdictions,"  and  error  follows  from  a  refusal  to  comply  with 
their  requirements,  regardless  of  whether  injury  results  there- 
from.* In  one  jurisdiction,  how^ever,  where  the  statute  has  been 
construed  to  be  mandatory,  it  has  been  held  that  the  appellate 
court  cannot  reverse  because  of  the  refusal  of  the  trial  court  to 
comply  with  a  request  to  instruct  in  writing,  unless  the  reviewing 
court  can  see  that  the  party  making  such  request  has  been  preju- 
diced by  such  refusal.®  In  Tennessee,  where  the  statute  has  been 
construed  to  be  an  imperative  direction  to  the  courts  to  reduce  to 
writing  every  word  of  their  charge  in  all  felony  cases,  it  is  never- 
theless held  that  the  statute  is  to  be  considered  in  connection  with 
a  later  statute  forbidding  a  reversal  of  any  case  for  any  error  in 
the  procedure  of  the  trial  court,  unless  the  reviewing  court  is  of 
the  opinion,  after  an  examination  of  the  entire  record,  that  the  er- 


5  Cal.  People  V.  Max,  45  Cal.  554 : 
People  V.  Prof?nero.  44  Cal.  186 ;  Peo- 
ple V.  Trim.  37  Cal.  274:  People  v. 
Woppner,  14  Cal.  437:  People  v.  Ah 
Fonjr.  12  Cal.  345 :  People  v.  Demint, 
8  Cal.  423;  People  v.  Payne.  8  Cal. 
341 ;    Same  v.  Beeler,  6  Cal.  246. 

Fla.     Long  v.  State,  11  Fla.  295. 

Ind.  Leseuer  v.  State,  95  N.  E. 
239,  176  Ind.  448;  Feriter  v.  State.  33 
Tnd.  283;  Widner  v.  State,  28  Ind. 
394. 

La.  State  v.  Porter,  35  La.  Ann. 
535;  State  v.  Gilmore,  26  La.  Ann. 
599.  • 

Miss.  Stewart  v.  State,  50  Miss. 
587 

Neb.  Ehrlich  v.  State,  44  Neb.  810. 
G3  N.  W.  35. 

N.  M.  Territory  v.  Lopez,  3  N.  M. 
(Gild.)  156,  2  P.  364. 

N.  C.  State  v.  Black,  78  S.  E.  210, 
1G2  N.  C.  637. 

Okl.  Swag:gart  v.  Territory,  50  P. 
no,  6  Olil.  344. 

Tex.  Harlvey  v.  State,  33  Tex.  Cr. 
P.  100.  25  S.  W.  201.  47  Am.  St.  Pop. 
19;  Clnrk  v.  State,  31  Tex.  574:  Mel- 
ton V.  State,  12  Tex.  App.  488;  Wil- 
liam.s  V.  State,  5  Tex.  App.  615 ;  Trip- 
pett    V,    State,    Id.    595;     Jordan    v. 


State,    Id..    422;     Gibbs    v.    State,    1 
Tex.  App.  12. 

6  Chesapeake  &  O.  Ry.  Co.  v.  Com- 
monwealth. 210  S.  W.  793,  184  Ky.  1 ; 
Allen  V.  Commonwealth,  146  S.  W. 
762,  148  Ky.  .327;  Edwards  v.  State 
(Tex.  Cr.  App.)  69  S.  W.  144. 

7  Ark.  Arnold  v.  State,  74  S.  W. 
533.  71  Ark.  367. 

Ind.  Bradway  v.  Waddell,  95  Ind. 
170. 

Kan.  Jenkins  v.  Levis,  23  Kan. 
2.55;  City  of  Atchison  v.  Jansen,  21 
Kan.  560;  State  v.  Potter,  15  Kan. 
302. 

Mont.  State  v.  Fisher,  59  P.  919. 
23  Mont.  540. 

Tenn.  Newman  v.  State,  6  Baxt. 
164. 

In  Pennsylvania,  the  failure  of 
the  judse  to  file  the  points  and  an- 
swers, and  charge,  as  directed'  by  the 
statute  does  not  render  the  judgment 
erroneous,  nor  entitle  either  party  to 
a  reversal.  Scheuing  v.  Yard,  88  Pa. 
286:  Kerr  v.  O'Connor,  63  Pa.  341; 
Patterson  y.  Kountz,  63  Pa.  246. 

s  Territory  v.  Perea,  1  N.  M.  627 ; 
Territory  v.  Rivera,  1  N.  M.  640;  Mc- 
intosh v.  Sawmill  Phoenix,  94  P.  930, 
49  Wash.  152. 

0  Deets  V.  National  Bank  of  Pitts- 
burg, 46  P.  306,  57  Kan.  2S8. 


803 


FORMAL  MATTERS 


444 


ror  complained  of  affected  the  merits.^®    Only  the  party  aggrieved 
can  take  advantage  of  a  violation  of  the  statutory  requirement." 

§  444.     Scope  of  such  provisions 

Such  statutory  requirements  forbid  an  oral  instruction  which  is 
in  the  nature  of  an  argument  upon  the  facts  and  the  duty  of  the 
jury  to  agree  upon  a  verdict,*"  apply  to  statements  of  rules  of 
law  governing  the  matters  in  issue  or  the  amount  of  recovery/^ 
govern  an  instruction  to  disregard  a  particular  count  or  counts 
of  a  complaint/*  and  make  it  error  to  read  to  the  jury  portions  of 
the  pleadings,**'  or  the  statute  upon  which  the  action  or  prosecution 
is  based, *^  instead  of  embodying  them  in  the  written  instructions ; 
and  a  statement  made  by  the  court,  after  questioning  a  witness,  as 
to  the  character  of  his  acts,*'  or  a  charge  during  the  arguments  of 
counsel  for  the  purpose  of  correcting  statements  made  by  the  lat- 
ter,** may  be  such  as  to  be  required  to  be  in  writing. 

So  such  requirements  apply  to  the  giving  o"f  special  requests  to 
charge  which  are  not  a  part  of  the  record  in  the  case,  and  it  is 
not  sufifiicient  for  the  court  to  simply  state  in  its  charge  that  at  a 
certain  point  therein,  indicated  by  a  notation,  it  read  certain  pray- 


10  Munson  v.  State,  213  S.  W.  916, 
141  Tenn.  522. 

11  Hogel  V.  Linden,  10  Mo.  483. 

12  City  of  Abingdon  v.  Meadows,  28 
111.  App.  442. 

1 3  Bradway  v.  Waddell,  95  Ind.  170. 
1*  Gardner-Wilmington  Coal  Co.  v. 

Knott.  115  III.  App.  515. 

15  Woodruff  V.  Hensley,  eo  N.  E. 
312.  26  Ind.  App.  592. 

The  earlier  cases  in  Indiana  held 
that  it  was  not  reversiMe  error  for 
the  court  to  read  the  different  plead- 
ings to  the  .iury  in  connection  with 
his  charge,  though  the  instructions 
were  requested  to  be  in  writing.  Col- 
lins V.  Williams,  52  N.  E.  92,  21  Ind. 
App.   227. 

In  Iowa  it  is  hold  that,  if  a  plead- 
ing is  read  as  a  part  of  the  charge, 
though  not  included  in  it,  the  error  is 
not  prejudicial  when  the  charge  con- 
tains full  insti-uctions  as  to  the  issues. 
Hall  V.  Carter,  74  Iowa,  364,  37  N.  W. 
956;    Palmer  v.  State,  29  Ark.  248. 

16  Chicago  &  E.  R.  Co.  v.  Murphy, 
101  N.  E.  829,  54  Ind.  App.  351 ;  Sel- 
lers V.  City  of  Greenca^tle.  134  Ind. 
645,  34  N.  E.  534 ;  Bottorff  v.  Shelton, 
79  Ind.  98;  Garrison  v.  State.  114  S. 
W.  128,  54  Tex.  Cr.  R.  600. 


Contra,  People  v.  Mortier,  58  Cal. 
262 ;  State  v.  Mortimer,  20  Kan.  93 ; 
State  V.  Stewart,  9  Nev.  120. 

In  Georgia  the.  trial  judge  may 
read  statutory  provisions  to  the  jury 
without  copying  them  in  his  charge, 
Burns  v.  State,  15  S.  E.  748,  89  Ga.  527. 
But  when  he  undertakes  to  comply 
with  the  requirement  that  his  charge 
be  in  writing  by  noting  in  his  writ- 
ten instructions  the  sections  of  the 
statutes  which  he  may  read  to  the  ju- 
ry, it  must  unequivocally  appear  from 
the  charge  that  the  sections  were  in 
fact  read  as  noted.  Hays  v.  State. 
74  S.  E.  314,  10  Ga.  App.  823. 

In  Michigan  it  has  been  held,  un- 
der a  statute  which  did'  not  provide 
for  the  taking  of  the  written  instruc- 
tions to  the  jury  room,  but  only  that 
they  be  filed,  that  the  reading  of  a 
general  law  and  a  reference  to  it  in 
the  written  instructions  constituted  a 
compliance  with  the  spirit  of  the  stat- 
ute requiring  such  instructions. 
Swartwout  v.  Michigan  Air  Line  R. 
Co.,   24   Mich.  3S9. 

17  State  V.  Potter,  102  S.  W.  668, 
125  Mo.  App.  465. 

i«  State  V.  Shipley,  174  Mo.  512,  74 
S.  W.  612. 


§  445 


INSTRUCTIONS  TO  JURIES 


804 


ers  or  requests.-^'  So  such  requirements  apply  to  a  submission  of 
special  issues  to  the  jury,'^®  and  preclude  the  court  from  orally  in- 
structing the  jury  as  to  the  method  they  are  to  pursue  in  arriving 
at  the  amount  of  a  verdict,'^i  or  from  orally  instructing  the  jury 
in  a  criminal  case  as  to  what  punishment  they  are  authorized  to 
inflict,^'  or  from  verbally  instructing  the  jury  not  to  discuss  the 
fact  that  defendant  did  not  testify,"^ 

It  has  been  held  that,  when  a  request  is  made  that  instructions 
be  reduced  to  writing,  it  is  bad  practice  for  the  court  to  make  oral 
comments  or  suggestions,  even  though  they  do  not  amount  to  an 
instruction.^* 

§  445.     Modifications  and  explanations 

The  general  rule  is  that  such  statutes  can  be  invoked  to  prevent 
the  court  from  orally  qualifying  or  modifying  a  written  instruction 
given,^"  and  where  counsel,  demanding  that  the  whole  charge  be 
put  in  writing,  also  presents  certain  requests,  which  are  given 
with  modifications,  the  modifications  should  also  be  reduced  to 


10  TVhi taker  v.  State.  75  S.  E.  258, 
11  Oa.  App.  20S.  certified  questions 
answered  75  S.  E.  254.  138  Ga.  1?.9. 

20  Adams  v.  Burrell  (Tex.  Civ. 
App.)  127  S.  W.  581. 

21  Aurora  Trust  &  Savings  Bank  v. 
Fidler,  200  111.  App.  2.3.3. 

22  Ellis  V.  People,  159  111.  337.  42 
N.  E.  873;  Eittell  v.  State,  133  Ind. 
577,  .33  N.   E.  417. 

2  3  Winfrey  v.  State,  200  S.  W.  151, 
84  Tex.  Cr.  R.  579. 

24  Chamness  v.  Cox,  30  N.  E.  901, 
131   Ind.  118. 

2r,  Ala.     Edsar  v.  State,  43  Ala.  45. 

Cal.  People  v.  Demint,  8  Cal.  423 ; 
People  V.  Payne,  Id.  341. 

Colo.     Dorsett  v.  Crew,  1  Colo.  18. 

Fla.  Morrison  v.  State,  28  So.  97, 
42  Fla.  149. 

Ga.  Campbell  v.  [Miller,  38  Ga.  304, 
95  Am.  Dec.  389. 

ni.     Ray  V.  Wooters,  19  111.  82.- 

Ind.  Provines  v.  Heaston,  67  Ind. 
482. 

Midi.  O'Donnell  v.  Segar,  25 
Mir-h.  307. 

Ohio.  Riipp  V.  Shaffer,  21  Ohio 
CIr.  Ct.  R.  043,  12  O.  C.  D.  154. 

Tenn.  Columbia  Veneer  &  Box  Co. 
V.  Cottonwood  Lumber  Co.,  41  S.  W. 
351,  99  Tenn.  122. 


Matters  not  constituting  modifi- 
cation of  instruction  within  rule. 

Where,  in  a  prosecution  for  assault 
with  a  pistol,   the  court  charged,  at 
defendant's  request,  that  if  there  was 
a    probability    of    defendant's    inno 
cence,  and  unless  the  evidence  exclud- 
ed every  reasonable  supposition   but 
that  of  defendant's  guilt,  he  should  be 
acquitted,  and  that  if  any  individual 
juror  is  not  convinced  of  defendant's 
guilt  beyond  all  reasonable  doubt  and 
to  a  moral  certainty,  and  there  is  a 
reasonable  supposition  of  defendant's 
innocence,  he  should  be  acquitted,  and 
added  that  such  charges  were  given 
in  connection  with  the  general  charge, 
and  all  mean  that  the  jury  could  not 
convict  until  satisfied  beyond  all  rea- 
sonable  doubt    of   defendant's    guilt, 
such  latter  statement  did  not  amount 
to  a  qualification  of  the  written  charg- 
es prohibited  by  tlie  statute.    Holmes 
v.    State,    34    So.    180,    136    Ala.    SO. 
Wliere  court  after  having  read  to  ju- 
ry all  written  charges  asked  by  de- 
fend'ant,  stated  they  were  not  to  be 
taken  to  explain,  vary,  or  contradict 
general  charge,  but  in  connection  with 
it  such  statement  was  not  improper 
as   qualification   of    written   charges. 
I'illar  V.   State,   74   So.  398,   15  Ala. 
App.  576. 


805 


FORMAL  MATTERS 


§  446 


writing,-*'  and  even  verbal  explanations  may  be  of  such  a  char- 
acter as  to  be  excluded  by  a  request  for  a  written  charge."  But 
the  simple  withdrawal  of  an  instruction  by  the  court  is  not  a 
violation  of  a  statute  which  prohibits  the  modifying,^  qualifying,  or 
explaining  of  instructions  otherwise  than  in  writing.-* 

§  446.     Limitations  of  statutory  rule 

The  above  statutory  requirements  are  to  be  reasonably  construed 
with  reference  to  the  purposes  to  be  secured  thereby.-^  Their  re- 
strictive effect  does  not  extend  to  remarks  of  the  court  not  ad- 
dressed to  the  jury ,20  and  not  every  direction  given  or  every  state- 
ment or  explanation  made  to  the  jury  is  regarded  as  an  instruc- 
tion required  to  be  in  writing  within  such  statutes.^^ 


2  6  City  Bank  of  Maeon  v.  Kent,  57 
Ga.  2S3. 

27  Ark.  Mazzia  v.  State,  51  Ark. 
177,  10  S.  W.  257. 

Cal.     People  V.  Payne,  8  Cal.  341. 
lU.     Burns  v.  People,  45  111.  App. 
70. 

Ind.  Meredith  v.  Crawford,  34 
lud.  399 ;  Tenbrook  v.  Brown,  17  Ind. 
410 ;  Laselle  v.  Wells,  17  lud.  33 ; 
Lung  V.  Deal,  16  Ind.  349;  Ken- 
wortliy  V.  Williams,  5  Ind.  375; 
Townsend  v.  Chapin,  8  Blackf.  (Ind.) 
328 

Kan.     State  v.  Potter,  15  Kan.  302. 
Ky.    Payne    v.    Commonwealth,    1 
Mete.   370.^ 

Contra,  IMorris  v.  State,  25  Ala.  57. 

2  8  Chicago  &  E.  I.  R.  Co.  v.  Zapp, 

110  111.  App.  553,  judgment  affirmed  70 

N.   E.    623,   209   111.   3.39;     Bochat  v. 

Knisely,  144  111.  App.  551. 

See.  also,  post,  §  456,  note  16. 
Withdrawal  of  instruction  in- 
advertently given.  Where  an  er- 
roneous instruction  has  been  inad- 
vertently given,  and  has  been  formal- 
ly withdrawn  from  the  consideration 
of  the  jury  in  any  way,  so  the  jury 
understand  it  is  no  longer  to  be  con- 
sidered by  them  in  determining  the 
case,  it  is  no  longer  an  instruction, 
and  its  withdrawal  cannot  be  treated 
as  a  qualilieation,  modification,  or  ex- 
planation of  a  given  instruction,  or 
a  violation  of  the  statutory  rule.  De- 
vine  V.  Citv  of  Chicago,  178  111.  App. 
39. 

EfiPect   of   remarks  of   court    ac- 
companying    Tjritkdra^val     of     in- 


struction. Where,  after  giving  and 
reading  an  instmction  to  the  jury, 
the  court,  desiring  to  withdraw  it,  ad- 
dressing the  jury  orally,  referring  to 
this  instruction,  said:  "Shall  I  read 
it  to  you  once  more,  gentlemen  of 
the  jury,  or  will  you  bear  in  mind 
that  the  instruction  last  read  is  with- 
drawn? AVill  that  be  sufficient?"  and 
to  this  the  jurors  replied,  "Yes,  sir  ; 
that  will  be  sufficient"  it  was  held 
that  the  oral  instruction  was  error. 
North  Cliicago  St.  R.  Co.  v.  Johuson, 
84  111.  App.  670. 

2  9  Walton  V.  Wild  Goose  Min.  & 
Tradmg  Co.,  123  F.  209,  60  C.  C.  A. 
155. 

3  0  Illinois  Cent.  Pt.  Co.  v.  Senders, 
79  111.  App.  41 ;  Hasbrouck  v.  City  of 
Milwaukee,   21   Wis.  217. 

31  Ala.  Malachi  v.  State,  89  Ala. 
134,  8  So.  104. 

Ark.  Arkansas  Lumber  &  Con- 
tractors' Supply  Co.  V.  Benson,  123  S. 
W.  367,  92  Ark.  392. 

Colo.  Bush  V.  People,  187  P.  528, 
68  Colo.  75;  Irving  v.  People,  95  P. 
940,  43  Colo.  260. 

Fla.  Barton  v.  State,  73  So.  230, 
72  Fla.  408. 

Ga.  Walker  v.  State,  72  S.  E.  531, 
10  Ga.  App.  85. 

111.  Kizer  v.  People,  71  N.  E.  1035, 
211  111.  407;  Hincklev  v.  Horazdow- 
sky,  23  N.  E.  338 ;  O'Donnell  v.  Peo- 
ple, 110  111.  App.  250,  judgment  af- 
firmed Gallagher  v.  Same,  71  N.  E. 
842,  211  111.  158;  Jenkins  &  Reynolds 
Co.  V.  Lundgren,  85  111.  App.  494; 
Hallermann  v.  Baltimore  &  O.  S.  W. 


§  446 


INSTRUCTIONS   TO  JURIES 


80G 


As  a  general  rule  statements  made  to  the  jury  will  be  regarded 
as  instructions,  for  the  purposes  of  such  statutes,  only  when  they 


Ry.  Co.,  77  111.  App.  404 ;  Carlyle  Can- 
ning Co.  v.  Baltimore  &  O.  S.  W.  Ry. 
Co.,  77  111.  App.  396. 

Ind.  Wall  V.  State,  10  Ind.  App. 
530,  38  X.  E.  190;  Lehman  v.  Hawks, 
121  Ind.  541,  23  N.  E.  670;  Pate  v. 
Wright,  30  Ind.  476,  95  Am.  Dec.  705. 
Iowa.  State  V.  Hogan,  88  N.  W. 
1074,  115  Iowa,  455. 

Ky.  Aiken  v.  Commonwealth,  68 
S.  W.  840,  24  Ky.  Law  Rep.  523; 
Green  v.  Commonwealth,  33  S.  W. 
100. 

Micli.  O'Donnell  v.  Segar,  25 
Mich.  367. 

Mo.  State  v.  Crofton,  197  S.  W. 
136,  271  Mo.  507;  State  v.  Dewitt,  53 
S.  W.  429, 152  Mo.  76  ;  State  v.  Moore, 
117  Mo.  395,  22  S.  W.  1086. 

Neb.  Grammer  v.  State,  172  N.  W. 
41.  103  Neb.  325. 

Nev.  State  v.  Waterman,  1  Nev. 
543. 

Tex.  McGaughey  v.  State.  169  S. 
W.  287,  74  Tex.  Cr.  R.  529 ;  Bush  v. 
State  (Cr.  App.)  70  S.  W.  550. 

Directions,  statements,  or  re- 
marks not  TFithin  scope  of  statute. 
A  direction  to  the  jury  to  reject  evi- 
dence, as  to  the  form  of  verdict  or 
the  like.  Bradway  v.  W'addell,  95 
Ind.  170.  Statements  by  the  court  in 
ruling  on  an  objection  to  an  opening 
statement,  in  which  the  purposes  of 
the  opening  statement  in  general  and 
in  relation  to  the  cause  on  trial  are 
referred  to.  Frick  v.  Kabaker,  90  N. 
W.  408,  116  Iowa,  494.  Wliere  the 
court  was  requested  to  instract  in 
writing,  and  the  court  before  reading 
the  written  instructions  stated,  "The 
plaintiff  has  requested  me  to  give  you 
some  instructions  which  are  in  writ- 
ing, and  I  will  read  them  first  and 
read  them  as  the  law,"  it  did  not 
amount  to  the  giving  of  oral  instruc- 
tion. Dodd  V.  Moore,  91  Ind.  522. 
\vhcre  the  jury  sent  two  questions  in 
writing  to  the  judge,  who  orally  in- 
structed them  that  the  questions  had 
nothing  to  do  with  the  case,  and  that 
it  was  their  duty  to  detennine  the 
case  under  the  evidence  and  instruc- 
tions already  given,  this  oral  refusal 


further  to  instruct  was  no  violation 
of  the  statutory  requirement  that  in- 
structions must  be  in  writing,  as  it 
was  merely  a  refusal  to  give  further 
instructions.  Sullivan  v.  Collins,  IS 
Iowa,  228.  In  a  prosecution  for  ille- 
gal sale  of  liquor,  an  election  by  the 
state  as  to  the  transaction  on  which 
it  relies  for  conviction,  if  it  be  in 
writing,  need  not  be  copied  into  the 
instructions,  and  may  be  read  to  the 
jury  at  the  time  the  charge  is  deliver- 
ed, without  violating  the  statute  re- 
quiring instructions  to  be  in  writing 
and  to  be  filed  with  the  papers.  State 
V.  Younger,  78  P.  429,  70  Kan.  226. 
Oral  remarks  of  the  court  after  read- 
ing an  instruction  containing  a  state- 
ment of  the  charge  against  accused 
and  his  plea  of  guilty  that  the  infor- 
mation is  not  evidence,  and  that  the 
instruction  is  merely  to  inform  the 
jury  of  the  nature  of  the  crime  charg- 
ed. State  v.  Marion,  124  P.  125,  68 
Wash.  675.  A  general  remark  by  the 
court  in  regard'  to  the  length  of  the 
trial,  and  an  apology  for  his  impa- 
tience during  its  progress,  thougli 
made  in  connection  with  a  charge  to 
the  jury,  is  not  a  part  thereof,  which 
is  necessary  to  be  reduced  to  writing 
at  the  request  of  either  party.  Has- 
hrouck  V.  Milwaukee,  21  Wis.  217. 

Technical  violation  of  statute. 
Although  it  may  be  a  technical  viola- 
tion of  such  a  statute  it  is  not  reversi- 
ble error  for  the  trial  judge,  who  did 
not  notice  the  absence  of  the  oflicial 
reporter  from  the  courtroom,  to  give 
additional  oral  instructions  to  the 
jury  on  their  return  into  the  court- 
room, especially  where  appellant's  at- 
torney admits  that  he  did  not  call  the 
trial  judge's  attention  to  the  report- 
er's absence,  because  he  intended  to 
take  advantage  of  the  error  in  case 
the  verdict  went  against  him.  String- 
ham  V.  Cook,  75  Wis.  589,  44  N.  W. 
777.  The  fact  that  the  court  said  to 
the  jury,  not  in  writing,  after  the  ar- 
gument of  counsel:  "Gentlemen  of 
the  jury.  You  will  bear  in  mind  that 
you  are  to  try  this  case  according  to 
the  lavi'  and  evidence.    Remember  you 


807 


FORMAL  MATTERS 


§446 


embody  a  proposition  of  law  or  touch  the  merits  of  the  case,^~  and 
ordinarily  admonitions  made  by  the  court  during  the  progress  of 
the  trial  and  before  the  close  of  the  evidence  are  not  required  to 
be  in  writing.^^  It  is  not  reversible  error  to  state  the  contentions 
of  the  parties  orally  or  to  supplement  slight  omissions,  at  least  in 
the  absence  of  any  suggestion  of  prejudice  or  error. ^* 

Such  statutory  rule  does  not  apply  to  remarks  to  the  jurors  on 
their  voir  dire  examination,  explaining  what  will  or  will  not  dis- 
qualify them,^^  nor  does  it  apply  to  directions  to  the  jury  with  ref- 
erence to  visiting  the  scene  of  an  accident,^^  nor  to  remarks  made 
in  connection  with  rulings  on  the  admissibility  of  evidence,^'  nor 
to  a  statement  during  the  trial  calling  the  attention  of  the  jury  to 
the  purpose  for  which  certain  evidence  is  admitted,^*  nor  to  a  di- 
rection to  the  jury  to  disregard  certain  evidence,^®  nor  to  a  recapit- 
ulation of  the  evidence,*"  nor  to  a  direction  to  disregard  certain  re- 
marks of  counsel  or  of  the  court,*^  nor  to  g.  direction  to  the  jury 


have  been  sworn  to  try  this  case  ac- 
cording to  tlie  law  and  evidence. 
That  is  all.  Now  5'ou  can  retire  to 
your  room  and  answer  the  questions 
propounded" — could  not  have  preju- 
diced the  legal  rights  of  appellant. 
Iluntzicker's  Adm'r  v.  Pennsylvania 
Co.,  6  Ky.  Law  Rep.  (abstract)  662. 

3  2  111.  Burns  v.  People,  45  111.  App. 
70. 

Ind.  Hatfield  v.  Chenoweth,  56  N. 
E.  51,  24  Ind.  App.  343;  Collins  v. 
Williams,  52  N.  E.  92,  21  Ind.  App. 
227. 

Kan.     State  v.  Potter,  15  Kan.  302. 

N.  C.  State  v.  Dewey,  51  S.  E.  937, 
139  N.  C.  556. 

Okl.  Boggs  V.  United  States,  65 
P.  927,  10  Okl.  424,  11  Okl.  139;  Id., 
03  P.  969,  10  Okl.  424. 

Wash.  State  V.  Jensen  (Wash.) 
195  P.  238. 

3  3  Wendling  v.  Commonwealth,  137 
S.  W.  205,  143  Ky.  587. 

3  4  State  V.  Khoury,  62  S.  E.  638,  149 
N.  C.  454. 

3  5  Oberbeck  v.  Mayer,  59  Mo.  App. 
289. 

36  Pioneer  Fireproof  Const.  Co.  v. 
Sunderland,  58  N.  E.  928,  188  111.  341, 
affirming  judgment  87  111.  App.  213. 

3  7  Bloomer  v.  Sherrill,  11  111.  483; 
Fruchey  v.  Eagleson,  15  Ind.  App.  88, 
43  N.  E.  146;  Farmer  v.  Thrift,  94 
Iowa,  374,  62  N.  W.  804. 


3  8  Providence  Washington  Ins.  Co. 
V.  Wolf,  SO  N.  E.  26,  168  Ind.  090,  120 
Am.  St.  Rep.  395;  Littell  v.  State,  33 
N.  E.  417,  133  Ind.  577;  State  v. 
Thompson  (Wash.)  194  P.  553. 

3  9  111.  Western  Coal  &  Min.  Co.  v. 
Norvell,  212  111.  App.  218. 

Ind.  Madden  v.  State,  47  N.  E. 
220,  148  Ind.  183 ;  Stanley  v.  Suther- 
land, 54  Ind.  339. 

Iowa.  State  v.  Brennan,  169  N. 
W.  744,  185  Iowa,  73 ;  Krause  v.  Red- 
man, 112  N.  W.  91,  134  Iowa,  629; 
State  v.  Bigelow,  70  N.  W\  600,  101 
Iowa,  430. 

Ky.  Metcalfe  v.  Commonwealth, 
86  S.  W.  534,  27  Ky.  Law  Rep.  704. 

Mo.  State  v.  Good,  132  Mo.  114, 
33  S.  W.  790. 

Neb.  Consaul  v.  Sheldon,  35  Neb. 
247,  52  N.  W.  1104. 

Tex.  Winfield  v.  State  (Cr.  App.) 
54  S.  W.  584. 

40  State  V.  Dixon,  62  S.  E.  615,  149 
N.  C.  460;  Sawyer  v.  Roanoke  R.  & 
Lumber  Co.,  55  S.  E.  84,  142  N.  C. 
162 ;  Phillips  v.  Wilmington  &  W.  R. 
Co.,  41  S.  E.  805,  130  N.  C.  582. 

Contra,  McClay  v.  State,  Smith 
(Ind.)  215;  McClay  v.  State,  1  Ind. 
385. 

41  Hayes  v.  Wagner,  77  N.  E,  211, 
220  111.  256,  affirming  judgment  113 
111.  App.  299;  Ohio  &  M.  Ry.  Co.  v. 
Wangelin,  152  111.  138,  38  N.  E.  760, 


446 


INSTRUCTIONS  TO  JURIES 


808 


as  to  the  manner  in  which  they  shall  proceed,*''  nor  to  directions 
as  to  the  duties  of  the  jury  in  relation  to  their  answers  to  special 
interrogatories/^  nor  to  an  instruction  directing  a  verdict.** 

Where  a  question  to  the  court  by  a  juror  is  propounded,  the 
general  rule  is  that,  if  the  court  can  answer  it  by  a  simple  affirma- 
tion or  denial,  so  as  not  to  involve  the  making  of  an  independent 
statement  of  a  rule  of  law,  the  court  may  answer  such  question 
verbally,*^  and  it  is  held  that  an  answer  by  the  court  in  response 
to  a  question  by  a  juror  after  the  jury  has  been  charged  is  not  re- 
quired to  be  in  writing,*®  and  that  informing  the  jury,  in  response 
to  their  inquiry  on  returning  into  court  for  that  purpose,  that  they 
could  recommend  mercy,  but  that  their  recommendation  would  not 
be  binding,  is  not  an  additional  charge  required  to  be  in  writing.*' 

The  court  is  not  prevented  by  such  statutes  from  orally  remind- 
ing the  jury  of  their  duties  as  jurors,  and  impressing  upon  them 
the  importance  of  arriving  at  a  verdict  if  they  can  fairly  and  hon- 
estly agree.**  It  is  quite  generally  held  that  oral  statements  to  the 
jury  as  to  the  form  of  their  verdict  are  not  within  the  above  statu- 


affirming  43  111.  App.  324;  State  v. 
Smith,  109  N.  W.  115,  132  Iowa,  645. 

Contra,  Pecht  v.  State,  192  S.  W. 
243,  SO  Tex.  Cr.  R.  452. 

4  2  White-Kingsland  ISlfg.  Co.  v. 
Herdrich,  98  111.  App.  607. 

43  Lett  V.  Eastern  Moline  Plow  Co., 
91  N.  E.  978,  46  Ind.  App.  56 ;  Trent- 
man  V.  Wiley,  85  Ind.  33;  McCallis- 
ter  V.  Mount,  73  Ind.  559. 

4  4  Lacy  Bros.  &  Kimball  v.  Morton, 
89  S.  W.  842,  76  Ark.  603;  Geer  v. 
Dancer,  97  S.  E.  406,  148  Ga.  465; 
Young  V.  Burlington  Wire  Mattress 
Co.,  44  N.  W.  693,  79  Iowa,  415; 
Grant  v.  Connecticut  Mut.  Life  Ins. 
Co..  29  Wis.  125. 

In  Georgia,  earlier  holdings,  in 
the  cases  of  Harris  v.  McArthur,  90 
Ga.  216,  15  S.  E.  758,  and  Citizens' 
Bank  of  Bainbriuge  v.  Fort,  83  S. 
E,  235,  142  Ga.  611,  to  the  effect  that 
a  direction  of  a  verdict  must  be  in 
writing,  are  expressly  overruled  by 
tlie  casp  cited  in  support  of  the  text. 

In  Illinois,  it  is  held  that  while  it 
is  the  better  practice,  when  a  peremp- 
tory instruction  is  given  to  find  for 
one  of  the  parties,  to  give  a  written 
instruction,  a  failure  to  do  so  does 
not  constitute  reversible  error  (Fisher 
V.  Dunn,  200  111.  App.  63),  where  the 
facts  are  uncontradicted  and  clearly 


require  the  verdict  directed  (Sears  v. 
C.  C.  Emerson  &  Co.,  182  111.  App.  522; 
Derby  v.  Peterson,  128  111.  App.  494). 

45  State  V.  Potter,  15  Kan.  302. 

46  Millard  v.  Lyons,  25  Wis.  516. 
A  judgment  -will  not  be  reversed 

because  the  court  orally  answered  a 
question  asked  by  the  jury  after  they 
had  retired,  where  it  could  not  have 
prejudiced  the  plaintiff  in  error. 
Walton  V.  Wild  Goose  Mining  &  Trad- 
ing Co.  (C.  C.  A.  Alaska)  123  F.  209,  60 
C.  C.  A.  155. 

47  Dowling  V.  State,  67  S.  B.  697, 
7  Ga.  App.  613. 

48  Moore  v.  Citv  of  Platteville,  78 
Wis.  644,  47  N.  W.  1055. 

In  Tennessee,  however,  the  statute 
which  provides  that  it  shall  be  the 
duty  of  the  judge,  on  the  request  of 
either  party,  to  reduce  every  word  in 
his  charge  to  writing  before  deliver- 
ing it  to  the  jury,  and  all  subsequent 
instructions  shall  in  like  manner  be 
reduced  to  writing  before  being  deliv- 
ered, is  held  to  apply  to  oral  state- 
ments by  the  judge  to  the  jury,  before 
delivering  his  written  charge,  as  to 
their  duty  to  try  the  cause  on  the 
sworn  testimony.  Equitable  Fire  Ins. 
Co.  V.  Trustees  C.  P.  Church  at  Fos- 
terville,  91  Tenn.  135,  18  S.  W.  121. 


809 


FORMAL  MATTERS 


§  446 


tory  rule,"*^  if  such  a  statement  does  not  contain  any  directions  as 
to  the  law  of  the  case  or  any  comment  on  the  evidence.^" 

Oral  directions  to  the  jury  as  to  their  conduct  in  the  jury  room,^^ 
or  an  oral  admonition  with  respect  to  rumored  misconduct  on  the 
part  of  the  jury,^~  or  with  respect  to  the  authority  of  less  than  twelve 
jurors  to  render  a  verdict,^^  or  an  oral  direction  in  a  criminal  case, 
after  the  jury  have  brought  in  a  general  verdict  of  guilty,  to  return 
and  find  the  degree  of  the  offense,"*  are  held  not  to  be  violations 
of  the  statutory  requirement.  So,  after  the  jury  have  retired  and 
deliberated  on  their  verdict,  the  court  may  call  them  in  and  verbally 
question  them  as  to  the  possibility  of  their  agreeing  on  a  verdict 
and  send  them  back  to  the  jury  room.^^ 

The  oral  repetition  of  an  instruction  originally  given  in  writing 
is  not  improper.^®  In  one  jurisdiction  the  statutory  provision  is 
held  to  impose  merely  the  duty  to  have  the  instructions  in  writing 
and  subject  to  the  inspection  of  counsel  before  the  trial  ends,  and 
not  to  require  them  to  be  in  writing  before  being  given, to  the 
jury." 


4  9  111.  Conness  v.  Indiana.  I.  &  I. 
E.  Co..  62  N.  E.  221,  10.",  111.  464 ;  Illi- 
nois Cent.  R.  Co.  v.  Wheeler,  149  111. 
525,  36  N.  E.  1023 ;  Economy  Light  & 
Power  Co.  v.  Hiller,  113  111.  App.  103, 
judgment  affirmed  71  N.  E.  1096,  211 
111.  568. 

In.d.  Indianapolis  &  N.  "W.  Trac- 
tion Co.  V.  Henderson,  79  N.  E,  539, 
39  Ind.  App.  324;  Peelle  v.  State,  68 
K.  E.  6S2,  161  Ind.  378. 

Kan.  State  v,  Evans,  136  P.  270, 
90  Kan.  795,  judgment  affirmed  140  P. 
892,  92  Kan.  468. 

Neb.  Williams  v.  State,  95  N.  W. 
1014,  69  Neb.  402. 

Tex.  Ragsdale  v.  State,  134  S.  W. 
234,  61  Tex.  Cr.  R.  145. 

Wis.  State  v.  Glass,  50  Wis.  218, 
6  N.  W.  500,  36  Am.  Rep.  845. 

Contra,  Burns  v.  State,  89  Ga.  527, 
15  S.  E.  748. 

In  Illinois  it  has  been  held  that  in 
a  criminal  case  it  is  error  to  orally 
direct  the  jury  as  to  the  fonn  of  their 
verdict  (Helm  v.  People,  57  N.  E.  886, 
186  111.  15.3),  although  the  appellate 
court  has  held  that  such  an  oral  di- 
rection is  not  a  ground  for  reversal 
(People  V.  Shapiro,  207  111.  App.  130). 

Form  of  verdict  already  found 
and  presented.  A  statute  requiring 
the  charge  of  the  court  in  capital  cas- 


es to  be  in  writing,  refers  to  charges 
on  the  merits  given  to  the  jury  be- 
fore they  retire  to  consider  their  ver- 
dict, and  does  not  apply  to  mere  di- 
rections to  the  jury  as  to  the  fonn  of 
the  verdict,  which  they  have  already 
found  and  presented  to  the  court. 
Mathis  V.  State,  34  So.  287,  4&  Fla. 
46. 

5  0  Herron  v.  State,  46  N.  E.  540,  17 
Ind.  App.  161;  Sturgis  v.  State,  102 
P.  57,  2  Okl.  Cr.  362 ;  Douglas  v.  Ter- 
ritory, 98  P.  1023,  1  Okl.  Cr.  583. 

51  State  V.  Lewis,  159  P.  415,  52 
Mont.  495. 

5  2  Maryland  Casualty  Co.  v.  Seattle 
Electric  Co.,  134  P.  1097,  75  Wash. 
430. 

5  3  Baxter  v.  Magill,  105  S.  W.  679, 
127  Mo.  App.  392. 

It  is  sufficient  to  instruct  orally  in 
the  absence  of  objection  that  9  or 
more  jurors  could  make  a  verdict,  but, 
if  less  than  12  made  the  verdict,  those 
agreeing  thereto  must  sign  it.  Crav- 
ens V.  Merritt,  199  S.  W.  785,  178  Ky. 
727. 

5  4  People  V.  Bonney,  19  Cal.  426. 

55  United  States  v.  Densmore,  75  P. 
31,  12  N.  M.  99. 

5  6  State  V.  Lahore,  103  P.  106,  SO 
Kan.  664. 

5  7Keed  v.  Rogers,  204  S.  W.  973, 
134  Ark.  528. 


447 


INSTRUCTIONS   TO  JURIES 


810 


§  447.     Waiver  of  benefits  o£  rule 

The  parties  may  waive  the  benefits  conferred  upon  them  by  the 
above  statutory  provisions,  and  when  the  court,  pursuant  to  their 
consent,  gives  oral  instructions,  they  cannot  afterwards  object  to 
them ;  ^^  this  rule  applying  in  criminal  cases,^*  and  even  to  a  minor 
defendant  in  a  criminal  case.^**  To  be  effectual,  such  waiver  must 
be  an  express  one  under  some  statutes,*'^  and  under  such  statutes 
the  mere  failure  of  a  defendant  in  a  criminal  case  to  request  in- 
structions in  writing  will  not  relieve  the  court  from  the  duty  of 
so  charging."^  But  in  a  number  of  jurisdictions,  or  under  particu- 
lar statutory  provisions,  the  statutory  right  of  the  parties  will  be 
deemed  waived  when  the  court  is  not  requested  to  reduce  its  in- 
structions to  writing  ^^  and  no  exception  is  taken  to  the  giving  of 
oral  instructions.^* 


5  8  Ga.  Coiitineutal  Nat.  Bank  of 
New  York  v.  Folsom,  67  Ga.  624. 

111.  Bates  V.  Ball,  72  111.  lOS; 
Downey  v.  Abel,  87  111.  App.  530; 
Best  V.  Wilson,  48  111.  App.  352. 

Ind.  Chamness  v.  Cox,  131  Ind. 
118,  .30  N.  E.  901. 

Neb.  Fitzgerald  v.  Fitzgerald,  16 
Neb.  413,  20  N.  W.  269. 

S.  D.  Davis  v.  C.  &  J.  Michel 
Brewing  Co.,  140  N.  W.  694,  31  S.  D. 
284. 

Wash.  Smith  v.  Bowers,  143  P. 
316,  82  Wash.  SO;  Wheeler  v.  Hotel 
Stevens  Co.,  127  P.  840,  71  Wash.  142, 
Ann.  Cas.  1914C,  576. 

Scope  of  stipulation  Mfraiving 
^vritten  instructions.  Where  at  the 
conclusion  of  the  testimony  in  an  ac- 
tion it  was  stipulated  by  the  parties 
that  the  court  might  instruct  the  jury 
orally  in  the  case;  such  instructions 
to  be  of  the  same  force  and  effect  as 
though  they  were  written  out  and 
read  by  the  court  to  the  jury  in  the 
usual  manner,  and  no  objection  was 
made  or  exception  or  other  action 
taken  because  the  oral  instructions 
w«>re  not  reduced  to  writing,  filed 
with  the  clerk,  and  given  to  the  jury, 
it  was  held -that  the  stipulation  waiv- 
ing the  giving  of  the  instructions  in 
the  usual  manner,  and  agreeing  to 
their  being  given  orally,  also  waived 
any  right  of  the  complaining  party  to 
have  them  reduced  to  writing,  filed 
with  the  clerk,  and  given  to  the  jury 
during  its  deliberation   of   the   case. 


Kuhn  v.  Nelson,  85  N.  W.  56,  61  Neb. 
224. 

5  9  Colo.  Kingsbury  v.  People,  99 
P.  61,  44  Colo.  403. 

Ind.  Leseuer  v.  State,  95  N.  E. 
239,  176  Ind.  448. 

Ky.  Allen  v.  Commonwealth,  146 
S.  W.  762,  148  Ky.  327 ;  Ferguson  v. 
Commonwealth,  132  S.  W.  1030,  141 
Ky.  457;  Harris  v.  Commonwealth, 
132  S.  W.  148,  141  Ky.  70. 

Tex.  Vick  V.  State  (Cr.  App.)  69 
S.  W.  156. 

Wash.  State  v.  Andrews,  127  P. 
1102,  71  Wash.  181. 

Contra,  State  v.  Cooper,  45  Mo.  64. 

60  Cutter  V.  People,  56  N.  E.  412, 
184  111.  395. 

61  State  V.  Fisher,  59  P.  919,  23 
INIont.  540;  People  v.  Bonds,  1  Nev. 
33;  Sharman  v.  Newsome,  101  S.  W. 
1020,  46  Tex.   Civ.  App.   111. 

62  Rumage  v.  State  (Tex.  Cr.  App.) 
55  S.  W.  64. 

63  Ala.  Blackmon  v.  State,  77  So. 
347,  201  Ala.  53. 

Ark.  O'Neal  v,  Richardson,  92  S. 
W.  1117,  78  Ark.  132. 

6  4  Bowling  V.  Floyd,  48  P.  875,  5 
Kan.  App.  879 ;  Howe  v.  Miller,  65  S. 
W.  353,  23  Ky.  Law  Rep.  1610;  Fer- 
rero  v.  State,  166  P.  101,  64  Okl.  44. 

The  reading  of  a  passage  from 
a  text-book,  instead  of  embodying  it 
in  the  written  charge,  it  not  being 
seasonably  objected  to  for  that  cause, 
is  not  error.  Josselyn  v.  McAllister, 
22  INIich.  300. 


Sll 


FORMAL  MATTERS 


§448 


In  some  jurisdictions,  if  the  defendant  in  a  prosecution  for  a 
misdemeanor  desires  instructions  in  writing,  he  should  place  them 
in  writing  and  submit  them  to  the  court,**^ 

§  448.  Manner  and  time  of  preferring  requests  for  written  instruc- 
tions 

To  put  the  court  in  error  in  giving  oral  instructions  under  the 
statutes  requiring  written  instructions  on  the  request  of  a  party, 
such  request  must  be  distinctly  made,^^  and  a  request  limited  to 
certain  instructions  will  not  impose  a  duty  upon  the  court  to  re- 
duce its  entire  charge  to  writing.^'  On  the  other  hand,  a  request 
that  the  entire  charge  be  placed  in  writing  will  include  supple- 
mental instructions  asked  by  the  jury  after  their  retirement.*'*  In 
the  absence  of  any  statutory  provision  to  the  contrary,  an  oral  re- 
quest for  written  instructions  will  be  sufficient  to  preclude  the  court 
from  charging  orally.^'* 

To  be  effective,  such  request  must  be  made  at  a  proper  time,'** 
and  to  comply  with  this  rule  it  should  be  made  in  time  to  enable 
the  court  to  give  such  requests  due  consideration  and  to  con- 
veniently reduce  its  charges  to  written  form;'*^  such  reasonable 


Colo.  Bradford  v.  People,  22  Colo. 
157,  43  P.  1013. 

Fla.  Luster  v.  State,  23  Fla.  339, 
2  So.  690. 

Ind.  Sutherland  v.  Hankins,  56 
Ind.  343 ;  Goodwine  v.  Miller,  32  Ind. 
419. 

Kan.     Davis  v.  Wilson,  11  Kan.  74. 

Ky.  Risk  V.  E\\-ing,  60  S.  W.  923, 
22  Ky.  Law  Rep.  1485. 

La.  State  v.  Melton,  37  La.  Ann. 
77. 

Okl.  Bucher  v.  Showalter,  145  P. 
1143,  44  Okl.  690 ;  Hopkins  v.  Dipert, 
69  P.  883,  11  Okl.  630. 

Or.  State  V.  Goff,  142  P.  564,  71 
Or,  352. 

Pa.  Sgier  v.  Philadelphia  &  R.  Ry. 
Co.,  103  A.  730,  260  Pa.  343. 

Wyo.  Curran  v.  State,  70  P.  577, 
12  Wyo.  553. 

Where  a  request  for  -written  in- 
structions is  refused,  and  the  court 
suggests  tliat,  as  the  question  is  sim- 
ply one  of  fact,  it  will  instruct  the 
jury  orally,  to  which  no  objection  is 
made,  appellant  must  be  regarded  as 
acquiescing  in  the  giving  of  the  in- 
.structions  orally,  Westerfield  v.  Bald- 
win, 16  Ky.  Law  Rep.  (abstract)  318. 

c-  Odom  V.  State,  200  S.  W.  833,  82 


Tex.  Cr.  R.  580;  Greer  v.  State.  136 
S.  W.  451,  62  Tex.  Cr.  R.  81 ;  Bivens 
V.  State  (Cr.  App.)  97  S.  W.  86 :  Bush 
v.  State  (Cr.  App.)  70  S.  W.  550 ;  Hill 
V.  State,  67  S.  W.  506,  43  Tex.  Cr.  R. 
583 ;  Bennett  v.  State  (Tex.  Cr.  App.) 
50  S.  W.  945 :  Murray  v.  State,  44  S. 
W.  830,  38  Tex.  Cr.  R.  677;  Carr  v. 
State,  5  Tex.  App.  153;  Killman  v. 
State,  2  Tex.  App,  222,  28  Am.  Rep. 
432. 

6  6  Ferguson  v.  Fox's  Adm'r,  1  Mete. 
(Ky.)  83. 

6  7  Phillips  V.  Wilmington  &  W.  R. 
Co.,  41  S,  E,  805,  130  N.  C.  582. 

6  8  State  V.  Young,  111  N.  C.  715,  16 
S.  E.  543, 

69  Citizens'  Bank  of  Bainbridge  v. 
Fort,  83  S.  E.  6)78,  15  Ga.  App.  427. 

7  0  Ind.  Chance  v.  Indianapolis  & 
W.  Gravel  Road  Co.,  32  Ind.  472; 
Boggs  V.  Clifton,  17  Ind.  217;  Cortner 
v.  Amick,  13  Ind.  463;  Newton  v. 
Newton,  12  Ind.  527. 

Kan.  Connor  v.  Wilkie,  1  Kan. 
App.  492,  41  P.  71, 

Va.  Booth  V.  Commonwealth,  4 
Grat.  525. 

71  Manning  v.  Gasharie,  27  Ind. 
399 ;  Newton  v.  Newton,  12  Ind.  527  ; 
McJunkins    v.    State,    10    Ind,    140; 


§  448  INSTRUCTIONS  TO  JURIES  812 

time  being  generally  at  or  before  the  close  of  the  evidence,'^  or 
before  argument  begins.'^  A  rule  of  court,  however,  that  such  re- 
quest must  be  made  before  the  trial  begins  is  unreasonable,  and 
will  not  be  enforced  by  the  appellate  court.'* 

The  fact  that  counsel  for  a  party,  in  the  presence  of  the  ad- 
verse party,  requests  written  instructions,  and  afterwards,  when  it 
is  too  late  for  the  latter  to  make  such  a  request,'®  or  without  the 
knowledge  of  such  adverse  party,'^  withdraws  such  request,  will 
not  enable  the  latter  to  complain  on  appeal  of  the  action  of  the 
court  in  instructing  orally,  since  if  he  desires  written  instructions 
he  should  prefer  his  own  request. 

N.  Matters  Bearing  on  Requisites  oe  Written  Instructions 

§  449.     Sufficiency  of  reduction  of  instructions  to  writing 

Statutes  requiring  instructions  to  be  in  writing  are  held  to  be 
substantially  complied  with  by  writing  them  in  pencil,"  or  by  pre- 
senting them  in  printed  form,'^  and  where  instructions  are  writ- 
ten in  English,  an  oral  translation  of  them  into  a  foreign  tongue, 
which  is  the  language  of  the  jury,  is  not  a  violation  of  the  statute.'® 
It  is  not  necessary  that  the  reduction  of  instructions  to  writing 
should. be  done  by  the  trial  judge  personally,*"  and  the  court  may 
adopt  as  its  main  charge  instructions  prepared  by  the  counsel 
for  one  of  the  parties.*^ 

Error  in  giving  oral  instructions  may  be  corrected  by  with- 
drawing them,  afterwards  reducing  them  to  writing,  and  then 
reading  them  to  the  jury,  with  the  direction  to  disregard  those 
first  given,*-  and  in  some  jurisdictions  it  is  considered  that  where 
the  court,  immediately  after  giving  an  oral  instruction,  reduces  it  to 
writing  and  gives  it  to  the  jury  in  time  to  be  taken  with  them 

Atchison,  T.  &  S.  F.  R.  Co.  v.  Frank-  7  5  Mutual  Ben.  Life  Ins.  Co.  v.  Mil- 

lin,  23  Kan.  74.  ler,  39  Ind.  475. 

7  2  St.  Louis  &  S.  F.  Ry.  Co.  v.  Daw-  ^^  Henke  v.  Babcock,  64  P.  755,  24 

son,  53  P.  S92,  7  Kan.  App.  4G6 ;    Jen-  Wash.  556. 

kins  V.  I^vis,  23  Kan.  255 ;    Atchison  "  Harvey  v.  Tama  County,  53  Iowa, 

T.  &  S.  F.  R.  Co.  V.  Franklin,  23  Kan.  228,  5  N.  W.  130. 

74,    following   Manning   v.    Gasharie,  ^^  State  v,  Fooks,  6^  Iowa,  196,  21 

27  Ind.  399  ;   Bogi,'s  v.  Clifton,  17  Ind.  ^^-  W.  561 ;   State  v.  Kelly,  9  Mo.  App. 

217;    Newton  V.  Newton,  12  lud.  527;  ^12. 
McJunkins  v.  State,  10  Ind.  140.  '^^  Territory  v.  Romine,  2  N.  M.  114. 

,,.,,„.      T       K      n  TT  80  Barkman  V.  State,  13  Ark.  705. 

ry,  98  S.  L.  18o,  23  Ga.  App.  93.  ^exas,  v.  Harral  (Tex.  Civ.  App.)  199 

74  Laselle  v.  Wells,  17  Ind.  33;  Pat-      S.  W.  659. 
terson  v.  Ball,  19  Wis.  243.  8  2  People  v.  Garcia,  25  Cal.  531. 


813 


FORMAL  MATTERS 


§  449 


on  retiring,*^  or  so  that  they  can  have  the  written  instructions  with 
them  on  the  final  consideration  of  their  verdict,**  there  is  a  suffi- 
cient compliance  with  the  statute,  or  at  least  that  there  is  no  prej- 
udicial error.*^  In  other  jurisdictions  such  subsequent  reduction  to 
writing  does  not  cure  the  original  error  of  giving  oral  instructions,*® 
and  sending  to  the  jury  after  they  have  retired  to  consider  of  their 
verdict  a  transcript  of  the  stenographic  notes  of  an  oral  instruction 
will  not  cure  the  error  in  giving  it,*'  nor  will  the  filing  after  verdict 
of  what  purports  to  be  a  copy  of  the  charge  given.** 

In  some  jurisdictions  the  court  may  give  oral  instructions,  if 
they  are  taken  down  by  the  court  stenographer.**  In  one  juris- 
diction an  oral  charge,  taken  down  under  the  direction  of  the 
court  by  a  stenographer,  or  by  a  stenographer  in  the  employ  of 
both  parties  to  report  the  proceedings,  who  is  virtually  under  the 
direction  of  the  court,  is  a  charge  in  writing  within  such  statutes ;  *^ 
but  in  other  jurisdictions  the  taking  down  of  oral  instructions  by 
the  court  stenographer  is  held  not  to  be  a  compliance  with  the 
statute.^^    It  is  held  that  the  plain  intent  of  the  statute  is  to  require 


ssLaiidt  V.  McCullough,  75  N.  E. 
1069,  218  111.  GOT ;  Green  v.  Lewis,  13 
111.  G42. 

S4  Spence  v.  Commonwealth,  204  S. 
W.  SO,  181  Ky.  206;  White  v.  Com- 
monwealth, 130  S.  W.  790,  140  Ky.  9. 

8  5  National  Lumber  Co.  v.  Snell,  47 
Ark.  407,  1  S.  W.  708;  Swaggart  v. 
Territory,  50  P.  96,  6  Okl.  344. 

8  6  Dixon  V.  State,  13  Fla.  636; 
State  V.  Harding,  81  Iowa,  599,  47  N. 
W.  877  ;  State  v.  Bennington,  44  Kan. 
583,  25  P.  91. 

8  7  Jarnocke  v.  Chicago  Consol.  Trao 
tion  Co.,  150  111.  App.  248. 

88  Territory  v.  Dorman,  1  Ariz.  56, 
25  P.  516 ;  Same  v.  DulHeld,  1  Ariz. 
58,  25  P.  476. 

s9  People  V.  Curtis,  76  Cal.  57,  17 
P.  941 ;  State  v.  Preston,  38  P.  694,  4 
Idaho.  215. 

Under  the  California  statute 
permitting  such  practice,  the  failure 
of  the  reporter  to  take  down  certain 
oral  statements  of  the  court,  not  af- 
fecting nor  in  any  way  qualifying  the 
charge  which  is  taken  down,  is  not 
cause  for  reversal.  People  v.  Leary, 
89  P.  24,  105  Cal.  486 ;  People  v.  Cox, 
18  P.  332,  76  Cal.  281. 

90  State  V.  Erickson,  103  P.  796,  54 
Wash.  472;  Schon  v.  Modern  Wood- 
men of  America,  99  P.  25,  51  Wash. 


482 ;  Sturgeon  v.  Tacoma  Eastern  R. 
Co.,  98  P.  87,  51  Wash.  124 ;  Collins 
V.  Huffman,  93  P.  220,  48  Wash.  184. 

Direction  of  court.  To  relieve  the 
court  of  the  duty  of  charging  in  writ- 
ing, under  the  Washington  statute  pro- 
viding that  on  request  of  either  party 
the  charge  must  be  in  writing,  provid- 
ed that,  when  a  stenographic  report  is 
taken,  this  shall  be  considered  as  a 
charge  in  writing,  the  stenographer 
must  be  one  who  is  under  the  direc- 
tion of  the  court,  and  can  be  required 
to  furnish  a  copy  of  the  instructions ; 
and  it  is  not  enough  that  two  ste- 
nographers, one  employed  on  behalf 
of  the  prosecuting  attorney,  and  the 
other  by  the  defendant,  are  present 
taking  a  report.  State  v.  Mavo,  85 
P.  251,  42  Wash.  540,  7  Ann.  Cas.  881. 

91  Ark.  Burnett  v.  State,  81  S.  W. 
382,  72  Ark.  398. 

Ga.  Brindle  v.  State,  88  S.  E.  460, 
17  Ga.  App.  741. 

Ind.  Leseuer  v.  State,  95  N.  E, 
239,  176  Ind.  448 ;  Shafer  v.  Stinson, 
70  Ind.  374. 

Kan.  Wheat  v.  Brown,  3  Kan. 
App.  431,  43  P.  807;  Rich  v.  Lappin, 
43  Kan.  6m,  23  P.  1038. 

Mont.  State  v.  Fisher,  59  P.  919, 
23  Mont.  540. 

In    Colorado    a    statute   providing 


^  .^49  INSTRUCTIONS  TO  JUIIIES 


814 


1 1 1.1 1  the  (hai^c  be  in  writing  when  delivered  and  that  it  be  read 
t(.  the  jury  as  written."^*  An  oral  charge  is  not  rendered  proper 
by  th(-  fart  that  it  has  been  reduced  to  writing  before  delivery ,"» 
and  crnM-  of  the  court,  after  being  requested  to  charge  in  writing, 
ill  giving  a  part  of  the  charge  orally,  is  not  cured  by  directing  the 
■jury  to  disregard  what  was  said  orally.**'* 

Tlic  re(|uirenient  of  written  instructions  is  held  in  some  juris- 
dictions to  jirechuU-  the  court  from  reading  from  the  printed  stat- 
utes.""' Ill  oilier  jurisdictions  this  may  be  done,"<'  or  the  court  may 
read  a  portion  of  its  charge  from  a  report  of  the  published  decisions 
of  the  court  of  last  resort."' 

vj  1.')U.     Numbering  instructions 

In  some  jurisdielions  the  court  may  be  required  to  number  its 
iiistruflions.""  and  this  is  the  better  practice.""  In  one  jurisdic- 
tion .siu  h  a  diit\  does  not  arise  in  the  absence  of  a  request  by  one 
of  the  parties  for  such  a  numbering,*  and  the  failure  of  the  court 
to  comply  witli  the  statuti)ry  requirements  will  not  justify  a  rc- 
\er.sal.  wiieie  no  lights  are  adversely  ailectcd  by  such  failure.^ 

§  451.     Signing  and  sealing 

'Tile  retiniremeiit  is  general  that  written  instructions  should  be 
.mtluntiraled  by  the  signature  of  the  trial  judge,^  and  in  some  ju- 

tliiit    liistruclions    sluiU    lie    .uivtMi    in  Garrison  v.  State,  114  S.  W.  128,  54 

wrlliiii,'  lii'linv  arfjnment  does  iiol   al  Tex.  Cr.  R.  GOO;    Wilson  v.  State,  15 

low   llie  kIvIii^'  of  partil   inslruetions,  'IVx.  App.  loO. 

(liouKli   llu>  .xanio  l»e  (nlxeii  l).v  a  ste-  i""  ralnion>  v.   State.   29   Ai-t:.  248; 

tioKraplier.  ami  al'terwanis  (ransorih-  People  v.  iNIoitier.  58  Cal.  2G2 ;    Wal- 

nl.  ami  pv»Mi  to  the  jury  on  vetirlni;.  ton   v.    State,   SO    S.   E.   1072,   17  Ga. 

Crawt'onl  v.   r>ro\vii.  21   Tolo.  272,    10  Api>.  'M'^  \    Walker  v.  State,  GS  S.  E. 

r.  002.  allinnlnu;  l^rowii  v.  Grawfonl,  S7;5,  8  Ga.  App.  214:    Burns  v.  State, 

2  Golo.  .\pp.  2:;.-..  20  V.  li:;7.  so  C>n.  527.   15   S.   E.  748;     State  v. 

Whoro.    liowovor.    !i    roipii'st    tor  :\li>rtiuier.  20  Kan.  93;    State  v.  Stew- 

wrllU'n   iUNtrihiioiis  was  iiiaile  when  art.  9  Nov.  120. 

llu>  eourt    was  ahout   to  ins(r\u't   the  "'  State  v.  Koy,  43  So.  59,  118  La. 

Jury   orally,   and   tht>  Inslruetions  as  4S5. 

iilvon  w»M»>  transeril>t>(l  by  tho  otlU-lal  '"^  Shorloek  v.  First  Nat.  Bank,  53 

stomvcraphor.  and  vlelivered  to  eoun-  Ind.  ".'i. 

s«>l  and  the  Jiu'y.  the  refusal  to  ^ivo  "•'  WeicUtnovol  v.  State,  35  So.  856, 

written    Instrui-tlous    was    not    error.  4(!  Fla.  \. 

I'ldon  St.  Kv.  Gi>,   v.   Stont\  .'t   Ivan.  ^  Melvor  v.  Williauison-Halsell-Fra- 

S^!,  37  \\  I0i2.  /iin-  Go..  92  P.  170.  19  Okl.  454.  13  L. 

wj  l>l\oi\    V.     State.     13     Fla.    CCU". :  K.  A.  (N.  8.)  G9G. 

State  V.   Kisher.  T.O  P.  919,  23  Mmit.  -  Miller  v.  Preston,  4  N.  M.  314,  17 

MO.  P.  oa") :    Atehison,  T.  &  S.  F.  Ry.  Co. 

"s  Territory    v.    Keunrdv,    1    Ariz.  v.  Oallunin.  J^O  P.  207,  IS  Okl.  75.  11 

:.W.  25  P.  r.17.  Ann.  Cas.  081. 

>»*  Fli'lils    V.    Carlton.    75   Ga.   554:  =  lUn-rou-hs  v.  State,  17  Fla.  G43 : 

MeClay  v.  State.  Smith  (Ind.^  215.  V^akor  v.  State.  17  Fla.  400;    Penuer- 

»>Suvurr    V.    State.    SS    Ind.    .^IM :  line  v.  Gal^le.  73  Ind.  210:    Smith  v. 

Matiler  v.  State,  0  P.axt.  tTenn.)  595;  State,  1  Tox.  App.  408. 


815  FORMAL  MATTERS  §  433 

risdictions  the  statutory  requirement  of  signing  by  the  judge  is 
deemed  imperative,*  at  least  in  criminal  cases/'*  and  the  omission 
of  such  signature  will  constitute  ground  for  reversal,  and  a  nunc 
pro  tunc  entry  will  not  cure  a  failure  to  sign.*' 

As  a  general  rule  the  mere  failure  or  delay  of  the  trial  judge  to 
sign  his  instructions  will  not  constitute  reversible  error  in  a  civil 
case,'  and  in  some  jurisdictions  will  not  necessarily  constitute  fatal 
error  in  a  criminal  case.* 

A  requirement  of  certification  of  the  instructions  by  the  trial 
judge  is  complied  with  by  his  signature.®  The  sealing  of  instruc- 
tions is  now  generally  dispensed  with.^® 

§  452.     Filing  instructions 

In  some  jurisdictions  the  written  charge  must  be  filed  with  the 
clerk  of  court  as  soon  as  it  has  been  read  to  the  jury,  and  failure 
to  comply  with  this  requirement  constitutes  reversible  error.^^ 

O.     Presence;  of  Parties  and  Right  to  Inspect  Instructions 

§  453.     Presence  of  parties  or  their  counsel  during  charge 

In  civil  cases  the  charge  of  the  court,*^  and  all  subsequent  in- 
structions and  explanations  touching  the  duties  of  the  jury,^^  should 
be  given  in  open  court,  in  the  presence  of  the  parties  or  their  coun- 
sel, in  some  of  the  states  there  being  statutory  provisions  requir- 
ing the  presence  of  counsel  during  the  charge,^*  and  in  some  ju- 
risdictions instructions  erroneously  given  in  the  absence  of  coun- 
sel will  be  conclusively  presumed  prejudicial. ^^  There  is  authority, 
however,  to  the  effect  that,  since  it  is  the  duty  of  the  parties  or 
their  counsel  to  be  present  during  the  entire  trial  of  the  cause,  an 

4  Hadley  v.  Atkinson,  S4  Ind.  64.  State  v.  Buffington,  20  Kan.  599,  27 

!-'  Pavne  v.  State,  202  S.  W.  958,  83  ^^-  I^eP-  193. 

Tex.  Cr.  R.  287:    MeLain  v.  State.  30  »  Hubbard    v.    State,    2    Tex.    App. 

Tex.  App.  4S2.  17  S.  W.  1092,  28  Am.  50G. 

St.  Rep.  911 ;    Williams  v.   State,  18  ^°  Weightnovel  v.  State,  35  So.  856, 

Tex.  App.  409.  46  Fla.  1 ;    Denmark  v.  State,  31  So. 

6  Bottorff  V.  Bottorff.  91  N.  E.  617,       -^?:  f^i^f^^'r,-^?--  r       u      ^ 

4^  Ind    Ann    6q'>  Ashley-Priee  Lumber  Co.  v.  Ilen- 

^  :.  n^\'  ^.  XT   xxr       «  ry,  98  S.  E.  185.  23  Ga.  App.  93. 

7  Halley  y  Tichenor,  94  N.  W  472  12  Hehvig  v.  Wayne  Circuit  Judge. 
120  Iowa,  164 ;  McDonald  v.  Axtell  73  Mich.  258.  41  N.  W.  268 ;  Campbell 
(Tex.  Civ.  App.)  218  S.  W.  563 ;  Par-  v.  Beckett,  8  Ohio  St.  210 ;  Seagrave 
ker  V.  Chancellor,  78  Tex.  524,  15  S.  y.  Hall.  6  O.  C.  D.  497,  10  Ohio  Cir. 
W.  157;    Dillingham  v.  Bryant  (Tex.  ct_  r   395 

App.)  14  S.  W.  1017.  13  Smith  v.  MeMillon.  19  Ind.  391. 

8  White  V.  State,  26  Fla.  602,  7  So.  i*  People  v.  Trim,  37  Cal.  274. 
857;   State  V.  McCombs,  13  Iowa,  426;  is  Feibelman    v.    Manchester    Fire 
State  V.  Davis,  48  Kan.  1,  28  P.  1092 ;  Assur.  Co.,  108  Ala.  180,  19  So.  540. 


§  453  INSTRUCTIONS  TO  JURIES  816 

absent  party  cannot  complain  if  instructions  are  given  to  the  jury- 
in  his  absence/^  and  it  has  been  held  that  it  is  not  reversible  error 
for  a  court  to  give  further  instructions  in  explanation  of  its  previ- 
ous charge,  in  compliance  with  a  request  from  the  jury,  although 
counsel  for  neither  of  the  parties  is  present,  where  such  instruc- 
tions are  given  in  open  court,  during  a  regular  session,  when  coun- 
sel might  reasonably  have  been  expected  to  be  in  attendance.^' 

The  above  rule  requiring  the  presence  of  the  attorneys  during 
the  giving  of  the  charge  does  not  apply  to  instructions  not  relat- 
ing to  any  statement  of  the  law  nor  to  the  merits  of  the  case.** 

In  criminal  cases  it  is  error  to  charge  the  jury  in  the  absence  of 
the  defendant,**  or  to  re-read  the  instructions  in  his  absence,  al- 
though they  are  read  exactly  as  first  given.^" 

§  454.     Right  to  inspect  instructions 

While  not  a  universal  requirement,^*  it  is  the  duty  of  the  court 
in  some  jurisdictions  in  criminal  cases,  before  reading  its  instruc- 
tions to  the  jury,  to  submit  them  to  counsel  for  inspection,  that  they 
may  offer  such  suggestions  as  they  may  think  proper,^^  and  such 
duty  is  held  to  require  the  court,  after  having  eliminated  certain 
parts  of  his  charge  on  the  objection  of  defendant,  to  again  submit 
the  charge  to  defendant's  counsel  before  reading  it  to  the  jury,^^ 

16  Rizzoli  V.  Kelley,  44  A.  64,  68  N.  22  n.  M.  James  v.  Hood,  142  P. 
H.  3.  162,  19  N.  M.  234. 

17  Aerheart  v.  St.  Louis  I.  M.  &  S.  r>i  1  t>  n  o^  x  //-i  a  x 
Ry.  Co.  (C.  C.  A.  Mo.)  99  F.  907.  40  ,  ^kl.  Russell  v.  State  (Cr.  AppO 
CO  A  171.  -^^^  ^-  ^^"'    Fowler  v.  State,  126  P. 

18  Vara  V.Gonzales  (Tex.  Civ.  App.)  S^^-  ^  ^^^-  ^r-  130. 

193  S.  W.  1132.  Tex.     Harris  v.   State,   172   S.   W. 

19  State  V.  Meagher,  49  Mo.  App.  975,  76  Tex.  Cr.  R.  126;  Goode  v. 
.^71;    State  v.  Blackwelder,  61  N.  C.       state,  171  S.  W.  714,  75  Tex.  Cr.  R. 

38.  „  „  „  ^  550 ;    Link  v.  State,  164  S.  W.  987,  73 

20  Kmnomer  v.  State,  49  S.  W.  815,  r^gj-  qj.  ji  52 
66  Ark.  206. 

21  State  V.  Saunders,  44  La.  Ann.  23  Czeraicki  v.  State,  211  S.  W.  223, 
973,  11  So.  583.  85  Tex.  Cr.  R.  169. 


817 


CORRECTION   OR   WITHDRAWAL  OF  INSTRUCTIONS 


§455 


CHAPTER  XXXIV 

INSTRUCTIONS  CORRECTING,  EXPLAINING,   OR  WITHDRAWING 
OTHER  INSTRUCTIONS 

§  455.     Power  or  duty  of  trial  court. 
456.     Manner  of  correction  or  withdrawal. 

Cure  of  erroneous  instruction  by  its  withdrawal,  see  post,  §  539. 

§  455.     Power  or  duty  of  trial  court 

The  trial  court  may,  at  any  time  before  the  discharge  of  the 
jury,  modify  or  revoke  its  instructions,  when  convinced  of  error 
therein,^  or  may  withdraw  a  charge  at  the  request  of  the  party  in 
whose  favor  it  was  made,^  and  it  is  not  error  for  the  court  to  with- 
draw a  proper  instruction,  the  subject-matter  of  which  is  covered 
by  other  instructions  given.^  Such  power  of  the  court  does  not 
depend  on  the  consent  of  the  parties  to  the  suit.*    Thus  it  is  not 


1  Ark.  Carlock  V.  Spencer,  7  Ark. 
12. 

Ga.  Smith  v.  State.  90  S.  E.  475. 
146  Ga.  36 ;  Southern  Ry.  Co.  v.  Par- 
ham,  73  S.  E.  7G3,  10  Ga.  App.  531. 

111.  Chilson  V.  People,  79  N.  E. 
934,  224  111.  5.35;  Daube  v.  Kuppen- 
heimer.  195  111.  Apj).  99.  judgment 
affirmed  112  N.  E.  61.  272  111.  .'^50; 
Wells  V.  Ipperson.  48  111.  App.  580. 

Ind.  Broadstreet  v.  IMcKamey,  83 
N.  E.  773,  41  Ind.  App.  272;  Buntin 
V.  State,  68  Ind.  38. 

Kan.  State  v.  Wells,  54  Kan.  161, 
37  P.  lOO.j. 

Ky.  Eppenheimer  v.  Common- 
wealth, 7  Ky.  Law  Rep.  (abstract) 
229. 

Me.  State  v.  Derry,  108  A.  568, 
lis  :\raine,  431. 

Md.  Chesapeake  Stevedoring  Co. 
V.  Ilufnasol,  87  A.  4,  120  Md.  53; 
United  Rys.  &  Electric  Co.  of  Balti- 
more V.  Carneal.  72  A.  771,  110  Md. 
211;  Butler  v.  Gannon,  53  Md.  .333; 
Sittij?  V.  Birkestack,  38  Md.  158. 

Mich.  Clumeno  v.  Grand  Rapids 
&  I.  R.  Co.,  59  N.  W.  594,  101  Mich. 
325. 

Mo.  Carroll  v.  Wiggains  (App.) 
199  S.  W.  280. 

INST.TO  JUBIES— 52 


Neb.  Hibner  v.  Westover,  110  N. 
AV.  732.  78  Neb.  161. 

N.  Y.  People  v.  Benham,  55  N.  E. 
11,  100  N.  Y.  402. 

Ckl.  Long  V.  Kendall,  87  P.  670, 
17  Okl.  70. 

S.  c:  State  V.  Lightsev,  43  S.  C. 
114.  20  S.  B.  975. 

Tenn.  Green  V.  State,  97  Tenn.  50, 
36  S.  W.  700. 

Tex.  Nowlin  v.  State,  175  S.  W. 
1070,  76  Tex.  Cr.  R.  480:  Bailev  v. 
State   rCr.  App.)  .38  S.  W.  092. 

"Withdrawal  by  juds:e  other 
than  the  trial  judge.  Where  mani- 
festly erroneous  instructions  are  giv- 
en by  the  trial  judge,  and.  after  the 
submis.<;ion  of  the  cause,  the  judge,  on 
leaving  the  county  seat,  reriuosts  an- 
other judge  of  the  district  to  receive 
the  verdif>t,  and  also  to  recall  the  jury 
and  withdraw  the  erroneous  instruc- 
tions, and  the  judge  .so  requested 
does  so,  the  withdrawal  of  the  in- 
structions is  not  so  irregular  as  to 
constitute  reversible  error.  Renn(!r 
V.  Thornburg,  82  N.  W.  950,  111  Iowa, 
515. 

2  Harrison  v.  McGehee,  24  Ga.  530. 

8  Lautman  v.  Pepin,  59  N.  E.  1073, 
26   Ind.   App.   427. 

4  Eldridge  v.  Ilawley,  115  Mass.  410. 


§  456 


INSTRUCTIONS   TO   JURIES 


818 


error  to  modify  an  instruction  which  assumes  a  controverted  fact, 
so  as  to  make  it  conditional  on  a  finding  of  such  fact,^  and  the 
trial  court  may  correct  its  mistake  in  the  use  of  a  word,''  and  in- 
structions which  are  misleading  or  not  sufificiently  clear  may  be 
explained  by  other  instructions,'  When  so  requested,  it  is  the 
duty  of  the  trial  judge  to  give  instructions  correcting  errors  in 
its  charge.' 

§  456.     Manner  o£  correction  or  withdrawal 

It  is  not  improper  for  the  court  to  correct  an  instruction  by 
drawing  a  line  across  a  part  thereof  desired  to  be  stricken  out.® 
When  it  is  proposed  by  a  further  instruction  to  correct  an  erro- 
neous charge,  the  purpose  should  be  stated,  and  the  explanation 
made  so  clear  as  to  leave  no  room  for  reasonable  mistake,^"  and 
when  the  court  withdraws  an  instruction,  the  attention  of  the 
jur}^  should  be  specifically  called  to  the  change.^^  Thus,  where 
the  court  expresses  an  opinion  as  to  wdiat  a  witness  has  testified  to, 
which  is  directly  opposed  to  the  fact,  the  court  should  not  only 
withdraw  his  statement  from  the  jury,  but  expressly  admit  that 
he  was  wrong  as  to  his  remembrance  of  the  testimony  of  the  wit- 
ness.-' 


12 


5  .Tones  v.  Harris,  40  A.  791,  186  Pa. 
469.  42  Wlvly.  Notes  Cas.  362. 

fi  Falkner  v.  Behr,  75  Ga.  671. 

■  Louisville  &  X.  R.  Co.  v.  Bogue, 
58  So.  .392,  177  Ala.  .349;  Kramer  v. 
Comrton,  52  So.  351,  166  Ala.  216; 
K.  B.  Koosa  &  Co.  v.  War  ten,  48  So. 
544,  1.58  Ala.  496;  OlatMter  v.  Secur- 
ity Ins.  Co.  of  Xew  Haven,  Conn., 
167  X.  W.  572,  102  Neb.  464. 

8  Pollak  V.  David'son,  87  Ala.  551, 
0  So.  312 ;  Zamore  v.  Boston  Elevat- 
ed Ry.  Co.,  84  N.  E.  858,  198  Mass. 
.594;  Watson  v.  Boswell.  61  S.  W. 
407.  25  Tex.  Civ.  App.  379. 

Error  in  instruction  given  by 
consent  of  both  parties.  Where  a 
party  as-ks  for  an  instruction,  and  it 
is  granted  upon  the  concession  of  the 
other  party,  it  becomes  the  duty  of 
the  court  afterwards  to  withdraw  it, 
if  it  is  found  not  to  express  the  law 
npplirable  to  the  case.  Northern  Cen- 
tral Ry.  Co.  V.  State,  29  Md.  420,  96 
Am.   Dec.  545. 

9  State  V.  I>eete,  174  N.  W.  253,  387 
Iowa,  305;  Same  v.  Newcomber,  174 
N.  W.  255. 


10  Louisville  &  N.  R.  Co.  v.  John- 
son (C.  C.  A.  111.)  81  F.  679,  27  C.  C. 
A.  367 ;  People  v.  Good  rode,  94  N.  W. 
14,  132  Mich.  542. 

Illnstrations  of  instructions  in- 
sufficient to  correct  error.  In  a 
prosecution  for  perjury,  error  in 
charging  that  defendant  would  be 
guilty  if  he  falsely  testified  that  he 
had  not  "heard"  of  the  existence  of 
a  certain  bribery  fund,  where  the  pei- 
jury  assigned  in  the  indictment  Avas 
a  denial  of  "knowledge,"  was  not  cur- 
ed by  cautioning  them  that  what  de- 
fendant had  read  in  the  papers  would 
not  be  knowledge.  State  v.  Faulk- 
ner, 75  S.  W.  116,  175  Mo.  546. 

11  New  Albany  Woolen  Mills  v. 
Meyers,  43  Mo.  App.  124. 

Suficiency  of  withdrawal  of  in- 
struction. A  statement  by  the  tri- 
al judge  that  he  will  not  undertake 
to  state  certain  evidence  is  sufficient 
to  withdraw  his  previous  erroneous 
statement  thereof,  .^.mericau  Miuinj,' 
&  Smelting  Co.  v.  Converse,  5u  N.  i<2. 
594,  175  Mass.  449. 

12  People  V.  Jacobs.  90  N.  E,  1092, 
243  111.  580. 


819  COERECTION   OR   WITHDRAWAL  OF  INSTRUCTIONS  §  456 

An  erroneous  instruction  may  be  withdrawn  from  the  jury  by 
a  direction  that  it  is  withdrawn  and  is  to  be  disregarded  by  the 
jury/*  and  if  the  jury  is  told  that  certain  instructions  are  with- 
drawn and  other  instructions  are  to  take  their  place,  it  is  not 
necessary  to  expressly  admonish  the  jury  to  disregard  the  instruc- 
tions so  withdrawn.^* 

Where  the  trial  court  promptly  corrects  an  erroneous  statement 
of  a  rule  of  law  and  gives  the  jury  the  proper  rule,  the  error  is 
sufficiently  retracted.*^  A  mere  withdrawal  of  an  instruction  after 
the  jury  has  retired  need  not  be  in  writing.*** 

13  state  V.  Hood,  59  S.  E.  971,  63  Ga.  App.  548;  State  v.  Baldwin,  100 
W.  Va.  182,  15  L.  R.  A.  (N.  S.)  448,  129      S.  E.  345,  178  N.  C.  693. 

Am.  St.  Rep.  964.  le  Robinson  v.  State,  106  N.  E.  533, 

14  Goldsmith  v.  First  Nat.  Bank,  96      182  Ind.  329. 

X.  E.  503,  50  Ind.  App.  11.  See,  also,  ante,  §  445,  note  28, 

15  Massie  v.  State,  101  S.  E.  703,  24 


457 


INSTRUCTIONS  TO  JURIES 


820 


CHAPTER  XXXV 

GIVING  ADDITIONAL  INSTRUCTIONS  AFTER  RETIREMENT  OF  JURY 

§  4o7.  Power  and  duty  of  court. 

45S.  Right  of  parties  to  request  additional  instructions  on  return  of  jury 
for  further  instructions. 

459.  Giving  additional  instructions  on  report  by  jury  of  inability  to  agree. 

460.  What  further  instructions  may  be  given. 

461.  Jlauner  of  giving  additional  instructions  after  retirement  of  jury. 

462.  Presence  of  parties  or  their  counsel.  ' 

463.  Presence  of  defendant  and  his  counsel  in  criminal  prosecution. 

§  457.     Power  and  duty  of  court 

The  general  rule  is  that  the  court  may,  in  the  exercise  of  a 
sound  discretion,  either  on  its  own  motion  ^  or  at  the  request  of 
the  parties  or  of  the  jury,  in  some  cases  under  statutory  provi- 
sion therefor,  recall  the  jury,  after  they  have  retired  to  consider 
their  verdict,  and  give  them  additional  instructions,  for  the  pur- 
pose of  refreshing  their  recollection  as  to  the  evidence  given  in 
the  case,^  or  to  correct,  or  withdraw,  or  supply  omissions  in,  in- 
structions previously  given,^  or  to  explain  instructions  already 
given.* 


1  U.  S.  Allis  V.  United  States,  15 
S.  Ct.  36,  155  U.  S.  123,  39  L.  Ed.  91. 

Cal.  People  v.  Perry,  65  Cal. 
568,  4  P.  572. 

Fla.    Coleman  v.  State,  17  Fla.  206. 

Ind.     Hogg  V.  State,  7  Ind.  551. 

Mich.  People  v.  Hoffman,  105  N. 
W.  838,  142  Mich.  531. 

Mo.  State  V.  Furgerson,  53  S.  W. 
427.  152  :Mo.  92. 

Tex.  Flores  v.  State,  53  S.  W. 
346,  41  Tex.  Cr.  R.  166. 

In  Texas,  under  a  former  statute, 
the  court  could  not  in  a  criminal  case 
give  additional  instructions  after  the 
jury  had  retired,  except  on  the  re- 
quest of  the  jury  and  the  consent  of 
the  accused.  Benevides  v.  State,  20 
S.  W.  369.  31  Tex.  Cr.  R.  173,  37  Am. 
St.  Rop.  799;  Myers  v.  State,  S  Tex. 
App.  321 ;  Garza  v.  State,  3  Tex.  App. 
287. 

In  Kentucky,  under  statutory 
provisions,  the  court  should  not,  after 
the  retirement  of  the  jury,  give  them 
further  instructions  except  at  their 
request.  Brown  v.  Commonwealth, 
224  S.  W.  302,  188  Ky.  814. 


In  Washington,  the  giving  by  the 
court  on  its  own  motion  of  additional 
instructions  after  the  retirement  of 
the  jury  is  error,  althougli  not  neces- 
sarily a  reversible  one.  State  v.  Hes- 
sel.  191  P.  637,  112  Wash.  53. 

2  People  V.  Shuler,  98  N.  W.  986, 
136  Mich.  161;  Bonawitz  v.  De  Kalb, 
89  N.  W.  379,  2  Neb.  (Unof.)  534. 

Discretion  of  court  as  to  how 
fully  evidence  shall  be  restated,  see 
Byrne  v.  Smith,  24  Wis.  68. 

3  Ark.  Hamilton  v.  State,  36  S.  W. 
1054.  62  Ark.  543 ;  McDaniel  v.  Cros- 
by, 19  Ark.  533. 

Colo.  Hayes  v.  Williams,  30  P. 
352,  17  Colo.  465. 

Ga.  Patterson  v.  State,  50  S.  E, 
489.  122  Ga.  587. 

111.  Shaw  V.  Camp,  43  N.  E.  608, 
100  111.  425 ;  Citv  of  Joliet  v.  Looney, 
42  N.    E.   854,   159   111.  471. 

Ind.  Sage  v.  Evansville  &  T.  H.  R. 
Co..  33  N.  E.  771,  1.34  Ind.  100;  Mc- 
Clelland  V.   Louisville   &   N.   A.    Ry. 


4  City    of    Covington    v. 
(Ky.)  82  S.  W.  569. 


Bostwick 


821 


INSTRUCTIONS  AFTER   RETIREMENT   OF  JURY 


457 


This  discretion  of  the  court  with  regard  to  the  giving  of  addi- 
tional instructions  is  a  large  one,  and  it  may  supplement  the 
original  charge,  whenever  confident  that  the  ends  of  justice  will 
be  served  by  so  doing.^  On  the  other  hand,  in  the  absence  of  a 
controlling  statutory  provision,  the  refusal  of  the  court,  after  the 
retirement  of  the  jury,  to  give  additional  instructions,  cannot  or- 
dinarily be  made  a  ground  of  exception  on  appeal,^  and  in  some 
jurisdictions  statutory  provisions,  forbidding  the  giving  of  fur- 
ther instructions  after  the  argument  begins,  are  held  to  justifv  a 
denial  by  the  court  of  the  request  of  the  jury  for  additional  in- 
structions.' 

However,  in  some  cases,  it  may  be  the  duty  of  the  court  to  give 
additional  instructions  after  the  jury  have  retired,  to  cure  omis- 
sions or  oversights  in  instructions  already  given,*  or  to  correct 
an  erroneous  statement  with  regard  to  matters  of  evidence,^  or  to 
assist  the  jury  to  a  better  comprehension  of  instructions  previous- 
ly given.^®  In  some  jurisdictions  it  is  said  to  be  the  duty  of  the 
court,  on  the  request  of  the  jury,  to  recharge  them  on  any  point 
upon  which  they  may  desire  additional  light,^^  and  in  some  juris- 


Co.,  94  Ind.  276 ;  Hartman  v.  Flaher- 
t3%  SO  Ind.  472;  Farley  v.  State,  57 
Ind.  331. 

Mass.  Rainger  v.  Boston  Mut.  Life 
Ass'n,  44  N.  E.  lOSS,  1G7  Mass.  109; 
Nichols  V.  Munsel,  115  Mass.  5G7; 
Florence  Sewing  Machine  Co.  v.  Gro- 
ver  &  Baker  Sewing  Machine  Co.,  110 
Mass.  70,  14  Am.  Rep.  579. 

Minn.  State  v.  Brown,  12  Minn. 
538  (Gil.  448). 

Miss.  Clarke  v.  Pierce,  34  So.  4, 
82  Miss.  462. 

Mo.  Pace  v.  Roberts,  78  S.  W.  52, 
103  Mo.  App.  662;  Willmott  v.  Corri- 
gan  Consol.  St.  Ry.  Co.,  17  S.  W.  490, 
106  Mo.  535. 

Neb.  .lessen  v.  Donahue.  96  N.  W. 
639.  4  Neh.  (Unof.)  838;  McClary  v. 
Stnll,  62  N.  W.  501,  44  Neb.  175. 

N.  H.  Rizzoli  v.  Kelley,  44  A.  64, 
68  N.  H.  3. 

Ohio.  Solomon  v.  Reis.  3  O.  C.  T>. 
184.  5  Ohio  Cir.  Ct.  R.  375. 

S.  C.  Jones  v.  Swearingen,  42  S. 
C.  .58.  19  S.   E.  947. 

S.  D.  Williams  v.  Chicago  &  N.  W. 
Ry.  Co.,  78  N.  W.  949,  11  S.  D.  463. 

"Wis.  Dresser  v.  Lenima,  100  N. 
W.  844,  122  Wis.  387. 

See  Choctaw,  O.  &  G.  Rv.  Co.  v. 
Craig,  95  S.  W.  168,  79  Ark.  '53 ;  Wil- 
son V.  State,  38  S.  W.  1013,  37  Tex. 


Cr.  R.  156 ;    Caston  v.  State,  31  Tex. 
Cr.  R.  304,  20  S.  W.  585. 

5  Carter  v.  Becker,  77  P.  264,  69 
Kan.  524. 

6  Ark.  Norton  v.  EUdiorn  Bank, 
17  S.  W.  362,  55  Ark.  59. 

Mass.  In  re  Phillips,  132  Mass. 
233. 

Mo.  Pierce  v.  Michel,  60  Mo.  App. 
187. 

N.  H.  Harvey  v.  Graham,  46  N. 
H.  175. 

N.  J.  Jackson  v.  State,  49  N.  J. 
Law,  252,  9  A.  740. 

N.  Y.  People  v.  Parker,  32  N.  E. 
3013.  137  N.  Y.  535;  Ivey  v.  Brooklyn 
Heights  R.  Co.,  71  N.  Y.  S.  633,  63 
App.  Div.  311. 

Tex.  Young  v.  Hahn  (Civ.  App.) 
69  S.  W.  203  :  Luke  v.  Citv  of  El  Paso 
(Civ.  App.)  GO  S.  W.  363. 

W.  Va.  Tullv  V.  Despard,  6  S.  E. 
927,  31  W.  Va.  370. 

7  Southern  Pac.  Co.  v.  Wilson,  85 
P.  401.  10  Ariz.  162. 

8  Yoldell  V.  Shinholster,  15  Ga.  189 ; 
Dowzelot  V.  Rawlings,  58  Mo.  75. 

0  Morris  v.  State,  41  So.  274,  146 
Ala.   66. 

1"  Duane  v.  Garritson,  58  S.  W. 
1003.  106  Tenn.  38. 

11  Phelps  v.  State,  75  Ga.  571. 


§  458  INSTRUCTIONS   TO  JURIES  822 

dictions  there  are  mandatory  statutes  requiring  the  court,  at  any 
time  before  the  jury  render  their  verdict,  to  give  them,  at  their 
request,  additional  information  as  to  points  of  law  arising  in  the 


case 


18 


§  458.  Right  of  parties  to  request  additional  instructions  on  re- 
turn of  jury  for  further  instructions 
Usually  the  court  need  not  give  instructions  not  requested  by  the 
parties  until  after  the  jur}?-,  having  once  retired  to  deliberate  upon 
their  verdict,  have  returned  into  court  for  further  instructions ;  ^^ 
but  in  some  jurisdictions  the  court  is  required  to  give  such  requests, 
if  the  new  instructions  given  at  the  instance  of  the  jury  suggest 
other  proper  instructions  necessary  to  expound  the  whole  law  of 
the  case  clearly  and  fully.-"^* 

§  459.  Giving  additional  instructions  on  report  by  jury  of  in- 
ability to  agree 
As  a  general  rule,  when  the  jury  return  into  court  in  the  pres- 
ence of  the  parties  and  report  that  they  are  unable  to  agree,  the 
court  may,  of  its  own  motion,  give  them  further  correct  instruc- 
tions, so  far  as  necessary  to  meet  the  difficulties  in  their  minds,^^ 
and  in  some  jurisdictions  the  parties  have  the  right,  when  the  jury 
thus  returns  into  court,  to  ask  for  additional  instructions.^'*. 

§  460.     What  further  instructions  may  be  given 

Additional  instructions  to  the  jury  are  proper  and  necessary 
when  they  disagree  as  to  the  law  of  the  case,^'  and,  within  the  dis- 
cretion of  the  court,  it  may  further  charge  the  jury  that  they  must 
take  the  law  of  the  case  from  the  court,  and  that  it  is  their  duty 
not  to  arbitrarily  reject  the  testimony  of  any  witness,^^  or  as  to 
the  desirability  of  reaching  a  verdict,  and  as  to  the  proper  manner 
of  procedure,  where  differences  of  opinion  as  to  the  facts  exist.^^ 
So  the  jury  may  be  recalled  for  the  purpose  of  supplying  the  omis- 
sion of  the  court  to  instruct  as  to  the  good  character  of  the  de- 

12  Cox  V.  Peltier,  65  N.  E.  6,  159  4  Tex.  69;  State  v.  Cobbs,  40  W.  Va. 
Infl.  355:    .Tones  v.  .Tohnsou,  61  Ind.       718.  22  S.  E.  310. 

2.57:    Mihvard  Co.  v.   Luisart,  41  S.  is  State  v.  Chandler,  31   Kan.  201, 

W.  508.  19  Ky.  T^iw  Rep.  701.  1  P.  787 ;   State  v.  Miller.  100  Mo.  606, 

13  State  V.  Maxent,  10  La.  Ann.  13  S.  W.  832.  1051;  Hannon  v.  State, 
743  :     Commonwealth    v.    Ford,    146  70  Wis.  448,  36  N.  W.  1. 

Mass.   131.   15   N.   E.    153;     State  v.  ic  P^lsher  v.  People,  23  111.  283;  State 

Smith,  S3  P.   905,  47   Or.  485;    Wil-  y.  Baptiste,  26  La.  Ann.  134. 
liams  V.  Commonwealth,  85  Va.  607,  it  state  v.  Pitts.  11  Iowa,  343. 

8  S.  E.  470.  18  Marcus  v.  State,  89  Ala.  23,  8  So. 

See.  also,  post,  §  475,  note  19.  155. 

!■»  Preston  v.   State,  26  So.  736,  41  lo  Varnum  v.  State  (Ga.  App.)  103 

Fla.  627.     See  Harper  v.    State,  109  S.   E.  742;    State  v.  Tripp,  84  N.  W. 

Ala.  66,  19  So.  901;   Keeble  v.  Black,  546,  113  Iowa,  698. 


823  INSTRUCTIONS   AFTER    RETIREMENT   OF  JURY  §  461 

fcndant,'-"  or  to  supply  the  omission  to  instruct  on  the  law  of  habit- 
ual criminals,-^  or  on  the  law  of  principal  and  accessory,-'  or  on 
the  different  degrees  of  the  offense  charged,'^  or  on  the  defense  of 
alibi.2* 

The  jury  may  be  recalled  for  the  purpose  of  withdrawing  from 
their  consideration  an  issue  submitted  by  a  former  instruction  and 
which  is  not  in  the  case.~^  So  the  jury  may  be  recalled  to  be  in- 
structed as  to  the  form  of  their  verdict.^®  Where  the  disagree- 
ment of  the  jury  is  merely  as  to  the  facts,  the  court  may  properly 
decline  to  give  further  instructions.'^^ 

Ordinarily  the  court,  on  being  requested  by  the  jury  to  give  fur- 
ther instructions  on  any  point,  is  not  required  to  confine  itself  to 
such  point.'*  The  court  may,  however,  decline  to  broaden  its  in- 
structions in  such  a  case  beyond  the  scope  of  the  inquiry  of  the 
jury,~^  and  the  general  rule  is  that  in  any  case  it  is  not  required 
to  repeat  its  entire  previous  charge,^*  and  in  some  jurisdictions, 
in  criminal  cases,  no  charge  should  be  given  when  the  jury  asks 
for  further  instructions,  except  upon  the  subject  of  their  interroga- 
tion.*^ 

§  461.  Manner  of  giving  additional  instructions  after  retirement 
of  jury 
Where  the  court  undertakes  to  give  additional  instructions  after 
the  jury  have  retired,  they  should  be  recalled  and  the  instructions 
given  in  open  court.^'  If  such  instructions  are  sent  to  the  jury 
by  the  bailiff  in  charge,  the. consent  of  the  parties  must  be  se- 
cured.^* The  trial  judge  cannot,  after  adjourning  court  and  going 
home,  send  further  instructions  to  the  jury.*^ 

20  Barber  v.  State,  37  S.  E.  885,  112  112  Ga.  228 ;  Gravett  v.  State,  7-t  Ga. 
Ga.  584.  191. 

21  McDonald  v.  Commonwealth,  5o  Where,  however,  the  jury  do  not 
N.  E.  874,  173  Mass.  322,  73  Am.  St.  confine  tlieir  request  for  tbe  reading 
Rep.  293.  'of  instructions  to  any  specific  one,  it 

22  Gather  v.  State  (Tex.  Cr.  App.)  ^i"  ordinarily  be  error  to  single  out 
81  S    W    717  a  particular  instruction  for  readius- 

0-,  o*  **          T-      1         ^rw   r>    orvo    ir  ^t.  TjOuis,  I.  M.  &  S.  R.  Co.  V.  Reed, 

tt;  ,  ^*fio    po  ^A^^'-'^^f'  i^   ^m?"^'   ^^  115  S.  W.  1.^0,  88  Ark.  458. 

^^^}\^^?'  ^^  t^^L  ^^n  ^T  ^]\n.,  V.  ''  Wharton  v.  State,  45  Tex.  2. 

24  Toolie  V.  State  (Ga.  App.)  102  b.  30  j^^w  v.  Freeman,  20  N.  E.  242, 

at".^o?*^  ""•  •^^"■^'  ^^^  '^-  ^^'  ^^^  ^sAla^    Johnson  v.   State,   14  So. 

26  Pritchett  V.  State,  92  Ga.  65, 18  S.        "lii.  ^Chicago  &  A.  E.  R.  Co.  v.  Rob- 

07  o;  4.r.        Tv^  II     An  T  o„c.        bins,  43  N.   E.   332,   159   111.  598. 

27  State  V.  Maxwell,  42  Iowa    208  i^^.     Smith  v.  McMillen,  19  Ind. 

28  People  V.  McKay,  55  P.  594,  122      ^q^ 

^^h  ^l\  •  ^^         ^,  4.     KK  r^     ^n<.                 Mich.     Hopkins   v.  Bishop,  51   N. 
28  O'Shields  V.  State,  55  Ga.  696.  . 11 

soFordham  v.   State,  37  S.  E.  391,  34  Uafferty  v.  People,  72  111.  37. 


§461 


INSTRUCTIONS  TO  JURIES 


824 


Under  a  statute  providing  that  while  the  jury  is  out  the  court 
is  deemed  open  for  every  purpose  connected  with  the  case  sub- 
mitted to  them  until  a  verdict  is  reached  or  the  jury  is  discharged, 
additional  instructions  may  be  given  on  Sunday,  if  the  jury  are 
still  deliberating  on  that  day.*^ 

The  court  may  answer  the  inquiry  of  the  jury  concernmg  any 
point  upon  which  they  are  in  doubt,  by  referring  them  to  its  previ- 
ous instructions,  if  they  fully  and  correctly  cover  the  point.^^  The 
statutory  requirements  as  to  reducing  instructions  to  writing  should 
be  observed  in  giving  additional  instructions  after  the  retirement 
of  the  jury,^'  subject  to  the  same  limitations  and  qualifications  that 
govern  in  the  case  of  instructions  given  before  retirement.^* 

§  462.     Presence  of  parties  or  their  counsel 

In  probably  the  majority  of  jurisdictions  the  court,  on  calling 
the  jury  back  and  giving  them  further  instructions  in  open  court, 
is  not  bound  to  have  the  parties  or  their  counsel  present  or  to  notify 
them.^**  It  is  considered  the  better  practice,  however,  to  notify  coun- 
sel,**' and  in  some  jurisdictions  the  court  is  under  obligation  in  such 
a  case  to  endeavor  to  secure  the  presence  of  the  parties  or  their 
counsel.'*^    In  these  jurisdictions  it  will  not  be  error  for  the  court 


W.  902,  91  Mich.  328,  30  Am.  St.  Rep. 
49i'). 

Mo.  Chouteau  v.  Jupiter  Iron 
Works,  7  S.  W.  467,  94  Mo.  388. 

Neb.  Martin  v.  Martin,  107  N.  W. 
580,  76  Neb.  335,  124  Am.  St.  Rep. 
815,  14  Ann.  Cas.  511. 

Pa.  Sommer  v.  Huber,  38  A.  595, 
183  Pa.  162. 

3  5  People  V.  Odell,  1  Dak.  197,  46 
N.  W.  601. 

36  Savary  v.  State,  87  N.  W.  34,  62 
Neb.  166. 

3  7  Gile  V.  People,  1  Colo.  60;  State 
V.  StofTel,  48  Kan.  364,  29  P.  685; 
Mallison  v.  State.  6  Mo.  399;  Law- 
rence V.  State,  7  Tex.  App.  192. 

3  a  People  V.  Leary,  105  Cal.  486,  39 
P.  24  ;  People  v.  Jackson,  57  Cal.  316  ; 
State  V.  McLafferty,  47  Kan.  140,  27 
P.  843. 

30  U.  S.  (C.  C.  Mass.)  Fournier  v. 
Pike,  128  F.  991. 

Me.     State  v.  Pike,  65  Me.  111. 

Mass.  McCoy  V.  Jordan,  69  N.  E. 
358.  184  Mass.  575;  Kullberg  v. 
O'Donnell,  33  N.  E.  528,  158  Mass. 
40.5.  35  Am.  St.  Rep.  507. 

Mich.  National  Life  &  Trust  Co.  v. 
Omans,  100  N.  W.  595,  137  Mich.  365. 


Minn.  Hudson  v.  Minneapolis, 
etc.,  R.  Co.,  46  N.  W.  314,  44  Minn. 
52. 

N.  H.  Leighton  v.  Sargent,  31  N. 
H.  119,  64  Am.  Dec.  323;  Shapley  v. 
White,  6  N.  H.  172. 

N.  J.  Cooper  v.  Morris,  7  A.  427, 
48  N.  J.  Law,  607. 

N.  Y.  Wiggins  v.  Downer,  67  How. 
Prac.  65;  Cornish  v.  Graff,  7  N.  Y. 
Civ.  Proc.  R.  204. 

R.  I.  Alexander  v.  Gardiner,  14 
R..  I.  15. 

Wis.  Chapman  v.  Chicago  &  N.  W. 
Ry.  Co.,  26  Wis.  295,  7  Am.  Rep.  81. 

4  0  Aerheart  v.  St.  Louis,  I.  M.  & 
S.  Rv.  Co.,  99  F.  907,  40  C.  C.  A. 
171;  Illinois  Cent.  R.  Co.  v.  Ferrell, 
108  111.  App.  659 ;  Heenan  v.  Howard, 
81  111.  App.  629  ;  Traders'  &  Truckers' 
Bank  v.  Black,  60  S.  E.  743,  108  Va. 
59;  Chapman  v.  Chicago  &  N.  W. 
Ry.  Co.,  26  Wis.  295,  7  Am.  Rep.  81. 

41  Ala.  Kuhl  V.  Long,  15  So.  267, 
102  Ala.  563. 

Cal.  Redman  v.  Gulnac,  5  Cal. 
148. 

Ga,  Bryant  v.  Simmons,  74  Ga. 
405. 


825  INSTRUCTIONS   AFTER   RETIREMENT   OP   JURY  §  463 

to  give  such  instructions  in  the  absence  of  counsel  if  their  cHent 
is  present.'*^  The  court  should  never  go  alone  to  the  jury  room 
and  there  give  them  further  instructions.  To  do  this  constitutes 
fatal  error.''^ 

§  463.  Presence  of  defendant  and  his  counsel  in  criminal  prose- 
cution 

In  criminal  cases  the  general  rule  is  that  additional  instructions 
given  after  the  jury  have  retired  must  be  so  given  in  open  court  in 
the  presence  of  the  defendant,**  and  that  the  giving  of  such  instruc- 
tions in  his  absence  w^ill  constitute  fatal  error,  although  his  coun- 
sel is  present.*^  A  limitation  of  the  above  rule  is  held  in  some 
jurisdictions,  in  that  the  giving  of  such  instructions  in  the  ab- 
sence of  the  defendant  will  not  be  cause  for  reversal,  if  such  ab- 
sence is  not  brought  about  by  any  act  of  the  court,*®  as  where 
defendant  and  his  counsel  cannot  be  found,  so  that  they  may  be 
notified.*'  The  rule  requiring  the  presence  of  the  accused  does 
not  apply  to  statements  which  cannot  affect  the  verdict.*^ 

While  it  is  desirable  that  counsel  for  the  prisoner  should  be 
present  when  such  instructions  are  given,  and  in  some  jurisdic- 
tions statutory  provision  is  made  for  giving  notice  to  the  prosecut- 
ing attorney  and  the  counsel  for  the  defendant  of  the  intention  of 
the  court  to  give  further  instructions,*^  the  absence  of  counsel  in 
such  case  will  not  constitute  reversible  error.^® 

Iowa.     Burton  v.  Neill,  118  N.  W.  N.  M.     Territory  v.  Lopez,  3  N.  M. 

002.  140  Iowa,  141,  17  Ann.  Cas.  532.  104.  2  P.  364. 

Mo.    INIcPherson  v.  St.  Louis   &  N.  Tex.     Ta.vlor  v.  State,  42  Tex.  504. 

A.  Ry.  Co..  10  S.  W.  846,  97  Mo.  253;  4b  Ga.    Bonner  v.  State,  67  Ga.  510. 

Norton  v.  Dorsey,  65  Mo.  376.  Kan.      State    v.    Myricli,    38    Kan. 

Ohio.      Sea  grave  v.  Hall.  10  Ohio  238,  16  P.  330. 

Cir.  Ct.  R.  395,  6  O.  C.  D.  497.  Ohio.     Jones  v.  State.  26  Ohio  St» 

42  Torque  v.  Carrillo,  25  P.  526,  1  20S;    Kirk  v.  State,  14  Ohio,  511. 
Ariz.  336.  Tenn.     Witt  v.   State,  5   Cold.   (45 

43  Jones  V.   Johnson,  61  Ind.   257 ;  Tenn.)  11. 

Fish  V.  Smith,  12  Ind.  563;    Read  v.  Wash.     Linbeck  v.  State,  1  Wash. 

City  of  Cambridge,  124  Mass.  567,  26  St.  336,  25  P.  452. 

Am.  Rep.  690;    Campbell  v.  Beckett,  46  Tooke  v.  State  (Ga.  App.)  102  S. 

8  Ohio  St.  210.  E.  905 ;   Davis  v.  State,  50  S.  E.  376, 

4  4  Ala.     Johnson  v.  State,  100  Ala.  122  Ga.  564. 

55,  14  So.  627.  ^^  State  v.  Hale,  91  Iowa,  367,  59 

Ark.     Stroope  V.  State,  80  S.   W.  N.  W.  281. 

749    72  Ark    379  *^  Holland    v.    People.    69    P.    519, 

Ga.     Wilson  v.  State,  87  Ga.  583,  ^?,^°1?A  ^-^'    ^^^.W'  ?/^''  "^^  ?"  ^- 

1*?  S    F    "^66  "4*'  1""  Iowa,  110;    State  v.  Jones, 

%   '        ^  J  ^            e.  ^      -,-.-,    T    -■  29  S.  C.  201,  7  S.  E.  296. 

om^'^o  AT^S'^So  ^'   ^*^^^'   ^^^   ^'''^-  4«  People  V.   Kennedy,  11  N.  Y.  S. 

6W,  IJ  JN.  n..  bW.  244,  57  Hun,  532 :   People  v.  Cassiano, 

Ky.     Bailey  v.  Commonwealth,  71  30  iinn  (N.  Y.)  388. 

S.  W.  632,  24  Ky.  Law  Rep.  1419.  50  People  v.  Mayes,  45  P.  860,  113 

La.     State  v.  Frisby,  19  La.  Ann.  Cal.  618;    State  v.  Dudoussat,  47  La. 

li-i-  Ann.  977,  17  So.  6S5. 


INSTRUCTIONS  TO  JURIES  82G 


CHAPTER  XXXVI 

BEQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS 

A.     Necessity  of  Requests  or  Prayers 

1.     To  Authorise  the  Giving  of  Instructions 

§  4G4.     Disability  of  court  to  give  any  instructions  in  absence  of   request 
therefor. 

465.  Disability  of  court  to  give  instructions  on  particular  matters  in  absence 

of  request. 

2.     To  Require  the  Gimng  of  Instructions,  on  the  Substantial 
Issues  of  the  Case 

466.  Rule  in  civil  cases. 

467.  Rule  in  criminal  cases. 

3.  'Necessity  of  Requests  to  Make  it  Duty  of  Court  to  Give  Further  or  More 

Specific  Instructions 

468.  General  rule. 

469.  Specific  applications  of  rule  in  civil  cases. 

470.  Application  of  rule  in  criminal  cases. 

471.  Qualifications  of  rule. 

4.  Failure  to  Request  Instructions  as  Precluding  Party  from  Complaining  of 

Positive  Error  or  Misdirection  in  Those  Given 

472.  General  rule. 

473.  What  constitutes  positive  error. 

474.  Error  in  instructions  induced  by  party. 

B.     Time  of  Making  Requests 

47;".  Rule  in  absence  of  specific  regulation. 

476.  Regulation  by  statute  or  rule  of  court. 

477.  Prematurity  of  requests. 

478.  Tardiness  of  requests. 

479.  Operation  and  mandatory  character  of  statutes  or  rules  of  court  pre- 

scribing time  for  presenting  requests. 

C.     Formal  Matters  Connected  with  Preparation  or  Requests 

4S0.  Requisites  of  requests  in  general. 

481.  Form  and  requisites  of  request  for  direction  of  verdict  in  criminal  case. 

4S2.  Separating,  numbering,  and  signing  requests. 

483.  Suhmisi^ion  of  requests  to  opposing  counsel. 

484.  Filing  requests. 

D.     Necessity  of  Written  Requests 

4'^'}.     Statement  of  rule. 

4 so.     Waiver  of  requirements  of  rule. 

E.    Presentation  of  Requests  to  Court 

487.  Necessary  formalities  connected  with  presenting  requests  to  court. 

488.  Argument  of  requests. 

F.    Passing  on  Requests  and  Disposition  Theeeof 

489.  General  considerations. 

490.  Time  of  passing  on  requests. 


827  REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS         §  464 

I  491.  Manner  of  giving  requested  instructions. 

4y2.  Commenls  and  expiauatious  by  court  on  refusing  requests. 

41)3.  ^Noting  dibposiiiou  of  requests. 

4i»4.  luconisisteiit  requests. 

«j.     Power  and  Duty  of  Court  with  Respect  to  the  Modification  of, 
OR  THE  Substitution  of  Other  Instructions  for,  Correct  Kequests 

495.  Rule  that  court  may,  on  granting  a  correct  request,  vary  its  plirase- 

ology. 

496.  Rule  that  court  should  give  or  refuse  a  requested  charge  without  al- 

teration. 
4i»i.    Power  of  court  to  substitute  instructions  of  its  own  for  correct  instruc- 
tions requested. 

498.  Manner  of  making  modification. 

H.     Requests  for  Instructions  Alreiady  Covered  by  Othek  Instructions 

499.  General  rule. 

500.  Specific  applications  of  rule. 

501.  Limitations  of  rule. 

1.     Erroneous  Requests 

502.  Rule  that  such  requests  may  be  refused  without  attempt  at  correction. 

503.  Qualifications  of  rule. 

504.  Power  of  court  to  reform  an  erroneous  request. 

505.  Effect  of  erroneous  request  as  making  it  duty  of  court  to  give  a  proper 

charge. 

A.    NkcUssity  of  Requests  or  Prayers 

Necessity  of  request  for  definitions,  see  ante,  §  362. 

Necessity  of  request  for  instruction  on  burden  of  proof,  see  ante,  §  204. 
Necessity  of  request  for  instructions  on  circumstantial  evidence,  see  ante,  §  230. 
Necessity  of  request  for  instructions  on  presumptions,  see  ante,  §  187. 
Necessity  of  request  for  instruction  to  disregard  certain  evidence,  see  ante,  § 
292. 

1.  To  Aufhorhe  the  Giving  of  Instructions 

§  464.  Disabilit}/-  of  court  to  give  any  instructions  in  absence  of 
request  therefor 
In  one  jurisdiction  there  is  a  statutory  prohibition  against  the 
giving  by  the  trial  court  on  its  own  motion  of  instructions  to  the 
jury/  and  in  this  jurisdiction  it  is  error  for  the  trial  judge,  of  his 
own  accord  and  without  being  requested  so  to  do,  to  give  instruc- 
tions, although  the  subject-matter  thereof  be  legal  and  applicable 
to  the  issues.^  In  other  jurisdictions  the  rule  is  that  the  judge 
may,  without  being  asked  to  do  so,  give  such  instructions  as  he 
thinks  proper  and  conducive  to  justice.^ 

lAkroid   v.   State,  64   So.  936,  107  Miss.    548;     Lindsey    Wagon    Co.    v. 

Miss.  51 ;    Watkins  v.  State,  60  Miss.  Nix,  67  So.  457,  lOS  Miss.  814 ;    AYil- 

;523;   Archer  v.  Sinclair,  49  Miss.  343;  Hams  v.  State,  32  Miss.  389,  66  Am. 

Edwards  v.  State,  47  Miss.  581.  Dec.  615. 

2  Davenport  v.  State,  S3  So.  738,  121  3  Brown  v.  People,  4  Oilman   (111.) 


§465 


INSTRUCTIONS   TO  JURIES 


828 


§  465.     Disability  of  court  to  give  instructions  on  particular  mat- 
ters in  absence  o£  request 
In  one  jurisdiction,  under  a  statute,  the  court  is  not  authorized 
to   charge  upon  the  effect  of  evidence   without  having  been  re- 
quested so  to  do  by  a  party.* 


2.  To  Require  the  Giving  of  Instructions  on  the  Substantial  Issues  of 

the  Case. 

§  466.     Rule  in  civil  cases 

In  a  number  of  jurisdictions  it  is  not  the  duty  of  the  trial  court 
in  civil  cases  to  give  instructions  upon  any  question  unless  in- 
structions covering  such  question  are  tendered  and  requested  to- 
be  given.^  In  Missouri,  where  this  rule  prevails,  it  is  held  that, 
while  it  is  the  duty  of  the  plaintiff  to  request  instructions  clearly 
presenting  the  law  upon  which  he  bases  a  claim  to  recover,^  his 
failure  to  make  such  a  request  will  nevertheless  not  constitute 
error,'  since  his  right  to  move  the  court  for  instructions  is  a  per- 


439;  Stumps  v.  Kelley,  22  111.  140; 
Carey  v.  Callan's  Ex'r,  6  B.  Mon. 
(Ky.)   44. 

4Winford  v.  State,  75  So.  S19,  16 
Ala.  App.  143. 

5  Ariz.  United  States  v.  Chung 
Sing,  36  P.  205,  4  Ariz.  217. 

Ark.  Choctaw,  O.  &  G.  R.  Co.  v. 
Baskins,  93  S.  W.  757,  78  Ark.  355. 

Fla.     Carter  v.  Bennett,  4  Fla.  283. 

111.  Osgood  V.  Skinner,  71  N.  E. 
869,  211  111.  229,  affirming  judgment 
111  111.  App.  e06 ;  McKeown  v.  Dynie- 
wicz,  S3  111.  App.  509. 

Ky.  Ix)uisville  &  N.  R.  Co.  v. 
Stephens,  220  S.  W.  746,  188  Ky.  1; 
Ray  V.  Shemwell,  217  S.  W.  351,  186 
Ky.  442;  Brown  v.  Gillespie,  10  Ky. 
Law  Rep.  (abstract)  634. 

Mtl.  Coates  v.  Sangston,  5  Md. 
121. 

Mo.  Wall  V.  Weiler  (App.)  200  S. 
W.  731 ;  Kinsolving  v.  Kinsolving 
(App.)  194  S.  W.  530:  Stewart  v. 
Mason  (App.)  1S6  S.  W.  578;  De 
Ford  V.  Johnson  (Sup.)  177  S.  W.  577; 
Petorshngen  v.  Star  Clothing  Co..  170 
S.  W.  466,  188  Mo.  App.  5S1 ;  Willis 
V.  :MilIor.  175  S.  W.  301,  189  Mo.  App. 
318;  Carpenter  v.  Kansas  City 
Southern  Ry.  Co.,  175  S.  W.  234,  189 
Mo.  App.  104;  Sang  v.  City  of  St. 
Ix)uis,  171  S.   W.  347,   262   Mo.  454; 


Vannest  v.  Missouri,  K.  &  T.  Ry.  Co.,. 
168  S.  W.  782.  181  Mo.  App.  373; 
Wingfleld  v.  Wabash  R.  Co..  166  S. 
W.  1037,  257  Mo.  347 ;  Powell  v.  Un- 
ion Pac.  R.  Co.,  164  S.  W.  628,  255 
Mo.  420:  Commerce  Trust  Co.  v. 
Wliite,  158  S.  W.  457,  172  Mo.  App. 
537 ;  Niitional  Stamping  &  Electric 
Works  V.  Wicks.  128  S.  W.  775,  144 
Mo.  App.  249 ;  Morgan  v.  Mulhall.  114 
S.  W.  4,  214  Mo.  451 ;  Brown  v.  Globe 
Printing  Co.,  112  S.  W.  462,  213  Mo. 
611,  127  Am.  St.  Rep.  627;  Sowders 
V.  St.  Louis  &  S.  F.  R.  Co.,  104  S. 
W.  1122,  127  Mo.  App.  119;  Hall  v. 
St.  Louis  &  S.  Ry.  Co..  101  S.  W.  1137, 
124  Mo.  App.  661;  Wilson  v.  Kansr.s 
City  Southern  Ry.  Co.,  99  S.  W.  465, 
122  Mo.  App.  667. 

N.  M.  Palatine  Ins.  Co.,  Limited, 
of  Manchester,  England,  v.  Santa  Fe 
Mercantile  Co.,  82  P.  363,  13  N.  M. 
241. 

Wis.  Stuckey  v.  Fritsche,  77  Wis. 
329,  46  N.  W.  59. 

c  Sutter  V.  Metropolitan  St.  Ry.  Co. 
(Mo.)  188  S.  W.  65. 

7  Baughman  v.  Metropolitan  St.  Ry. 
Co.  (Mo.  App.)  177  S.  W.  800;  Wil- 
liams V.  Kansas  City  (Mo.  App.)  177 
S.  W.  783 ;  Kiser  v.  Metropolitan  St. 
Ry.  Co.,  175  S.  W.  98,  188  Mo.  Apy. 
160;  Rickards  v.  Kansas  City,  168  S. 
W.  845,  181  Mo.  App.  336. 


829 


REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS 


§466 


sonal  privilege,  which  he  may  waive,«  and  that  where  the  plaintiff 
does  waive  his  right  in  this  regard  it  is  not  error  for  the  court  to 
decline  to  instruct  from  his  standpoint  at  the  request  of  the  de- 
fendant »  It  is  held,  however,  in  this  jurisdiction,  that  the  court 
should  in  the  exercise  of  a  sound  discretion,  charge  the  jury  on 
the  law  of  the  case,^*  and  it  is  also  held  in  this  jurisdiction,  and 
in  other  jurisdictions  where  the  court  is  not  required  to  charge,  ex- 
cept upon  the  request  of  the  parties,  that  if  it  does  undertake  to 
give  instructions  it  must  cover  all  the  issues  and  both  sides  of 
the  controversy.^^ 

In  a  number  of  other  jurisdictions,  in  some  cases  under  statute, 
the  rule  is,  in  civil  actions,  that  the  trial  court  is  bound  to  see  that 
the  jury  has  a  clear  and  intelligent  understanding  of  the  issues  they 
are  to  pass  on,  that  appropriate  instructions  should  be  given  upon 
all  the  substantial  issues,  and  that  a  failure  to  instruct  thereon 
with  reasonable  fullness  is  prejudicial  error,  although  no  requests 
be  made  for  additional  instructions.^^ 


8  Sowders  v.  St.  Louis  &  S.  F.  R. 
Co.,  104  S.  W.  1122,  127  ^lo.  App.  119. 

9  Marion  v.  St.  Louis  &  S.  F.  R. 
Co..  104  S.  W.  1125,  127  Mo.  App. 
129. 

10  McDonald  v.  Central  Illinois 
Const.  Co.,  166  S.  W.  10S7,  183'  Mo. 
App.  415. 

1 1  South  Covinffton  &  C.  St.  Ry.  Co. 
V.  Core.  96  S.  W.  562,  29  Ky.  Law 
Rep.  snfi;  Thornton  v.  Mersereau,  151 
S  W.  212,  16S  Mo.  App.  1 ;  Sinnamon 
V.  ISIoore,  142  S.  W.  494,  161  Mo.  App. 
168. 

12  Ga.  Gainesville  &  N.  W.  R.  Co. 
V.  Galloway.  87  S.  E.  1003,  17  Ga. 
App  702;  Seaboard  Air  Line  Ry.  v. 
BOstock.  58  S.  E.  136,  1  Ga.  App.  189; 
Evans  <Sr  Pennintrton  v.  Nail.  57  S.  E. 
1020,  1  Ga.  App.  42;  Wlielohel  v. 
Gainesville  &  D.  Electric  Ry.  Co..  42 
S.  E.  776,  116  Ga.  4.31;  Phenix  Tiis. 
Co.  V.  Hart,  38  S.  E.  67,  112  Ga.  765 ; 
Pryor  v.  Cossin,  17  Ga.  444. 

iowa.  McSpadden  v.  Axmear,  181 
N.  W.  4;  Freeby  v.  Town  of  Sibley, 
167  N.  W.  770.  183  Iowa.  827;  Rusch 
V.  Tientland.  165  X.  W.  990.  183  Iowa, 
360.  First  Nat.  Bank  of  Shenandoah 
V.  Cook,  153  N.  W.  169.  171  Iowa.  41 ; 
Soderburg  v.  Chicago,  St.  P.,  M.  &  O. 
Rv.  Co.,  149  N.  W.  82,  167  Iowa,  123 ; 
Moran  v.  Martinson.  146  N.  W.  841. 
164   Iowa,    712;     Capital   City   Brick 


&  Pipe  Co.  V.  City  of  Des  Moines,  113 
N.  W.  835,  136  Iowa,  243;  Owen  v. 
Owen,  22  Iowa,  270. 

Ind.  Cleveland  v.  Emerson,  99  N. 
B.  796,  51  Ind.  App.  3.39. 

Mict.  Pierson  v.  Smith,  178  N. 
W.  659,  211  Mich.  292;  Wright  v. 
Detroit,  G.  H.  &  M.  Ry.  Co.,  77  Mich. 
123  43  N.  W.  765.  Barton  v.  Gray,  24 
N.  W.  638,  57  Mich.  622. 

Neb.  Larson  v.  Chicago  &  N.  W. 
R.  Co.,  131  N.  W.  201,  89  Neb.  247: 
York  Park  Bldg.  Ass'n  v.  Barnes,  .39 
Neb.  834,  58  N.  W.  440:  Sandwich 
Mfg.  Co.  V.  Shiley,  15  Neb.  109,  17 
N.  W.  267. 

S.  C.     CoUins-Plass  Thayer  Co.  v. 
Hewlett,  95  S.  E.  510,  109  S.  C.  245. 
S.  D.     Wilson  V.   Commercial  Un- 
ion Ins.  Co.,  89  N.  W.  649,  15  S.  D. 
322. 

Tenn.  INIariner  v.  Smith,  7  Baxt. 
423. 

Tex.  Wallace  v.  Shapard,  94  S.  W. 
151,  42  Tex.  Civ.  App.  594.  Compare 
Berry  v.  Texas  &  N.  O.  R.  Co.,  10  S. 
W.  726,  72  Tex.  620. 

Vt.  In  re  Bean's  Will,  82  A.  734, 
85  Vt.  452. 

Illustrations  of  cases  in  wMch 
request  not  necessary.  Where  the 
petition,  in  an  action  for  a  personal 
injury  negligently  inflicted  by  defend- 
ants, charged  a  joint  tort,  and  a  de- 


§  466 


INSTRUCTIONS  TO  JURIES 


830 


In  another  jurisdiction  the  rule  is  stated  to  be  that  the  court 
need  not  charge,  in  the  absence  of  a  request  for  instructions,  where 
the  facts  are  simple,^^  but  that  the  judge  must  of  his  own  motion, 
with  or  without  suggestion  from  the  parties,  submit  such  issues 
as  are  necessary  to  settle  the  material  controversies  arising  under 
the  pleadings.^* 

§  467.     Rule  in  criminal  cases 

In  criminal  cases  the  doctrine  is  in  most  jurisdictions,*^  in  some 
jurisdictions  a  stricter  rule  being  applied  in  criminal  cases  than 
that  prevailing  in  civil  cases,*^  that  the  court  should  give  instruc- 
tions necessary  for  the  information  of  the  jury,  although  no  re- 
quest is  made  therefor,  and  the  court  is  required  in  a  prosecution 
for  felony  to  instruct  the  jury  on  all  the  law  of  the  case,*'  or  oh 
the  general  principles  of  law  pertinent  to  the  case,**  whether  any 
request  is  made  or  not. 

Thus  this  rule  may  be  invoked  to  make  it  the  duty  of  the  court 


fendant  claimed  that  the  codefendaut. 
responsible  for  the  injury,  was  an  in- 
dependent contractor,  the  question  as 
to  what  is  an  independent  contractor 
was  an  essential  question,  malving  it 
the  duty  of  the  court,  independent  of 
any  requests,  to  state  the  law  on  the 
subject.  Overhouser  v.  American 
Cereal  Co.,  105  N.  W.  113,  128  Fowa, 
oSO. 

13  Holly  V.  Holly,  94  N.  C.  96. 

14  Mitchell  V.  Carolina  Cent.  R.  Co., 
Z2  S.  E.  671,  124  N.  C.  236,  44  L.  R.  A. 
515. 

15  Ga.  Tanner  v.  State,  88  S.  E. 
.'^54.  145  Ga.  71;  McLendon  v.  State. 
82  S.  E.  317.  14  Ga.  App.  737;  Sled'.,'e 
V.  State,  26  S.  E.  756,  99  Ga.  684. 

N.  C.  State  v.  Merrick,  88  S.  E. 
r.01,  171  N.  C.  788. 

Tcnn.     Phipps  v.  State.  3  Cold.  344. 

Tex.  Woodall  v.  State,  126  S.  W. 
r.Ol,  .58  Tex.  Cr.  R.  513;  Miers  v. 
State,  34  Tex.  Cr.  R.  161,  29  S.  W. 
1074,  .53  Am.  St.  Rep.  705;  Sanders 
V.  State.  41  Tex.  306:  Mar.shall  v. 
State,  40  Tex.  200 ;  Cole  v.  State,  40 
Tex.  147;  .Tacksou  v.  State,  15  Tex. 
App.  84 ;  Benevides  v.  State,  14  Tex. 
App.  37S;  Bennett  v.  Same,  12  Tex. 
App.  15;  Sims  -v.  State.  9  Tex.  App. 
.586 ;  Reed  v.  State,  9  Tex.  App.  317 ; 
O'.Mealy  v.  State,  1  Tex.  App.  ISO. 


Utah.  Brannigan  v.  People,  24  P. 
767,  3  Utah,  488. 

Vt.  State  V.  Clary,  78  A.  717,  84 
Vt.  110,  Ann.  Cas.  1912D,  64. 

18  Ky.  King  v.  Commonwealth, 
220  S.  W.  755,  187  Ky.  782;  Thomas 
V.  Commonwealth,  143  S.  W.  409,  146 
Kv.  790;  French  v.  Commonwealth, 
88  S.  W.  1070,  28  Ky.  Law  Rep.  64; 
Williams  v.  Commonwealth,  7  Ky. 
Law  Rep.  (abstract)  745. 

Mo.  State  v.  Goode  (Sup.)  220  S. 
W.  8.54;  State  v.  Gaultney,  146  S.  W. 
11,53,  242  Mo.  388 ;  State  v.  Rufus,  51 
S.  W.  80,  149  Mo.  406 ;  State  v.  Tay- 
lor, 118  Mo.  353,  24  S.  W.  449;  State 
V.  Nelson,  118  INIo.  124,  23  S.  W.  IOS'8 ; 
State  V.  Henson,  10€  Mo.  06,  16  S.  W. 
285;  State  v.  Heinze,  66  Mo.  App. 
135. 

17  Ky.  King  v.  Commonwealth. 
220  S.  W.  755.  187  Ky.  782 ;  Wellman 
V.  Commonwealth,  205  S.  W.  328.  ISi 
Ky.  346 ;  Kinglesmith  v.  Common- 
wealth, 7  Ky.  Law  Rep.  744 ;  Mackey 
V.  Commonwealth,  4  Ky.  Law  Rep, 
179,  SO  Ky.  345. 

Mo.  State  V.  Lackey,  132  S.  W. 
602,  230  Mo.  707 ;  State  v.  Banks,  73 
Mo.  592 ;  State  v.  Branstetter,  05  Mo. 
149. 

Neb.  Carleton  v.  State,  61  N.  W. 
699.  43  Neb.  373. 

18  People  V.  Peck  (Cal.  App.)  185 
P.  881. 


.831  REQUESTS   OR   PRAYERS   FOR   INSTRUCTIONS  §  467 

to  instruct  on  the  issue  of  insanity  as  a  defense  in  a  criminal  case.*** 
The  general  rule  is  that,  where  the  evidence  raises  the  issue,  the 
court  should  instruct  on  the  law  of  self-defense,  whether  asked 
to  do  so  or  not,^**  and  under  a  statute  requiring  the  jury  to  be  in- 
structed on  all  questions  of  law  arising-  in  the  case  which  are  nec- 
essary for  their  information,  it  is  held -that  such  a  charge  is  nec- 
essary where  the  issue  of  self-defense  is  presented  by  the  evidence 
of  the  state,  although  such  evidence  is  denied  by,  and  inconsistent 
with,  the  evidence  offered  by  the  defendant  himself."^  But  where, 
in  a  prosecution  for  homicide,  the  defendant  claims  he  shot  the 
deceased  accidentally,  and  the  issue  of  self-defense  is  not  other- 
wise presented,  the  court  need  not  instruct  thereon,  in  the  absence 
of  a  request  to  do  so.^"  In  some  jurisdictions  a  request  is  not  re- 
quired to  make  it  the  duty  of  the  court  to  charge  that  the  venue 
must  be  proven."^ 

In  Missouri,  where  the  jury  is  required  to  instruct  on  its  own 
motion  on  the  law  of  the  case  in  a  criminal  prosecution,  such  duty 
is  held  not  to  extend  to  instructions  on  collateral  questions.^* 
Within  this  rule  the  question  whether  extrajudicial  statements  of 
defendant  were  voluntarily  made  is  a  collateral  one,^^  as  is  the 
question  whether  a  statement  by  one  defendant  is  binding  on  a 
codefendant."*^ 

As  a  general  rule,  in  a  prosecution  for  a  misdemeanor,  it  is  only 
necessary  to  define  the  oft'ense  charged  and  state  the  punishment, 
and  if  any  further  instructions  are  desired  by  the  accused  they 
should  be  requested.^''' 

19  Thomas  v.  State,  40  Tex.  60.  26  state  v.  Taylor,  168  S.  W.  1191. 

20Collesenia  v.   State,  132  P.  375,  261  IMo.  210. 

9  Okl.  Cr.  425.  27  Mo.     State   v.    Magrnder    (App.) 

21  State  V.  Biclstrup,  140  S.  W.  904.  219  S.  W.  701 ;  State  v.  Clinkenbeard 
237  Mo.  273.  (Api>.)  1S5  S.  W.  553. 

Rnle      in       Michigan.         "Where,  Ohio.     JNIyer  v.  State,  10  Ohio  Cir. 

thoiich    the    coiu-t    charged   on    man-  Ct.  I(.  226,  6  O.  C.  D.  477. 

s-laughter  as  well  as  murder,  accused  Tex.     Stroud    v.    State    (Cr.    App.) 

denied   that   he   did    the  Ivilling   and  225  S.  W.  256 ;   Garrison  v.  State,  114 

did  not  request  a  charge  on  self-de-  S.  W.  128,  54  Tex.  Or.  R.  600 :   High  v. 

fense,  it  was  not  necessary  to  charge  State  (Cr.  App.)  98  S.  W.  849;   Porter 

on   that   sub.iect.     People   v.   Droste,  v.  State    (Cr.  App.)   86   S.   W.   1018; 

125  N.  W.  87.  160  Mich.  66.  Clement  v.  State  (Cr.  App.)  86  S.  W. 

22  State  V.  Davis,  58  S.  W.  122,  101  10I6 ;  Schrimsher  v.  State  (Cr.  App.) 
Tenn.  501.  SO  S.  W.   1013;    Shaw  v.   State  (Cr. 

23Norris  v.   State,  155  S.  W.   165,  App.)   73    S.    W.    1046;     Nicholson   v. 

127  Tenn.  437.  •  State,  71  S.  W.  969,  44  Tex.  Cr.  R.  434 ; 

2  4  State   V.    Baker,    175    S.    W.    64,  Efird  v.  State,  71  S.  W.  957,  44  Tex. 

264  Mo.  339 ;    State  v.  Harris,  134  S.  Cr.  R.  447 ;    Black  v.  State  (Cr.  App.) 

W.  535,   232  Mo.   317.  47  S.  W.  992;    Arnold  v.  State    (Cr. 

2  5  State  V.  Simenson,  172  S.  W.  601,  App.)  40  S.  W.  591 ;    Sparks  v.  State, 

263  Mo.  264.  23  Tex.  App.  447,  5  S.  W.  135. 


468 


INSTRUCTIONS  TO  JURIES 


832 


3.  Necessity  of  Requests  to  Make  it  Duty  of  Court  to  Give  Further  of 
More  Specific  Instructions 

§  468.     General  rule 

Where   the   instructions   given   are  applicable   to   the   evidence, 
and  good  as  far  as  they  go,^*  and  set  forth  with  reasonable  fullness 


2  8  U.  S.  Northern  Pac.  R.  Co.  v. 
Mares,  123  U.  S.  710,  8  Sup.  Ct.  321, 
31  L.  Ed.  296 ;  fC.  C.  A.  Mass.)  Lind- 
say V.  Testa,  200  F.  124,  118  C.  G.  A. 
29S ;  f C.  C.  A.  Mo.)  Hodge  v.  Chicago 
&  A.  Ry.  Co.,  121  F.  48,  57  C.  C.  A. 
388;  (C.  C.  A.  Neb.)  Frizzell  v.  Omaha 
St.  Ry.  Co.,  124  F.  176,  59  C.  C.  A. 
382;  (C.  C.  A.  Tex.)  Texas  &  P.  Ry. 
Co.  V.  Watson,  112  F.  402.  50  C.  C.  A. 
230,  affirmed  23  S.  Ct.  681,  190  U. 
S.  287,  47  L.  Ed'.  10.^7. 

Ala.  Birminsliam  Ry.,  Light  & 
Power  Co.  v.  Wiggins,  54  So.  189,  170 
Ala.  540;  Virginia  Bridge  &  Iron  Co. 
V.  Jordan,  42  So.  73,  143  Ala.  603,  5 
Ann.  Cas.  709;  Ray  v.  Jackson,  90 
Ala.  513.  7  So.  747;  Skinner  v.  State, 
30  Ala.  524;  Hutchinson  v.  Bearing, 
20  Ala.  798;  Ewing  v.  Sanford.  19 
Ala.  605;  Hodges  v.  Branch  Bank 
at  Montsromery,  13  Ala.  4T'>;  Hunt 
V.  Toulmin,  1  Stew.  &  P.  178. 

Ariz.  Arizona  Pub.  Co.  v.  Harris, 
181  P.  373,  20  Ariz.  446;  Weather- 
ford  V.  Hanger.  146  P.  759.  16  Ariz. 
427;  Phoenix  Ry.  Co.  v.  Landis,  112 
P.  844,  13  Ariz.  279,  affirming  judg- 
ment on  rehearing  108  P.  247,  13  Ariz. 
SO. 

Ark.  Dent  v.  People's  Bank  of 
lmlx)den,  175  S.  W.  1154.  118  Ark. 
157,  1  A.  L.  R.  688;  St.  Louis.  I.  M. 
&  S.  Ry.  Co.  V.  Drumright.  166  S.  W. 
938,  112  Ark.  452 :  Fanchor  v.  Ken- 
ner,  161  S.  W.  1G6.  110  Ark.  177; 
.Tones  v.  Sevmour,  130  S.  W.  560,  95 
Ark.  .593;  St.  Louis,  I.  M.  &  S.  Ry.  Co. 
V.  Glossup.  114  S.  W.  247,  88  Ark, 
225 ;  Fordvce  v.  Jackson,  56  Ark. 
594.  20  S.  W.  .597. 

Cal.  Peluso  v.  City  Taxi  Co.,  182 
P.  808,  41  Cal.  App.  297;  Morgan  v. 
Los  Angeles  Pac.  Co.,  108  P,  735, 
13  Cal.  App.  12;  Viera  v.  Atchison,  T. 
&  S.  F.  Ry.  Co.,  101  P.  690,  10  Cal. 
App.  267;  Crowley  v.  Strouse,  33 
P.  456,  4  Cal.  Unrep.  29;  Scott  v. 
Wood,  81  Cal.  398,  22  P.  871. 


Colo.  Ward  v.  Atkinson,  123  P. 
120,  22  Colo.  App.  134;  Downing  v. 
Tipton,  110  P.  70,  48  Colo.  364 ;  Don- 
ley V.  Bailey,  110  P.  65,  48  Colo.  373 ; 
Sandberg  v.  Borstadt,  109  P.  419,  45 
Colo.  96 ;  National  Mut.  Fire  Ins.  Co. 
V.  Duncan,  98  P.  634,  44  Colo.  472, 
20  L.  R.  A.  (N.  S.)  340;  Whitehead 
V.  Emmerich.  87  P.  790,  38  Colo.  13; 
Willard  v,  Williams,  50  P.  207,  10 
Colo.  App.  140. 

Conn.  Leone  v.  I.  &  F.  Motor  Car 
Co..  80  A.  520,  84  Conn.  463;  Distin 
V.  Bradley,  76  A.  991,  S3  Conn.  466; 
Selleck  v.  Sugar  Hollow  Turnpike  Co., 
13  Conn.  453. 

D.  C.  Prudential  Ins.  Co.  of  Amer- 
ica V.  Lear,  31  App.  D.  C.  184. 

Fla.  Pensacola  Electric  Co.  v.  Bis- 
sett.  52  So.  367,  59  Fla.  360. 

Ga.  Nisbet  v.  Vandiver,  101  S.  E. 
761,  24  Ga.  App.  572;  Social  Circle 
Cotton  51111  Co.  V.  Ransom,  99  S.  E. 
238.  23  Ga.  App.  605;  Camp  v.  Bag- 
well &  Bagwell,  99  S.  E.  234,  23  Ga. 
App.  690 ;  Everett  v.  Ingram,  82  S.  B. 
562,  142  Ga.  145;  Wilkes  v.  Groover, 
75  S.  E.  3.53.  l.SS  Ga.  407;  Bunn  v. 
Hargraves,  GO  S.  E.  223.  3  Ga.  App. 
518 ;  Southern  Ry.  Co.  v.  Thompson,  58 
S.  E.  1044.  129  Ga.  367 ;  WhePlwright 
V.  Akin,  92  Ga.  394.  17  S.  E.  610;  Rut- 
ledge  v.  Hudson,  80  Ga.  266,  5  S.  E. 
93 ;  Poullain  v.  Poullain,  76  Ga.  420, 
4  S.  E.  92 ;  City  of  Atlanta  v.  Brown, 
73  Ga.  630;  Fuller  v.  City  of  Atlan- 
ta, 66  Ga.  80;  Durand  v.  Grimes.  18 
Ga.  693 ;   Ellis  v.  Smith.  10  Ga.  2-53. 

Idabo.  Barter  v.  Stewart  Mining 
Co.,  135  P.  68,  24  Idaho,  540. 

111.  Wilkinson  v.  Service,  94  N.  B. 
50,  249  111.  146,  Ann.  Cas.  1912A,  41 ; 
Hagen  v.  Schleuter,  86  N.  E.  112,  236 
111.  467,  reversing  Hagan  v.  Schlue- 
ter,  140  111.  App.  84 ;  E.  B.  Conover  & 
Co.  v.  Baltimore  &  O.  S.  W.  R.  Co., 
212  111.  App.  29;  Treptow  v.  Mont- 
gomery Ward  &  Co.,  153  111.  App.  422. 

Ind.     Elliott  V.  Elliott,  111  N.  E. 


833 


REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS 


468 


the  general  principles  applicable  to  the  case,  or  to  a  particular  is- 


813,  61  Ind.  App.  209 :  Chicago  &  E. 
K.  Co.  V.  Hamerick,  9U  N.  E.  649,  50 
Iiid.  App.  425,  rehearing  granted  97 
N.  E.  546;  Citizens'  Street  Ry.  Co.  v. 
Abright,  42  N.  E.  238,  14  Ind.  App. 
433 ;  Keller  v.  Reynolds,  40  N.  E.  70, 
12  Ind.  App.  383 ;  Lake  Erie  &  W.  R. 
Co.  V.  McIIenry,  37  N.  E.  186,  10  Ind. 
App.  525;  Eppert  v.  Hall,  133  Ind. 
417,  31  N.  E.  74;  Morningstar  v. 
Hardwick,  3  Ind.  App.  431,  29  N.  E. 
929:  Ricketts  v.  Richardson,  85  Ind. 
508  ;  Bishop  v.  Redmond,  S3  Ind.  157 ; 
Fessler  v.  Grouse,  73  Ind.  64. 

Iowa.  Peterson  v.  MclNIauus,  172 
N.  W.  460,  188  Iowa,  522;  Stilwell  v. 
Stihvell,  172  N.  W.  177,  186  Iowa, 
177;    McMullen  v.  Harris.  147  N.  W. 

164,  165  Iowa,  703 :  Hoffman  v.  Cedar 
Rapids  &  M.  C.  Ry.  Co.,  139  N.  W. 

165.  157  Iowa,  655.  Ann.  Cas.  19150, 
905 ;  Rockwell  v.  Ketchum.  128  N.  W. 
940,  149  Iowa.  507;  O'Mara  v.  Jens- 
ma.  121  N.  W.  518,  143  Iowa,  297 ;  Lee 
V.  Conrad,  117  N.  W.  1096,  140  Iowa, 
16;  Aughey  v.  Wlndrem,  114  N.  W. 
1047,  137  Iowa,  315 :  Mitchell  v.  Chi- 
cago, R.  I.  &  P.  Rv.  Co.,  114  N.  W.  622, 
138  Iowa,  283;  Capital  City  Brick  & 
Pipe  Co.  V.  City  of  Des  Moines,  113 
N.  W.  835,  136  Iowa,  243 :  Vorhes  v. 
Buchwald,  112  N.  W.  1105,  137  Iowa, 
721;  Bowder  v.  Tiffany,  91  N.  W. 
895,  lis  Iowa.  130 ;  Dashiel  v.  Harsh- 
man,  85  N.  W.  85,  113  Iowa,  283: 
Keyes  v.  City  of  Cedar  Falls,  78  N. 
W.  227,  107  Iowa,  509 :  Wimer  v.  All- 
baugh,  78  Iowa.  79.  42  X.  W.  587,  16 
Am.  St.  Rep.  422 :  Koehler  v.  Wilson, 
40  Iowa,  183 :  McCauslaud  v.  Cresap, 
3  G.  Greene.  161. 

Kan.  Smith  v.  St.  L.  &  S.  F.  R. 
Co.,  148  P.  759.  95  Kan.  451 :  Ander- 
son V.  Hcnsley,  148  P.  73S,  95  Kan. 
572:  Hamilton  v.  Atchison.  T.  &  S. 
F.  Ry.  Co.,  148  P.  648,  95  Kan.  .353; 
Dighera  v.  Wheat.  116  P.  616,  85 
Kan.  458. 

Ky.  ]\Inrphv  v.  Ilagan.  173  S.  W. 
1146.  163  Ky.  407;  Cincinnati,  N.  O. 
&  T.  P.  Ry.  Co.  V.  IMartin,  142  S.  W. 
410.  146  Ky.  260:  Lonisville.  H.  & 
St.  L.  Ry.  Co.  V.  Roberts.  139  S.  W. 
1073,  144  Ky.  820:  Madisonville.  II. 
&  E.  R.  Co.  V.  Thomas,  130  S.  W. 
975,    140   Ky.    143:     We.st    Kentucky 

Inst.to  Juries — 53 


Coal  Co.  V.  Davis,  128  S.  W.  1074,  138 
Ky.  667 ;  Loughridge  v.  Ball,  118  S. 
W.  321;  Louisville  &  N.  R.  Co.  v. 
Simrall's  Adm'r,  127  Ky.  55,  104  S. 
W.  1011,  31  Ky.  I^w  Rep.  1269.  pe- 
tition for  modification  of  opinion  de- 
nied 104  S.  W.  1199,  32  Ky.  Law  Rep. 
240 ;  Louisville  &  N.  R.  Co.  v.  Bullins, 
15  Ky.  Law  Rep.  (abstract)  752. 

Me.  Murchie  v.  Gates,  78  Me.  300, 
4  A.  698. 

Md.  Capital  Traction  Co.  v.  Cont- 
ner,  87  A.  904,  120  Md.  78. 

Mass.  Leahy  v.  Standard  Oil  Co. 
of  New  York,  112  N.  E.  950,  224  Mass. 
352 :  Cashman  v.  Proctor,  86  N.  E. 
284.  200  Mass.  272  ;  Baldwin  v.  Ameri- 
can Writing  Paper  Co.,  82  N.  E.  1,  196 
Mass.  402 ;  Cameron  v.  New  England 
Telephone  &  Telegraph  Co.,  65  N.  E. 
385,  182  Mass.  310;  Caswell  v.  Fel- 
lows. 110  Mass.  52;  Hall  v.  Weir,  1 
Allen,  261. 

Midi.  Schneider  v.  C.  H.  Little 
Co.,  166  N.  W.  912,  200  Mich.  .301: 
Wood  V.  Standard  Drug  Store.  157  N. 
W.  403,  190  INIich.  654 ;  In  re  Bailev's 
Estate,  153  N.  W.  39,  186  Mich.  677: 
Tavlor  v.  Indiana  &  Michigan  Elec- 
tric Co.,  151  N.  W.  7.39,  184  Mich.  578. 
Ann.  Cas.  1915E,  294;  Hammond  v. 
Porter,  114  N.  W.  64,  150  Mich.  328; 
Mahiat  v.  Codde,  64  N.  W.  194,  106 
Mich.  387;  Pickard  v.  Bryant,  92 
Mich.  430,  52  N.  W.  788:  Barton  v. 
Gray,  57  IMich.  622,  24  N.  W.  638; 
Rankin  v.  West,  25  INIich.  195. 

Minn.  Likum  v.  Porter,  154  N.  W. 
1070.  131  Minn.  274;  Smith  v.  Great 
Northern  Ry.  Co.,  153  N.  W.  513,  132 
Minn.  147,  order  modified  155  N.  W. 
1040,  132  Mimi.  147;  Blakely  v.  J. 
Neils  Lumber  Co.,  151  N.  W.  182,  128 
Minn.  465 ;  Campbell  v.  Canadian 
Northeiii  Ry.  Co..  144  N.  W.  772.  124 
IMinn.  245;  Krulic  v.  Petcoff,  142  N. 
W.  897.  122  Minn.  517,  Ann.  Cas. 
1914D,  1056;  Ferber  v.  State  Bank 
of  Pine  Island,  133  N.  W.  611,  116 
Minn.  261:  Hanson  v.  Hellie.  120  N. 
W.  341,  107  Minn.  375;  Bailev  v. 
Grand  Forks  Lumber  Co.,  119  N.  W. 
786.  107  Minn.  192;  McCormick  Har- 
vesting Mnch.  Co.  V.  McNicholas.-  69 
N.  W.  36,  66  Minn.  384;  Clapp  v. 
:Minneapolis  &  St.  L.  Ry.  Co.,  36  Minn. 


§468 


INSTRUCTIONS   TO   JURIES 


8U 


6,  29  X.  W.  340,  1  Am.  St.  Rep.  G20 : 
Le  Clair  v.  First  Div.  St.  P.  &  P.  R. 
Co.,  20  Minn.  9  (Gil.  1);  Egau  v. 
Faeudel.  19  Minn.  231  (Gil.  191) :  Jas- 
pers V.  Lano.  17  Minn.  296  (Gil.  273) ; 
Warner  v.  Myriek,  16  Minn.  91  (Gil. 
81) ;  Hnuter  v.  Jones,  13  Mimi.  307 
(Gil.   2S2). 

Miss.  Yazoo  &  M.  V.  R.  Co.  v. 
Messina,  67  So.  963,  109  Minn.  143: 
Lindsey  Wagon  Co.  v.  Nix,  ©7  So.  459, 
108  Miss.  814. 

Mo.  Dale  v.  Smith  (App.)  185  S. 
W.  11,S3:  Sontag  t.  Ude,  177  S.  W. 
659,  191  Mo.  App.  617 :  Davis  v.  Met- 
ropolitan St.  Ry.  Co.,  176  S.  W.  1067, 
188  Mo.  App.  128;  Eversole  v.  Wa- 
bash R.  Co.,  155  S.  W.  419,  249  Mo. 
523 ;  Richardson  v.  Metropolitan  St. 
Ry.  Co.,  147  S.  W.  1126.  166  Mo.  App. 
162 ;  Booker  v.  South-West  Missouri 
R.  Co..  128  S.  W.  1012.  144  Mo.  App. 
273;  Jenkins  v.  Clopton,  121  S.  W. 
759,  141  Mo.  App.  74;  Clack  v.  Kan- 
sas Citv  Electrical  Wire  Subway  Co.. 
119  S.  W.  1014,  138  Mo.  App.  205; 
Moore  v.  Missouri  Pac.  Ry.  Co..  116 
S.  W.  440,  136  Mo.  App.  210;  War- 
rington V.  Kallauner,  115  S.  W.  492, 
135  Mo.  App. -5;  Moss  v.  Missouri 
Pac.  Rv.  Co.,  107  S.  W.  422.  128  Mo. 
App.  385;  Ghere  v.  Zey,  107  S.  W. 
418,  128  Mo.  App.  362:  Fl.^herty  v. 
St.  Louis  Transit  Co.,  100  S.  W.  15, 
207  Mo.  318;  Cormvell  v.  St.  Louis 
Transit  Co..  80  S.  W.  744.  106  Mo. 
App.  135  ;  Goetz  v.  Ambs,  27  Mo.  28 ; 
Johnson  v.  Vette,  77  Mo.  App.  568 ; 
Haymaker  v.  Adams.  61  Mo.  App.  581. 

Mont.  Schumacher  v.  Murray 
Hospital,  193  P.  397,  58  Mont.  447; 
Wallace  v.  Chicago,  M.  &  P.  S.  Ry. 
Co.,  157  P.  955,  52  Mont.  345;  Kirk 
V.  Smith,  138  P.  1088,  48  Mont.  489; 
Frederick  v.  Hale,  112  P.  70,  42  Mont. 
153. 

Neb.  Van  Dom  v.  Kimball,  160  X. 
W.  953,  100  Neb.  590;  Edwards  & 
Bradford  Lumber  Co.  v.  Lamb,  145  X. 
W.  703,  95  Xeb.  263 ;  Stoeker  v.  Xath- 
anson,  98  N.  W.  1061,  5  Neb.  (Unof.) 
435,  70  L.  R.  A.  667 ;  Republican  Val- 
ley R.  Co.  V.  Fink,  18  Xeb.  89.  24  X. 
W.  691;  Sioux  City  &  P.  R.  Co.  v. 
Finlayson.  16  Xeb.  578,  20  X.  W.  860, 
49  Am.  Rep.  724 ;  Repulilican  Val- 
ley R.  Co.  V.  Fellers,  16  Xeb.  169,  20 


X.  W.  217 ;  Burlington  &  M.  R.  R.  Co. 
V.  Schluntz,  14  Xeb.  421,  16  X.  W. 
439;  Sioux  City  R.  Co.  v.  Brown,  13 
Xeb.  317,  14  X.  W.  407. 

N,  H.  Turner  v.  Cocheco  Mfg.  Co., 
77  A.  999,  75  X.  H.  521 ;  Hooksett  v. 
Amoskeag  Mfg.  Co.,  44  X.  H.  105; 
Goodrich  v.  Eastern  R.  R.,  38  N.  H. 
390 ;  Wright  v.  Boynton,  37  N.  H.  9, 
72  Am.  Dec.  319. 

N.  J.  Lange  v.  Xew  York,  S.  &  W. 
R.  Co.,  99  A.  346,  89  N.  J.  Law,  604. 

N.  M.  King  V.  Tabor,  110  P.  601, 
15  N.  M.  488. 

N.  Y.  Dooley  v.  Press  Pub.  Co., 
156  N.  Y.  S.  381,  170  App.  Div.  492 ; 
Bresslin  v.  Star  Co.,  151  N.  Y.  S.  660, 
166  App.  Div.  89,  affirming  judgment 
148  N.  Y.  S.  295,  85  Misc.  Rep.  609 ; 
Zvonik  V.  Intei*urban  St.  Ry.  Co. 
(Sup.)  88  N.  Y.  S.  399;  Powell  v. 
Jones,  42  Barb.  24. 

N.  C.  Baggett  v.  Lanier,  100  S.  E. 
254,  178  N.  O.  129;  Cole  v.  Boyd,  95 
S.  E.  778,  175  N.  C.  555;  Webb.  v. 
Rosemond,  90  S.  E.  306,  172  N.  C.  848 ; 
Marcom  v.  Durham  &  S.  R.  Co.,  81  S. 
E.  290,  165  N.  C.  259 ;  Todd  v.  Mack- 
ie,  76  S.  E.  245,  160  N.  C.  352 ;  Gay  v. 
Mitchell,  60  S.  E.  426,  146t  N.  C.  509 ; 
Kendrick  v.  Dellinger,  117  N.  O.  491, 
23  S.  E.  438:  Gwaltney  v.  Scottish 
Carolina  Timber  &  Land  Co.,  115  N. 
C.  579.  20  S.  E.  465;  Boon  v.  Mur- 
phy, 108  N.  C.  187,  12  S.  E.  1032; 
Morgan  v.  Lewis.  95  N.  C.  296 ;  Boy- 
kin  V.  Perry.  49  N.  O.  325 ;  Brown  v. 
Morris,  20  N.  C.  565. 

N.  D.  McGregor  v.  Great  Northern 
Ry.  Co.,  154  X.  W.  261,  31  X.  D.  471, 
Ann.  Cas.  1917E,  141;  Zilke  v.  John- 
son, 132  X.  W.  640,  22  N.  D.  75,  Ann. 
Cas.  1913E.  1005. 

Ohio.  Steen  v.  Friend,  20  Ohio  Cir. 
Ct.  R.  459.  11  O.  O.  D.  235;  Cleve- 
land, C».  C.  &  St.  L.  Ry.  Co.  v.  Rich- 
erson,  19  Ohio  Cir.  Ct.  R.  3.S5.  10  O. 
C.  D.  .326;  Clark  v.  Clark.  16  Ohio 
Cir.  Ct.  R.  103,  8  O.  C.  D.  752 ;  Cin- 
cinnati &  H.  Turnpike  Co.  v.  Hester, 
12  Ohio  Cir.  Ct.  R.  350,  5  O.  O.  D. 
690;  Queen  Ins.  Co.  v.  Leonard,  9 
Ohio  Cir.  Ct.  R.  46,  6  O.  C.  D.  49. 

Okl.  Muskogee  Electric  Traction 
Co.  V.  Rye,  148  P.  100,  47  Okl.  142; 
Seay  v.  Plunkett.  145  P.  490,  44  Okl. 
794 ;    St.  Louis  &  S.  F.  R.  Co.  v.  Cro- 


835 


REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS 


§468 


well,  127  P.  1063,  33  Okl.  773  ;  Moore 
V.  O'Dell,  111  P.  308,  27  Okl.  194. 

Or.  McGee  v.  Carlton  Lumber  Co., 
151  P.  652,  77  Or.  446;  Devroe  v. 
Portland  Ry.,  Light  &  Power  Co..  131 
P.  304,  64  Or.  547 ;  Kincart  v.  Sham- 
brook,  128  P.  1003,  64  Or.  27. 

Pa.  Yeager  v.  Anthracite  Brewing 
Co.,  102  A.  418,  2.59  Pa.  123;  Eichen- 
hofer  V.  City  of  Philadelphia,  93  A. 
1065,  248  Pa.  365;  Geiger  v.  Pitts- 
burgh Rys.  Co.,  93  A.  342,  247  Pa.  287 ; 
Bright  V.  Ruthenian  Greek  Catholic 
Congregation,  92  A.  131,  246  Pa.  156; 
Irwin  V.  Pennsylvania  R.  Co.,  75  A. 
19,  226  Pa.  156;  Serfass  v.  Dries- 
bach,  141  Pa.  142,  21  A.  523 ;  Froth- 
ingliam  v.  Laflin  &  Rand  Powder  Co., 
4  A.  720 ;  Katzenberg  v.  Oberndorf , 
70  Pa.  Super.  Ct.  567 ;  Little  v.  Fear- 
on,  49  Pa.  Super.  Ct.  634 ;  Spring  City 
Brick  Co.  v.  Henry  Martin  Brick 
Mach.  Mfg.  Co.,  39  Pa.  Super.  Ct.  7; 
McGrew  v.  Lippincott,  1  Pittsb.  R. 
444. 

S.  C.  Stokes  V.  Murray,  87  S.  E. 
71,  102  S.  C.  395;  Cutter  v.  Mallard 
Lumber  Co.,  83  S.  E.  595,  99  S.  C. 
231 ;  Norton  v.  Columbia  Electric 
St.  Ry.  Light  &  Power  Co.,  64  S.  E. 
062,  83  S.  C.  26:  Rochester  v.  Bull. 
58  S.  E.  766,  78  S.  C.  249;  Jennings 
V.  Edgefield  Mfg.  Co.,  52  S.  E.  113,  72 
S.  C.  411 ;  Sutton  v.  Clark,  38  S.  E. 
150,  59  S.  C.  440,  82  Am.  St.  Rep.  848 ; 
Congdon  v.  Morgan,  13  S.  C.  190. 

Tenn.  Chicago  Guaranty  Fund 
Life  Soc.  V.  Ford,  58  S.  W.  239.  104 
Tenn.  533 ;  Maxwell  v.  Hill,  89  Tenn. 
584.  15  S.  W.  253;  East  Tennessee, 
V.  &  G.  R.  Co.  V.  Toppins,  10  Lea,  58 ; 
Thompson  v.  Commercial  Bank,  3 
Cold.  46. 

Tex.  City  of  San  Antonio  v.  New- 
nam  (Civ.  App.)  218  S.  W.  128 ;  Wich- 
ita Valley  Ry.  Co.  v.  Somerville  (Civ. 
App.)  179  S.  W.  671;  Phillip-Carey 
Co.  V.  Manes  (Civ.  App.)  177  S.  W. 
158;  Planters'  Oil  Co.  v.  Keebler 
(Civ.  App.)  170  S.  W.  120 ;  Ft.  Worth 
&  D.  C.  Ry.  Co.  V.  Scheer  (Civ.  App.) 
169  S.  W.  1069 ;  Ross  v.  Jackson  (Civ. 
App.)  165  S.  W.  513 ;  Western  Union 
Telearaph  Co.  v.  Forest  (Civ.  App.) 
157  S.  W.  204;  Pullman  Co.  v.  Cus- 
ter (Civ.  App.)  140  S.  W.  847;  Lef- 
kovitz  V.  Sherwood  (Civ.  App.")  136 
S.    W.    850;     Lattimore    v.    Tarrant 


County,  124  S.  W.  205,  57  Tex.  Civ. 
App.  010 ;  Williamson  v.  Chicago,  R. 
I.  &  G.  Ry.  Co.,  122  S.  W.  897,  57 
Tex.  Civ.  App.  502 ;  Missouri,  K.  & 
T.  Ry.  Co.  of  Texas  v.  Williams  (Civ. 
App.)  117  S.  W.  1043;  Jesse  French 
Piano  &  Organ  Co.  v.  Garza  &  Co., 
116  S.  W.  150.  53  Tex.  Civ.  App.  346 : 
Pope  V.  Taliaferro,  115  S.  W.  309,  51 
Tex.  Civ.  App.  217 ;  Wade  v.  Galves- 
ton, H.  &  S.  A.  Ry.  Co.  (Civ.  App.) 
110  S.  W.  84 ;  Gonzales  v.  Galveston, 
H.  &  S.  A.  Ry.  Co.  (Civ.  App.)  107  S. 
W.  8961 ;  Waters-Pierce  Oil  Co.  v. 
Snell,  106  S.  W.  170,  47  Tex.  Civ. 
App.  413;  Texas  &  N.  O.  R.  Co.  v. 
Scarborough  (Civ.  App.)  104  S.  W.  408. 
judgment  affirmed  108  S.  W.  805.  101 
Tex.  436;  St.  Louis,  S.  F.  &  T.  Ry. 
Co.  V.  Knowles,  99  S.  W.  867,  44  Tex. 
Civ.  App.  172 ;  Galveston.  Houston  & 
S.  A.  Ry.  Co.  V.  Bonn,  99  S.  W.  413, 
44  Tex.  Civ.  App.  631 ;  Galveston,  H. 
&  S.  A.  Ry.  Co.^  V.  Stoy,  99  S.  W. 
135.  44  Tex.  Civ.  App.  448;  Peacock 
V.  Coltrane,  99  S.  W.  107,  44  Tex,  Civ. 
App.  530;  Galveston,  H.  &  S.  A.  Ry. 
Co.  V.  Roberts  (Civ.  App.)  91  S.  W. 
375 ;  Galveston,  H.  &  S.  A.  Ry.  Co.  v. 
Fitzpatrick  (Civ.  App.)  91  S.  W.  355; 
Freeman  v.  Slay  (Civ.  App.)  88  S.  W. 
404.  reversed  91  S.  W.  6,  99  Tex.  514 : 
Oneal  v.  Weisnian,  88  S.  W.  290,  39 
Tex.  Civ.  App.  592 ;  San  Antonio  & 
A.  P.  Rv.  Co.  V.  Dolan  (Civ.  App.) 
85  S.  W.  302 ;  Missouri.  K.  &  T.  Ry. 
Co.  of  Texas  v.  Baker,  81  S.  W.  67,  35 
Tex.  Civ.  App.  542  ;  Keas  v.  Gordy.  78 
S.  W.  385.  34  Tex.  Civ.  App.  310; 
Schwartzman  v.  Cabell  (Civ.  App.) 
49  S.  W.  113 ;  Walker  v.  Pittman.  46 
S.  W.  117,  18  Tex.  Civ.  App.  519; 
Wright  V.  Solomon  (Civ.  App.)  46  S. 
W.  58;  Western  Union  Tel.  Co.  v. 
Seals  (Civ.  App.)  45  S.  W.  964 ;  Pace 
V.  American  Freehold  Land  &  Mtg. 
Co.,  43  S.  W.  36,  17  Tex.  Civ.  App. 
506 ;  City  of  Waxahachie  v.  Connor 
(Civ.  App.)  35  S.  W.  692 :  Reichstetter 
V.  Bostick  (Civ.  App.)  33  S.  W.  158; 
Burnham  v.  Logan,  88  Tex.  1,  29  S. 
W.  1067;  Eddy  v.  Still,  3  Tex.  Civ. 
App.  340,  22  S.  W.  525;  Adams  v. 
Crenshaw,  74  Tex.  Ill,  11  S.  W. 
10S2;  French  v.  McGinnis,  69  Tex. 
19.  9  S.  W.  323;  Neyland  v.  Bendv> 
69  Tex.  711,  7  S.  W.  497;  Smvth  v. 
Caswell,   67  Tex.  567,  4  S.   W.  848; 


^  458  INSTRUCTIONS  TO  JURIES  836 

sue,^'^  a  party  desiring  further  or  more  specific  instructions  should 


Havs  V.  Hays,  66  Tex.  606,  1   S.  W. 
895  ;   Bast  v.  Alford,  20  Tex.  226. 

Utah.  Valiotis  v.  Utah-Apex  Min- 
ing Co.,  184  P.  802.  55  Utah,  151. 

Vt.  De  Nottbeck  v.  Chapman,  108 
A.  338,  93  Vt.  378 ;  Magoon  v.  Before, 
50  A.  1070,  73  Vt.  231. 

Va.  Adamson's  Adm'r  v.  Norfolk 
&  P.  Traction  Co.,  69  S.  E.  1055,  111 
Va.  556. 

Wash.  Beach  v.  City  of  Seattle, 
148  P.  39,  85  Wash.  379 :  Zolawenski 
V.  City  of  Aberdeen,  129  P.  1090.  72 
Wash.  95 ;  Harris  v.  Browns  Bay 
Logging  Co.,  106  P.  152,  57  Wash.  8; 
Allend  v.  Spokane  Falls  &  N.  Ry.  Co., 
58  P.  244,  21  Wash.  324. 

W.  Va.  Jaeger  v.  City  Hy.  Co.,  78 
S.  E.  59,  72  W.  Va.  307. 

Wis.  Barlow  v.  Foster,  1.36  N.  W. 
822,  149  Wis.  613;  Monaghan  v. 
Northwestern  Fuel  Co..  122  N.  W. 
1066,  140  Wis.  457:  Anderson  v.  Hor- 
lick"s  Malted  Milk  Co.,  119  N.  W.  342, 
137  Wis.  569 ;  Grotjan  v.  Rice,  102  N. 
W.  551,  124  Wis.  253 :  Kelly  v.  Hough- 
ton, 59  Wis.  400,  18  N.  W.  326:  Mur- 
phy V.  Martin,  58  Wis.  276,  16  N.  W. 
603 ;  Corcoran  v.  Harran,  55  Wis.  120, 
12  N.  W.  468 ;  Page  v.  Town  of  Sump- 
ter,  53  Wis.  652.  11  N.  W.  60 ;  Lela  v. 
Domaske,  48  Wis.  623.  4  N.  W.  794; 
Karber  v.  Nellis,  22  Wis.  215;  Hay- 
ward  V.  Ormsbee.  11  Wis.  3  ;  Chappell 
V.  Cady,  10  Wis.  111. 

Wyo.  Buuce  v.  McMahon,  6  Wyo. 
24,  42  P.  23. 

2  0  Ark.  North  American  Union  v. 
Oliphint,  217  S.  W.  1.  141  Ark.  ,346. 

Colo.  Ruby  Chief  Min.  &  Mill.  Co. 
V.  Prentice,  52  P.  210,  25  Colo.  4; 
Denver  Tramway  Co.  v.  Crumhaugh, 
48  P.  503,  23  Colo.  363. 

Conn.  Wolfe  V.  Ives,  76  A.  526, 
83  Conn.  174,  19  Ann.  Cas.  752;  French 
V.  Town  of  Waterbury,  44  A.  740,  72 
Conn.  435. 

Ga.  Fisher  v.  Shands.  102  S.  E. 
190.  24  Ga.  App.  743 ;  Ford  v.  Ford, 
91  S.  E.  42.  146  Ga,  164;  Bishop  v. 
Georgia  Nat.  Bank,  78  S.  E.  947,  13 
Ga.  App.  38 ;  Charleston  &  W.  C.  Ry. 
Co.  V.  Duckworth,  m  S.  E.  1018.  7 
Ga.  App.  350 ;  Morgan  v.  Chuun.  66  S. 
E.  965,  7  Ga.  App.  263;    Hamilton  & 


Pritchett  v.  Jenkins,  66  S.  E.  397,  7 
Ga.  App.  136 :  Savannah  Electric  Co. 
V.  Jackson,  64  S.  E.  680,  132  Ga.  559 ; 
Seaboard  Air  Line  Ry.  v.  Bishop,  63 
S.  E.  785.  132  Ga.  37;  Foote  v.  Kelley, 
55  S.  E.  1045,  126  Ga.  799 ;  Holland  v. 
Williams,  55  S.  E.  1023.  126  Ga.  617; 
Savannah  Electric  Co.  v.  Mullikin,  55 
S.  E.  945.  126  Ga.  722:  Central  of 
Georgia  Ry.  Co.  v.  McClifford.  47  S. 
E.  590.  120  Ga.  90  :  Central  of  Georgia 
Ry.  Co.  V.  Hardin,  40  S.  E.  738,  114 
Ga.  548:  Southern  Ry.  Co.  v.  Lough- 
ridge,  39  S.  E.  882.  114  Ga.  173 :  Kidd 
V.  Huff,  31  S.  E.  430,  105  Ga.  209. 

111.  Chicago  &  A.  Ry.  Co.  v.  Hat- 
field, 109  111.  App.  556 ;  Thode  v.  Peter 
Schoenhofen  Brewing  Co.,  69  111.  App. 
403. 

Ind.  New  Castle  Bridge  Co.  v.  Do- 
ty, 79  N.  E.  485,  168  Ind.  259,  trans- 
ferred from  appellate  court  76  N.  E. 
557.  37  Ind.  App.  84:  Harness  v. 
Steele,  64  N.  B.  875,  159  Ind.  286; 
Tracy  v.  Hacket,  49  N.  E.  185,  19 
Ind.  App.  133,  65  Am.  St.  Rep.  398; 
Summit  Coal  Co.  v.  Shaw,  44  N.  E. 
676,  16  Ind.  App.  9;  Fitzgerald  v. 
Goff.  99  Ind.  28 ;  Chamness  v.  Cham- 
ness,  53  Ind.  301;  Burgett  v.  Burgett, 
43  Ind.  78. 

Iowa.  Blackmore  v.  City  of  Coun- 
cil Bluffs,  176  N.  W.  369 ;  Wagner  v. 
Kloster,  175  N.  W.  840,  188  Iowa, 
174 ;  Bean  v.  Bicklev,  174  N.  W.  675, 
187  Iowa,  689. 

Kan.  Judy  v.  Buck,  82  P.  1104,  72 
Kan.  106;  O'Brien  v.  Foulke,  77  P. 
103,  69  Kan.  475 ;  Roller  v.  James, 
49  P.  630.  6  Kan.  App.  919 :  Reamer 
V.  Columbia,  47  P.  186,  5  Kan.  App. 
543 ;  Kansas  Loan  &  Trust  Co.  v. 
Love,  45  P.  953,  4  Kan.  App.  188. 

Ky.  Illinois  Cent.  R.  R.  v.  Jack- 
son, 79  S.  W.  1187,  117  Ky.  900,  25  Ky. 
Law  Rep.  2087;  Garrett  v,  Thomas, 
57  S.  W.  611,  22  Ky.  Law  Rep.  490; 
Bogard  v.  Johnstone,  53  S.  W.  651,  21 
Ky.  Law  Rep.  965;  White  v.  Cole, 
47  S.  W.  759.  20  Kv.  Law  Rep.  858; 
Anderson  v.  Baird,  40  S.  W.  923.  19 
Ky.  Law  Rep.  444;  Griffin  v.  Gor- 
man, 13  Ky.  Law  Rep.  (abstract)  879 ; 
Pierce  v.  Brown,  12  Ky.  Law  Rep. 
(abstract)   292;    Louisville,   N.   A.   & 


837 


REQUESTS   OR   PRAYERS   FOR   INSTRUCTIONS 


§468 


request  them,  and  in  the  absence  of  such  a  request  he  cannot  com- 
plain of  omissions  in  the  charge,  unless  it  plainly  appears  that  the 


C.  R.   Co.  V.  Davidson,   12  Ky.   Law 

Rep.   (abstract)  142. 

Mich.     :Miller  v.  Sluimway,  98  N. 

W   3S5,  135  Mich.  G54 :    Bokeufohr  v. 

r.ush,  75  N.  W.  929,  117  Mich.  444; 

Recoi-d  Pub.  Co.  v.  Merwin,  72  N.  W. 

99S,  115  Mich.  10. 

Minn.     EUiiiston  v.   Great  Korth- 

erii  Rv.  Co.,  100  N.  W.  218,  92  Minn. 

470:   Olson  v.  Aubolee,  99  N.  W.  1128, 

92  Minn.  312. 

Miss.     Bacon  v.  Bacon,  24  So.  968, 

76  Miss.  458. 

Mo.     Thompson  v.  Bucholz,  81  S. 

W.  490,  107  Mo.  App.  121 ;    INIinter  v. 

Bradstreet  Co.,  174  Mo.  444,  73  S.  W. 

668;    State  ex  rel.  Hospes  v.  Branch, 

52  S.  W.  390,  151  Mo.  622;    Feary  v. 

O'Neill,  50   S.  W.  918,  149   Mo.  467, 

73    Am.    St.    Rep.    440;     Coleman    v. 

Drane,  116  Mo.  387,  22   S.  W.   801; 

Hall  V,  Jennings,   87  Mo.  App.  627; 

Young   V.    Keller,    16   Mo.    App.    551, 

memorandum ;    Cahill    v.    Liggett    & 

Meyers    Tobacco    Co.,    14    Mo.    App. 

596.  memorandum:    State  ex  rel.  Tub- 

besing  v.  Haase,  6  Mo.  App.  586,  mem- 
orandum. 

Mont.     Kirk  v.  Montana  Transfer 

Co.,  184  P.  987,  56  Mont.  292:    Kan- 

sier  V.  City  of  Billings,  184  P.  630,  56 
IMont.  250;  Gillies  v.  Clarke  Fork 
Coal  Min.  Co.,  80  P.  370,  32  Mont.  320. 
Neb.  McCormick  Harvesting  Mach. 
Co.  V.  Carpenter.  95  N.  W.  617,  1  Neb. 
(TTnof.)  273:  Peterson  v.  State,  88  N. 
W.  549,  63  Neb.  251. 

N.  J.  Camden  &  A.  R.  Co.  v.  Wil- 
liams, 40  A.  634,  61  N.  J.  Law,  646. 

N.  Y.  Felice  v.  New  York  Cent.  & 
H.  R.  R.  Co.,  43  N.  Y.  S.  922,  14  App. 
Div.  345, 

N.  C.  Buchanan  v.  Cranberry  Fur- 
nace Co.,  101  S.  E.  518,  178  N.  C.  043  : 
Bec,k  V.  Sylva  Tanning  Co.,  101  S. 
E.  498,  179  N.  C.  123 ;  Sears  v.  Atlan- 
tic Coast  Line  R.  Co.,  100  S.  E.  433, 
178  N.  C.  285;  Ives  v.  Atlantic  &  N. 
C.  R.  Co..  55  S.  E.  74,  142  N.  C.  131, 
115  Am.  St.  Rep.  732,  9  Ann.  Cas.  188 ; 
Cowles  v.  Lovin,  47  S.  E.  610,  135  N. 
C.  488;  Justice  v.  Gallert,  42  S.  E. 
850,  131  N.  C.  393  <  Patterson  v.  Mills, 
28  S.  E.  .368,  121  N.  C.  258. 


N.  D.  Huber  v.  Zeiszler,  164  N.  W. 
131,  37  N.  D.  556  :  Ruddiek  v.  Buchan- 
an, 163  N.  W.  720,  37  N.  D.  132. 

Okl.  Muskogee  Electric  Traction 
Co.  V.  Eaton,  152  P.  1109.  49  Okl.  344; 
Chicago  Live  Stock  Commission  Co.  v. 
Fix,  78  P.  316,  15  Okl.  37 ;  Same  v. 
Connally,  78  P.  318,  15  Okl.  45. 
Or.  Page  v.  Finley,  8  Or.  45. 
Pa.  Kaufman  v.  Pittsburg.  C.  «& 
W.  R.  Co.,  60  A.  2,  210  Pa.  440 ;  Min- 
eral R.  &  Min.  Co.  V.  Auten.  41  A.  327, 
188  Pa.  568,  43  Wkly.  Notes  Cas. 
158;  Leary  v.  Electric  Traction  Co., 
.36  A.  562,  180  Pa.  136;  Poorman  v. 
Smith's  Ex'rs,  2  Serg.  &  R.  461:  Craig 
V.  Borough  of  Shippensburg,  11  Pa. 
Super.  Ct.  490 ;  Dougherty  v.  Loebe- 
lenz,  9  Pa.  Super.  Ct.  344,  43  Wkly. 
Notes  Cas.  447. 

S.  C.  Langley  v.  Southern  Ry.  Co., 
101  S.  E.  286,  113  S.  C.  45;  Smooth- 
ing Iron  Heater  Co.  v.  Blakely,  77  S. 
E  945,  94  S.  C.  224;  Milam  v.  South- 
ern Ry.  Co..  36  S.  E.  571,  58  S.  C 
247 ;  Rutherford  v.  Southern  Ry.  Co.. 
35  S,  E.  136,  56  S.  C.  446 ;  Crosswell 
V,  Connecticut  Indemnity  Ass'n,  28 
S.  E.  200,  51  S.  C.  103 ;  Long  v.  South- 
ern Ry.  Co..  27  S.  E.  531,  50  S.  C. 
49;   State  v.  Williams,  18  S.  C.  605. 

S.  D.  Lunschen  v.  Barnhart,  131 
N  W  501,  27  S.  D.  449;  Winn  v.  San- 
born, 75  N.  W.  201.  10  S.  D.  642. 

Tenn.  Nashville.  C.  &  St.  L.  Ry.  v. 
Heikens,  79  S.  W.  103S.  112  Tenn.  378, 
65  L.  R.  A.  298. 

Tex.  Missouri,  K.  &  T.  Ry.  Co.  of 
Texas  v.  Parrott,  96  S.  W.  950,  43 
Tex.  Civ.  App.  325  :  Turner  v.  Faubi- 
on,  81  S.  W.  810,  36  Tex.  Civ.  App. 
.314 ;  Galveston  City  Ry.  Co.  v.  Chap- 
man, 80  S.  W.  856,  35  Tex.  Civ.  App. 
551;  Texas  Cotton  Products  Co.  v. 
Denny  Bros.  (Civ.  App.)  78  S.  W.  557 ; 
Western  Union  Tel.  Co.  v.  Crawford 
(Civ.  App.)  75  S.  W.  843;  Abilene 
Cotton  Oil  Co.  V.  Briscoe,  66  S.  W. 
315,  27  Tex.  Civ.  App.  157:  Interna- 
tional &  G.  N.  R.  Co.  V.  Harris  (Civ. 
App.)  65  S.  W.  885,  judgment  affirmed 
67  S.  W.  315,  95  Tex.  346 ;  Mayfleld  v. 
Rol)inson,  55  S.  W.  399,  22  Tex.  Civ, 
App.  385;   Gulf,  W.  T.  &  P.  Ry.  Co.  v. 


468 


INSTRUCTIONS   TO  JURIES 


83S 


jury  were  misled  by  such  omissions,^®  and  where  an  instruction  tech- 
nically correct  is  couched  in  terms  which  in  the  opinion  of  a  party 
are  liable  to  be  misunderstood  or  misapplied  by  the  jury,  it  is  his 
duty  to  call  the  attention  of  the  court  to  the  supposed  defect,  and 
present  a  suitable  instruction,  in  default  of  which  he  cannot  corn- 
plain.^^ 

Another  statement  of  the  above  rule  is  that  when  the  jury  is 
instructed,  and  when  the  instructions  given  do  not  impliedly  with- 


Staton  (Civ.  App.)  49  S.  W.  277; 
Graves  v.  Hillyer  (Civ.  App.)  48  S.  W. 
889 ;  Van  Zandt  v.  Brantley,  42  S.  W. 
617,  16  Tex.  Civ.  App.  420;  Clary  v. 
Myers  (Civ.  App.)  40  S.  W.  633 ;  Reyn- 
olds V.  Weinman  (Civ.  App.)  40  S.  W. 
560 ;  Tomson  v.  Heidenheimer,  40  S. 
W.  425,  16  Tex.  Civ.  App.  114 ;  Muncy 
V.  Mattfield  (Civ.  App.)  40  S.  W.  345. 

Wash.  Hiscock  v.  Phinney,  142  P. 
461,  81  Wash.  117,  Ann.  Cas.  1916E, 
1044 ;  Lownsdale  v.  Gray's  Harbor 
Boom  Co.,  58  P.  663.  21  Wash.  542: 

W.  Va.  Henrv  C.  Werner  Co.  v. 
Calhoun,  46  S.  E.  1024,  55  W.  Va.  246. 

Illustrations  of  omissions  lield 
not  objectionable,  in  absence  of 
request  for  further  instructions. 
In  suit  for  commissions  claimed  to 
have  been  earned  Viy  purchasing  land 
for  defendant,  an  instruction  that,  if 
plaintifE  exceeded  his  authority  by 
making  a  larger  first  payment,  or  pay- 
ing more  per  acre,  than  authorized, 
and  defendant  knew  all  the  material 
facts  in  connection  with  his  acts,  and 
accepted  the  benefits  resulting,  de- 
fendant by  his  conduct  ratiiied  plain- 
tiff's unauthorized  act,  being  the  cor- 
rect rule,  if  defendant  desired  an  in- 
struction as  to  what  constituted  ma- 
terial facts  as  to  acts  in  excess  of 
authority,  he  should  have  expressly 
called  attention  to  the  omission.  Ma- 
hon  V.  Ranlvin,  102  P.  60S,  54  Or.  328, 
rehearing  denied  103  P.  53.  Where, 
in  an  action  for  the  death  of  a  person 
at  a  crossing,  the  court  charged  that 
the  trainmen  must  use  ordinary  care 
to  prevent  injuring  persons  on  the 
crossing,  the  error  in  an  instruction 
authorizing  a  recovery  if  the  train- 
men negligently  failed  to  have  on  the 
engine  a  suflicient  headlight  "to  en- 
able them  to  see  persons  using  the 
crossing  or  to  enable  such  persons  to 
see    the    train,    in    that    it    failed    to 


state  what  would  be  a  sufficient  head- 
light, was  merely  one  of  omission, 
which  called  for  correction  by  request 
for  an  appropriate  insti'uction.  Chi- 
cago, R.  I.  &  G.  Ry.  Co.  V.  Clay,  119 
S.  W.  730,  55  Tex.  Civ.  App.  526.  An 
instruction  in  an  action  for  nondeliv- 
ery of  a  telegram  that  a  company  re- 
ceiving for  transmission  a  message 
and  subsequently  discovering  that  the 
addressee  lives  beyond  its  free  deliv- 
ery limits  must  notify  the  sender  that 
additional  charges  are  demanded  for 
delivery,  and  where  it  fails  to  do  so, 
and  that  negligence  as  the  proximate 
cause  results  in  injury  to  the  sender, 
it  is  liable,  is  correct  as  a  general 
proposition,  and  the  company  desiring 
a  modification,  based  on  the  fact  that 
addressee's  residence  was  known  to 
the  sender  who  paid  only  the  charge 
to  the  terminal  office,  must  request  it. 
Lyles  V.  Western  Union  Telegraph 
Co.,  65  S.  E.  832,  84  S.  C.  1,  137  Am. 
St.  Rep.  829. 

3  0  Colo,  Heron  v.  Weston,  100  P. 
1130,  44  Colo.  379. 

Mich.  Ward  v.  Cook,  122  N.  W. 
785.  158  Mich.  283. 

Mo.  Brown  v.  Globe  Printing  Co., 
112  S.  W.  462,  213  Mo.  611,  127  Am. 
St.  Rep.  627;  Fillingham  v.  St.  Louis 
Transit  Co.,  102  Mo.  App.  573,  77  S. 
W.  314. 

Neb.  Webb  v.  Omaha  &  S.  I.  Rv. 
Co.,  164  X.  W.  564,  101  Neb.  596. 

N.  D.  Shellberg  v.  Kuhn,  160  X/ 
W.  504,  35  X.  D.  448. 

Okl.  Branham  v.  State,  182  P. 
525,  16  Okl.  Cr.  308. 

Pa.  Burkholder  v.  Stalil,  58  Pa.  (8 
P.  F.  Smith)  371. 

Tex.  Sudennan-Dolson  Co.  v. 
Hope  (Tex.  Civ.  App.)  118  S.  W.  216. 

31  Yeoman  v.  State,  115  X".  W.  784, 
81  Xeb.  244,  judgment  modified  on  re- 
hearing 115  N.  W.  997,  81  Xeb.  252. 


839 


REQUESTS   OR   PRAYERS   FOR   INSTRUCTIONS 


§468 


hold  from  the  jury  some'  of  the  issues  or  elements  proper  for 
their 'consideration,  error  cannot  be  founded  upon  the  failure  of 
the  court  to  charge  upon  some  particular  phase  of  the  evidence, 
or  some  particular  feature  of  the  case,  without  a  request  therefor.^^ 
This  rule  applies  in  criminal  cases. ^^ 


3  2Carletou  v.  State,  61  N.  W.  699, 
43  Neb.  373. 

3  3  U.  S.  Humes  v.  United  States, 
IS  S.  Ct.  602,  170  U.  S.  210,  42  L.  Ed. 
1011 ;  (C.  C.  A.  Ky.)  Steers  v.  United 
States,  192  F.  1,  112  C.  C.  A.  423 ;  (C. 
C.  A,  La.)  Alexis  v.  United  States,  129 
F.  60,  63  C.  C.  A.  n02;  (C.  C.  A.  Mass.) 
Johnson  v.  United  States.  170  F.  581, 
95  C.  C.  A.  661 ;  (C.  C.  A.  Mo.)  Eipper 
V.  United  States,  179  F.  497,  103  C.  C. 
A.  478,  denying  reliearing  178  F.  24, 
101  C.  C.  A.  152 ;  (C.  C.  A.  Or.)  Rid- 
dell  V.  United  States,  244  F.  695.  157 
C.  C.  A.  143,  certiorari  denied  38  S. 
Ct.  134,  245  U.  S.  668,  62  L.  Ed.  539 ; 
^C.  C.  A.  Wasli.)  Louie  Ding  v.  United 
States,  246  F.  80,  158  C.  C.  A.  306. 

Ala.  Murpliy  v.  State,  71  So.  967, 
14  Ala.  App.  78;  Jones  v.  State,  58 
So.  250,  176  Ala.  20;  Sanderson  v. 
State,  53  So.  109,  168  Ala.  109 ;  Win- 
ter V.  State,  26  So.  949,  123  Ala.  1; 
Murphy  v.  State,  54  Ala.  178;  Dave 
V.  State,  22  Ala.  23. 

Ariz.  Bush  v.  State,  168  P.  508, 
19  Ariz.  195 ;  Lenord  v.  State,  137  P. 
412,  15  Ariz.  137. 

Ark.  Hays  v.  State,  196  S.  W.  123, 
129  Ark.  324;  Van  Yalkinburgh  v. 
State,  142  S.  W.  843.  102  Ark.  16; 
Lackey  v.  State,  55  S.  W.  213,  67  Ark. 
416 ;  Holt  V.  State,  47  Ark.  196,  1  S. 
W.  61. 

Cal.  People  v.  Martin  (Cal.  App.) 
185  P.  1003;  People  v.  Stirgios,  136 
P.  957,  23  Cal.  App.  48 ;  People  v.  An- 
thony, 129  P.  968,  20  Cal.  App.  586; 
People  V.  White,  90  P.  471,  5  Cal.  App. 
329;  People  v.  Weber,  86  P.  671,  149 
Cal.  325;  People  v.  Oliveria,  59  P. 
772,  127  Cal.  376  ;  People  v.  Appleton, 
52  P.  582,  120  Cal.  250;  People  v. 
Winthrop,  50  P.  390,  118  Cal.  85 ;  Peo- 
ple V.  Fice,  97  Cal.  459,  32  P.  .531; 
People  V.  Olsen,  80  Cal.  122,  22  P. 
125;  People  v.  Marks,  72  Cal.  46,  13 
P.  149;  People  v.  Gray,  66  Cal.  271, 
5  P.  240;  People  v.  Wong  Chow,  4  P. 
763 ;   People  v.  Haun,  44  Cal.  96. 


Colo.  West  V.  People,  156  P.  137, 
60  Colo.  488;  Mow  v.  People,  72  P. 
1069,  31  Colo.  351. 

Fla.  Hobbs  v.  State,  81  So.  444, 
77  Fla.  228;  Miller  v.  State.  80  So. 
314,  76  Fla.  518;  Hicks  v.  State,  78 
So.  270,  75  Fla.  311;  Cross  v.  State, 
74  So.  593,  73  Fla.  530:  Herndon  v. 
State,  74  So.  511,  73  Fla.  451;  Gill- 
yard  V.  State,  61  So.  641,  65  Fla.  322; 
Padgett  V.  State,  59  So.  946,  64  Fla. 
3S9,  Ann.  Cas.  1914B,  897;  Carr  v. 
State,  34  So.  892,  45  Fla.  11;  Clem- 
mons  V.  State,  30  So.  699,  43  Fla.  200 ; 
Rawlins  v.  State,  24  So.  65,  40  Fla. 
155;  Lovett  v.  State,  30  Fla.  142,  11 
So.  550,  17  L.  R.  A.  705;  Blount  v. 
State,  30  Fla.  287,  11  So.  547;  Reed 
V.  State,  16  Fla.  564. 

Ga.  Bush  V.  State,  101  S.  E.  695, 
24  Ga.  App.  544;  Smith  v.  State,  98 
S.  E.  11-5,  23  Ga.  App.  140;  Bush  v. 
State,  97  S.  E.  554,  23  Ga.  App.  126 ; 
Easterling  v.  State,  97  S.  E.  553,  23 
Ga.  App.  92;  Johnson  v.  State,  97  S. 
E.  515,  148  Ga.  546;  Quinn  v.  State, 
97  S.  E.  84,  22  Ga.  App.  632 ;  Moon  v. 
State,  97  S.  E.  81,  22  Ga.  App.  617; 
Grigg  V.  State,  96  S.  E.  1049.  22  Ga. 
App.  637;  Cooley  v.  State,  95  S.  E. 
871,  22  Ga.  App.  263;  McNulty  v. 
State,  95  S.  E.  304,  21  Ga.  App.  783; 
Butler  V.  State,  94  S.  E.  267,  21  Ga. 
App.  149;  Conley  v.  State,  94  ^.  E. 
261,  21  Ga.  App.  134  ;  Purtell  v.  State, 
93  S.  E.  227,  20  Ga.  App.  723 ;  Partee 
V.  State,  92  S.  E.  306,  19  Ga.  App.  752 ; 
Killian  v.  State,  92  S.  E.  227,  19  Ga. 
App.  750;  Hamilton  v.  State,  89  S. 
E.  449,  18  Ga.  App.  295 ;  Robinson  v. 
State,  89  S.  E.  434,  18  Ga.  App.  394 ; 
Duhart  v.  State,  89  S.  B.  .343,  18  Ga. 
App.  287;  Wells  v.  State,  86  S.  E.  650, 
17  Ga.  App.  301 ;  Braxley  v.  State,  86 
S.  E.  425,  17  Ga.  App.  196;  Wright 
V.  State,  85  S.  E.  823.  16  Ga.  App.  572 ; 
Sable  V.  State,  82  S.  E.  379,  14  Ga. 
App.  816 ;  Ward  v.  State,  SI  S.  E.  130, 
14  Ga.  App.  424 ;  Carter  v.  State,  80 
S.    E.    995,    141    Ga.    308;     Hollis    v. 


§  468 


IXSTRUCTIOXS   TO   JURIES 


A   statutory  provision  that  the  court  shall  state  to  the  jury 


840 

all 


State.  79  S.  E.  So,  13  Ga.  App.  307: 
Dickens  v.  State,  73  S.  E.  S26.  137 
Ga.  523:  Renfroe  v.  State,  72  S.'  E. 
520,  10  Ga.  App.  38  ;  Whitley  v.  State, 
68  S.  E.  863,  S  Ga.  App.  165 ;  Bruud- 
age  V.  State,  67  S.  E.  1051,  7  Ga.  App. 
726 ;  Lepinsky  y.  State,  66  S.  E.  965, 
7  Ga.  App.  285:  Taylor  v.  State,  62 
S.  E.  1048,  5  Ga.  App.  237;  Randall 
V.  State,  52  S.  E.  889,  124  Ga.  657; 
Tavlor  v.  State,  49  S.  E.  .303,  121  Ga. 
348 ;  Owens  v.  State,  47  S.  E.  513,  120 
Ga.  205;  Green  v.  State,  45  S.  E.  598, 
118  Ga.  755;  Gibson  v.  State,  39  S. 
E.  948,  114  Ga.  34 ;  Robinson  v.  State, 
39  S.  E.  862.  114  Ga.  56;  Wilson  v. 
State.  69  Ga.  224 ;  Clark  v.  State,  68 
Ga.  291;    Farris  v.  State,  35  Ga.  241. 

Idaho.  State  v.  Harness,  76  P. 
788,  10  Idaho,  18;  People  v.  Biles,  2 
Idaho,  114.  6  P.  120. 

111.  People  V.  Lucas,  91  N.  E.  659, 
244  111.  603;  McDonall  v.  People,  48 
N.  E.  86,  168  111.  93. 

Ind.  Brewster  v.  State,  115  N.  E. 
54,  186  Ind.  369;  Bartlow  v.  State, 
109  N.  E.  201.  183  Ind.  398;  Cromer 
V.  State,  52  N.  E.  239,  21  Ind.  App. 
502;  Voght  v.  State,  43  N.  E.  1049, 
145  Ind.  12 ;  Leeper  v.  State,  12  Ind. 
App.  637,  40  N.  E.  1113 ;  Mar.shall  v. 
State,  123  Ind.  128,  23  N.  E.  1141; 
Rauck  V.  State,  11  X.  E.  450.  110  Ind. 
384 ;  Barnett  v.  State,  100  Ind.  171 ; 
Behvmer  v.  State,  95  Ind.  140;  Rol- 
lins'v.  State,  62  Ind.  46;  Jones  v. 
State,  49  Ind.  549. 

Iowa.  State  v.  Geier,  167  N.  W. 
186,  184  Iowa.  874 ;  State  v.  Cameron, 
1.58  X.  W.  563,  177  Iowa,  379;  State 
V.  Brandenberger,  130  N.  W.  1065, 
151  Iowa,  197 ;  State  v.  Manning,  128 
N.  W.  345,  149  Iowa,  205;  State  v. 
Whimpey.  118  N.  W.  281.  140  Iowa, 
199 ;  State  v.  Todd,  82  N.  W.  322,  110 
Iowa,  631;  State  v.  Phipps,  95  Iowa, 
487,  64  N.  W.  410;  State  v.  Jelinek, 
95  Iowa,  420,  64  N.  W.  2.59:  State 
V.  Tiers,  82  Iowa,  397,  48  N.  W.  732 ; 
State  V.  lUsley,  81  Iowa,  49,  46  N.  W. 
977. 

Kan.  State  v.  Tracy,  127  P.  610, 
SS  Kan.  153;  State  v.  Shaw,  100  P. 
78,  79  Kan.  396,  21  L.  R.  A.  (N.  S.)  27, 
131  Am.  St.  Rep.  298 ;  State  v.  Ross, 
94  P.  270,  77  Kan.  341;    City  of  Lin- 


coln Center  v.  Bailey,  67  P.  455,  64 
Kan.  885 :  State  v.  Cox,  1  Kan.  App. 
447,  40  P.  816;  State  v.  Rook,  42 
Kan.  419.  22  P.  626;  State  v.  Peter- 
son. 38  Kan.  204.  16  P.  263 ;  State  v. 
Pfefferle,  36  Kan.  90.  12  P.  406 ;  State 
V.  Shenkle,  12  P.  309.  36  Kan.  43. 

La.  State  v.  Tibbs.  48  La.  Ann. 
1278.  20  So.  735;  State  v.  Scott,  12 
La.  Ann.  ,386. 

Me.    State  v.  Straw,  33  Me.  554. 

Mass.  Commonwealth  v.  Meserve, 
154  Mass.  64,  27  N.  E.  997. 

Mich.  People  v.  Hinshaw,  97  N.  W. 
758,  135  Mich.  378 ;  People  v.  Willett, 
105  Mich.  110,  62  N.  W.  1115;  Dris- 
coU  V.  People,  47  Mich.  413,  11  N.  W. 
221;   People  v.  McKinney,  10  Mich.  54. 

Minn.  State  V.  O'Hagen,  144  N. 
W.  410,  124  Minn.  58:  State  v.  Zem- 
pel.  115  N.  W.  275,  103  Minn.  428. 

Miss.  Pringle  v.  State,  67  So.  455, 
108  Miss.  802. 

Mo.  State  V.  Herring,  188  S.  W. 
169,  268  Mo.  514 ;  State  v.  Ramsauer, 
124  S.  W\  67,  140  Mo.  App.  401 :  State 
V.  Goldsby,  114  S.  W.  500,  215  Mo.  48; 
State  V.  Brooks,  92  Mo.  542,  5  S.  \V. 
257,  330;  State  v.  Emory,  12  Mo. 
App.  593. 

Mont.  State  v.  luich,  173  P.  230, 
55  Mont.  1 ;  State  v.  Powell,  169  P. 
46,  54  Mont.  217. 

Neb.  Goldsberry  v.  State,  137  N. 
W.  1116,  92  Xeb.  211 ;  Martin  v.  Stale, 
93  X.  W.  161,  67  Xeb.  36 ;  Musfelt  v. 
State,  90  X.  W.  237,  64  Xeb.  445: 
Dinsmore  v.  State.  85  X.  W.  445.  61 
Xeb.  418 ;  Philamalee  v.  State,  78  X. 
W.  625,  58  Xeb.  320:  Chezem  v. 
State,  76  X.  W.  1056.  56  Xeb.  496; 
Johnson  v.  State,  73  X.  W.  463,  53 
Xeb.  103;  Ferguson  v.  State.  72  X. 
W.  590.  52  Xeb.  432.  66  Am.  St.  Rep. 
512;  Carleton  v.  State,  43  Xeb.  373, 
61  X.  W.  699. 

Nev.  State  v.  Switzer,  145  P.  925, 
38  Xev.  108. 

N.  J.  State  V.  Taylor,  104  A.  709, 
92  X.  J.  Law.  135 ;  State  v.  Littman, 
92  A.  580.  86  X.  J.  Law,  453,  judg- 
ment affirmed  90  A.  66,  88  X.  J.  Law, 
392 ;  State  v.  D'Adame,  86  A.  414,  84 
X.  J.  Law,  386,  Ann.  Cas.  1914B,  1109, 
affirming  judgment  82  A.  520,  82  X. 
J.  Law,  315;    State  v.  Bertchey,  73  A. 


841 


REQUESTS   OR   PRAYERS   FOR -INSTRUCTIONS 


^  468 


matters  of  law  necessary  for  their  information  in  giving  their  ver- 


524,  77  N.  J.  Law,  640,  18  Aim.  Cas. 
9:;i ;  Mead  v.  State,  53  N.  J.  Law, 
GOl.   23   A.   2G4. 

N.  M.  State  V.  Dickens,  165  P. 
850,  23  N.  M.  26;  Territory  v.  Gon- 
zales, 68  P.  925,  11  N.  M.  301 :  Trujil- 
lo  V.  Territory,  7  N.  M.  43,  32  P.  154; 
Territory  v.  O'Donuell,  4  N.  M.  196, 
,   12  P.  743. 

N.  Y.  People  V.  Sauducci,  88  N.  E. 
385,  195  N.  Y.  361 ;  People  v.  John- 
son, 77  N.  E.  1164,  185  N.  Y.  219; 
People  V.  Moett,  58  How.  Prac.  467. 
N.  C.  State  v.  Wade,  84  S.  B.  768, 
169  N.  C.  306 ;  State  v.  Powell,  83  S. 
E.  310  168  N.  C.  134 ;  State  v.  Lance, 
81  S.  E.  1092.  166  N.  0.  411;  State 
V.  Robertson,  81  S.  E.  689,  166  N.  C. 
356 ;  State  v.  Yates,  71  S.  E.  317.  155 
N.  C.  450;  State  v.  Yellowday,  67  S. 
E.  480,  152  N.  C.  793;  State  v.  Mar- 
tin. 53  S.  E.  874,  141  N.  C.  832  ;  Slate 
V.  Worley,  53  S.  E.  128,  141  N.  C.  764 ; 
State  Y.  Kinsaiils,  36  S.  E.  31,  126  N. 
C.  1095 ;  State  v.  Ridge.  34  S.  E.  439, 
125  N.  C.  655;  State  v.  Groves,  25  S. 
E.  819,  119  N.  C.  822 ;  State  v.  Var- 
ner,  115  N.  C.  744.  20  S.  E.  518 ;  State 
V.  Jackson,  112  N.  C.  851,  17  S.  E. 
149;  State  v.  Nicholson,  85  N.  C.  548; 
State  V.  Rash.  34  N.  C.  382.  55  Am. 
Dec.  420;  State  v.  O'Neal,  29  N.  O. 
251  ;  State  v.  Nicholson,  85  N.  C.  548. 
N.  D.  State  v.  Rosencrans,  82  N. 
W.  422,  9  N.  D.  163. 

Ohio.  Mason  v.  State,  27  Ohio 
Cir.  Ct.  R.  526;  Wray  v.  State.  27 
Ohio  Cir.  Ct.  R.  1;  Mitchell  v.  State, 
21  Ohio  Cir.  Ct.  R.  24,  11  O.  C.  D. 
446. 

Okl.  Fitzsimmons  v.  State,  166  P. 
453,  14  Okl.  Cr.  SO ;  Robinson  v.  Ter- 
ritory. 85  P.  451.  16  Okl.  241,  revers- 
ed 148  F.  830,  78  C.  C.  A.  520 ;  Dou- 
thitt  v.  Territory,  54  P.  312,  7  Okl.  55. 
Or.  State  v.  Chong  Ben,  173  P. 
1173,  89  Or.  313,  denying  rehearing 
173  P.  258.  89  Or.  313 ;  State  v.  Mc- 
Avoy,  109  P.  763.  57  Or.  1 ;  State  v. 
Meldrum.  70  P.  526,  41  Or.  380. 

Pa.  Commonwealth  v.  Bednorciki, 
107  A.  066.  264  Pa.  124;  Common- 
wealth V.  Beingo,  66  A.  153,  217  Pa. 
60;  Zell  v.  Commonwealth,  94  Pa. 
258 ;  Commonwealth  v.  Keegan,  70 
Pa.  Snper.  Ct.  4.36;  Commonwealth 
v.    Holgate,   63   Pa.    Super.   Ct.   246; 


Commonwealth  v.  Eaby.  52  Pa.  Super. 
Ct.  619;  Commonwealth  v.  Lenhart, 
40  Pa.  Super.  Ct.  572. 

S.  C.  State  V.  Brown,  101  S.  E. 
847,  113  S.  C.  513;  State  v.  Evans, 
99  S.  E.  751,  112  S.  C.  43;  State  v. 
Sanders,  88  S.  E.  10,  103  S.  C.  216; 
State  V.  Newman,  81  S.  E.  667,  97  S. 
C.  441;  St^ate  v.  Hendrix.  68  S.  E. 
129,  86  S.  C.  64 ;  State  v.  Cokley,  65 
S.  E.  174,  S3  S.  C.  197;  State  v. 
Thompson,  56  S.  B.  789,  76  S.  C.  116 ; 
State  V.  Chiles,  36  S.  E.  496,  58  S.  C. 
47 ;  State  v.  Kendall.  32  S.  E.  300,  54 
S.  C.  192 ;  State  v.  Cannon,  30  S.  E. 
589,  52  S.  C.  452;  State  v.  Cannon.  27 
S.  E.  526,  49  S.  C.  550;  State  v. 
Moore,  27  S.  E.  454,  49  S.  C.  438; 
State  v.  Sullivan,  43  S.  C.  205,  21  S. 
E.  4 ;  State  v.  Robinson.  40  S.  C.  553. 
18  S.  E.  891 ;  State  v.  Anderson,  24  S. 
C.  109;  State  v.  Coleman,  17  S.  C. 
473. 

Tenn.  State  v.  Davis,  58  S.  W. 
122,  104  Tenn.  501. 

Tex.  Gray  v.  State,  178  S.  W.  337, 
77  Tex.  Cr.  R.  221;  Robey  v.  State, 
163  S.  W.  713,  73  Tex.  Cr.  R.  9; 
Stubbs  V.  State,  160  S.  W.  87,  71  Tex. 
Cr.  R.  390;  Coggins  v.  State.  151  S. 
W.  311,  6S  Tex.  Cr.  R.  266 ;  T\'ler  v. 
State,  150  S.  W.  782,  67  Tex.  Cr.  R. 
601 ;  Williams  v.  State.  144  S.  AV. 
622.  65  Tex.  Cr.  R.  193;  Lutrall  v. 
State,  142  S.  W.  588,  64  Tex.  Cr.  R. 
411 ;  Treadwell  v.  State,  141  S.  W. 
219,  64  Tex.  Cr.  R.  83;  Diggs  v. 
State.  141  S.  W.  100,  64  Tex.  Cr.  R. 
122 ;  Gentry  v.  State.  136  S.  W.  50.  61 
Tex.  Cr.  R.  619;  Ellis  v.  State,  130 
S.  W.  170,  59  Tex.  Cr.  R.  626 ;  Hamil- 
ton v.  State,  127  S.  W.  212,  58  Tex. 
Cr.  R.  173;  Feinstein  v.  State  (Tex. 
Cr.  App.)  73  S.  W.  1052  ;  Ramsev  v. 
State  (Cr.  App.)  65  S.  W.  187 ;  Lucia 
V.  State,  35  Tex.  Cr.  R.  320.  33  S.  W. 
358 ;  Dunbar  v.  State,  34  Tex.  Cr.  R. 
596,  31  S.  W.  401;  Strang  v.  State,  32 
Tex.  Cr.  R.  219.  22  S.  W.  680 ;  Quin- 
tana  v.  State,  29  Tex.  App.  401.  16 
S.  W.  258,  25  Am.  St.  Rep.  730 ;  Gar- 
ner V.  State.  28  Tex.  Aiip.  561.  13  S. 
W.  1004;  White  v.  State.  23  Tex. 
App.  154,  3  S.  W.  710;  Mooring  v. 
State.  42  Tex.  85;  Gillmore  v.  State, 
36  Tex.  334 ;  Greenwood  v.  State.  35 
Tex.  587 ;   O'Connell  v.  State,  IS  Tex. 


§469 


INSTRUCTIONS   TO   JURIES 


842 


diet  does  not  render  the  above  rule  inapplicable,^*  and  a  rule  that 
charges  given  are  to  be  deemed  as  excepted  to  does  not  relieve 
a  litigant  from  the  duty  of  requesting  additional  instructions,  if  in 
his  opinion  those  given  are  not  sufficient. ^"^ 

§  469.     Specific  applications  of  rule  in  civil  cases 

In  civil  cases  the  above  rule  has  been  applied  to  the  omission 
of  instructions  relating  to  the  construction  of  a  written  contract,^^ 
to  conditions  precedent  to  the  rescission  of  a  'contract,^^  to  what 
constitutes  separate  and  community  property,^*  to  fraud  and  evi- 
dence thereof, ^^  to  the  question  of  what  constitutes  due  care  or 
negligence,'**  to  the  violation  of  an  ordinance  as  constituting  negli- 


343;  Fonville  v.  State,  17  Tex.  App. 
368;  Waite  v.  State,  13  Tex.  App. 
169;  Howard  v.  State,  S  Tex.  App. 
612. 

Vt.  State  V.  Harrison,  66  Vt.  523, 
29  A.  807,  44  Am.  St.  Rep.  864. 

Wash.  State  v.  Walker,  177  P. 
315,  104  Wash.  472:  State  v.  Ross, 
147  P.  1149,  85  Wash.  218 ;  State  v. 
Aton,  121  P.  980,  67  Wash.  485. 

W.  Va.  State  v.  Alie,  96  S.  E. 
1011,  82  W.  Va.  601 ;  State  v.  Dono- 
hoo,  22  W.  Ya.  761. 

Wis.  Birmingham  v.  State,  129  N. 
W.  670,  145  Wis.  90:  Winn  v.  State, 
82  Wis.  571,  52  N.  W.  775. 

Wyo.  Brantley  v.  State,  61  P.  139, 
9  Wyo.   102. 

Effect  of  assent  to  instructions. 
Where,  before  the  court's  charge  was 
given,  it  was  reduced  to  writing  and 
submitted  to  coxmsel  for  the  state  and 
for  accused,  and  they  were  asked  if 
they  had  any  exception  to  the  charge 
and  both  replied  in  the  negative, 
counsel  for  accused  cannot  sub.se- 
quently  complain  of  the  court's  fail- 
ure to  charge  certain  other  matters 
of  its  own  motion.  State  v.  Fujita, 
129  N.  W.  360.  20  N.  D.  555,  Ann. 
Cas.  1913A,  159. 

Request  ^vithdra'wn  because  of 
unofficial  statements  by  trial 
judge.  Counsel,  who  fails  to  ask  the 
co\irt  to  charge  the  jury  on  the  sub- 
ject of  self-defense  because,  in  an  un- 
oflicial  conversation  with  the  judge, 
the  latter  had  stated  to  him  that  the 
plea  of  self-defense  admitted  the  kill- 
ing, cannot,  after  the  trial,  seek  a  re- 
versal on  the  ground  that  he  had 
been    forced    by    this    statement    to 


waive  his  right  of  going  before  the 
jurv  on  that  issue.  State  v.  Salter, 
48  La.  Ann.  197,  19  So.  265. 

34  Powers  v.  State,  87  Ind.  144; 
State  V.  Walke,  76  P.  408,  69  Kan. 
183. 

3  5  Missouri  Pac.  R.  Co.  v.  Martin 
(Tex.)  2  Willson,  Civ.  Cas.  Ct.  App. 
§  655. 

3  6  Western  Brass  Mfg.  Co.  v. 
Hajaies  Automobile  Co.,  112  N.  E. 
108,  61  Ind.  App.  524. 

3  7  C.  Aultman  &  Co.  v.  York,  71 
Tex.  261,  9  S.  W.  127. 

38Watkins  v.  Watkins  (Tex.  Civ. 
App.)  119  S.  W.  145. 

3  9  Ky.  Oberdorfer  v.  Newberger. 
67  S.  W.  267,  23  Ky.  Law  Rep.  2323; 
New  York  Life  Ins.  Co.  v.  Brown's 
Adm'r,  66  S.  W.  613,  139  Ky.  711,  23 
Ky.  Law  Rep.  2070 :  Rountree  v. 
Glatt,  13  Ky.  Law  Rep.  (abstract)  462. 

Micb.  McDonald  v.  Smith,  102  N. 
W.  668,  139  Mich.  211. 

N.  Y.  Graser  v.  Stellwagen,  25  N. 
Y.  315. 

N.  C.  Howard  v.  Turner,  34  S.  E. 
229,  125  N.  C.  107. 

Tex.  Half  v.  Curtis,  68  Tex.  640, 
5  S.  W.  451. 

4  0  True  V.  Chicago  &  N.  W.  Ry.  Co., 
173  N.  W.  642,  42  S.  D.  35. 

Illustrations  of  instruction  beld 
sufficient  ivitbin  rule.  In  action 
against  a  street  railroad  for  injuries 
to  a  man  94  years  old  and  slightly 
deaf  in  one  ear,  through  being  struck 
by  fi  car,  an  instruction  defining  or- 
dinary care  as  applied  to  plaintiff  a? 
that  degree  of  care  which  men  of  bis 
age  and  capacity  usually  exercise  un- 
der similar   circumstances   was   sufli- 


843 


REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS 


4G9 


gence,'*^  to  the  duty  of  a  person  excavating  in  the  highway,*^  to 
the  duty  to  prevent  fire  escaping  from  an  engine,"*^  to  matters  of 
defense.'*"'  to  the  question  of  contributory  negHgence/^  to  assump- 
tion of  risk  and  the  law  of  fellow  servants,^^  to  liability  of  a  mas- 
ter to  third  persons  because  of  acts  of  servant,*'  to  advice  of  coun- 
sel in  an  action  for  malicious  prosecution,''*  to  the  legal  efifect  of 


(icnt.  in  the  absence  of  a  request  to 
charge  that  it  is  the  clhty  of  one 
whose  senses  are  defective  to  exercise 
great  care  and  caution  in  the  use  of 
his  remaining  senses  to  avoid  danger. 
Louisville  Ry.  Co.  v.  Knoclve's  Adm'r 
(Ky.)  117  S.  W.  271.  In  an  action 
for  injuries  sustained  wliih^  plaintiff, 
who  had  a  clubfoot,  was  climbing  be- 
tween cars  which  had  blocked  a  pub- 
lic crossing,  an  instruction  that  if 
plaintiff  went  between  the  cars,  and 
remained  there  in  a  dangerous  posi- 
tion while  the  cars  were  moved,  and 
failed  to  take  such  precautions  for 
his  safety  as  an  ordinarily  cautious 
person  of  his  age  would  have  done, 
he  could  not  recover,  was  at  least  not 
athrmative  error,  and  defendant  could 
not  complain  because  it  did  not  au- 
thorize the  .iury  to  consider  idain- 
tiff's  deformed  foot  in  determining 
his  due  care,  unless  it  presented  a 
direct  charge  supplying  the  omission. 
Texas  &  N.  O.  R.  Co.  v.  Bean.  119  S. 
W.  32S.  55  Tex.  Civ.  App.  341. 

41  Driver  v.  Atchison,  T.  &  S.  F. 
Ry.  Co.,  52  P.  79,  59  Kan.  773 ;  Hovey 
V.  Michigan  Tel.  Co.,  S3  N.  W.  600, 
124  Mich.  G07. 

4  2  Brasington  v.  South  Bound  R. 
Co.,  40  S.  E.  665,  62  S.  C.  325,  89  Am. 
St.  Rep.  905. 

43  Bowen  v.  St.  Paul,  M.  &  M.  R. 
Co.,  36  "SUim.  522,  32  N.  W.  751. 

4  4  Mo.  Shanholtzer  v.  Brubaker, 
140  S.  W.  626.  159  Mo.  App.  366. 

N.  Y.  Heiferman  v.  Greenhut 
Cloak  Co.,  145  N.  Y.  S.  142.  83  Misc. 
Rep.  435,  reversing  order  (City  Ct.) 
143  N.  Y.  S.  411,  judgment  reversed 
(Sup.)  148  N.  Y.  S.  1119. 

Tex.  Missouri,  K.  &  T.  Ry.  Co.  of 
Texas  v.  Reno  (Civ.  App.)  146  S.  W. 
207;  Chicago.  R.  I.  &  P.  Ry.  Co.  v. 
Hiltibrand.  99  S.  W.  707,  44  Tex. 
Civ.  Aiip.  614 ;  Missouri,  K.  &  T.  Ry. 
Co.  of  Texas  v.  Growder  (Civ.  App./ 
55  S.  W.  3S0;    Missouri,  K.  &  T.  Ry. 


Co.  of  Texas  v.  Witherspoon,  45  S.  W. 
424.  IS  Tex.  Civ.  App.  615;  Sanger 
V.  Warren  (Civ.  App.)  40  S.  W.  840; 
Rees  V.  Clark  (Civ.  App.)  .39  S.  W. 
160;  Whiting  v.  Dugan  (Civ.  App.) 
39  S.  W.  148 :  Missouri.  K.  &  T.  Ry. 
Co.  V.  Connelly,  39  S.  W.  145,  14  Tex. 
Civ.  App.  529. 

4  5  Ala.  East  Tennessee,  V.  &  G.  R. 
Co.  V.  Clark.  74  Ala.  443. 

Ga.  Southern  Ry.  Co.  v.  Coursey, 
41  S.  E.  1013.  115  Ga.  602 ;  Southern 
Ry.  Co.  V.  Hooper,  36  S.  E.  232,  110 
Ga.  779:  Orr  v.  Garabold,  85  Ga. 
373.  11  S.  E.  778. 

lU.  Chicago  &  E.  I.  R.  Co.  v. 
O'Connor.  119  111.  586,  9  N.  E.  263. 

Ky.  Felton  v.  Curd,  60  S.  W.  297, 
22  Ky.  T.aw  Rep.  1222. 

Md.  Baltimore  &  O.  R.  Co.  v. 
Bahrs,  28  Md.  647. 

Minn.  Greene  v.  Minneapolis  & 
St.  L.  Ry.  Co.,  81  Minn.  248,  17  N. 
W.  378,  47  Am.  Rep.  785. 

Mo.  Brown  v.  Hannibal  &  St.  J.  R. 
Co.,  31  ]Mo.  App.  661,  affirmed  99  Mo. 
310,  12  S.  W.  655. 

Nev.  Zelavin  v.  Tonopah  Belmont 
Development  Co.,  149  P.  188,  39 
Xev.  1. 

Tex.  Andrews  v.  Viraldo  (Civ. 
App.)  176  S.  W.  737;  Western  Union 
Telegraph  Co.  v.  Buchanan.  129  S. 
W.  S50.  61  Tex.  Civ.  App.  212 ;  Hous- 
ton &  T.  C.  R.  Co.  V.  Lentz.  120  S.  AV. 
943.  56  Tex.  Civ.  App.  498;  Barklow 
V.  Avery,  89  S.  W.  417,  40  Tex.  Civ. 
App.  3.55;  Gulf,  C.  &  S.  P.  Ry.  Co. 
V.  Pendery  (Civ.  App.)  27  S.  W.  213. 
4  6  Smith  v.  Fordyce.  88  S.  W.  679, 
190  Mo.  1 ;  Turrentine  v.  Wellington, 
48  S.  E.  739,  136  N.  C.  308 ;  Interna- 
tional &  G.  N.  R.  Co.  V.  Beasley,  9 
Tex.  Civ.  App.  569,  29  S.  W.  1121. 

4  7  Gerstein  v.  C.  F.  Adams  Co.,  173 
X.  W.  209,  169  Wis.  504. 

4s  Hurt  V.  Barnes,  79  S.  E.  775,  140 
Ga.  743. 


§  469 


INSTRUCTIONS   TO  JURIES 


844 


an  offer  to  retract  a  libel,*^  to  matters  constituting-  notice  and  the 
effect  of  notice,^**  to  questions  of  adverse  possession  and  matters 
bearing  on  running  of  the  statute  of  limitations,^^  to  the  object  of 
the  action,^-  to  what  are  the  material  allegations  of  the  complaint,^^ 
to  the  relevancy  and  effect  of  a  deed,^*  to  the  effect  of  evidence 
relating  to  malice,^^  to  the  legal  effect  of  evidence  as  showing 
due  care,^^  to  questions  relating  to  the  measure  and  elements  of 
damages/''''  to  the  necessity  of  assessing  damages  separately  against 


49  O'Toole  V.  Post  Printing  &  Pnb- 
lishins  Co.,  36  A.  288,  179  Pa.  271. 

50  O'Flynn  v.  City  of  Butte,  93  P. 
643,  36  Mont.  493:  Rapley  v.  Klngh, 
40  S.  C.  134,  IS  S.  m  680 ;  Brotherton 
V.  Weathersby,  73  Tex.  471,  11  S.  W. 
505. 

31  Pa.  Wood  V.  Figard,  28  Pa. 
403;    I.ea  v.  Hopkins,  7  Pa.  492. 

Tex.  City  of  Comanche  v.  Zettle- 
moyer  (Civ.  App.)  40  S.  W.  641 ;  Rack- 
ley  V.  Fowlkes  (Civ.  App.)  36  S.  W. 
75;  Robinson  v.  Mclver  (Civ.  App.) 
23  S.  W.  915 ;  Hocker  v.  Day,  SO  Tex. 
529.  16  S.  W.  322. 

Vt.     Partch  v.  Spooner,  57  Vt.  583. 

Rs  Wimer  v.  Allbaugh,  78  Iowa,  79, 
42  N.  W.  587,  16  Am.  St.  Rep.  422; 
Klostei-man  v.  Olcott,  25  Nob.  382,  41 
X.  W.  250. 

S3  O'Donnell  v.  Chicago,  R.  I.  &  P. 
R.  Co.,  91  X.  W.  566,  65  Neb.  612. 

5  4  Cox  V.  Ward,  107  N.  C.  507,  12 
S.  E.  379. 

5  5  Hall  V.  Jennings,  87  Mo.  App. 
627. 

56  Leslie  V.  Granite  R.  Co.,  52  N.  E. 
542,  172  Mass.  468. 

5  7  u.  S.  (C.  C.  A.  111.)  Grand 
Trunk  Western  Ry.  Co.  v.  Gilpin,  208 
F.  126,  125  C.  C.  A.  278;  (C.  C.  A. 
Tex.)  .Texas  &  P.  Ry.  Co.  v.  Cody,  67 
Fed.  71,  14  C.  C.  A.  310. 

Ariz.  Arizona  Power  Co.  v.  Ra- 
cine-Satlley  Co..  114  P.  558,  13  Ariz. 
283. 

Cal.  Peluso  v.  City  Taxi  Co.,  1S2 
P.  808.  41  Cal.  App.  297 ;  City  of  Oak- 
land v.   Wheeler   (App.)   168  P.  23. 

Colo.  Consolidated  Lower  Bould- 
er Rcseiwoir  &  Ditch  Co.  v.  Alnux, 
1.33  P.  3046.  24  Colo.  App.  377. 

Conn.  Palmer  v.  Smith,  56  A. 
510,  76  Conn.  210. 


Ga.  Smith  v.  S.  H.  Fuller  Loan 
Co.,  99  S.  E.  .309,  23  Ga.  App.  726; 
Central  of  Georgia  Ry.  Co.  v.  New- 
man, 74  S.  E.  1077,  138  Ga.  145; 
Savannah  Electric  Co.  v.  Bennett,  61 
S.  E.  529,  130  Ga.  597;  Peterson  v. 
Wadley  &  Mt.  V.  R.  Co.,  43  S.  E.  713, 
117  Ga.  390. 

111.  Central  Ry.  Co.  v.  Ankiewiez, 
73  N.  E.  382,  213  111.  631.  affirming 
115  111.  App.  380;  Illinois  Cent.  R. 
Co.  V.  Atwell,  64  'N.  E.  1095,  198  111. 
200.  affinning  judgment  100  111.  App. 
513. 

Ind.  New  York  Cent.  R.  Co.  v. 
Reidenbach  (App.)  125  N.  E.  55;  P. 
B.  Arnold  Co'.  v.  Buchanan,  111  N. 
E.  204.  60  Ind.  App.  626. 

Iowa.  Grace  v.  INIlnneapolis  &  St. 
L.  R.  Co.,  133  N.  W.  672,  153  Iowa, 
418;  Gorton  v.  Moeller  Bros.,  130 
N.  W.  910,  151  Iowa,  729. 

Kan.  Missouri,  K.  &  T.  Ry.  Co.  v. 
Steinberger,  55  P.  1101,  60  Kan.  856, 
affirming  judgment  51  .P.  623,  6  Kan. 
App.  585. 

Ky.  Stearns  Coal  &  Lumber  Co. 
V.  Calhoun,  179  S.  W.  590,  166  Ky. 
607. 

Mass.  Buzzell  v.  Emerton,  161 
Mass.  176,  .36  N.  E.  796. 

Mich.  Merr inane  v.  Miller,  111  N. 
W.   1050,   148   Mich.  412. 

Minn.  Haynes  v.  City  of  Duluth, 
47  IVIinn.  458.  50  N.  W.  693. 

Mo.  Greenwell  v.  Chicago.  M.  & 
St.  P.  Ry.  Co.  (Sup.)  224  S.  W.  404; 
Cook  v.  City  of  St.  .Toseph,  220  S.  W. 
(J93.  203  :Mo.  App.  430;  Kerr  v.  Bush 
(App.)  215  S.  W.  393 ;  Delano  v.  Rob- 
erts (App.)  182  S.  W.  771;  Nelson  v. 
Tnitod  Rys.  Co.  of  St.  Louis,  158  S. 
W.  446,  176  Mo.  App.  423;  Potter 
V.  St.  Louis  &  S.  P.  R.  Co.,  117  S.  W. 
593,   136  Mo.  App.   125;    Dreyfus  v. 


845 


REQUESTS   OR  PRAYERS  FOR   INSTRUCTIONS 


§  469 


several  defendants/'*  to  the  question  of  proximate  cause/**  to  the 
omission  of  the  court  to  impress  upon  the  jury  the  necessity  of 
basing  their  verdict  upon  the  evidence  alone/*  to  failure  of  the 
court  to  especially  direct  the  attention  of  the  jury  to  a  matter  of 
common  knowledge/^  to  the  failure  to  submit  certain  questions  to 
the  jury/^  to  omissions  in  a  charge  on  the  burden  of  proof/^  and 
as  to  the  form  of  the  verdict.*^ 


St.  Louis  &  S.  Ry.  Co.,  102  S.  W.  53, 
124  :Mo.  App.  585. 

N.  J.  Gruen  v.  George  A.  Ohl  & 
Co.,  so  a.  547,  81  N.  J.  Law,  62G. 

N.  C.  Willey  v.  Norfolk  Southern 
R.  Co.,  Of)  X.  C.  408.  1  S.  E.  44G. 

Pa.  Hart  v.  Druuim,  55  Pa.  Super. 
Ct.  457. 

Tex.  Andrews  v.  York  (Civ.  App.) 
192  S.  W.  338;  Kansas  City,  M.  & 
O.  Ry.  Co.  of  Texas  v.  Worsham  (Civ. 
App.)  149  S.  W.  755;  Missouri,,  K. 
&  T.  Ry.  Co.  of  Texas  v.  Hurdle  (Civ. 
App.)  142  S.  W.  992;  Houston  &  T, 
C.  R.  Co.  V.  Daveuiwrt,  117  S.  W. 
790.  102  Tex.  369,  affirmins  judgment 
(Civ.  xipp.)  110  S.  W.  150 ;  Houston, 
E.  &  W.  T.  Rv.  Co.  V.  Roach,  114  S. 
TV.  418,  52  Tex.  Civ.  App.  95  :  Houston 
&  T.  C.  R.  Co.  V.  Craig,  92  S.  W.  1033, 
42  Tex.  Civ.  App.  486;  Hargrave  v. 
Western  Union  Tel.  Co.  (Civ.  App.) 
60  S.  W.  687. 

Wis.  Sharon  v.  Winnebago  Furni- 
ture ^klfg.  Co.,  124  N.  W.  299.  141 
Wis.  185;  Thomas  v.  Williams,  121 
N.  W.  148.  139  Wis.  467. 

Instructions  held  sufficient 
within  rule.  In  an  action  for  in- 
jury to  standing  timber  by  negligent- 
ly starting  a  fire,  it  was'  not  error  to 
charge  that  the  jury  should  be  fair 
and  just  in  fixing  damages  and  award 
plaintiff  such  sum  as  would  compen- 
sate him  for  the  injuries  sustained 
by  defi^ndant's  negligence ;  neither 
party  having  requested  more  specific 
instructions.  Miller  v.  Neale,  119  X. 
W.  94.  137  Wis.  426,  129  Am.  St.  Rep. 
1077. 

Use  of  word  "pain"  as  including 
mental  suffering.  TMicre  iilaintiff 
demanded  compensation  for  physical 
and  mental  pain,  and  the  court  charg- 
ed that  plaintiff  demanded'  compensa- 
tion for  physical  and  mental  pain,  an 
instruction  directing  the  jury  in  as- 
sessing the  damages  to  consider  the 


personal  injury  suffered,  the  pain  al- 
ready suft'cred,  or  which  he  might  suf- 
fer in  the  future,  etc.,  was  not  objec- 
tionable as  restricting  the  damages  to 
physical  pain  only,  in  the  absence  of 
any  requested  instruction  on  the  sub- 
ject, for  the  word  "pain"'  was  l)road 
enough  to  include  both  physical  and 
mental  suffering.  Hall  v.  Chicago,  B. 
&  Q.  Rv.  Co.,  122  X.  W.  894,  145  Iowa. 
291. 

5  8  Rio  Grande,  E.  P.  &  S.  F.  R.  Co. 
V.  Kraft  Sz  Madero  (Tex.  Civ.  App.) 
212  S.  W.  981. 

5  9  s.  C.  Berrv  v.  City  of  Green- 
ville, 65  S.  E.  1030,  84  S.  C.  122,  19 
Ann.  Cas.  978. 

Tex.  Guerra  v.  San  Antonio  Sew- 
er Pipe  Co.  (Civ.  App.)  163  S.  W.  669 ; 
Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Keeran 
(Civ.  App.)  149  S.  W.  355;  Gulf,  C. 
&  S.  F.  Ry.  Co.  V.  Josey  (Civ.  App.) 
95  S.  W.  688;  International  &  G.  X. 
R.   Co.   V.    Smith   (Sup.)   1  S.  W.   565. 

Wis.  Fisher  v.  Waupaca  Electric 
Light  &  Ry.  Co.,  124  X.  W.  1005.  141 
Wis.  515 ;  Stumm  v.  Western  Union 
Telegraph  Co.,  122  N.  W.  1032,  140 
Wis.  .528. 

BO  Kellcy  v.  .John  R.  Daily  Co.,  181 
P.  326.   56   Mont.    63. 

61  Greenwav  v.  Tavlor  Countv,  122 
N.  W.  943,  144  Iowa,  332. 

8  2  Mich.  Lynch  v.  Johnson,  109 
IMIch.  640.  67  X.  W.  908. 

Pa.  Stuckslager  v.  Neel,  123  Pa. 
53.  16  A.  94. 

Tex.  Southern  Traction  Co.  v.  El- 
lis rriv.  App.1  198  S.  W.  983;  Peck 
V.  Atchison,  T.  &  S.  F.  Ry.  Co.  (Civ. 
App.)  91  S.  W.  .323;  Missouri,  K.  & 
T.  Ry.  Co.  of  Texas  v.  Penny,  87  S. 

63  Suiter  v.  Chicago.  R.  I.  &  P.  Ry. 
Co..  121  N.  W.  113,  84  Xeb.  256. 

c-4  Economy  Light  &  Power  Co.  " 
Hiller,  113  111.  App.  103,  judgment  af- 
firmed 71  X.  E.  1096,  211  111.  5(i8. 


469 


INSTRUCTION'S  TO  JURIES 


846 


The  above  rule  applies  where  given  instructions  are  applicable 
only  to  a  particular  state  of  facts  vv^hich  there  is  evidence  to  prove^ 
although  there  is  also  evidence  to  prove  a  different  state  of  facts.^^ 

§  470.     Application  of  rule  in  criminal  cases 

In  criminal  cases  the  above  rule  has  been  applied  to  the  omis- 
sion of  the  court  to  instruct,  or  to  give  as  full  instructions  as  were 
desired,  on  the  subject  of  the  elements  of  the  offense  charged,**^  on 
the  intent  of  the  defendant/'  on  the  subject  of  motive,^  on  the  de- 
grees of  the  offense  alleged,*^^  on  particular  phases  of  manslaugh- 
ter,'" and  on  the  necessity  of  finding  that  the  crime  was  committed 
in  the  jurisdiction.'^ 


W.  718,  39  Tex.  Civ.  App.  358;  San 
Aiitonio  &  A.  P.  Ry.  Co.  v.  Hahl  (Civ. 
\pp.)  83  S.  W.  27 ;  Cuneo  v.  De  Cun- 
eo,  59  S.  W.  284.  24  Tex.  Civ.  App. 
436;  Slayden  v.  Stone,  47  S.  W.  747, 
19  Tex.  Civ.  App.  618 ;  Mexia  v.  Lew- 
is, 12  Tex.  Civ.  App.  102.  34  S.  W.  158. 

6  5  Missouri.  K.  &  T.  Ry.  Co.  v.  Mill- 
er. 39  S.  W.  583,  15  Tex.  Civ.  App. 
428. 

66  Ala.  Smitli  v.  State,  24  So.  55, 
118  Ala.  117. 

Cal.  People  v.  Castile,  86  P.  746, 
3  Cal.  App.  487;  People  v.  Balkwell, 
76  P.  1017.  143  Cal.  259. 

Ga.  Livingston  v.  State,  90  S.  E. 
287.  18  Ga.  App.  679;  Gaskins  v. 
State,  76  S.  E.  777,  12  Ga.  App.  97. 

Kan.     State  v.  Potter.  15  Kan.  302. 

lia.  State  V.  Scossoni,  21  So.  32, 
48  T^.  Ann.  1464. 

Mo.  State  v.  Keitliley,  127  S.  W. 
406.  142  Mo.   App.   417. 

Mont.  State  v.  Fuller,  85  P.  369, 
34  Mont.  12,  8  L.  R.  A.  (N.  S.)  762, 
0  Ann.  Cas.  648. 

Neb.  Priel  v.  Adams,  91  N.  W. 
536.  3  Neb.  (Unof.)  305. 

N.  Y.  People  v.  Dunbar  Contract- 
ing Co..  109  N.  E.  554.  215  X.  Y.  416, 
affirming  judgment  151  X.  Y.  S.  164, 
165  App.  Div.  59. 

Pa.  Commonwealth  v.  Scott,  38 
Pa.  Super.  Ct.  303. 

S.  C.  State  V.  T.ee,  60  S.  E.  524, 
79  S.  C.  223 ;  State  v.  liyrd,  51  S.  Jt>. 
542.  72  S.  C.  104. 

Tex.  Dozier  v.  State,  137  S.  W, 
679,  62  Tex.  Cr.  R.  258.  , 

Instructions  lield  sufficient 
within  rule.     "^Miere,  in  a  prosecu- 


tion for  fighting  in  a  public  place, 
the  court  charged'  that  the  law  de- 
fines a  public  place  as  any  place  at 
which  people  are  assembled  for  the 
purpose  of  business,  amusement,  rec- 
reation, or  other  lawful  purposes ;  that 
a  private  residence  cannot  be  a  public 
place,  unless  it  is  made  public  by  be- 
ing open  to  the 'public;  that  a  place 
may  be  public  at  one  time  and  private 
at  another ;  that  if  the  jury  And  that 
the  house  at  which  accused  was 
charged  with  fighting  was  a  public 
place,  and  that  accused  fought  there 
with  other  persons,  they  should  find 
him  guilty,  it  was  held  that  the  in- 
struction sufficiently  presented  the 
proposition  that  if  people  were  assem- 
bled at  a  house  by  siiecial  invitation, 
and  the  public  generally  not  invited, 
the  place  was  not  a  public  one,  in  the 
absence  of  a  request  for  a  more  spe- 
cific charge.  Austin  v.  State,  124  S. 
W.  639,  57  Tex.  Cr.  R.  611. 

oT  People  V.  Shaw,  172  P.  401,  36 
Cal.  App.  441 ;  Blackshear  v.  State, 
92  S.  E.  547,  20  Ga.  App.  87 ;  Smith 
V.  State,  87  S.  E.  829.  17  Ga.  App. 
.554 ;  Cnim  v.  State,  47  N.  E.  833,  148 
Tnd  401;  State  v.  Chambers,  161 
X.  W.  470,  179  Iowa,  436. 

6s  State  V.  Melvin,  166  Mo.  565,  66 
S.  W.  5.34. 

6  9  Commonwealth  v.  Pacito,  78  A. 
828.  229  Pa.  328. 

7  0  Ga.  Booker  v.  State,  85  S.  E. 
255.  16  Ga.  App.  280 ;  Short  v.  State, 
80  S.   E.   8,  140  Ga.  780;    Rogers  v. 

71  State  V.  Eggleston,  77  P.  738,  45 
Or.  346. 


847 


REQUESTS   OR   PRAYERS   FOR   INSTRUCTIONS 


§470 


So  the  above  rule  has  been  apphed  to  omissions  of  the  court 
with  respect  to  defenses  set  up  by  the  accused.'^^  or  to  the  issue  of 
self-defense  or  of  defense  of  another,'^^  as  the  failure  to  charge,  in 


State,  57   S.   E.   227,   128   Ga.   67,   10 
L.  R.  A.  (N.  S.)  999,  119  Am.  St.  Rep. 

Ind.     Fisher  v.   State,  77  Iiul.  42. 
Mo.     State  V.  Linu,  122  S.  W.  079, 
228  Mo.  98. 

Okl.  Atchison  v.  State,  105  P.  387, 
3  Old.  Cr.  295. 

S.  C.  State  V.  Chastaln,  67  S.  E.  6, 
85  S.  C.  64. 

Tex.  Witty  v.  State,  171  S.  W.  229. 
75  Tex.  Cr.  R.  440 ;  Girtmau  v.  State, 
164  S.  W.  1008,  73  Tex.  Cr.  R.  158; 
Crist  V.  State,  21  Tex.  App.  361.  17 
S.  W.  2G0:  Snrrell  v.  State,  29  Tex. 
App.  321,  15  S.  W.  816. 

Wis.  Sullivan  v.  State,  75  N.  W. 
956.  100  Wis.  283. 

7  2  Cal.  Peojile  v.  Turner,  154  P. 
34.  28  Cal.  App.  766. 

Fla.  Douglass  v.  State,  43  So.  424, 
53  Fla.  27. 

Ga.  Webb  v.  State,  99  S.  E.  630, 
149  Ga.  211;  Wilenslvv  v.  State,  83 
S.  B.  276,  15  Ga.  Api>.  360:  Josev  v. 
State,  74  S.  E.  282,  137  Ga.  709 ;  Ram- 
fos  V.  State,  47  S.  E.  562.  120  Ga.  175. 
Iowa.  State  v.  Judd,  109  N.  W. 
892,  132  Iowa,  296,  11  Ann.  Cas.  91; 
State  V.  Rennick.  103  X.  W.  159,  127 
Iowa,  294,  4  Ann.  Cas.  568. 

Mo.  State  v.  Groves,  92  S.  W.  631, 
194  Mo.  452. 

Pa.  Commonwealth  v.  Russogulo 
106  A.  180.  203  Pa.  93;  Common- 
wealth V.  Webb,  97  A.  189,  252  Pa. 
187. 

Tex.  Shelton  v.  State,  100  S.  W. 
955,  50  Tex.  Cr.  R.  627. 

Wis.  Guenther  v.  State,  118  N.  W. 
640.  137  Wis.  183. 

Defense  that  homicide  the  re- 
sult of  accident.  Where,  on  trial 
for  murder,  the  defense  is  that  the 
homicide  was  the  result  of  accident 
or  misfortune,  and  the  court  has  cor- 
rectly charged  the  law  in  relation 
thereto,  it  is  not  error  to  omit  to  de- 
fine what  would  constitute  accident 
or  misfortune,  in  the  absence  of  re- 
quest therefor.  Washington  v.  State, 
73  S.  E.  512,  137  Ga.  218. 


Defense  that  ^vife  acted  under 
the      coercion      of      the      husband. 

AVhere,  on  the  trial  of  a  wife  for 
maintaining  a  liquor  nuisance,  the 
evidence  showed  thivt  sales  by  her 
were  made  without  the  knowledge 
of  the  husband,  the  failure,  in  the 
absence  of  a  request,  to  cliarge  that 
she  presumptively  acted  under  the 
coercion  of  the  husband  was  not  er- 
roneous. State  v.  Kruse,  144  N.  W. 
586,   103   Iowa,  341. 

7  3  U.  S.  (C.  C.  A.  N.  M.)  Territorv 
v.  Trapp,  120  P.  702,  16  X.  M.  700, 
judgment  reversed  Trapp  v.  Territorv 
of  New  Mexico,  225  F.  968,  141  C.  C. 
A.  28. 

Ark.  Lee  v.  State,  172  S.  W.  1025, 
116  Ark.  588. 

Cal.  People  V.  Fowler,  174  P.  892. 
178  Cal.  657 ;  People  v.  Dobbins,  72 
P.  339,  138  Cal.  694. 

Ga.  Harris  v.  State,  90  S.  E.  491, 
18  Ga.  App.  752;  Thornton  v.  State, 
90  S.  B.  489.  18  Ga.  App.  744;  Col- 
lins V.  State,  72  S.  E.  526,  10  Ga. 
App.  34;  Mormau  v.  State,  65  S.  E. 
146.  133  Ga.  76;  Williams  v.  State, 
48  S.  E.  368,  120  Ga.  870. 

111.  Morello  v.  People,  SO  N.  E. 
903.  226  111.  388. 

Ind.  Gross  v.  State,  117  X.  E.  562, 
186  Ind.  581,  1  A.  L.  R.  1151. 

Iowa.  State  v.  Young,  74  N  W 
693,  104  Iowa,  730. 

Kan.  State  v.  Page,  102  P.  780,  80 
Kan.  389. 

Mo.  State  v.  King,  102  S.  W.  515, 
203  Mo.  560. 

N.  Y.  People  v.  Rosino,  152  N.  Y. 
S.  623,  168  App.  Div.  920. 

Ohio.  Szalkai  v.  State,  117  N.  E. 
12,  96  Ohio  St.  36. 

Okl.  Davis  V.  State,  177  P.  621, 
15  Okl.  Cr.  386. 

S.  C.  State  V.  Anderson,  26  S.  C. 
599.  2  S.  E.  699. 

Tex.  Welch  v.  State.  147  S.  W.  572, 
66  Tex.  Cr.  R.  525;  Hoyle  v.  State, 
137  S.  W.  355,  62  Tex.  Cr.  R.  297; 
Harrelson    v.    State,    132    S.    W.   783, 


§470 


INSTRUCTIONS   TO   JURIES 


848 


a  murder  case,  on  the  character  of  the  deceased  for  violence,"*  or 
on  threats  by  the  deceased,"^  or  to  omissions  in  instructions  on  the 
defense  of  alibi. '^ 

While  it  is  the  duty  of  the  court  without  request  to  present  the 
particular  defense  upon  which  the  accused  relies,  it  is  not,  neces- 
sary, in  the  absence  of  a  request,  to  specifically  refer  to  the  par- 
ticular testimony  upon  which  that  defense  is  based,'^'''  and  where 
the  court  charges  in  a  clear  and  comprehensive  manner  on  in- 
sanity generally  as  a  defense  to  crime,  its  failure  to  instruct  on 
the  specific  form  of  mania  relied  upon  as  a  defense,'*  or  to  go  into 
details  as  to  the  various  phases  of  insanity/^  cannot  be  urged  as 
error  without  a  request  for  additional  instructions. 

So  the  above  rule  has  been  applied  to  the  failure  to  instruct,  or 
to  omissions  in  instructions,  on  the  necessity  of  an  agreement  be- 


60  Tex.  Cr.  R.  534 ;  Allen  v.  State,  70 
S.  W.  85,  44  Tex.  Cr.  R.  205. 

Wash.  State  v.  Hawkins,  154  P. 
827,  89  Wash.  449. 

Right  of  defendant  on  his  ovtrn 
premises.  Where  in  a  prosecution 
for  homicide  a  charge  on  self-de- 
fense, that  accused,  pleading  self-de- 
fense, must  be  without  fault  in  bring- 
ing on  the  difficulty,  and  he  must  have 
honestly  believed  that  he  was  in  dan- 
ger of  losing  his  life  or  of  receiving 
serious  bodily  harm,  and  a  person  of 
ordinary  firmness  would  have  been 
warranted  in  coming  to  that  conclu- 
sion, and  there  must  have  been  no 
reasonable  way  for  accused  to  escape, 
having  been  given,  if  accused  desir- 
ed to  avail  himself  of  any  special 
rights  arising  from  the  fact  that  he 
was  on  his  own  premises  at  the  time 
of  the  homicide,  he  must  present  a 
request  embodying  a  proposition  to 
that  effect.  State  v.  Crosbv,  70  S. 
E.  440,  88  S.  C.  98. 

Defense  of  relative.  Where  ac- 
cused claimed  that  he  killed  deceas- 
ed because  of  hostile  acts  on  deceas- 
ed's part  against  defendant  and  his 
father,  and  that  ho  had  reason  to 
believe  that  a  dangerous  attack  was 
about  to  be  made  on  his  father  as 
well  as  himself,  an  instruction  that 
previous  threats  or  acts  of  hostility 
of  deceased  towards  defendant,  how- 
ever violent,  were  not  of  themselves 
sufficient  to  justify  defendant  in  slay- 


ing deceased,  but  that  he  must  have 
acted  under  an  honest  belief  that  it 
was  necessary  at  the  time  to  take  de- 
ceased's life  in  order  to  save  his  own 
or  himself  from  great  bodily  injury, 
etc.,  was  not  erroneous  as  eliminat- 
ing defendant's  rights  with  refer- 
ence to  protecting  his  father;  the 
burden  being  on  accused,  if  he  de- 
sired a  broader  instruction  covering 
such  subject,  to  request  it.  People  v. 
Loomer,  110  P.  460,  13  Cal.  App.  654. 

-4  Hill  v.  State,  89  S.  E.  351,  18  Ga. 
App.  259,  conforming  to  answer  to 
certified  questions  Deal  v.  Same,  88 
S.  E.  573.  145  Ga.  33;  Tillman  v. 
State,  70  S.  E.  876,  136  Ga.  59;  Mc- 
Dougal  V.  State,  208  S.  W.  173,  84 
Tex.  Cr.  R.  424. 

TsKimbrell  v.  State,  75  S.  E.  252, 
138  Ga.  413;  State  v.  Nelson,  75  P. 
505.  68  Kan.  566.  1  Ann.  Gas.  468; 
State  V.  Fletcher  (Mo.)  190  S.  W.  317. 

TGLangston  v.  State,  97  S.  E.  444, 
23  Ga.  App.  82 ;  Thomas  v.  State,  88 
S.  E.  917,  18  Ga.  App.  101 ;  Brown  v. 
State.  160  S.  W.  374,  72  Tex.  Cr.  R. 
33;  Oxford  v.  State,  32  Tex.  Cr.  R. 
272,  22  S.  W.  97i. 

7  7  Groves  v.  State,  70  S.  E.  93,  8 
Ga.  App.  690. 

7  s  I'eople  v.  Keyes,  175  P.  6,  178 
Cal.  794 ;  Commonwealth  v.  Pacito, 
78  A.  828,  229  Pa.  328. 

7  9  Tavlor  v.  State,  31  S.  E.  764,  105 
Ga.  746 ;  State  v.  Charles,  50  So. 
699,  124  La.  744,  18  Ann.  Oas.  934. 


849 


REQUESTS  OK  PRAYERS   FOR   INSTRUCTIONS 


§470 


tvveen  the  indictment  and  the  evidence,*®  on  matters  affecting  the 
credibility  of  witnesses,*^  on  the  confession  of  accused,*'  on  dying 
declarations,**  on  expert  testimony,**  on  circumstantial  evidence,*^ 
on  the  question  of  the  good  character  of  the  defendant,*^  on  the 
doctrine  of  reasonable  doubt,*'  on  the  question  of  punishment,** 
with  respect  to  arguments  of  counsel,*"  with  respect  to  definition 
of  terms,"*  and  to  the  failure  to  direct  the  attention  of  the  jury  to 
particular  evidence  for  the  accused."^ 

An  instruction  referring  only  to  murder  in  the  first  degree  may 
be  given,  when  other  instructions  properly  advise  the  jury  as  to 
the  lesser  degrees  of  the  crime  charged  in  the  indictment,  and  also 
as  to  the  defense  interposed  by  the  plea  of  not  guilty."'  If  coun- 
sel for  the  defendant  desires  an  additional  charge  on  circumstantial 
evidence,  to  meet  a  phase  of  the  argument  of  the  prosecuting  at- 
torney, he  should  request  it."* 

In  the  absence  of  a  request  for  fuller  instructions,  a  charge,  in 
a  prosecution  for  murder,  that  if  deceased  came  to  his  death  by 
accident,  unattended  with  criminal  design  or  culpable  neglect  of  the 


soTimmons  v.  State,  82  S.  E.  378, 

14  Ga.  App.  802. 

81  Roszczyniala  v.  State,  104  N.  W. 
113,  125  Wis.  414. 

52  Mercer  v.  State,  17  Ga.  140. 

53  Cash  V.  State,  89  S.  E.  603.  18 
Ga.  App.  486:  State  v.  Mueller,  141 
N.  W.  1113,  122  Minn.  91. 

54  State  V.  Hayden,  107  N.  W.  929, 
131  Iowa,  1:  State  v.  Watson,  81 
Iowa,  380,  46  N.  W.  868. 

8  5  State  V.  Nolan,  169  P.  29.5,  31 
Idaho. -71 ;  State  v.  Hay  ward,  1-33  N. 
W.  667.  1.53  Iowa,  265  :  State  v.  Sloah, 
128  X.  W.  842.  149  Iowa,  469 ;  State 
V.  Glass,  151  N.  W.  229,  29  N.  D.  620. 

8  6  Johnson  v.  State,  94  S.  E.  6.30, 
21  Ga.  App.  497;  Mosley  v.  State,  75 
S.  E.  144.  11  Ga.  App.  .303. 

S'Cal.  People  v.  Brittan,  50  P. 
664,  118  Gal.  409;  People  v.  Donguli, 
92  Cal.  607.  28  Pac.  782. 

Ga.     Bragg  v.   State,  84  S.  E.  82, 

15  Ga.  App.  623:  Pressley  v.  State, 
63  S.  E.  784,  132  Ga.  64;  Riley  v. 
State.  60  S.  E.  274,  3  Ga.  App.  534. 

Ind.  Conrad  v.  State,  132  Tnd.  2.54. 
31  N.  E.  805;  Sullivan  v.  State,  52 
Ind.  .309. 

Miss.  Herman  v.  State.  22  So. 
873.  75  Miss.  340. 

Okl.  Inklebar^er  v.  State,  127  P. 
707,  8  Okl.  Cr.  316. 

Inst.to  Juries— 54 


Pa.  Commonwealth  v.  Varano,  102 
A.  131,  258  Pa.  442. 
.  Tex.  Simpson  v.  State.  196  S.  W. 
835,  81  Tex.  Cr.  R.  389 ;  Hamilton  v. 
State,  141  S.  W.  966,  64  Tex.  Cr.  R. 
175;  McDaniel  v.  State,  139  S.  W. 
1154,  63  Tex.  Cr.  R.  359. 

8  8  West  V.  State,  lCv4  P.  327,  13  Okl. 
Cr.  312,  L.  R.  A.  1917E,  1129. 

8!>  State  V.  Davenport,  72  S.  E.  7, 
156  N.  C.  596 ;  State  v.  Knudson,  132 
N.  W.  149,  21  X.  D.  562. 

9  0Fla.  Johnson  v.  State,  46  So. 
174,  55  Fla.  41;  Lewis  v.  State,  45 
So.  998,  55  Fla.  54. 

Mo.  State  V.  Keithley,  127  S.  W. 
406,  142  Mo.  App.  417. 

Tex.  Brown  v.  State.  162  S.  W. 
339,  71  Tex.  Cr.  R.  353  :  Pope  v.  State, 
158  S.  W.  527.  71  Tex.  Cr.  R.  261; 
Ellington  v.  State,  140  S.  W.  1100, 
63  Tex.  Cr.  R.  424. 

Utai.  State  v.  Yee  Foo  Lun.  147 
P.  4S8,  45  Utah,  531. 

91  Mixon  v.  State.  82  S.  E.  935.  15 
Ga.  App.  2.52 ;  Harden  v.  State,  78  S. 
E.  681,  13  Ga.  App.  34. 

0  2  Savary  v.  State.  87  N.  W.  34,  62 
Neb.  166. 

!>3Canalos  v.  State,  215  S.  W.  964, 
86  Tex.  Cr.  R.  142. 


470 


INSTRUCTIONS  TO   JURIES 


850 


defendant,  he  would  be  entitled  to  an  acquittal,  is  sufficient,  *  and 
on  trial  for  shooting  with  intent  to  kill  it  will  be  proper  to  charge 
in  general  terms  that,  if  all  the  evidence  and  circumstances  of 
the  case  warrant  the  finding,  the  jury  may  find  the  prisoner  guilty, 
of  the  ofifense  charged  in  the  indictment,  or  if  all  the  facts  and 
circumstances  of  the  case  warrant  such  finding,  they  may  find 
the  defendant  guilty  of  a  part  of  the  offense  charged,  whether  such 
part  be  a  felony  or  a  misdemeanor.^^ 

In  one  jurisdiction,  in  the  absence  of  a  timely  request  therefor, 
the  court  is  not  required  to  charge  on  a  theory  of  the  case  pre- 
sented solely  by  the  unsworn  statement  of  the  defendant,^^  pro- 
vided the  court  calls  the  attention  of  the  jury  to  the  statement  and 
charges  the  law  in  regard  thereto  as  contained  in  the  statute,^' 
unless  the  only  defense  of  the  defendant  is  based  on  a  theory  raised 
solely  by  his  statement.'^* 

§  471.     Qualifications  of  rule 

In  some  jurisdictions  it  is  the  duty  of  the  court,  as  has  elsewhere 
been  shown,  even  without  request,  to  give  appropriate  instruc- 
tions applicable  to  the  material  issues  in  the  case,^^  and  the  fail- 


9  4  Green  v.  State,  90  S.  E.  284,  18 
Ga.  App.  677. 

9  5  State  V.  Donohoo,  22  W.  Va.  761. 

9  6  Goldberg  v.  State  (App.)  103  S.  L\ 
90;  Brinson  v.  State,  97  S.  B.  102, 
22  Ga.  App.  649 ;  Burney  v.  State,  97 
S  E  85  22  Ga.  App.  622;  Reed  v. 
State,  95  S.  E.  692.  148  Ga.  IS ;  Weld- 
on  V.  State,  94  S.  E.  326,  21  Ga.  App. 
330;  Lott  V.  State,  90  S.  E.  727.  18 
Ga.  App.  747 ;  Swilling  v.  State,  90  S. 
E.  78,  18  Ga.  App.  618;  Murray  v. 
State,  87  S.  E.  828.  17  Ga.  App.  562; 
Crews  V.  State,  87  S.  E.  604,  17  Ga. 
App.  465;  Curry  v.  State,  86  S.  E. 
742, 17  Ga.  App.  312;  Morgan  v.  State. 
86  S.  E.  281.  17  Ga.  App.  124;  Darby 
V.  State.  84  S.  E.  724,  16  Ga.  App. 
171;  Bryant  v.  State,  83  S.  E.  795. 
15  Ga.  App.  535 ;  Sholton  v.  State.  S3 
S.  E.  152,  15  Ga.  App.  341 ;  McLendon 
V.  State,  82  S.  E.  317,  14  Ga.  App. 
737 ;  Jackson  v.  State,  81  S.  E.  905. 
14  Ga.  App.  608:  Pitts  v.  State,  SO 
S.  E.  510,  14  Ga.  App.  283;  Taylor 
V.  State,  79  S.  E.  924,  13  Ga.  App.  715 ; 
Jackson  v.  State,  78  S.  E.  867,  13 
Ga.  App.  147;  Thigpen  v.  State,  76 
S.  E.  596,  11  Ga.  App.  846;  Tyler  v. 
State,  76  S.  E.  102,  11  Ga.  App.  762; 
Strickland  v.  State.  75  S.  E.  446,  11 


Ga.  'App.  427;  Phillips  v.  State,  75 
S.  E.  14,  11  Ga.  App.  262 ;  Jordan  v. 
State,  71  S.  E.  875,  9  Ga.  App.  578; 
Brown  v.  State,  69  S.  E.  45,  8  Ga. 
App.  382;  Cook  v.  State,  67  S.  E.  812, 
134  Ga.  347;  Gray  v.  State.  65  S. 
E.  191,  6  Ga.  App.  428:  West  v. 
State,  49  S.  E.  266,  121  Ga.  364 ;  Col- 
lins V.  State,  48  S.  E.  903,  121  Ga. 
173;  Middlebrooks  v.  State,  45  S.  E. 
607.  lis  Ga.  772:  Hardin  v.r  State, 
33  S.  E.  700,  107  Ga.  718;  Carroll 
V.  State,  25  S.  E.  680,  99  Ga.  36. 

EfiFect  of  charge  by  court  of  its 
own  motion  on  certain  matters 
presented  by  statement.  Where,  in 
a  criminal  case,  prisoner's  statement 
raises  two  distinct  theories'  of  de- 
fense, each  based  solely  on  such  state- 
ment, it  is  not  error,  in  the  absence 
of  a  proper  request,  for  the  trial 
judge  to  fail  to  charge  as  to  one  of 
these  theories,  though  he  may  have 
charged  the  law  applicable  to  the 
other.  Smith  v.  State,  43  S.  E.  703, 
117  Ga.  259. 

9  7  Taylor  v.  State,  63  S.  E.  296,  131 
Ga.  765. 

9  8  Thornton  v.  State,  90  S.  E.  489, 
18  Ga.  App.  744. 

9  9  Weldon  v.  State,  94  S.  E.  326,  21 


851  REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS  §  471 

ure  of  the  court  to  instruct  on  a  material  issue  is  not  cured  by 
.  the  absence  of  a  request  for  an  instruction  on  such  issue. ^  When 
the  trial  judge  undertakes  to  charge  the  law  on  any  subject,  he 
must  charge  all  of  the  law  pertaining  thereto  which  is  material 
and  applicable  to  the  case,~  and  in  such  case  the  omission  of  an 
essential  ingredient  or  element,^  or  the  omission  of  a  charge  to 
embrace  material  conclusions  deducible  from  the  evidence,*  will 
constitute  a  misdescription  of  which  complaint  can  be  made  with- 
out requesting  further  instructions.  Thus,  where  an  instruction 
given  with  respect'  to  the  right  to  recover  on  a  certain  state  of 
facts  omits  an  essential  element,  the  failure  to  request  an  instruc- 
tion covering  such  element  will  not  >  preclude  a  party  complain- 
ing of  the  omission,  since  in  such  case  the  instruction  is  funda- 
mentally erroneous.^ 

In  Tennessee  it  is  held  that,  while  it  is  true  generally  that  a 
failure  of  the  trial  court  to  charge  fully,  when  there  is  no  essen- 
tial point  omitted  or  wrongfully  charged,  is  not  error,  in  the  ab- 
sence of  a  request  for  further  instructions,  still  on  the  trial  of  a 
capital  offense  a  charge,  although  correct  as  far  as  it  goes,  will 
be  erroneous  if  it  omits  to  instruct  the  jury  fully  and  explicitly 
on  the  legal  effect  of  all  the  circumstances  developed  on  the  trial 
which  would  tend  to  determine  the  question,  or  the  character  or 
degree,  of  the  prisoner's  guilt.® 

In  some  jurisdictions  it  is  error,  or  at  least  not  good  practice, 
for  the  court  to  omit  entirely  an  instruction  on  the  measure  of 
damages,  although  no  request  has  been  made  therefor.'     In  one 

Ga.  App.  .S.30 :    Wall  v.  Wall,  82  S.  E.  4  Mitchell  v.  Welbom,  6S  S.  E.  113, 

701.  1.5  Ga.  App.  156 :   Toole  v.  Davis,  149  N.  C.  347 ;    Stude  v.  Saimders.  2 

78  S.  E.  865,  13  Ga.  App.  122.  Posey,      Unrep.      Cas.      (Tex.)      122; 

1  Ga.  Parker  v.  State,  100  S.  E.  ^5^'''l"^°^^'"  ''•  ^-  ^-  ^If^>>>eley  &  Co., 
452,    24    Ga.    App.    267;     Central    of  S<  P-  514,  44  Wash.  447. 

Georgia  Rv.  Co.  v.  Reid.  99  S.  E.  235,  '  Missouri,  K.  &  T.  Ry.  Co.  of  Tex- 

23  Ga.  App.  694 :    Reed  v.  State.  83  S.  ^^  v.   Groseclose,   110   S.   W.   477,   50 

E.  674.   15  Ga.   App.   435;     Porter  v.  ^^^-  \i^'-^  App.  52.o. 
State,  G5  S.  E.  814.  6  Ga.  App.  770:  Omissions       through       inadver- 

Savannah  Electric  Co.  v.  Jackson,  64  tence.     Failure  to  instruct  that  neg- 

S.   E.  e«0.   1.32  Ga.   559:    Haigler   v.  licence,  to  be  actionable,  must  be  the 

Adams,  6.3  S.  E.  715,  5  Ga.  App.  637.  Pi'oximate  cause  of  the  iniury  com- 

w       TT    1  Ti     J-  i-i  lii  plained  of,  is  such  a  plain  inadver- 

Ky.    Huddleston  V.  Commonwealth,  ;^„„„  „c,  t^\.^^„,-,.«  ^  ■,  1        i,  \., 

1000    Tt-   Qoo    1T-1  try.    ic-  tence  as  to  require  counsel  to  call  the 

IbS  t>.  VV.  do_.  171  Kj.  IS..  court's    attention    to    it.      Bolton    v. 

2  Williams  v.  State  (Ga.  App.)  102      Western  Union  Telegraph  Co.,  65  S 
S.  E.  875 :    Rumph  v.  State,  100  S.  E.      E.  937,  84  S.  C.  67. 

768,  24  Ga.  App.  .338 ;   Batten  v.  State,  «  Nelson  v.  State,  2  Swan.   (Tenn  ) 

SO  Ind.  394 ;    State  v.  Harris,  134  S.  237. 

W.  535.  232  Mo.  317.  7  Mustang  Reservoir,  Canal  &  Land 

3  State  V.  Wolf,  29  S.  E.  841,  122  N.  Co.  v.  Hissman.  112  P.  800,  49  Colo. 
O.  1079.  308;    Central  of  Georgia  Rv.  Co.   v. 


472 


INSTRUCTIONS   TO  JURIES 


852 


jurisdiction  when,  in  an  action  for  personal  injuries,  the  issue  of 
lost  or  impaired  earning  capacity  of  the  plaintiff  is  presented  by  the. 
pleadings  and  the  evidence,  the  court  should  instruct  thereon  with- 
out a  request.*  Where  the  jury  may  not  understand  the  rule  of 
law  on  a  material  point,  the  court  should,  as  a  general  rule,  in- 
struct them  on  that  point  without  any  request  for  a  charge,^  and 
a  failure  to  make  a  request  for  an  instruction  will  not  prevent  a 
party  from  asserting  the  omission  of  the  court  to  give  it  as  error, 
when  the  record  shows  that  any  request  would  have  been  useless.^" 

4.  Failure  to  Request  Instructions  as  Precluding  Party  from  Com- 
plaining of  Positive  Error  or  Misdirection  in  Those  Given 

§  472.     General  rule 

The  general  rule  is  that,  where  the  trial  court  commits  positive 
error  in  instructing  on  one  of  the  substantial  issues  of  the  case, 
the  failure  of  a  party  to  request  an  instruction  on  the  subject- 
matter  of  the  erroneous  charge  will  not  preclude  him  from  alleg- 
ing such  error  ;^^  this  rule  applying  in  a  prosecution  for  a  misde- 
meanor.^" 


Madden,  69  S.  E.  165,  135  Ga.  205, 
31  L.  R.  A.  (N.  S.)  813,  21  Ann.  Cas. 
1077;  Atlanta.  B.  &  A.  E.  Co.  v. 
Barnwell,  75  S.  E.  645,  138  Ga.  569; 
McLane  v.  Pittsburg  Rys.  Co.,  79  A. 
237,  230  Pa.  29. 

8  Holt  V.  Georgia  Ry.  &  Power  Co., 
101  S.  E.  758,  24  Ga.  App.  607;  Mc- 
Donald V.  Southern  Ry.  Co.,  101  S. 
E.  714,  24  Ga.  App.  60S. 

9  Wolfe  V.  Ives,  76  A.  526,  S3  Conn. 
174,  19  Ann.  Cas.  752. 

10  Griffin  v.  San  Antonio  &  A.  P. 
Ry.  Co.  (Tex.  Civ.  App.)  42  S.  W.  319 ; 
International  &  6.  N.  Ry.  Co.  v.  Un- 
derwood. 64  Tex.  463. 

11  Ala.  Bowles  v.  Lowery,  62  So. 
107,  181  Ala.  603. 

Ark.  Gravsonia-Nashville  Lumber 
Co.  V.  Hopkins,  168  S.  W.  129,  113 
Ark.  598. 

Cal.  People  v.  Profumo,  138  P. 
100.  23  Cal.  App.  376. 

Iowa.  Hall  V.  Cedar  Rapids  «&  M. 
C.  Ry.  Co.,  87  X.  W.  739.  115  Iowa, 
18;  Ford  v.  Chicago,  R.  I.  &  P.  Ry. 
Co.,  75  N.  W.  650,  106  Iowa,  85. 

Kan.  State  v.  Curtis,  145  P.  858, 
93  Kan.  743. 


Ky.  Huntington  Contract  Co.  v. 
Bush,  200  S.  W.   618,  179  Ky.  433. 

Mo.  Brooks  v.  Brookes  (App.)  186 
S.  W.  1105;  Shinn  v.  United  Rys. 
Co.  of  St.  Louis,  125  S.  W.  782,  146 
Mo.  App.  718. 

N.  Y.  Whittaker  v.  Delaware  & 
H.  Canal  Co.,  49  Hun,  400,  3  N.  Y. 
S.  576;  Carnes  v.  Piatt,  29  N.  Y. 
Super.  CL  270. 

Pa.  Wilkinson  v.  Northeast  Bor- 
ough, 64  A.  734.  215  Pa.  486;  Gar- 
rett V.  Center,  42  Pa.  143;  Seigle  v. 
Louderbaugh,  5  Pa.  490. 

S.  D.  Tosini  v.  Cascade  Milling 
Co..  117  N.  W.  1037,  22  S.  D.  377. 

Tex.  Edwards  v.  Clemmons  (Civ. 
App.)  181  S.  W.  840;  Sauer  v.  Yelt- 
mann  (Civ.  App.)  149  S.  W.  706;  In- 
ternational &  G.  N.  Ry.  Co.  V.  Kuehn. 
11  Tex.  Civ.  App.  21,  31  S.  W.  322; 
Missouri,  K.  «&  T.  Ry.  Co.  v.  Kirsch- 
offer  (Civ.  App.)  24  S.  W.  577 ;  Berg- 
stroem  v.  State,  58  Tex.  92. 

12  Boattenhamer    v.    State,    206    S.  i 
W.  344,  84  Tex.  Cr.  R.  210 ;    Novy  v. 
State,  138  S.  W.  139,  62  Tex.  Cr.  R. 
492. 


853  BEQUESTS  OU  PHAYKUS  I'OK  INSJ^BUCIIONS  I  475 

'  T"at  7Z^T^:"^^^^  to  .islead  is  .ene.Uy 
he-d   no      o   coLtitute   affirmative   error   wHUintl^e   above   rule 

and  if  the  aggrieved  party  --•^"^"^-"P  .^'  ,  °le  »  U  ^  not 
i„g  tendencies  he  should  ask  a^r  expbnator     char  ^^^_^    ^^^ 

^r  ^"Tt;:e%:"rra  m  ia  part  of  the  pleadings  of  a  party," 
o;"o  hi  to  sZ  h^  heory  under  which  a  party  may  recover 
wh  le  ;ubnutting  the  theory  under  which  his  adversary  can  re- 


cover. 


S  474      Error  in  instructions  induced  by  party 

mere  the  court,  in  its  instructions,  follows  the  rule  of  law 
adopted  by  a  party  on  the  trial  of  the  case,  and  such  party  fads  to 
require  an  instruction  announcing  a  different  rule,  he  cannot  on 
appeal  avail  himself  of  an  alleged  error  in  so  chargnig. 

B.  Time  of  Making  Requests 

Manner  and  time  of  preferring  requests  for  written  instructions,  see  ante,  §  44,S. 
^  475      Rule  in  absence  of  specific  regulation 

^  Where  no  statute  governs  the  subject,  the  tmie  witlnn  which 
instructions  should  be  requested  is  within  the  sound  discretion 
ot  the  trial  court;   such  discretion  to  be  exercised  fairly  and  libei- 

.      ;,:„^    V     P.irinin<4iam  Ind.     Plununer  v.  Indianapolis  Un- 

R^  tfet  i'FoZ  Co.,''rSo:^328,  ion   Ry    Co.,  104  N.   E.  601,   56  In.l. 

^01 '  \ia    ?.4  •    Blount  County  Bank  v.  App.  615. 

TTarHs   77  So    43,  200  Ala.  669 ;    Re-  Mass.      Commonwealth   v    Middle- 
public  Iron  &   Steel   Co.  V.  Howard.  by,  73  N.  E.  208,  187  Mass.  342. 
79  So   263,  196  Ala.  663 ;    Portsmouth  Minn.     Lahr  v.  Kraemer,  97  N.  "^  . 
Cotton  Oil  Refining  Corp.  v.  Madrid  ^-,^g  (^^  Minn.  26. 

Cotton  Oil  Co.,  71  So.  Ill,  195  Ala.  ^^^^     Brownell  v.  Fuller,  S3  N.  W. 

256 ;  Alabama  Consol.  Coal  &  H'^^J;^";  669,  60  Neb.  558. 

Ir  ""T:  Shel?ld'co'   53'so  '219:?69  N.  Y.     Woods  v.   T.ong  Island  R 

S"'!42  ■■    K  Ro  e'^^'  Co.  v.  Woods,  Co.,  54  N.  E.  1095,  159  N^  Y.  ^46    a^- 

^Q  '^o    581-    Moore  v.  Nashville,    C.  firming  judgment  and  order  42  N.  1. 

1  St  L  Ry'.,  34  so.  617,  137  Ala.  495 :  S.  140,  11  App.  Div.  16. 
GiUiiand   V.  R.    G.   Dunn    .t    Co.,    34  i4  Estes   v.   Estes   (Tex.   Civ.   App.) 

So  ^^5  136  Ala.  327;  Anniston  City  ^^22  S.  W.  304;  International  &  (». 
Land  Co.  v.  Edmondson,  30  So.  61.  jf  j.  co.  v.  Garcia.  117  S.  W.  206. 
107  Ala  445;  Pullman  Palace-Car  -4  Tes.  Civ.  App.  59;  Galveston,  H. 
Co  V  Adams,  24  So.  921.  120  Ala.  ^<;^  i^.  r.  Co.  v.  Albert!,  103  S.  W.  699, 
581  45  L.  R-  A.  767,  74  Am.  St.  Rep.  47  t^^j  cjy.  App.  32. 
53-'   Forest  v.  Leonard,   22    So.   484.  i-,  ^rpv  Ravwood  Canal  &  Milling 

116   Ala.   82 ;    Drennen   v.    Smith,  2L       ^^    ^,^^^   ^.^  ■  ,^pp;)  130  s.  W.  897. 

So.  442,  115  Ala.  396.  i„  Maloney  v.  Chicago  &  N.  W.  Ry. 

Ark.      Flowers   v.    I<  lowers   85    b.  -^  ^3  ^^    ^   qqq 

W.  242,  74  Ark.  212.  ^^■'  " 


476 


INSTRUCTIONS   TO   JURIES 


854 


ally  with  a  view  to  a  full  hearing  and  the  trial  of  cases  on  their 
merits,  and  with  a  view  to  affording  counsel  reasonable  oppor- 
tunity to  prepare  requests.^'  In  the  absence  of  any  specific  rule 
of  court  or  statute  controlling  the  matter,  however,  there  must 
come  a  time  when  the  court  is  not  called  upon  to  listen  to,  and 
pass  upon,  further  requests  to  charge.^*  Thus  it  is  held  that  or- 
derly procedure  does  not  permit  that,  when  a  jury  on  its  own  mo- 
tion returns  to  the  courtroom  for  further  instructions,  the  case 
should  be  again  opened  for  the  submission  by  counsel  on  either 
side  of  further  requests.^® 

§  476.     Regulation  by  statute  or  rule  of  court 

Ordinarily  a  limitation  of  the  time  for  presenting  requests  for 
instructions  is  prescribed  by  statute  or  rule  of  court,  and  when  this 
is  the  case  it  is  not  error  for  the  court,  subject  to  qualifications  to 
be  hereafter  stated,  to  refuse  an  instruction  not  presented  in  the 
time  named.^** 


17  Dixon  V.  State,  13  Fla.  636; 
Craddock  v.  Barnes,  54  S.  E.  1003, 
142  N.  C.  89 ;  Brewer  v.  State,  165  P. 
034,  13  Okl.  Cr.  514. 

18  Astruc  V.  Star  Co.  (C.  C.  N.  Y.) 
182  F.  705 ;  Pritchett  v.  Southern  Ry. 
Co.,  72  S.  E.  828,  158  N.  C.  88. 

19  Flexilis  Werke,  Spfezial  Tiegel 
Stahlgiesserei,  Gesellschaft  Mit 
Beschrankter  Haftung  v.  Hess  (C.  O. 
A.  Pa.)  205  F.  850,  124  C.  C.  A.  52. 

See,  also,  ante,  §  458. 

2oCal.  Waldie  v.  Doll,  29  Cal. 
555. 

Ga.  Freeman  v.  Petty,  95  S.  E. 
7.37,  22  Ga.  App.  199;  Commercial 
City  Bank  v.  Sullivan,  90  S.  E.  173, 
18  Ga.  App.  608;  Central  of  Georgia 
Ry.  Co.  V.  Borland,  78  S.  E.  352,  12 
Ga.  App.  729. 

111.  Ranch  v.  Bankers'  Nat.  Bank 
of  Chicago,  143  111.  App.  625;  Chica- 
go &  A.  Ry.  Co.  V.  Louderback,  125 
111.  App.  323;  Pennsylvania  Co.  v. 
(ireso,  102  111.  Apj).  252:  Chicago 
City  Ry.  v.  Sullivan,  76  111.  App,  .505. 

Ind.  Klitzke  v.  Smith,  109  N.  E. 
412,  .'59  Ind.  App.  401;  Lake  Erie  &  W. 
R.  Co.  V.  Brafford,  43  N.  E.  882,  15 
Ind.  App.  655 ;  German  Fire  Ins.  Co. 
V.  Columbia  Encaustic  Tile  Co..  15 
Ind.  App.  023,  4.3  N.  E.  41 ;  Craig  v. 
Frazier,  127  Ind.  2S(i.  m;  X.  E.  842; 
Puett  V.  Beard,  86  Ind,  104. 


Mass.  Randall  v.  Peerless  Motor 
Car  Co.,  99  N.  E.  221,  212  Mass.  3-52 ; 
Manning  v.  Anthony,  94  N.  E.  466,  208 
Mass.  399,  .32  L.  R.  A.  (N.  S.)  1179; 
Garrity  v.  Higgins,  58  N,  E.  1010,  177 
Mass.  414. 

Mo.  Sweet  V.  Bunn,  193  S.  W.  897. 
195  Mo.  App.  500. 

N.  C.  Nail  V.  Brown  &  Williamson, 
64  S.  E.  4.34,  150  N.  C.  533;  Shober  v. 
Wheeler,  113  N.  C.  370,  18  S.  E.  328 ; 
Luttrell  V.  Martin,  112  N.  C.  593,  17 
S.  E.  573;  Marsh  v.  Richardson,  106 
N.  C.  539,  11  S.  E.  522. 

Ohio.  Cincinnati,  H.  &  D.  Ry,  v, 
Taylor,  27  Ohio  Cir.  Ct.  R.  757. 

Pa.  Sgier  v.  Philadelphia  &  R.  Ry. 
Co.,  103  A.  7.30,  260  Pa.  .343. 

S.  C.  Cutter  v.  Mallard  Lumber 
Co..  83  S.  E.  595,  99  S.  C.  231. 

Vt.  W.  B.  Johnson  &  Co.  v.  Cen- 
tral Vermont  Ry.  Co.,  79  A.  109.5,  84 
Vt.  486;  Vaughan  v.  Porter,  16  Vt. 
266. 

Effect  of  constitutional  provi- 
sion requiring  judges  to  declare 
the  law.  Although  a  constitutional 
provi.sion  requires  judges  in  charging 
juries  "to  declare  the  law,"  they  are 
not  bound  to  charge  in  the  absence  of 
a  re<iuest  submitted  in  accordance 
with  a  rule  of  court  requiring  re- 
quests to  be  submitted  before  argu- 
ment, and  providing  that  such  addi- 


855 


REQUESTS   OR   PUAYKRS   FOR   INSTRUCTIONS 


478 


§  477.     Prematurity  of  requests 

Requests  for  instructions  are  improper,  and  are  properly  re- 
fused, when  they  are  prematurely  made,  or  made  at  an  inoppor- 
tune time,  as  where  a  request  is  presented  before  the  introduction 
of  any  evidence,'^  or  during-  the  midst  of  the  examination  of  a  wit- 
ness,~^  or  in  the  midst  of  the  argument  of  counsel  to  the  jury.~^ 

§  478.     Tardiness  of  requests 

In  one  jurisdiction,  requests  should  not  be  made  until  after  the 
main  or  general  charge. ^^  In  the  majority  of  jurisdictions,  how- 
ever, requests  for  instructions  should  be  presented  before  the 
general  charge  of  the  court. ~^     To  entitle  a  party  to  have  consid- 


tional  re(iuests  as  may  be  suggested 
by  the  ar.irnment  may  be  .'submitted  at 
the  coneln.sion  thereof.  Morrison  v. 
Mutual  P.enev.  Ass'n  of  Chesterfield 
County,  59  S.  E.  27,  7S  S.  C.  39S. 

Effect  of  giving  ^vrong  reason 
for  refusing  request.  The  fact  that 
the  judge,  in  refusing  to  give  instruc- 
tions which  are  requested  later  than 
the  time  prescribed  by  law,  bases  his 
refusal  on  a  mistaken  impression  tliat 
he  has  already  given  the  same  in- 
structions in  substance,  does  not  make 
such  refusal  error.  Posey  v.  Patton, 
109  N.  C.  455,  14   S.  E.  64. 

21  Comstock  V.  Livingston,  97  N.  E. 
106,  210  Mass,  581. 

2  2  People  V.  Germino,  175  P.  489,  -38 
Cal.  App.  100 :  Wood  v.  Skelly,  81  N. 
E.  872,  196  Mass.  114,  124  Am.  St. 
Rep.  516. 

2  3  Richmond  &  M.  R.  Co.  v.  Hum- 
phreys, 90  Va.  425,  18  S.  E.  901. 

2  4  Myers  v.  Taylor,  64  S.  W.  719. 
107  Tenn.  364 :  Chicago  Guarantv 
Fund  Life  Soc.  v.  Ford,  58  S.  W.  239, 
104  Tenn.  533 ;  Felton  v.  Clarkson,  53 
S.  W.  733,  103  Tenn.  457;  Cooper  v. 
Overton,  52  S.  W.  183.  102  Tenn.  211, 
45  U  R.  A.  591,  73  Am.  St.  Rep.  864; 
Cumberland  Telephone  &  Telegraph 
Co.  v.  Shaw,  52  S.  W.  163.  102  Tenn. 
313 ;  Chesapeake,  O.  &  S.  W.  R.  Co.  v. 
Hendricks,  88  Tenn.  710,  13  S.  W.  696, 
x4  S.  AV.  488 ;  Chesapeake,  O.  &  S.  W. 
R.  Co.  V.  Foster,  88  Tenn.  671,  13  S. 
W.  694,  14  S.  W.  428. 

2  3  U.  S.  City  of  Chicago  v.  Le 
Moyue,  119  F.  GG2,  56  C.  C.  A.  278; 


(C.  C.  Mass.)  United  States  v.  Gibert, 
Fed.  Cas.  Xo.  15,204 ;  (C.  C.  A.  N.  Y.) 
Holmes  v.  Montauk  Steamboat  Co., 
93  F.  731,  35  C.  C.  A.  556. 

Ind.  Town  of  Noblesville  v.  Ves- 
tal, lis  Ind.  80,  20  N.  E.  479. 

Mass.  Mones  v.  Bay  State  St.  Ry. 
Co.,  125  X.  E.  1.51.  2.34  Mass.  82 ;  Mc- 
Mabon  v.  O'Connor,  137  Mass.  216. 

Or.  Johnson  v.  Portland  Ry.,  Light 
&  Power  Co.,  155  P.  375,  79  Or.  403. 

Tex.  Galan  v.  State,  177  S.  W. 
124,  76  Tex.  Cr.  R.  619 ;  Kell  v.  Ross 
(Civ.  App.)  175  S.  W.  752;  Reed  v. 
Missouri,  K.  &  T.  Rv.  Co.  of  Texas 
(Civ.  App.)  174  S.  W.  956:  Watts  v. 
State,  171  S.  W.  202,  75  Tex.  Cr.  R. 
330;  James  v.  State,  167  S.  W.  727, 
74  Tex.  Cr.  R.  1.39. 

Utah.  Flint  v.  Xelson,  10  Utah, 
261,  37  P.  479. 

Vt.  Russ  v.  Good,  97  A.  987,  90 
Vt.  236 ;  State  v.  Gomez,  96  A.  190,  89 
Vt.  490;  Clark  v.  Tudhope,  95  A.  489, 
89  Vt.  246. 

Discretion  of  court.  The  giving 
of  further  instructions  to  the  jury  aft- 
er the  charge  has  been  concluded  is 
discretionary,  and  exceptions  to  a  re- 
fusal to  do  so  will  not  lie.  Tibbetts  v. 
Williams,  32  Me.  598,  Append. 

Request  for  instruction  as  to 
purpose  and  effect  of  evidence. 
Where  evidence  has  been  treated  in 
the  arguments  of  counsel  on  both 
sides 'as  bearing  only  on  the  credit  of 
a  witness,  and  the  court  has  charged 
accordingly,  no  exception  lies  to  a  re- 
fusal of  a  request,  made  for  the  first 
time  after  the  charge  has  been  given, 


478 


INSTRUCTIONS   TO   JURIES 


856 


ered  requests  for  instructions  presented  after  the  conclusion  of  the 
main  charge  of  the  court,  it  should  appear  that  such  requests  were 
made  necessary  by  something  the  court  has  already  charged  or 
omitted  to  charge.-*' 

In  a  number  of  jurisdictions,  under  statute  or  rule  of  court,  the 
requirement  is  that  requests  to  charge  should  be  made  at  the  close 
of  the  evidence,'^'  or  before  the  commencement  or  close  of  the  ar- 


te instruct  tlie  jury  to  consider  the 
evidence  as  evidence  in  chief.  Wil- 
mot  V.  Howard,  39  Vt.  447,  94  Am. 
Dec.  338. 

2  6  Leydecker  v.  Brintnall,  158  Mass. 
292,  33  N.  E.  .399;  Dunne  v.  Jersey 
City  Galvanizing  Co.,  64  A.  1076,  73 
N.  J.  Law,  586. 

Putting  counsel  to  election.  A 
presiding  justice  has  no  authority  to 
put  counsel  to  an  election  between 
presenting  his  requests  during  his  ar- 
gument to  the  jury  and  having  them 
ruled  on  as  he  proceeds,  or  waiving 
them.  Maxwell  v.  Massachusetts  Ti- 
tle Ins.  Co.,  92  N.  E.  42.  206  Mass.  197. 

2  7  u.  S.  Atchison,  T.  &  S.  F.  Ry. 
Co.  v.  Hamhle,  177  F.  644,  101  C.  C. 
A.  270. 

Ind.  Duckwall  v.  Williams,  63  N. 
E.  232,  29  Ind.  App.  650. 

N.  J.  Carmany  v.  West  Jersey  & 
S.  S.  R.  Co.,  74  A.  656,  78  N.  J.  Law, 
5.52 ;  Dunne  v.  Jersey  City  Galvaniz- 
inii  Co..  64  A.  1076,  73  N.  J.  Law,  586. 

N.  C.  Barringer  v.  Deal,  SO  S.  E. 
161,  164  N.  C.  246 ;  State  v.  Hairston, 
28  S.  E.  492,'  121  N.  C.  579 ;  Ward  v. 
Albemarle  H  R.  R.  Co..  112  N.  C.  168, 
16  S.  E.  921;  Posey  v.  Patton,  109  N. 
C.  455,  14  S.  E.  64 ;  Grubbs  v.  North 
Carolina  Home  Ins.  Co.,  108  N.  C.  472, 
13  S.  E.  236,  23  Am.  St.  Rep.  62. 

Wash.  State  v.  Brache,  115  P. 
853.  63  Wash.  396. 

Right  to  prefer  requests  before 
arguments  of  counsel.  The  words 
"at  or  before  the  close  of  the  evi- 
dence," in  Revisal,  §  536  (Code,  § 
414),  re<iuiring  that  a  request  to 
put  the  instructions  in  writing  shall 
be  made  "at  or  hefore  the  close  of 
the  evidence,"  if  inserted  in  sec- 
tion 5.38  (Code,  §  415),  providing  that 
counsel  shall  reduce  their  prayers 
for    special    instructions   to   writing, 


would  mean  that  requested  instruc- 
tions could  be  made  at  some  time  not 
later  than  the  beginning  of  the  argu- 
ment of  counsel  to  the  jui*y,  and  the 
refusal  of  requested  charges  because 
made  too  late,  when  made  before  the 
commencement:  of  argument,  is  errone- 
~ous.  Craddock  v.  Barnes,  54  S.  E. 
1003,  142  N;  C.  89.  Where,  after  the 
evidence  was  closed  and  the  jury  dis- 
missed for  the  noon  recess,  counsel, 
at  the  request  of  the  judge,  argued  a 
certain  point  in  the  case  as  prelimina- 
ry to  the  argument  after  the  recess, 
it  was  held  that  it  was  not  too  late  to 
request  a  written  charge  after  court 
had  reconvened  and  before  the  argu- 
ment to  the  jury  had  commenced. 
Universal  Metal  C^o.  v,  Durham  &  C. 
R.  Co.,  59  S.  E.  50,  145  N.  C.  293. 

Discretion  of  couirt  witli  respect 
to  granting  time  to  prepare  re- 
quests before  arguments  of  coun- 
sel. It  is  in  the  sound  discretion  of 
the  trial  court  to  determine  whether 
time  shall  be  given  either  party,  at 
the  conclusion  of  the  evidence  and  be- 
fore the  commencement  of  the  argu- 
ment, to  reduce  his  request  for  special 
instructions  to  writing  and  deliver 
them  to  the  court.  Phillips  v.  Thorne, 
103  Ind.  275,  2  N.  E.  747.  Where,  in 
a  personal  injury  action,  the  only 
doubtful  question  is  as  to  the  amount 
of  recovery,  and  there  are  no  difficult 
questions  of  law  involved,  and  de- 
fendant, represented  by  two  counsels, 
presents  at  the  close  of  the  testimony 
four  instructions  in  writing  and  re- 
quests time  to  prepare  further  in- 
structions, and  the  amount  of  the 
verdict  is  not  excessive,  the  judgment 
will  not  be  reversed  because  the  court 
refused  to  grant  further  time.  Atchi- 
son, T.  &  S.  F.  R.  Co.  V.  Frazier,  2T 
Kan.  463. 


857 


REQUESTS   OK   PRAYERS   FOR   INSTRUCTIONS 


§478 


guments  of  counsel,'^*  and  such  a  rule  is  a  reasonable  one.^'^  In 
some  jurisdictions  such  requests  are  not  unseasonable,  if  made 
after  the  delivery  of  the  main  charge,^"  and  it  is  improper  to  refuse 


2  8  Ala.  Osborn  v.  State,  73  So. 
985,  198  Ala.  21. 

Ariz.  Territory  v.  Harper,  1  Ariz. 
399,  25  P.  528. 

Ark.  Lee  v.  State,  223  S.  W.  373 ; 
St.  Louis  Southwestern  Ry.  Co.  v. 
Mitchell,  171  S.  W.  895,  115  Ark.  3.39, 
Ann.  Cas.  1916E.  317. 

Cal.  People  V.  Lang,  76  P.  232,  142 
Cal.  482. 

111.  Priudiville  v.  People,  42  111. 
217. 

Ind.  Bartlow  v.  State,  109  N.  E. 
201,  183  Ind.  398;  Adams  v.  Main,  29 
N.  E.  792,  3  Ind.  App.  232,  50  Am.  St. 
Pep.  266;  Benson  v.  State,  119  Ind. 
488,  21  N.  E.  1109;  Surber  v.  State, 
99  Ind.  71;  Hege  v.  Newson,  96  Ind. 
426. 

Iowa.  Shelberg  v.  Jones,  151  N. 
W.  1066.  170  Iowa,  19. 

La.  State  v.  Gordon,  39  So,  625, 
115  La.  571. 

Mass.  Quimby  v.  Jay,  82  N.  E. 
1084,  196  Mass.  584;  Root  x.  Boston 
Elevated  Ry.  Co.,  67  N.  E.  .365,  183 
Mass.  418;  In  re  Keohane,  60  N.  E. 
406.  179  Mass.  69. 

Minn.  Gracz  v.  Anderson,  116  N. 
W.  1116,  104  Minn.  476. 

Miss.  Montgomery  v.  State,  37  So. 
835,  85  Miss.  330. 

Mo.  Hall  V.  City  of  St.  Joseph,  146 
S.  W.  458,  163  IMo.  App.  214  ;  I'ayne 
V.  Payne,  57  Mo.  App.  130. 

N.  Y.  Schuhle  v.  Cunningham,  14 
Daly,  404. 

N.  C.  State  V.  Claudius,  SO  S.  E. 
261,  164  N.  C.  521;  Holder  v.  Giant 
Lumber  Co.,  76  S.  E.  485,  161  N.  C. 
177;  Biggs  v.  Gurganus,  67  S.  E.  500, 
1.52  N.  C.  173. 

Ohio.  Toledo,  F.  &  N.  Ry.  Co.  v. 
Gilbert,  24  Ohio  Cir.  Ct.  R.  181. 

Pa.  Everett  v.  Sturges,  46  Pa.  Su- 
per. Ct.  612.  , 

S.  C.  Salley  v.  Cox,  77  S.  E.  933, 
94  S.  C.  216,  46  L.  R.  A.  (N.  S.)  53, 
Ann.  Cas.  1915A.  1111;  State  v. 
Glenn,  70  S.  E.  4.^)3,  88  S.  C.  162. 

S.  D.  White  v.  Amrhien,  85  N.  W. 
191,  14  S.  D.  270. 


Tex.  O'Toole  v.  State,  183  S.  W. 
1160,  79  Tex.  Cr.  R.  153 ;  Forward  v. 
State,  106  S.  W.  725,  73  Tex.  Cr.  R. 
.561. 

Vt.  Cady  v.  Owen,  34  Vt.  598; 
State  V.  Catlin,  8  Vt.  530,  23  Am.  Dec. 
230. 

Requests  not  too  late.  A  request 
for  an  instruction  should  not  be  re- 
jected as  too  late,  when  made  dur- 
ing the  opening  and  only  argument  in 
the  case.  McCaleb  v.  Smith,  22  Iowa, 
242. 

Instructions  on  accomplice  tes- 
timony. The  rule  of  court  that  in- 
structions requested  must  be  present- 
ed before  argument  does  not  apply  to 
the  instruction  that  "the  testimony  of 
an  accomplice  is  to  be  viewed  with 
distrust,"  which  the  statute  declares 
is  to  be  given  on  all  proper  occasions. 
People  v.  Silva,  54  P.  146,  121  Cal. 
668. 

Questions  of  fact.  A  rule  of 
court,  requiring  the  instructions  re- 
quested to  be  submitted  before  argu- 
ment, does  not  apply  to  instructions 
on  questions  of  fact.  State  v.  Magers, 
57  P.  197,  35  Or.  520, 

Effect  in  criminal  cases  of  rule 
of  court  in  civil  cases.  A  rule  Of 
court  requiring  requested  instructions 
in  civil  cases  to  be  presented  l>efore 
the  conclusion  of  the  argument  does 
not  justify  a  refusal  to  consider  re- 
quested instructions  presented  in  a 
criminal  case  after  argument  and  aft- 
er other  instructions  had  been  read. 
People  v.  Cook,  83  P.  43,  148  Cal.  334. 

29  Manhattan  Life  Ins.  Co.  v.  Fran- 
cisco. 17  Wall.  672,  21  L.  Ed.  698; 
Sterling  Organ  Co.  v.  House,  25  W. 
Va.  64. 

30  Gallagher  v.  McMuUin.  7  App. 
Div.  321,  40  N.  Y.  S.  222;  Pfeffelc  v. 
Second  Ave.  R.  Co.,  34  Hun,  497; 
Chapman  v.  McCormick,  86  N.  Y.  479. 

Rule  in  particular  jurisdictions. 
In  the  Southex-n  district  of  New  York 
it  is  the  custom  not  to  refuse  requests 
after  the  charge  has  been  delivered, 
but  requests  at  that  time  cannot  re- 


479 


I>fSTRUCTIONS   TO   JURIES 


85S 


requests  merely  because  they  are  so  made,^^  and  in  some  jurisdic- 
tions, or  under  some  rules  of  court,  the  requirement  simply  is  that 
requests  should  be  tendered  before  the  jury  retire.^^ 

§  479.     Operation  and  mandatory  character  of  statutes  or  rules  of 
court  prescribing  time  for  presenting  requests 

A  rule  of  court  cannot  exist  in  the  breast  of  the  judge,  but  must 
be  announced  as  a  rule  and  of  record,^^  and  where  such  a  rule  pre- 
scribing the  time  of  presenting  requests  is  in  writing,  and  spread 
upon  the  records  of  the  court,  and  given  reasonable  publicity,  it 
will  be  obligatory  upon  the  court,  and  no  discretion  in  the  matter 
allowed,  unless  the  exercise  of  discretion  is  permitted  by  the  rule 
itself.^*  Ordinarily,  however,  statutes  or  rules  of  court  prescrib- 
ing the  time  of  making  requests  for  instructions  are  not  framed 
in  such  language  as  to  prevent  the  court,  if  in  its  opinion  it  is 
proper  to  do  so  in  the  furtherance  of  justice,  from  granting  or 
passing  on  requests  after  such  time.^* 


ceive  the  careful  attention  they  would 
receive  if  presented  at  the  close  of 
the  evidence,  and  the  trial  judge 
should  not  be  held  to  the  same  de- 
gree of  accountability  for  erroneously 
refusing  a  request  then  presented  as 
he  must  be  one  presented  at  a  more 
appropriate  time.  (C.  C.  A.  N.  Y.) 
Linn  v.  United  States,  251  F.  476,  163 
C.  C.  A.  470. 

31  Carey  v.  Chicago,  M.  &  S.  P.  Ry. 
Co.,  61  Wis.  71,  20  N.  W.  648. 

3  2  Ga.  Macon  v.  State,  100  S.  E. 
785,  24  Ga.  App.  .3.37 ;  Brown  v.  State, 
100  S.  E.  452,  24  Ga.  App.  268;  Tow- 
ler  v.  State,  100  S.  E.  42,  24  Ga.  App. 
167 ;  Waller  v.  State,  97  S.  E.  876,  23 
Ga.  App.  156 ;  McLeod  v.  State,  95  S. 
E.  9.34,  22  Ga.  App.  241 ;  Southern  Ry. 
Co.  V.  Williams,  91  S.  E.  1001,  19 
Ga.  App.  544 ;  Farkas  v.  S.  Cohn  & 
Son,  91  S.  E.  S92,  19  Ga.  App.  472; 
Seaboard  Air  Line  Ry.  v.  Barrow,  89 
S.  E.  383,  18  Ga.  App.  261 ;  Seaboard 
Air  Line  Ry.  v.  Lyon,  89  S.  E.  384,  18 
Ga.  App.  266 ;  Brooks  v.  State,  96  Ga. 
353,  23  S.  E.  413. 

Kan.  State  v.  Bloom,  136  P.  951, 
91  Kan.  156.  Compare,  Firman  v. 
Blood,  2  Kan.  496. 

N.  J.  Engeman  v.  State,  54  N.  J. 
Law,  247,  23  A.  676. 

N.  D.  State  v.  Barry,  92  N.  W. 
809,  11  N.  D.  428. 


See  State  v.  Laycock,  141  Mo.  274, 
42  S.  W.  723. 

Request  too  late  after  retire- 
ment of  jury.  It  is  not  error  to  re- 
fuse a  re<iuest  to  charge  made  after 
the  jury  had  retired  to  deliberate  on 
the  case.  Key  v.  State,  62  So.  335,  8 
Ala.  App.  2.  Where  the  trial  judge 
makes  an  inaccurate  statement  of 
some  particular  part  of  the  testimony 
in  the  course  of  his  charge,  the  coun- 
sel for  the  party  aggrieved  should 
call  the  judge's  attention  to  the  unin- 
tentional slip  before  the  jury  retires, 
and  have  it  corrected.  Commonwealth 
V.  Wasson,  42  Pa.  Super.  Ct.  38. 

See,  also,  ante,  §  457. 

33  Chicago  Anderson  Pressed  Brick 
Co.  V.  Sobkowiak,  148  111.  573,  36  N.  E. 
572. 

3  4  Illinois  Cent.  R.  Co.  v.  Haskins, 
115  111.  300,  2  N.  E.  654. 

3  5  Cal.  People  v.  Demasters,  105 
Cal.  669,  39  P.  35;  People  v.  Sears,  IS 
Cal.  635. 

Conn.  Farrington  v.  Cheponis  & 
Panarausky,  78  A.  052,  84  Conn.  1. 

111.  Frank  Parmelee  Co.  v.  Griffin, 
136  111.  App.  307,  judgment  affirmed 
Griffin  v.  Frank  Parmelee  Co.,  83  .N. 
E.  1041,  232  111.  503;  Lyman  v.  Kline, 
128  111.  App.  497. 

Ky.    Wills  v.  Tanner,  IS  S.  W.  166. 

Mass.  Commonwealth  v.  Hassan, 
120  N.  E.  287,  235  Mass.  26;    Robert- 


/ 


S59 


REQUESTS   OR   PRAYERS   FOR   INSTRUCTIONS 


§479 


Such  a  regulation  is  not  applicable  to  a  request  for  an  instruc- 
tion, the  occasion  for  which  arises  after  the  expiration  of  the  time 
prescribed,^®  and  where  the  court  omits  from  its  charge  matters 
which  are  of  such  a  nature  that  a  party  may  justly  assume  that 
they  will  be  treated  in  the  charge,  he  may  present  requests  there- 
after to  supply  such  omissions,  notwithstanding  a  rule  requiring 
such  presentation  before  the  arguments  of  counsel  or  before  the 
main  charge. ^^ 

Where  an  instruction  without  qualification  is  calculated  to  mis- 
lead the  jury,  it  is  error  to  refuse,  on  the  ground  that  it  is  not 
timely,  a  requested  instruction  which  corrects  such  misleading  tend- 


son  V.  Boston  &  N.  St.  Ry.  Co.,  76  N. 
E.  513,  190  Mass.  lOS,  3  L.  R.  A.  (N. 
S.)  5SS.  112  Am.  St.  Rop-  314. 

Mich.  People  v.  Garbutt,  17  Mich. 
9.   97   Am.   Dec.   162. 

Minn.  Sanborn  v.  School  Dist. 
No.  10,  Rice  County,  12  Minn.  17 
(Gil.  1). 

Mo.  Buck  V.  People's  Street  Rail- 
way &  Electric  Lipht  &  Power  Co., 
108  Mo.  179,  18  S.  W.  1090. 

Neb.  Billings  v.  McCoy,  5  Neb. 
187. 

S.  C.  State  V.  Williams.  56  S.  E. 
783,  76  S.  C.  135. 

Vt.  Fadden  v.  McKinney,  89  A. 
351,  87  Vt.  316. 

Matters  authorizing  departure 
from  rule.  Thou.ah  a  rule  fit'  court 
re(iuires  propositions  to  be  submitted 
before  argument,  the  court  should,  in 
its  sound  legal  discretion,  receive 
propositions  submitted  after  argu- 
ment, where  counsel  states  he  thought 
the  rule  required  the  propositions  to 
be  submitted  before  judgment.  Mann 
V.  Learnard,  63  N.  E.  178,  195  111.  502. 

Matters  not  requiring  departure 
from  rule.  Under  a  rule  of  court  of 
Cook  county  that  "all  instructions 
must  l>e  presented  to  the  court  at  the 
conclusion  of  the  evidence,"  an  in- 
struction, presented  nearly  at  the 
close  of  the  address  of  the  plaintiff's 
attorney  to  the  jury,  is  properly  re- 
fused, where  the  argument  of  plain- 
till's  counsel  docs  not  render  neces- 
sary the  giving  of  the  instruction. 
Pittsburg.  C,  C.  &  St.  L.  Ry.  Co.  v. 
H(>witt.  102  111.  App.  428,  judgment 
allirmed  66  N.  E.  820,  202  111.  28. 

Leave  of  court  to  present  re- 
quests   after   time   prescribed   for 


presentation.  A  rule  of  court  re- 
quiring instructions  requested  to  be 
presented  before  argument,  does  not 
mean  that  leave  must  be  obtained  to 
present  requests  later,  but  that  re- 
quests presented  later  cannot  be  en- 
tertained without  leave  of  court. 
Robertson  v.  Boston  &  N.  St.  Ry.  Co., 
76  X.  E.  513,  190  Mass.  108,  3  L.  R.  A. 
(N.  S.)  588,  112  Am.  St.  Rep.  314. 
Where  the  trial  judge  received  and 
refused  certain  requests  to  charge, 
presented  after  argument,  his  act  in 
so  doing  was  in  effect  the  giving  of 
special  leave  to  present  such  instruc- 
tions at  the  time  they  were  presented. 
Robertson  v.  Boston  &  N.  St.  Ry.  Co., 
76  X.  E.  513,  190  Mass.  108,  3  L.  R.  A. 
(N.  S.)  588,  112  Am.  St.  Rep.  314. 

36  Standard  Fire  Ins.  Co.  v.  Wren, 
11   111.   App.   242. 

3  7  Freeby  v.  Town  of  Sibley,  167  N. 
W.  770,  183  Iowa,  827;  Brick  v.  Bos- 
worth.  162  Mass.  3.34,  39  N.  E.  36; 
Crippen  v.  Hope,  38  :Mich.  344 ;  Mc- 
Keunau  v.  Omaha  &  C.  B.  St.  R.  Co., 
146  N.  W.  1014.  95  Neb.  643 ;  Camp- 
bell V.  State,  141  S.  W.  232,  63  Tex. 
Cr.  R.  595,  Ann.  Cas.  1913D,  858. 

Omission  to  state  rules  of  evi- 
dence. Counsel  have  a  right  to  as- 
sume that,  in  its  charge,  the  court, 
without  request,  will  state  such  of 
the  rules  of  evidence  as  are  pertinent, 
and  hence  it  is  error  to  refuse  a 
further  instruction  asked  at  the  close 
of  the  charge,  embodying  a  correct 
rule  of  evidence  peculiarly  applicable 
to  the  issues,  on  the  ground  that  it 
should  have  been  presented  before  the 
charge  was  given.  Malone  v.  Third 
Ave.  R.  Co.,  42  N.  Y.  S.  694.  12  App. 
Div.  508,  4  N.  Y.  Ann.  Cas.  43. 


g  479  INSTRUCTIONS   TO   JURIES  860 

encies,^*  and  a  timely  tender  of  a  request,  which  is  refused  because 
of  defects  in  form,  will  be  sufficient  to  make  it  an  abuse  of  dis- 
cretion on  the  part  of  the  court  to  subsequently  refuse  to  give,  be- 
cause not  tendered  in  time,  another  instruction  good  in  form  and 
involving  the  same  legal  principle,  the  application  of  which  to  the 
issues  the  party  making  the  request  is  entitled  to  under  the  facts 
of  the  case,  and  the  giving  of  which  cannot  injure  the  opposite 
party.-"^^ 

A  request  not  made  in  time  will  make  it  the  duty  of  the  court 
in  some  jurisdictions  to  submit  to  the  jury  the  law  applicable  to 
the  case  as  made  by  the  evidence  of  the  requesting  party  upon  the 
points  to  which  attention  is  called  in  such  request.*"  A  rule  re- 
quiring requests  to  be  made  before  arguments  of  counsel  is  with- 
out force  in  a  case  which  is  submitted  to  the  jury  without  argu-r 
ment."*^ 


C.  Formal  Matters  Connected  with  Preparation  oe  Requests 

§  480.     Requisites  of  requests  in  general 

The  court  is  not  bound  to  consider  requests  to  charge  which  are 
not  presented  as  required  by  the  rules  of  court,*^  and  the  court 
may  properly  refuse  instructions  which  are  bad  in  form.*^  The 
rules  that  govern  the  court  in  framing  instructions  on  its  own  mo- 
tion, and  which  have  been  discussed  in  preceding  chapters,  apply 
to  the  preparation  by  counsel  of  instructions  to  be  requested  on 
behalf  of  a  party.**     Requests  which  are  unintelligible,  indefinite, 

3  8  Hoge  V.  Turner,  32  S.  E.  291,  9t>  the  assaulted  party  was  intended,  the 

Va.  624.  charge    was    fatally    defective,    and, 

39  Hill  V.  Wright,  23  Ark.  530.  even  if  otherwise  good,  was  properly 

40  Allen  V.  Perry,  50  Wis.  178,  14  refused.  Moore  v.  State,  45  So.  656, 
X  w  3  1^4  Ala.  48.  A  requested  instruction, 
^  '41  Tinney  v.  Endicott,  5  Cal.  102.  in   a  homicide  case,  which  refers  to 

^.  ,       ,             _,^  ^     r^^  c  T^   Aon  the  person  killed  as  defendant,  and  to 

.0  ^^'''^^"^^^V-  IM""'  ^^  ^n®-  ^q!:  accused  as  plaintiff  was  properly  re- 

l^  S^'-.n^P^VJ^'S'  r.^'o?c  ''•/     Tj  f"sed  as  meaningless.     Underwood  v. 

S.  E.  401,  110  S    C.  278.     See  Ham-  g^^^^   g^  ^^   542!  179  Ala.  9. 

burg- American    Steam   Pacl^t  Co    v.  4,  u.  S.     Kelper  v.' Equitable  Life 

lll'^^'.'l^^^^^J^:  ^;r^-  ^-J-^  -?^7-  Assur.  Soc.  of  United  States,  159  F. 


747,  163   C.    C.  A.  79.   certiorari  de- 


206. 


P-fcl-eJTo"?8^'^'A^\'g|'^^^^^^^  "  ^^^-     J^^^^l^^  &  C«^i'^«  confection- 

7-r^Ho  TT?  GOT              '  ery  Co.  v.  Booze,  62  So.  12,  181  Ala. 

(.bJ,  b..  1..  tM.  ozi.  4-,j.     Alabama    Great    Southern    Ry. 

43  Western  Union  Telegraph  Co.  v.  ( V).  v.  Guest,  39  So.  654,  144  Ala.  373; 
Rowell,  45  So.  73,  153  Ala.  295.             ,    McWhorter  v.  Bluthenthal  &  Bickart, 

Inadvertent  use  of  wrong  word.  33   So.  552,  136  Ala.  568,  96  Am.   St, 

Where  a  request  to  charge  used  the  Rep.  43. 

word  "defendant"  where  the  name  of  Conn.        Beattie      v.      McMullen, 


861 


EEQCESTS  OK  PEAYEKS  FOR  INSTRUCTIONS 


I  480 


misleading,  or  confusing  are  properly  refused/"  as  where  a  re- 
quest i  so  defaced  with  erasures  and  interlmeafons  as  to  be  1- 
Sle"  and  .t  ,s  not  improper  to  refuse  a  request  setting  forth 
a  proposition  which  is  an  absurdity,  although  it  may  be  obv.ous 
that  this  is  the  result  of  a  palpable  and  unintentional  error  on 

he  plr  o  counsel  in  framing  the  request."  A  request  to  charge 
seve^ra  enumerated  sections  of  a  statute,  referring  to  them  by 
number  only,  is  not  sufficiently  definite  to  require  favorable  ac  ion 
by  he  court "  Requests,  however,  need  not  be  so  worded  as  to 
anticipate  and  guard  against  every  possible  opportunity  for  mis- 
annrehension  on  the  part  of  the  jury. 

A  mere  suo-<.estion  to  the  trial  court  is  not  sufhcient  to  require 

it  VoTubmit  an  issue,"'  and  a  request  merely  reciting  certain  lacts. 


WeaiKl   &  McDermott,  74  A.  767,  82 

Conn.  484.  ^.         -^    «., 

Ga.     McElwaney  v.  McDiarmid,  bZ 

S.  E.  20.  131  Ga.  97.  .    .  .^  • 

111      Swengel  v.  Illinois  Third  Vein 
Coal  Co.,  154  111.  App.  409. 

Mo.  Scanlan  v.  Gulick,  97  S.  W. 
884.   199   Mo.  449. 

Ohio.  American  Steel  Packing  Co. 
V  Conkle.  99  N.  E.  89.  86  Ohio  St.  117. 

Citation  of  cases.  A  memoran- 
dum of  authorities  in  support  ot  a 
request  for  an  instruction,  written  on 
the  margin  thereof,  does  not  give 
ground  for  refusing  the  instruction, 
if  otherwise  proper.  City  of  South 
Omaha  v.  Feiinell.  94  N.  W.  6.32,  4 
Keb.  (Unof.)  427.  ^^  ^ 

4:.  Ala.     McDonald  V.  State,  51  So. 

629.  165  Ala.  85. 

Md.  Neighbors  v.  Leatherman,  8- 
A  152  116  Md.  484 ;  Robey  v.  State, 
50  A  411,  94  Md.  61,  89  Am.  St.  Rep. 
405;  Blair  v.  Blair,  39  Md.  55b; 
Weber  v.  Zimmerman.  22  Md.  loo, 
Dorsev  v.  Harris,  22  Md.  85 ;  Kent  v. 
Hollidav,  17  Md.  387;  Baltimore  &  O. 
R  Co  V  Reslev.  14  ^Id.  424 ;  Wheeler 
V.  State,  7  Gill.  343  .    ^    .    rr. 

Mo.  Plulett  V.  Missouri,  K.  &  i- 
Rv.  Co..  145  Mo.  35,  46  S.  W.  951. 

Mont.  Ramsey  v.  Burns,  69  P. 
711.  27  Mont.  154. 

N.  Y.  Van  Veohten  v.  Griffiths,  40 
N.  Y.  (1  Keyes)  104. 

N  C.  Wooten  v.  Holleman,  88  b. 
E.  480.  171  N.  C.  461. 

Tex.  Creager  v.  Yarborough  (Civ. 
App.)  87  S.  W.  376. 


Va.     Kitty   v.    Fitzhugh.   4   Rand. 

W  Va.  Barens  v.  City  of  Grafton, 
56  S.  E.  608,  61  W.  Va.  408;  Patton 
V.  Elk  River  Nav.  Co.,  13  W.  Va   259. 

4  6  Eaton  v.  State,  63  So.  41,  8  Ala. 
App.  136;  Roberts  v.  State,  54  So. 
993.  171  Ala.  12. 

4  7  Macon  Consol.  St.  R.  ^o.  ^• 
Barnes,  38  S.  E.  756,  113  Ga.  212. 

48  Conley  v.  State,  94  S.  E.  261,  21 

Ga.  App.  134.  ^o  TVT    w    R--1 

4  9  Parson  v.  Lyman,  73  N.   vV.  bo^, 

71  Minn.  34.  „,     ,. 

sou.  S.  (C.  C.  A.  Okl.)  Stout  v. 
United  States.  227  F.  799.  142  C  C  A. 
3^.3  certiorari  denied  3b  S.  *^t.  o^y, 
24l'u.  S.  664.  60  L.  Ed.  1227 

Ga.  Jackson  v.  State,  91  S.  E.  923, 
19  Ga.  App.  621. 

Iowa.  State  v.  Klute.  140  N.  \N  • 
864.  160  Iowa,  170. 

Me.     Virgie  v.  Stetson.  73  Me.  4o2. 

Mo.     State  v.  Starr,  148  S.  W.  862, 

^^Or^'^'s^tSe  V.  Magers.  58  P.  892,  36 

Or  38 

S.  C.     State  V.  Wine,  36  S.  E.  439, 

58  S.  C.  94.  _.     ^  „ 

Tex.     Orient  Ins.  Co.  v.  Wingfield, 

lOS  S.  W.  788,  49  Tex.  Civ.  App.  202 ; 

Warthan  v.  State,  55  S.  W.  55,  41  Tex. 

Cr.  R.  385 ;   Missouri,  K.  &  T.  Ry.  Co. 

of  Texas  v.  Cardena.  54  S.  W.  312,  22 

Tex   Civ.  App.  300. 

Wyo.     Smith  v.  State,  101  P.  847, 

17  Wyo.  481.  .  .^,  . 

Requests       insufficient       witHin 

rule.     In  an   action   on  an  account, 


480 


INSTRUCTIONS   TO   JURIES 


862 


without  making  any  application  of  them,  is  properly  refused,''^  as 
is  a  requested  instruction  to  disregard  certain  counts  in  the  com- 
plaint, which  does  not  specify  the  supposed  defects  therein.^" 

A  request  should  be  so  constructed  that  the  trial  court  can  an- 
swer it  by  a  single  ai^rmation  or  negation,^^  and  so  that  the  court 
can  give  it  in  the  very  language  of  the  request,^^  and  a  request  is 
improperly  framed  which  so  mixes  the  fslcts  with  the  law  as  to 
necessitate  either  refusing  to  give  the  instruction  or  to  discriminate 
between  the  facts  and  the  law.^® 


a  mere  contention  of  plaintiff's  coun- 
sel during  the  trial  that  there  was  an 
account  stated  by  reason  of  defend- 
ant's failure  to  object  within  reason- 
able time  after  it  was  rendered  can- 
not be  regarded  as  a  request  for  an 
instruction  on  such  issue.  Davis  v. 
Stephenson,  62  S.  E.  900,  149  N.  C. 
113.  Where  the  trial  judge  offered  to 
recall  the  jury  and  give  instructions 
which  defendant  claimed  were  pre- 
sented to  him,  if  counsel  thought  it 
was  necessary,  but  counsel  did  not 
state  that  they  desired  them  to  be 
given,  but  merely  said  they  excepted 
to  the  refusal  to  give  the  instructions, 
there  was  no  such  request  as  would 
put  the  court  in  error.  Scherrer  v. 
City  of  Seattle,  101  P.  144,  52  Wash. 
4.  A  general  request  that  the  court 
declare  the  whole  law  governing  the 
case  was  insufficient  to  call  the  court's 
attention  to  its  failure  to  charge  on 
alibi.  State  v.  Bond,  90  S.  W.  830, 
191  Mo.  555.  A  request  to  instruct 
that  defendant  is  presumed  to  be  in- 
nocent, and  all  evidence  against  him 
must  be  weighed  with  this  presump- 
tion in  the  minds  of  the  jurors  from 
the  beginning  of  the  trial  to  the  mo- 
ment that  the  jury  concludes,  if  it 
does  so  conclude,  that  defendant  is 
guilty,  is  not  a  request  to  instruct 
that  the  jurors'  minds  miTst  be  kept 
open  and  free  from  any  conclusion 
till  after  the  jury  has  heard  all  the 
evidence.  Commonwealth  v.  Clancy, 
72  N.  E.  842,  187  Mass.  191.  An  in- 
formal request  to  charge  on  the  sub- 
ject of  the  duty  of  a  person  about  to 
cross  a  rnilroad  track  to  stop,  look, 
and  listen,  without  stating  any  legal 
proposition,     was    properly    ignored. 


Wright  V.  Western  &  A.  R.  Co.,  77 
S.  E.  161,  139  Ga.  343. 

Effect  of  objections  and  excep- 
tions    to    instructions     given.       A 

bare  exception  to  a  charge  given  is 
not  equivalent  to  a  request  to  charge. 
Ripper  v.  United  States  (C.  C.  A.  Mo.) 
179  F.  497,  103  C.  C  A.  478,  denying 
rehearing  178  F.  24,  101  C.  C.  A.  152. 
And  a  general  objection  of  failure  to 
instruct  on  the  whole  law  of  the  case 
is  insufficient  to  require  an  instruc- 
tion limiting  the  jury's  consideration 
of  another  ei'ime  committed  at  the 
same  time  the  offense  charged  was 
committed  to  its  relation  to  such  of- 
fense. State  V.  Rasco,  144  S.  W.  449, 
239  Mo.  535.  But  an  objection  to 
an  instruction  on  a  criminal  trial  that 
the  jury  should  not  fix  the  punish- 
ment, and  the  saving  of  an  exception 
thereto,  has  been  held  equivalent  to  a 
request  to  charge  that  the  jury  fix 
the  punishment.  Reynolds  v.  United 
States.  103  S.  W.  762,  7  Ind.  T.  51. 

51  Barclay  v.  Coman,  110  N.  W.  49, 
146  Mich.  650. 

5  2  Heidenreich  v.  Bremner,  103  N. 
E.  275,  260  111.  439.  affirming  judg- 
ment 176  111.  App.  230 ;  Chicago,  R.  I. 
&  P.  Ry.  Co.  v.  Clough,  134  111.  586, 
25  N.  E.  664,  29  N.  E.  184. 

53  Fisher  v.  Delaware,  L.  &  W.  R. 
Co.,  76  A.  718,  227  Pa.  635 ;  Schweit- 
zer v.  Williams,  43  Pa.  Super.  Ct.  202; 
Commonwealth  v.  Page,  6  Pa.  Super. 
Ct.  220. 

5  4  Fuller  V.  State.  97  Ala.  27,  12  So. 
392;  Heilbron  v.  State,  2  Tex.  App. 
537;  Montgomery  v.  State,  107  N.  W. 
14,  128  Wis.  183. 

50  Patton  V.  Elk  River  Nav.  Co.,  13 
W.  Va.  259. 


863  REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS  §  481 

A  charge  marred  by  typographical  ^^  or  grammatical  errors  ^'  is 
properly  refused. 

It  is  proper  to  prefer  alternative  requests,  which  are  not  incon- 
sistent, based  on  varying  facts,  one  or  more  of  which  may  be  found 
to  the  exclusion  of  the  others ;  ^*  but,  where  a  party  requesting  a 
charge  desires  it  .given  only  in  the  event  that  more  favorable  re- 
quested charges  are  refused,  a  conditional  request  for  its  submis- 
sion should  be  made.^* 

Each  proposition  of  law  contended  for  should  be  covered  by  a 
single  requested  instruction,****  and  it  is  proper  to  refuse  a  request 
which  contains  more  than  one  proposition.**^ 

§  481.  Form  and  requisites  of  request  for  direction  of  verdict  in 
criminal  case 
A  motion,  in  form,  to  discharge  the  defendant  in  a  criminal  case 
or  to  dismiss  the  indictment  may  be  regarded  as  in  substance  a 
request  to  direct  a  verdict.®^  A  motion  by  the  defendant  for  a 
verdict  should  state  the  precise  grounds  upon  which  he  bases  his 
request.^^  Thus  a  motion  to  direct  an  acquittal  on  account  of  the 
failure  of  proof  on  the  part  of  the  state  must,  unless  such  failure 
is  a  total  one,  specify  wherein  it  is  claimed  such  proof  fails,^  and 
a  motion  for  an  acquittal,  which  fails  to  call  the  attention  of  the 
court  to  an  alleged  misnomer  on  which  it  is  based,  is  properly 
refused.^^ 

•"6  Reliance  Life  Ins.  Co.   of  Pitts-  bs  Koslier  Dairy  Co.  v.  New  York, 

Inirsh.  Pa.,  v.  Garth.  68  So.  871.  192       S.  &  W.  R.  Co.,  91  A.  1037,  86  N,  J. 
Ala.  91 :     Smith   v.   E.   T.   Davenport       Law,  161. 

*=  Co--^?i^^-.  54^'  p,A!^\.^P^i-  4^^-  59Gestean    v.     P>ishop    (Tex.    Civ. 

''  ?^^'^?,'^^'''.  7-   If^^"^!'^  r\  ^''-  App.)  181  S.  W.  696,  denying  certifica- 

687    12  <    A  a    14:    Shields'   Estate  v.  ^^^^  ^^  Supreme  Court  180  S.  W.  302. 

Mifhoner.   113  111.  App.  18.  „     ,      ,,           .     „ 

Use     of     word      "deceased"     for  ^°  ^^^^y  Mountain  Fuel  Co.  v.  Ba- 

"plaintifF."      Wlaere    an    action    is  karich,  180  P.  754,  66  Colo.  275. 

brought  by   an    administrator   to   re-  ^i  Klaw  v.  Life  Pub.  Co.  (C.  C.  A. 

cover  damages  for  the  alleged  negli-  N.   T.)  145  F.  184,  76  C.  C.  A.  154; 

gent    killing    of    plaintiff's    intestate,  Rudy  v.  Myton,  19  Pa.  Super.  Ct.  312. 

charges  which  instruct  the  jury  that  62  People  v.  Ledwon,  46  N.  E.  1046, 

under  certain  hypothesized  conditions  153  ^t,  y.  10 ;    People  v.  Bennett,  49 

deceased  could  not  recover  are  want-  "iST   Y    137 

ing  in  clearaess.  and  so  incorrect  in  ^  "33  g       '      ^          ^ 

the  use  of  the  word  "deceased"  for  ^                     •'' 

the    word    "plaintiff"    that    tlie    trial  ^  ®*  State   v.   Feister,   50  P.   501,   32 

court   will   not   be  put   in    error    for  ^v.  254 ;    State  v.  Tamler,  19  Or.  528, 

refusing  such  charge.    Tutwiler  Coal,  ^^  ^-  '^^'  ^  ^'-  ^-  A-  853. 

Coke   &   Iron   Co.   v.    liislen,  30   So.  «5  state  v.  Dyer,  67  Vt.  690,  32  A. 

600,  129  Ala.  336.  814. 


482 


INSTRUCTIONS   TO   JURIES 


8G4 


§  482.     Separating,  numbering,  and  signing  requests 

Where  there  are  several  requests,  they  should  be  separated  and 
numbered.^*'' 

In  some  jurisdictions  requests  for  instructions  must  be  signed 
by  the  party  making  the  requests  or  his  attorney,^"  and  it  is  proper 
to  refuse  requests  not  so  signed.*'* 

The  trial  court  may,  however,  disregard  objections  to  instruc- 
tions based  on  the  failure  to  sign  and  number  them,''^  statutes  re- 
quiring such  signing  and  numbering  not  being  considered  as  man- 
datory,'® and  the  mere  fact  of  such  omission  is  no  ground  for  1*6- 


0  6  Basenherfr  v.  Lawrence,  49  So. 
771.  160  Ala.  422  ;  Anniston  Electric 
&  Gas  Co.  V.  Rosen.  48  So.  798,  159 
Ala.  195,  1.33  Am.  St.  Rep.  32;  Ur- 
bansky  v.  Kutinsky,  84  A.  317,  86 
Conn.  22:  Hackett  v.  Straw,  144  N. 
W.  655,  33  S.  D.  17:  Western  Union 
Tel.  Co.  V.  Johnson,  41  S.  W.  367,  16 
Tex.  Civ.  App.  546. 

6T  ind.  Glover  v.  State,  109  Ind. 
391.  10  N.  E.  282;  Hunt  v.  Elliott, 
80  Ind.  245,  41  Am.  Rep.  794 ;  Jeffer- 
sonville.  M.  &  I.  R.  Co.  v.  Vancant,  40 
Ind.  233. 

Okl.  Chicago  Live  Stock  Commis- 
sion Co.  V.  Connally.  78  P.  318,  15 
Okl.  45 ;  Chicago  Live  Stock  Commis- 
sion Co.  V.  Fix,  78  P.  316,  15  Okl.  37. 

Tex.  St.  Louis  Southwestern  Ry. 
Co.  of  Texas  v.  Cleland,  110  S.  W. 
122  50  Tex.  Civ.  App.  499;  Moore 
V.  Brown,  64  S.  W.  946,  27  Tex.  Civ. 
App.  208 ;  Redus  v.  Burnett,  59  Tex. 
576. 

Snfaciency  of  signing.  Where  a 
defendant  presented  instructions  to 
the  trial  court,  the  request  reciting 
the  caption  of  the  case,  and  that  de- 
fendant therein  requested  the  court 
to  give  the  jury  each  of  the  following 
instructions,  numbered  1  to  32,  inclu- 
sive, which  was  signed  by  defendant's 
attorneys  as  attorneys  for  defendant, 
and  the  requested  instructions  follow- 
ed, but  were  not  signed  at  the  end 
thereof  by  defendant  or  his  counsel, 
the  instructions  were  sufficiently 
signed  within  the  statute  requiring 
all  instructions  to  be  numbered  con- 
secutively, and  signed  by  the  par- 
ty or  his  counsel.  City  of  Garrett 
V.  Winterich  (Ind.  App.)  84  N.  E.  1006. 

6  8  Ind.  Weigand  v.  State,  99  N.  E. 
999.  178  Ind.  623 ;    Hablich  v.  Univer- 


sity Park  Bldg.  Co.,  97  N.  E.  539.  177 
Ind.  193;  Volker  v.  State,  97  N.  E. 
422,  177  Ind.  159;  Retseck  v.  Har- 
bart,  96  N.  E.  386.  176  Ind.  441 ;  Ba- 
der  V.  State,  94  N.  E.  1009.  176  Ind. 
268;  Pittsburgh,  C,  C.  &  St.  L.  Ry. 
Co.  V.  O'Couner,  85  N.  E.  969,  171  Ind. 
686;  Eacock  v.  State,  82  N.  E.  1033, 
169  Ind.  488;  Starr  v.  State,  67  A". 
E.  527,  160  Ind.  661;  Musser  v.  State, 
61  N.  E.  1,  157  Ind.  423;  Collett  v. 
State,  59  N.  E.  168,  156  Ind.  64; 
Hamilton  v.  State,  52  N.  E.  419,  22 
Ind.  App.  479 ;  Houk  v.  Branson,  45 
N.  E.  78.  17  Ind.  App.  119;  Lake 
Erie  &  W.  R.  Co.  v.  Brafford,  43  N. 
E.  882,  15  Ind.  App.  655 ;  Citizens'  St. 
R.  Co.  V.  Hobbs,  15  Ind.  App.  610, 
43  N.  E.  479,  44  N.  E.  377;  Louisville, 
N.  A.  &  C.  Ry.  Co.  v.  Goben,  42  N.  E. 
1116.  15  Ind.  App.  123;  Buchart  v. 
Ell,  9  Ind.  App.  353,  36  N.  E.  762; 
Toledo,  etc.,  R.  Co.  v.  Cosand.  33  N. 
E.  251,  6  Ind.  App.  222;  Howard  v. 
County  Com'rs  v.  Legg.  110  Ind.  479, 
11  N.  E.  612;  Hutchinson  v.  Lemcke, 
107  Ind.  121,  8  N.  E.  71 ;  State  v.  Sut- 
ton, 99  Ind.  300 ;  Stott  v.  Smith,  70 
Ind.  298;  Sutherland  v.  Hankins,  56 
Ind.  .343. 

Kan.  Farrar  v.  McNair,  69  P.  167, 
65  Kan.  147 :  Morisette  v.  Howard, 
63  P.  756,  02  Kan.  463. 

Tex.  First  Xat.  Bank  of  Snyder  v. 
Patterson  (Civ.  App.)  185  S.  W.  1018 ; 
Texas  &  P.  Ry.  Co.  v.  Mitchell.  26  S. 
W.  154;  Smith  v.  Fordyce  (Sup.)  18 
S.  W.  663. 

6  9  Gibbs  v.  Wall,  10  Colo.  153.  14 
Pac.  216;  Galveston,  H.  &  S.  A.  Ry. 
Co.  V.  Neel  (Tex.  Civ.  App.)  26  S.  W. 
788 

7  0  Mason  v.  Sieglitz,  22  Colo.  .320,  44 
P.  588:  Terry  v.  Davenport,  83  N.  E. 
636,  170  Ind.  74. 


865  REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS         §  485 

versal.'i  In  one  jurisdiction  the  practice  of  the  signing  by  attor- 
neys of  their  requests  is  not  commended,"  although  the  fact  of 
such  signing  is  not  reversible  error." 

§  483.     Submission  of  requests  to  opposing  counsel 

In  some  jurisdictions  it  is  proper  for  the  court  to  permit  requests 
by  a  party  to  be  examined  by  his  adversary  before  their  submis- 
sion to  the  jury,"**  it  being  said  that  ordinary  courtesy  would  seem 
to  suggest  the  propriety  of  such  submission,'^  and  that  such  a 
practice  is  to  be  commended,  as  enabling  the  court  to  secure  the 
views  of  both  sides  with  respect  to  the  issues  involved,  and  there- 
by assist  him  in  correctly  expounding  the  law  thereon,'^  and  in 
some  jurisdictions  there  are  positive  requirements,  under  rules  of 
court  or  otherwise,  that  such  requests  shall  be  submitted  to  the 
opposing  counsel."  In  one  jurisdiction,  under  such  a  statutory 
provision,  it  is  deemed  the  duty  of  the  court,  and  not  of  counsel, 
to  submit  special  charges  to  opposing  counsel.'* 

§  484.     Filing  requests 

In  some  jurisdictions  there  is  a  requirement  that  a  special  charge 
requested  by  a  party  should  be  filed  before  it  is  read  to  the  jury.'^ 


D.  Necessity  of  Written  Requests 

§  485.     Statement  of  rule 

The  general  rule  is  that  requests  for  instructions  should  be  in 
writing,^"  the  rule  being  usually  embodied  in  statutory  form,*^  and 

71  Orman  v.  Mannix,  17  Colo.  564,  Riverside  Bridge  Co.,  73  S.  E.  ^2,  70 

30  P.  1037,  17  L.  R.  A.  602,  31  Am.  St.  W.   Va.  374. 

Ren    340  ^™  Indiana  it  seems  tliat  a  party. 

7  2  State  V.  McDonald  70  P.  724,  27  by  taking  certain  steps  may   secure 

Mont   230.  the  right  to  an   examination  of  the 

73  Thornton-Thomas  Mercantile  Co.  requests  of  his  adversary  before  ar- 
V.  Bretherton,  SO  P.  10,  32  Mont.  SO.  gument.     Walker  v.  Johnson,  6  Ind. 

74  Alabama  G.  S.  R.  Co.  v.  Arnold,  App.  600.  33  N.  E.  267,  34  N    K  100. 
80  Ala    600    2  So.  337.  ''^  Shipley  v.  Missouri,  K.  &  T.  Ry. 

7  5  Cooper  v.  Altoona  Concrete  Con-  Co.  of  Texas,  217  S.  W.  137.  110  Tex. 

struction  &  Supply  Co.,  53  Pa.  Super.  194,   reversing   judgment   (Civ.   App.) 

Ct    141  199  S.  W.  661. 

76  Houston  &  T.  C.  R.  Co.  v.  Tur-  79  Texas   &    P.    Ry.    Co.    v.    Thorp 

ner    78  S    W.  712,  34  Tex.  Civ.  App.  (Tex.  Civ.  App.)  198  S.  W.  33o. 

39y'  80  Ala.      Oldacre   v.    State.   72    So. 

7  7  Roehl  v.  Baasen.  S  Minn.  26  (Gil.  303,  196  Ala.  690;    Martin  v.  State,  56 

9)-    Lampe  v.  United  Rvs.  Co.  of  St.  So.  3,  1  Ala.  App.  215:    Stallworth  v. 

Louis,   160  S.  W.  899.  177  Mo.   App.  State,  46  So.  518,  155  Ala.  14. 

652-     Haines  v.    Stauffer,   13    Pa.    (1  Ga.     Dumas  v.   J.   W.    Stafford   & 

Harris)  541,  53  Am.  Dec.  493 :    Mur-  Son,  95  S.  E.  1009,  22  Ga.  App.  365; 

phv  V.  Chicago,  M.  &  St.  P.  Ry.  Co., — \ " 

120  P.  525,  66  Wash.  663;    Jones  v.  ^^  See  note  81  on  following  page. 

Inst. TO  Juries — 55 


485 


INSTRUCTIONS  TO  JURIES 


866 


whether  so  or  not  it  being  regarded  as  the  better  practice  to  re- 


Sutton  V.  State,  SS  S.  E.  122,  587,  17 
Ga.  App.  713;  Garrison  v.  State,  86 
S.  E.  743,  17  Ga.  App.  314;  Lenox 
Drug  Co.  V.  New  England  Jewelry 
Co.,  85  S.  E.  681,  16  Ga.  App.  476; 
Tolbert  v.  State,  85  S.  E.  267,  10  Ga. 
App.  311;  Jones  v.  State,  S3  S.  E, 
1099,  15  Ga.  App.  641 ;  Bragg  v.  State, 
83  S.  E.  274,  15  Ga.  App.  368 ;  Shrop- 
shire V.  State,  83  S.  E.  152,  15  Ga. 
App.  345;  Saunders  v.  State,  83  S. 
E.  148,  15  Ga.  App.  344;  Hart  v. 
State,  82  S.  E.  164,  14  Ga.  App.  714 ; 
Hightower  v.  State,  80  S.  E.  684,  14 
Ga.  App.  246 ;  Dent  v.  State,  80  S.  E. 
548,  14  Ga.  App.  270 ;  Walton  v.  State, 
77  S.  E.  891,  12  Ga.  App.  551 ;  Wash- 
ington V.  State,  75  S.  E.  253,  138  Ga. 
370;  Greene  v.  State,  74  S.  E.  1101, 
11  Ga.  App.  257 ;  Hartfelder  &  Coch- 
ran V.  Clark,  73  S.  E.  608,  10  Ga.  App. 
422;  Alford  v.  State,  73  S.  E.  375, 
137  Ga.  458;  Fuller  v.  State,  72  S. 
E.  515,  10  Ga.  App.  34;  Suggs  v. 
State,  72  S.  E.  287,  9  Ga.  App.  830 ; 
Maddox  v.  State,  71  S.  E.  498.  9  Ga. 
App.  448;  Hunter  v.  State,  70  S.  E. 
643,  136  Ga.  103;  Renfroe  v.  State, 
70  S.  E.  70,  8  Ga.  App.  676;  Billings 
V.  State,  70  S.  B.  36,  8  Ga.  App.  672 ; 
Allen  V.  State,  67  S.  E.  1038,  134  Ga. 
380;  McLendon  v.  State,  67  S.  E. 
846,  7  Ga.  App.  687 ;  Turner  v.  State, 
63  S.  E.  294,  131  Ga.  761;  Roberson 
V.  State,  62  S.  E.  539,  4  Ga.  App. 
833 ;  Coleman  v.  State,  62  S.  E.  487, 
4  Ga.  App.  786;  Strickland  v.  State, 
61  S.  E.  841,  4  Ga.  App.  445;  Millen 
&  S.  W.  R.  Co.  V.  Allen,  61  S.  E.  541, 
130  Ga.  656 ;  Jofies  v.  State,  60  S.  E. 
840,  130  Ga.  274;  Freeney  v.  State, 
59  S.  E.  788,  129  Ga.  759;  Lewis  v. 
State,  59  S.  E.  782,  129  Ga.  731 ;  Wil- 
ey V.  State,  59  S.  E.  438,  3  Ga.  App. 
120;  Western  &  A.  R.  Co.  v.  Tate, 
59  S.  E.  266,  129  Ga.  526;  Sasser  v. 
State,  59  S.  E.  255,  129  Ga.  541 ;  Ta- 
lx)r  V.  Macon  Ry.  &  Light  Co.,  59  S. 
E.  225,  129  Ga.  417;  Wholesale  Mer- 
cantile Co.  V.  Jackson,  59  S.  E.  106,  2 
Ga.  App.  776;  Joiner  v.  State,  58  S. 
E.  859,  129  Ga.  295;  Robberson  v. 
State,  58  S.  E.  544,  2  Ga.  App.  417; 
Carter  v.  State.  58  S.  E.  532,  2  Ga. 
App.  254;  Handley  v.  State;  57  S. 
E.  236,  128  Ga.  24 :    Cress  v.  State,  55 


S.  E.  491,  126  Ga.  564 ;  Southern  Ry. 
Co.  V.  Brown,  54  S.  E.  911,  126  Ga. 
1 ;  Moody  v.  State,  48  S.  E.  262,  1  Ga. 
App.  772. 

Kan.  St.  Louis  &  S.  F.  R.  Co.  v. 
Noland,  90  P.  273,  75  Kan.  691. 

Ky.  Ross  V.  Kohler.  174  S.  W.  36, 
163  Ky.  583,  L.  R.  A.  1915D,  621. 

Mass.  Bingham  v.  Monroe,  99  N. 
E.  165,  212  Mass.  455. 

N.  C.  Biggs  V.  Gurganus,  67  S.  E. 
500,  152  N.  C.  173. 

Okl.  Williams  v.  State,  151  P.  900, 
12  Okl.  Cr.  39 ;  Livingston  v.  Chicago, 
R.  I.  &  P.  Ry.  Co.,  139  P.  200,  41  OkL 
505;  Chicago,  R.  I.  &  P.  Ry.  Co.  v. 
Radford,  129  P.  834,  36  Okl.  657 ; 
Robinson  v.  Territory,  85  P.  451,  16 
(Jkl.  241,  reversed  Robinson  v.  Ter- 
ritory of  Oklahoma  148  F.  830,  78  C. 
C.  A.  520. 

S.  C.  Salley  v.  Cox,  77  S.  E.  933, 
94  S.  C.  216,  46  L.  R.  A.  (N.  S.)  53, 
Ann.   Cas.  1915A,  1111. 

Tex.  Ingram  v.  State,  182  S.  W. 
290,  78  Tex.  Cr.  R.  559;  Mooney  v. 
State,  176  S.  W.  52,  76  Tex.  Cr.  R. 
539;  Schoennerstedt  v.  State,  117  S. 
W.  829,  55  Tex.  Cr.  R.  638 ;  De  Lam 
V.  State,  95  S.  W.  532,  50  Tex.  Cr.  R. 
4 ;  Osborne  v.  State  (Tex.  Cr.  App.) 
56  S.  W.  53;  Jones  v.  Thurmond's 
Heirs,  5  Tex.  318. 

Wis.  McCliminins  v.  State,  112  N. 
W.  25.  132  Wis.  236. 

81  Ala.  Davis  v.  Brandon,  75  So. 
908,  200  Ala.  160. 

Colo.  Taylor  v.  Barnett,  90  P.  74, 
39  Colo.  469. 

Ga.  Monroe  County  v.  Driskell,  60 
S.  E.  293,  3  Ga.  App.  583. 

111.  Harding  v.  Sandy,  43  111.  App. 
442. 

Ind.  Ft.  Wayne  &  W.  V.  Traction 
Co.  V.  dinger,  90  N.  E.  652,  46  Ind. 
App.  7.33 ;  Louisville  &  S.  I.  Traction 
Co.  V.  Korbe,  90  N.  E.  483. 

Ky.  Charles  Taylor  Sons  Co.  v. 
Hunt,  173  S.  W.  333,  163  Ky.  120; 
Louisville  &  N.  R.  Co.  v.  Woodford, 
153  S.  W.  722,  152  Ky.  398,  rehearing 
denied  154  S.  W.  10^3,  153  Ky.  185; 
Bell's  Adm'r  v.  Louisville  Ry.  Co., 
146  S.  W.  383,  148  Ky.  189. 

Mo.     Marion  v.  St.  Louis  &  S.  F. 


867 


REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS 


485 


duce  such  requests  to  writing,*-  and  requests  for  instructions  not 
in  compliance  with  such  rule  may  be  refused.*^  The  above  rule 
applies  to  criminal  as  well  as  civil  cases.** 

Under  a  statute  providing  that  each  instruction  asked  by  counsel 
shall  be  given  without  change  or  modification,  or  refused  in  full, 
it  has  been  held  that  an  objection  to  the  failure  of  the  court  to 
give  an  instruction  not  reduced  to  writing,  nor  even  to  words,  but 


R.  Co.,  101  S.  W.  68S,  124  Mo.  App. 
445. 

Mont.  Helena  &  L.  Siuelting  & 
IJoduction  Co.  v.  Lynch,  65  P.  919,  25 
Mont.  497. 

N.  D.  Carr  v.  Minneapolis,  St.  P. 
&  S.  S.  M.  Ry.  Co.,  112  X.  W.  972,  16 
N.  D.  217. 

82  Leouhardt  v.  Green,  96  A.  1096, 
251  Pa.  579 ;  Virginia  Cedar  Works  v. 
Dalea,  64  S.  E.  41,  109  Va.  333 ;  Smith 
V.  State,  101  P.  847,  17  Wvo.  481. 

83  U.  S.  (C.  C.  A.  Ga.)  Southern 
Ry.  Co.  V.  Shaw,  86  F.  865,  31  C.  C. 
A.  70;  (C.  C.  Pa.)  Keystone  Bank  v. 
Safety  Banking  &  Trust  Co.,  179  F. 
727. 

Ala.  Ricketts  v.  Birminffham  St. 
Ry.  Co.,  85  Ala.  600,  5  So.  353 ;  South 
&  N.  A.  R.  Co.  V.  Seale,  59  Ala.  608. 

Coiui.  Bogudsky  v.  Backes,  76  A. 
540,  83  Conn.  208. 

D.  C.  Washington  Herald  Co.  v. 
Berry,  41  App.  D.  C.  322. 

Ga.  Henley  v.  Toole,  92  S.  E.  760, 
20  Ga.  App.  146;  Browder-Manget 
Co.  V.  West  End  Bank.  85  S.  E.  881, 
143  Ga.  736;  Macon.  D.  &  S.  R.  Co. 
V.  Holi=ey,  70  S.  E.  3.54.  9  Ga.  App. 
100;  Mallary  Bros.  &  Co.  v.  Moon, 
61  S.  E.  401.  130  Ga.  591 ;  Brown  v. 
]McBride,  58  S.  E.  702,  129  Ga.  92. 

111.  Chicago  (fe  A.  R.  Co.  v.  Kel- 
ly, 75  111.  App.  490;  Hartford  Deposit 
Co.  V.  Pederson.  67  111.  App.  142,  af- 
firmed 48  N.  E.  30,  168  111.  224 ;  Sv^ift 
&  Co.  V.  Fue,  66  111.  App.  651,  affirm- 
ed 47  N.  E.  761,  167  111.  443. 

Ind.    Molt  V.  Hoover,  81  N.  E.  221. 

Kan.  Cooper  v.  Harvey,  94  P.  213, 
77  Kan.  854 ;  Smith  v.  Yost,  59  P.  379, 
10  Kan.  App.  580;  Tays  v.  Carr,  37 
Kan.  141,  14  P.  456. 

Minn.  Mobile  Trust  &  Trading 
Co.  V.  Potter,  81  N.  W.  392,  78  Minn. 
487. 


N.  C.  Linker  v.  Linker,  S3  S.  E. 
736,  167  N.  C.  651 ;  Marshall  v.  Stine. 
112  N.  O.  697,  17  S.  E.  495. 

Wis.  Du  Gate  v.  Town  of  Brigh- 
ton, 114  N.  W.  103,  133  Wis.  628; 
Hardt  v.  Chicago,  M.  &  St.  P.  Ry.  Co., 
110  N.  W.  427,  130  Wis.  512. 

s4Ala.  Winford  v.  State,  75  So. 
819,  16  Ala.  App.  143 ;  Foote  v.  State, 
75  So.  728,  16  Ala.  App.  136 ;  Fuller 
V.  State,  97  Ala.  27,  12  So.  332 ;  King 
V.  State,  77  Ala.  94. 

Fla.     Irvin  v.  State,  19  Fla.  872. 

Ga.  Crawford  v.  State,  54  S.  E. 
695,  125  Ga.  793;  Williams  v.  State, 
54  S.  E.  186,  125  Ga.  2.35;  Levan  v. 
State,  54  S.  E.  173,  125  Ga.  278 ;  Lew- 
is V.  State,  53  S.  E.  816,  125  Ga.  48; 
Campbell  v.  State,  52  S.  E.  914,  124 
Ga.  432 :  Patterson  v.  State,  52  S.  E. 
5.34,  124  Ga.  408 ;  Jenkins  v.  State,  51 
S.  E.  598.  123  Ga.  523 ;  Id.,  51  S.  E. 
386,  123  Ga.  523;  Seale  v.  State,  49  S. 
E.  740,  121  Ga.  741,  dismissed  26  S.  Ct. 
763,  201  U.  S.  642,  50  L.  Ed.  902; 
Brown  v.  State,  28  Ga.  199. 

La.  State  V.  Bogain,  12  La.  Ann. 
264. 

N.  C.  State  v.  Wilkes,  87  S.  E.  48, 
170  N.  O.  735;  State  v.  Horton,  100 
N.  C.  443,  6  S.  E.  238,  6  Am.  St.  Rep. 
613. 

S.  C.  State  V.  Owens,  60  S.  E.  305, 
79  S.  C.  125;  State  v.  Davis.  27  S. 
E.  905,  50  S.  C.  405,  62  Am.  St.  Rep. 
837. 

Tex.  Garrison  v.  State,  114  S.  W. 
128,  54  Tex.  Cr.  R.  600 :  Hull  v.  State 
(Cr.  App.)  80  S.  W.  380 ;  Hankins  v. 
State  (Cr.  App.)  75  S.  W.  787;  Gar- 
ner V.  State  (Cr.  App.)  70  S.  W.  213; 
Shaw  V.  State  (Cr.  App.)  33  S.  W. 
10&3;  Waechter  v.  State,  34  Tex. 
Cr.  R.  297.  .30  S.  W.  444;  Sparks  v. 
State,  23  Tex.  App.  447,  5  S.  W.  135 ; 
Hobbs  V.  State,  7  Tex.  App.  117. 


§  486  INSTRUCTIONS   TO   JURIES  868 

of  which  the  general  idea  is  suggested  orally,  will  not  be  con- 
sidered.*^ 

§  486.     Waiver  of  requirements  of  rule 

Ordinarily,  however,  the  trial  court  may  waive  the  requirements 
of  the  above  rule,**'  and  it  has  been  held  that  it  may  be  error  to 
refuse  an  oral  request  presented  in  response  to  the  question  of 
the  judge  as  to  whether  he  has  overlooked  anything,  the  view  be- 
ing taken  that,  if  a  written  request  is  desired  in  such  case,  time 
should  be  given  to  counsel  to  put  it  in  writing.*' 

E.  Presentation  oe  Requests  to  Court 

§  487.     Necessary  formalities  connected  with  presenting  requests 
to  court 

To  make  available  on  appeal  the  failure  of  the  trial  court  to  give 
a  requested  instruction,  it  must  be  called  to  its  personal  attention. 
It  is  not  sufficient  to  merely  place  the  signed  request  on  the  desk 
of  the  judge,**  and  a  statement  to  the  judge  out  of  the  courtroom 
will  not  be  sufficient  to  put  the  court  in  error  in  not  giving  an  in- 
struction.*^ It  has  been  held,  however,  that  a  rule  of  court  pro- 
viding that  counsel  shall  read  and  submit  to  the  court  requests 
to  charge  is  for  the  benefit  of  the  court,  and  that,  where  the  judge 
does  not  require  counsel  to  read  the  requests  submitted,  his  failure 
to  do  so  will  not  preclude  him  from  asking  for  a  new  trial  because 
of  the  error  of  the  judge  in  inadvertently  failing  to  pass  on  the 
charges.®" 

§  488.     Argument  of  requests 

While  it  is  not  necessary  in  some  jurisdictions  that  counsel,  in 
requesting  an  instruction,  should  state  his  reasons  therefor,®^  the 
rule  is  otherwise  in  other  jurisdictions.^^  On  the  other  hand,  a 
party  has  a  right  to  be  heard  in  a  reasonable  manner  in  support 
of  his  requests  to  charge,  if  he  makes  known  to  the  court  his  wish 
to  be  thus  heard,^^  and  a  party  should  be  given  the  right  to  pre- 
ss Hacker  v.  Heiney,  87  N.  W.  249,  W.  925,  affirmed  on  rehearing  115  N 
111  Wis.  313.  W.  32.  1.39  Iowa,  292. 

86  Willis  V.  Western  Union  Tel.  Co.,  ^°  Herskovitz  v.  Baird,  37  S.  E.  922 

48  S.  E.  .5.38,  69  S.  C.  531,  104  Am.       ^^  S.  C.  307. 

St.  Rep.  828,  2  Ann.  Cas.  52.  ^'  Chicago,  I.  &  L.  Ry.  Co.  v.  Mar 

o,  TT  Ti  •  1  4-  -.rr  ^r  „r  koo        tin,  63  N.  E.  247,  28  Ind.  App.  468. 

noa  .?^rror7-  ^^'°^'*'  ^^^     '  ^^  ^^^'  ''  ^^^^^^^  V.  State,  189  S.  W.  1071 

189  Mich.  600.  go  rpe^    ^r.  R.  266. 

88  Bailey    v.    Hartman    (Tex.    Civ.  93  Wildev  v.  Crane,  36  N.  W.  734 

App.)  85  S.  W.  829.  G9  Mich.  17. 

8  0  McDermott  v.  Mahoney,  106  N.  In  Louisiana*  however,  it  has  been 


SG9  REQUESTS   OR  PRAYERS   FOR  INSTRUCTIONS  §   489 

sent  arguments  as  to  the  propriety  of  granting  requests  presented 

^Vccordingly  k'is  not  improper  for  the  court,  when  an  instruc- 
tion  is  asked  by  a  party,  to  ask  the  counse  ^ ^^  ^l^^./^-^/  f^^/,  ^ 
as  to  his  view  of  the  propriety  of  such  mstruction  ««  It  is  withm 
the  discretion  of  the  court  whether  the  jury  shall  be  present  when 
he  requests  are  being  discussed  and  considered,-  and  accordmgly 
the  court  may  require  the  jury  to  retire  durmg  the  argument  of 
requests  for  instructions ; «'  constitutional  and  statutory  provisions 
that  the  parties  or  their  counsel  may  address  the  court  and  jury 
on  the  law  and  the  facts  of  the  case,  and  that  in  criminal  cases  a 
defendant  shall  have  a  speedy  public  trial  by  an  impartial  jury, 
being  held  not  to  exclude  the  exercise  of  such  power. 

F.    Passing  on  Requissts  and  Disposition  The^rEo^ 

S  489.     General  considerations 

It  is  the  legal  right  of  a  party  presenting  written  requests  for 
instructions  to  have  the  court  consider  and  rule  upon  them.  Ac- 
cordingly it  is  bad  practice  for  the  court  to  read  to  the  jury  re- 
quested instructions  and  not  determine  until  thereafter  whether 
they  should  be  given  or  not,i  and  a  party  is  entitled  to  a  distinct 
and  responsive  answer  to  his  requests,  if  they  are  properly  drawn 
and  present  questions  fairly^arising,  which  can  be  answered  by  a 
simple  affirmance  or  refusal.^ 

However,  language  of  the  court  in  answer  to  a  request  may  con- 
held  that  the  fact  that  counsel  for  /  ^^f^^ll-'Ui^S./i'^'^S 'co  %  P 
accused  was  not  permitted  to  read  Amerlcan-Ha^Yallan  S.  S.  Co.,  137  P. 
and  discuss  requests  to  charge,   but      337,  77  ^\  asli.  49.  ni  ^   r 

was   required   to   hand   them   up,   in  ^  n.  C.     George  v.  Smith,  51  N.  C. 

writing,  to  the  judge,  is  no  ground  of      273.  -,  ^.a  r>„ 

reversal  for  it  does  not  infringe  any  Pa.     Sommer  y    GUmore,  160  Pa. 

rf-ht  State  v.  Hill,  28  La.  Ann.  311.  129,  28  A.  654;  Hoffman  y  Clough, 
'  ''J:  Kenny  V.  inhabitants  of  Ipswich,  124  Pa.  50-5,  17  A.  19.  23  Wld^^  Notes 
17^  ATq^<?  ViS  59  N   E  1007  Gas.  399;   Kraft  v.  Smith,  117  Pa.  183, 

''f  5'su  Uvan  '  V  ScMaius  (Sup.)  45  11  A.  370 ;  Swank  v.  PlulUps,  113  Pa 
Tvj   Y    S    1079    19  Adp   Div.  167.  482,  6  A.  450 ;    Hood  v.  Hood,  2  Grant 

90  booper  v'.  Altoona  Concrete  Con-      Cas.  229;   Hamilton  y.  Menor,  2  Serg. 
struction^.  Supply  Co.,  53  Pa.  Super.       |  K  70 :   S-^tla^^^Thom^^^^^^^^^^ 

07  Casey  v.  State,  37  Ark.  67.  Serg.   &  R.   44;     Perry  v    Pittsburg 

98  sLte  V    Coellk,  3  Wash*.  St.  99,  Rys.  Co.,  55  Pa.  Super.  Ct.  289 ;   Repp 

28  P    '>S  V.  Reynolds,  53  Pa.  Super.  Ct.  567. 

9  9Keitt    V.    Spencer.    19    Fla.    748;  Action  of  court  ield  not  in  com- 

Moselev  v.  Johnson,  56  S.  E.  922.  144  pliance  with  rule.    It  is  not  a  prop- 

N  C  257  274;   Jones  v.  Seaboard  Air  er  disposition  of  a  long  series  ot^re- 

I.ine  Rv '  Co ,  45  S.  E.  188,  67  S.  O.  quested  instructions  to   charge:      So 

j.me  ivy.  v.u.,  t  ^^^  _^^  ^^^^  points  are  in  accordance 


489 


INSTRUCTIONS  TO  JURIES 


870 


stitute  an  affirmance  or  refusal  of  it,  although  not  formally  so,^ 
and  the  court  need  not  specifically  affirm  or  refuse  the  points  cov- 
ered by  the  general  charge.*  The  court  is  not  required  to  read  and 
specifically  answer  in  the  presence  of  the  jury  points  presented  for 
instructions,  as  it  is  held  that  such  practice  gives  practically  no  as- 
sistance to  the  jury.^ 

The  failure  of  the  court  to  answer  a  request  is  equivalent  to  a 
refusal  of  it,^  and  instructions  tendered  by  a  party  are  regarded 


with  what  we  have  said  to  you  was 
tlie  controlling  question  in  the  case, 
they  are  affirmed,  and,  so  far  as  they 
are  not  in  accordance  with  the  opin- 
ion we  expressed  in  the  general 
charge,  they  are  refused."  People's 
Sav.  Bank  v.  Denig,  131  Pa.  241.  18 
A.  1083,  25  Wkly.  Notes  Cas.  293; 
Duncan  v.  Sherman,  121  Pa.  520,  15 
A.  565.  Where  a  party  on  the  trial 
of  a  case  presents  certain  hypotheti- 
cal facts  to  the  court  which  there  is 
evidence  to  sustain,  and  requests  the 
instruction  of  the  court  iipon  the 
effect  of  those  facts  if  believed  by 
the  jury,  it  is  error  for  the  court  to 
charge  simply  that  the  question  is 
one  of  fact  for  the  jury,  and  that  its 
weight  is  eutirelv  for  them.  Kraft 
V.  Smith,  117  Pa.  183,  11  A.  370. 
Where,  instead  of  giving  instructions 
requested  by  defendant,  the  court  told 
the  jury  that  they  might  use  them 
"so  far  as  the  same  are  practicable 
in  arriving  at  a  verdict,"  it  was  held 
that  this  action  was  erroneous,  as 
leaving  to  the  jury  to  decide  whether 
they  embodied  correct  proposition  of 
law.  Duthie  v.  Town  of  Washburn, 
87  Wis.  231,  58  N.  W.  380. 

3  Cremore  v.  Huber  (Sup.)  45  N.  T. 
S.  947,  18  App.  Div.  231 ;  Cosgrove  v. 
Cummings,  42  A.  881,  190  Pa.  525; 
Hutchison  v.  Town  of  Summerville, 
45  S.  E.  8,  66  S.  C  442. 

lionguage  of  court  helcl  to  con- 
stitute affirmance  of  request. 
Where  plaintiff,  at  the  close  of  the 
main  charge,  requested  an  instruction, 
and  the  court  replied,  "Yes;  I  will 
not  touch  that  any  more  than  I  have," 
the  language  of  the  court  should  be 
construed  as  in  effect  giving  the  in- 
struction, and  not  as  a  refusal  so  to 
do.  Buckley  v.  Westchester  Lighting 
Co.,    76   N.    E.    1090,    183  N.   Y.    506, 


affirming  judgment  87  N.  Y.  S.  763,  93 
App.  Div.  436. 

Matters  not  constituting  abso- 
lute refusal  of  request.  A  state- 
ment by  the  trial  judge  that  he  would 
not  read  to  the  jury  defendant's  re- 
quests, but  would  pass  on  them  in  his 
general  charge,  and  cover  all  requests 
which  were  correct,  was  not  an  ab- 
solute refusal  to  charge  a  request. 
Martin  v.  Columbia  Electric  St.  Ry.. 
Light  &  Power  Co.,  66  S.  E.  993,  84  S. 
O.  568. 

Matters  amounting  to  refusal 
of  request.  An  instruction  marked 
given  which  was  not  actually  read  to 
the  jury,  and  which  was  not  given 
to  them  upon  the  submission  of  the 
cause,  is  to  be  considered  as  refused. 
Craw  V.  Chicago  City  Ry.  Co.,  159  111. 
App.  100. 

4  Baltimore  &  O.  R.  Co.  v.  Friel  (C. 
C.  A.  Pa.)  77  F.  120,  23  C".  C.  A.  77. 

5  Zacheyfia  v.  John  Lang  Paper  Co. 
(C.  C.  Pa.)  170  F.  617. 

6  Emerson  v.  Hogg  (C.  C.  N.  Y.) 
Fed.  Cas.  No.  4,440,  2  Blatchf.  1,  1 
Fish.  Pat.  Rep.  77;  Bartle  v.  Saun- 
ders, 2  Grant  Cas.  (Pa.)  199:  Ar- 
buckle  V.  Thompson,  37  Pa.  (1  Wright) 
170. 

HfPect  of  postponing  considera- 
tion of  requests.  The  act  of  a  pre- 
siding judge  in  deferring  the  consid- 
eration of  requests  for  rulings  pre- 
sented during  the  closing  argument 
of  counsel,  without  their  having  been 
shown  to  the  opposing  counsel,  until 
after  the  charge  to  the  jury,  is  not 
a  refusal  to  give  the  instructions  re- 
quested, and  is  no  ground  for  excep- 
tion, where  no  exception  is  taken  to 
the  charge  as  given,  and  where  it  does 
not  appear  that  the  rulings  were  not 
given     in     substance     as     requested. 


871 


REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS 


489 


as  having  been  refused  where  they  are  given  as  modified  by  the 
court;  the  modified  instructions  being  considered  as  given  by  the 
court  on  its  own  motion.' 

It  is  cause  for  reversal  to  read  an  instruction  to  the  jury  as  one 
requested  by  one  of  the  parties  in  language  substantially  different 
from  that  requested,  although  the  instruction  as  so  modified  may 
correctly  state  the  law.* 

A  party  requesting  a  number  of  instructions  on  the  same  issue 
or  principle  of  law,  one  of  which  is  given,  cannot  complain  of  the 
refusal  of  the  others,^  or  that  the  one  most  favorable  to  him  or  the 
most  important  is  not  given. ^* 

Requested  charges,  containing  correct  propositions  of  law  and 
applicable  to  the  pleadings  and  the  evidence,  should  be  given,  if 
the  subject-matter  of  such  charges  is  not  covered  by  any  other 
instruction.-"^^  The  court  may  reconsider  a  determination  to  give 
a  request,  on  subsequently  becoming  satisfied  that  it  is  erroneous. ^^ 


Bonino  v.   Caledonio,   144  Mass.   299, 
11  N.  E.  98. 

7  Baxter  v.  Baxter,  92  N.  E.  881, 
1039,  46  Ind.  App.  514 ;  Wea  Tp..  Tip- 
pecanoe C!ounty,  v.  Cloyd,  91  N.  }<i. 
959,  46  Ind.  App.  49 ;  Exchange  Bank 
V.  Cooper,  40  Mo.  169;  Meyer  v.  Pa- 
cific R.  R.,  Id.  151.  Compare  Flower 
V.  Beveridge,  161  111.  53,  43  N.  E.  722, 
affirming  58  111.  App.  431;  Chandler 
V.  Prince,  109  N.  E.  374,  221  Mass. 
495. 

8  Rood  V.  Butcher,  120  N.  W.  772, 
28  S.  D.  70,  20  Ann.  Cas.   480. 

9  111.  A.  H.  Nilson  INIachine  Co.  v. 
Kurtz  Action  Co.,  186  111.  App.  424. 

Tex.  St.  Louis  Southwestern  Ry. 
Co.  of  Texas  v.  Aston  (Civ.  App.)  179 
S.  W.  1128 ;  Fidelity  Phenix  Fire  Ins. 
Co.  V.  Sadau  (Civ.  App.)  178  S.  W. 
559 ;  Kansas  City,  M.  &  O.  Ry.  Co.  of 
Texas  v.  Beckham  (Civ.  App.)  152  S. 
W.  228;  Chicago,  R.  I.  &  G.  Ry.  Co. 
v.  Green  (Civ.  App.)  135  S.  W.  1031; 
Alamo  Dressed  Beef  Co.  v.  Yeargan, 
123  S.  W.  721,  58  Tex.  Civ.  App.  92 ; 
International  &  G.  N.  R.  Co.  v.  Ford 
(Civ.  App.)  118  S.  W.  1137;  Lyon  v. 
Bedgood,  117  S.  W.  897,  54  Tex.  Civ. 
App.  19;  Missouri,  K.  &  T.  Ry.  Co. 
of  Texas  v.  Morgan,  108  S.  W.  724, 
49    Tex.    Civ.   App.    212;     St.    Louis 


Southwestern    Ry.   Co.    of   Texas    v. 
Haney  (Civ.  App.)  94  S.  W.  386. 

10  111.  Clifford  V.  Pioneer  Fire- 
proofing  Co.,  83  N.  E.  448,  232  111. 
150;  East  St.  Louis  &  S.  Ry.  Co.  v. 
Zink,  82  N.  E.  283.  229  111.  ISO;  City 
of  Evanston  v.  Richards,  79  N.  E. 
673,  224  111.  444 ;  National  Enameling 
&  Stamping  Co.  v.  McCorkle,  76  N. 
E.  843.  219  111.  557;  Indiana,  L  & 
I.  R.  Co.  V.  Otstot,  72  N.  E.  387,  212 
111.  429,  affirming  judgment  113  111. 
App.  37 ;  City  of  Salem  v.  Webster,  95 
111.  App.  120,  judgment  affirmed  61  N.  • 
E.  323,  192  111.  369. 

Tex.  Van  Zandt-Moore  Iron 
Works  V.  Axtell,  126  S.  W.  930,  58 
Tex.  Civ.  App.  353;  Waggoner  v. 
Sneed,  118  S.  W.  547,  53  Tex.  Civ. 
App.  278, 

11 N.  Y.  Santiago  v.  John  B. 
Walsh  Stevedore  Co.,  137  N.  Y.  S.  611, 
152  App.  Div.  697. 

Okl.  Dunlap  &  Taylor  v.  Flowers, 
96  P.  643,  21  Okl.  600. 

Tex.  St.  Louis  Southwestern  Ry, 
Co.  of  Texas  v.  Neef  (Civ.  App.)  138 
S.  W.  1168 ;  Bishop  v.  Riddle,  113  S. 
W.  151,  51  Tex.  Civ.  App.  317 ;  Ixjve 
V.  Perry  (Civ.  App.)  Ill  S.  W.  203. 

12  Louisville,  N.  A.  &  C.  Ry.  Co.  v. 
Hubbard,  116  Ind.  193,  IS  N.  E.  611. 


§  490  INSTRUCTIONS  TO  JURIES  872 

§  490.     Time  of  passing  on  requests 

A  party  has  no  absolute  right  to  have  the  instructions  requested 
by  him  reserved  until  after  those  proposed  by  his  adversary  have 
been  passed  upon.^^  It  will  be  error  to  grant  a  request  of  one  party 
during  the  argument  of  counsel  for  the  other  side,  if  thereby  coun- 
sel is  deprived  of  the  opportunity  to  refer  to  the  same/'*  and  in  one 
jurisdiction,  under  statutory  provisions,  a  party  has  the  absolute 
right  to  have  such  correct  written  instructions  as  may  be  requested 
given  to  the  jury  before  the  argument/^  In  another  jurisdiction  the 
court  may,  before  giving  its  general  charge,  read  to  the  jury  and 
pass  on  requested  instructions.^^ 

§  491.     Manner  of  giving  requested  instructions 

The  rule  is  in  some  jurisdictions  that  the  court  should,  on  giving 
requested  instructions,  read  them  to  the  jury  before  they  retire," 
and  that  if  it  is  clearly  shown  that  instructions  asked  on  behalf 
of  a  party  were  handed  to  the  jury  without  reading,  thus  placing 
them  under  a  cloud,  a  verdict  against  such  party  will  be  set  aside/* 
It  is  not  a  sufficient  compliance  with  the  above  rule  that  instruc- 
tions asked  by  counsel  are  read  by  him  under  direction  of  the 
court,^®  although  a  new  trial  will  not  be  granted  merely  because 
counsel  is  allowed  to  read  his  requests  to  charge  to  the  jury,  where 
the  writing  is  somewhat  illegible  and  it  is  apparent  that  no  harm 
has  resulted.^® 

13  Shaw  V.  Township  of  Saline,  71  i7  Alabama  G.  S.  R.  Co.  v.  Arnold, 
N.  W.  642,  113  Mich.  342.                            80  Ala.  600.  2  So.  337;    Leaptrot  v. 

14  King  V.    State,   83    So.   164,    121       Robertson,  44  Ga.  46. 

Miss.  230.  Reading  not  required  unless  re- 

isYillacre   of   Monroeville   v.    Root,  quested.     Requested  instructions  are 

54  Ohio  St.  523,  44  N.  E.  237;  Lutter-  sufficiently  given,  where  they  are  in- 

beclc  V.'  Toledo  Consol.  St.  Ry.  Co.,  5  dorsed  "Given"  and  handed  to  the  ju- 

O.  C.  D.  141.  ry,  with  a  statement  that  they   are 

Waiver   of   failure   to    give    re-  given  at  the  request  of  defendant,  if 

quest     before      argument.     Where  defendant  does  not  request  that  they 

certain  requests  to  charge  are  submit-  be  read  to  the  jury.     Boyd  v.  State, 

ted  to  the  court  prior  to  the  argument,  45  So.  634,   154  Ala.  9. 

with   tlie  request   that  the   same   be  isVeneman  v.  McCurtain,  33  Neb. 

made  part  of  the  charge  of  the  court,  643,  50  N.  W.  955 ;    McDuffie  v.  Bent- 

but  no  request  is  made  that  they  be  ley,  27  Neb.  380,  43  N.  W.  123. 

given  to  the  jury  before  the  argument  is  O'Dell  v.  Goff,  117  N.  W.  59,  153 

of  counsel,  the  fact  that  the  court  did  Mich.  643;    State  v.  Missio,  58  S.  W. 

pass   upon    them,   and   give   most   of  216,  105  Teun.  218. 

them  in  his  final  charge  to  the  jury,  20  Gow  v.  Charlotte,  C.  &  A.  R.  Co., 

and  not  before  argument  of  counsel  68  Ga.  54. 

is  not  error.     City  of  Toledo  v.  Hig-  Failure  to  repeat  requests  read 

gins.  12  Ohio  Cir.  Ct.  R.  646,  7  O.  G.  by  counsel.     A  new  trial  will  not  be 

i>.  29.  granted  because  the  presiding  judge 

16  Walton  V.  Hinnau,  146  Pa.  396,  did  not  repeat  formally  to  the  jury 

23  A.  342.  requests   to  charge  read  by  counsel, 


873  REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS         §  491 

The  court  should  not  only  read  requests  given  to  the  jury,  but 
should  distinctly  inform  them  that  such  requests  are  correct  prop- 
ositions of  law,  to  be  considered  along  with  the  other  instructions 
^h^n  in  the  c;se.^^  However,  while  a  party  is  entitled  to  an  af- 
firmance of  a  request  which  clearly  and  adequately  expresses  a 
rekvant  lec^al  principle,  no  set  formula  is  required  to  indicate  that 
such  request  has  bee'n  granted-  The  remark  of  the  court,  on  be- 
ng  requested  to  give  an  instruction,  that  he  has  already  so  charged, 
Tequhalent  to  a^harge  as  requested,-  and  it  is  not  necessary  for 
the  trial  iudge  to  afftrm  requests  to  charge  separately,  but  he  may 
read  t  im  tlfrough  and  afftrm  them  altogether  -  Where  the  court 
grants  an  oral  request  by  the  defendant  in  a  criminal  case,  he  can- 


and  approved  by  the  court  as  read, 
no  request  havrng  been  made  at  the 
time  East  Tennessee,  V.  &  G.  K.  LX). 
V    Fain,  SO  Tenn.   (12  Lea)  35. 

21  Ga.  Blandon  v.  State.  65  S.  li. 
S40  6  Ga.  Apr*.  7S2 ;  Georsia  Rail- 
road &  Banking  Oo.  v.  Flowers,  33  S. 
E  874. 108  Ga.  795;  Colquitt  v.  Thom- 
as. 8  Ga.  258.  ,    .^  -,  c,. 

N  J.  Olsofrom  v.  North  Jersey  St. 
Rv.  Co.  (Sup.)  79  A.  1039.  81  N.  J. 
Law.  321 ;   Roe  v.  State,  45  N.  J.  Law 

(16  Vroom)  49.  ^    c,    -m- 

Tex.  Burnett  v.  State.  79  S.  W. 
550.  46  Tex.  Cr.  R.  116. 

Action  by  court  held  not  obnox- 
ious to  rule.  Where  the  court  was 
reouested  to  give  the  jury  a  certain 
written  instruction,  and  the  court 
read  slowly  the  requested  instruction 
to  the  lury,  ^nd  said,  "I  give  you  that 
in  charge,  as  the  law  of  the  case,  it 
is  a  proper  manner  of  charging.  Fea- 
gan  V.  Cureton,  19  Ga.  404.  Where 
the  court,  before  giving  a  requested 
charge,  said,  "Counsel  have  handed 
rae  some  requests  as  stating  proposi- 
tions of  law  by  which  you  should  be 
guided  in  determining  your  verdict,"  a 
contention  that  the  court  failed  to  say 
that  the  charge  was  correct,  whereup- 
on the  jury  failed  to  understand  that 
the  requests  read  were  given,  is  not 
well  taken.  Noble  v.  Bessemer  fe.  b. 
Co  86  N.  W.  520,  127  Mich.  103,  54 
L.  R.  A.  456,  89  Am.  St.  Rep.  461. 

Harmless  error.  Where  several 
requests  to  charge  were  handed  to  the 
judge,  and  by  him  read  to  the  jury, 


without  expressly  giving  the  same  in 
charge,  the  omission  to  distinctly 
inform  the  jury  that  such  requests 
were  correct  propositions  of  law,  to 
be  considered  along  with  the  other 
instructions  given  in  the  case,  was  not 
reversible  error  where  all  the  requests 
save  (ftie  were  covered  by  the  general 
charge,  and,  after  reading  the  gen- 
eral charge,  the  judge  used  with  ref- 
erence thereto  language  plainly  indi- 
cating his  intention  to  give  it  in 
charge  with  a  qualification  ^A'hch  was 
itself  proper.  Georgia  Railroad  & 
Banking  Co.  v.  Flowers,  33  S.  E.  874, 
108  Ga!  795. 

2  2  Ark.  Hale  &  Scott  v.  St.  Louis 
&  R.  F.  R.  Co.,  193  S.  W.  790,  128  Ark. 
203. 

N.  Y.  People  v.  Mongano,  1  N.  Y. 
Cr.  R.  411. 

Pa.  Borough  of  West  Bellevue  v. 
Huddleson,  16  A.  764,  23  Wkly.  Notes 
Cas  240-  Brenneman  v.  P.  H.  Glat- 
feUer  Co.,  61  Pa.  Super.  Ct.  64 ;  Sue- 
cop  V.  Baltimore  &  O.  R.  Co.,  58  Pa. 
Super.  Ct.  246. 

S.  C.  Autrey  v.  Bell,  103  S.  E.  749, 
114  S.  C.  370;  State  v.  Stewart,  26 
S.  C.  125,  1  S.  E.  468. 

2  3  Schechwitz  v.  New  York  City  Ry. 
Co.  (Sup.)  103  N.  Y.  S.  781;  State  v. 
Shapiro,  69  A.  340,  29  R.  I.  133 ;  Cald- 
well  v.  Duncan,  69  S.  E.  660,  87  S.  C. 
331. 

2  4  Commonwealth  v.  Cleary,  135  Pa. 
64,  19  A.  1017,  26  Wkly.  Notes  Cas. 
137,  8  L.  R.  A.  301. 


§    491  INSTRUCTIONS  TO  JURIES  874 

not  complain  of  the  particular  language  used  by  the  court  in  com- 
plying with  the  request.'^ 

It  is  not  improper  for  the  court,  in  giving  a  requested  instruc- 
tion, to  state  that  it  is  probably  abstract,'^^  or  that  it  is  given  be- 
cause no  objection  has  been  made  to  it,"  or  to  suggest  that  the 
plaintiff  may  so  amend  his  complaint,  if  he  wishes,  as  to  obviate 
the  effect  of  a  charge  given  at  the  request  of  the  defendant ;  ^*  but 
it  is  improper,  after  giving  an  instruction  in  the  very  terms  of  the 
request  for  it,  to  weaken  its  force  by  sarcastic  comment,  so  as  to 
leave  the  jury  in  doubt  whether  the  instruction  has  been  given 
or  refused."** 

So  it  is  error  for  the  court  to  hand  to  the  jury  the  requests  sub- 
mitted by  counsel,  with  an  admonition  to  follow  them  so  far 
as  they  conform  to  other  parts  of  the  charge,  the  duty  of  discrim- 
inating as  to  such  conformity  being  thus  imposed  on  the  jury,^** 
and  it  is  equally  improper,  on  giving  a  requested  instruction,  to 
tell  the  jury  that  they  will  "please  be  governed  thereby,"  as  this  is 
calculated  to  influence  the  jury.^^  The  court  is  not  required  to  fur- 
nish the  jury  with  reasons,  for  instructions  given.^^ 

Informing  the  jury  that  certain  instructions  are  given  at  the  re- 
quest of  a  particular  party ,^^  or  the  failure  to  make  such  a  state- 

2  5Autrey  v.   State,  100  S.   E.   782,  3  o  Lang  v.  State,  84  Tenn.  (16  Lea) 

24  Ga.  App.  414.  43.S,  1  S.  W.  318. 

2G  Morrow  v.  Parkman,  14  Ala.  76y.  ^  ^i  Bradford  v.  State,  25  Tex.  App. 

27  Sta'te  V.  Musick,  101  Mo.  2G0,  14  '^^3,  9  S.  W.  46. 

S    W  212  ^"  ^^^S  Solomon  Tunnel  Co.  v.  Min- 

■  ..  C..„.m.s  AamTs  v.  C.awford.  29      j;',^  CO;."'^:,,!?';  ^S  I"!"'  ^J'l'-  S?/ 


Ala.  623. 


Charlotte  Harbor  &  N.  Ry.  Co.  v.  Tru- 
ette    (Fla.)    87    So.    427;     Hansen    v. 

2  9  Horton  v.  Williams,  21  Minn.  187.  Hough,  158  N.  W.  501,  177  Iowa,  93. 

Remark   that  court   did  not  see  3  3  U.  S.      (C.  C.  A.  Neb.)   Colorado 

applicability    of    request.     Where,  Yule  Marble  Co.  v.  Collins,  230  F.  78, 

on  an  indictment  for  murder  in  the  144  C.  C.  A.  376. 

first    degree,    accused    requested    the  Cal.     Wilmarth  v.  Pacific  Mut.  Lrife 

court  to  charge  as  to  different  grades  ins.  -Co.    of   California,    143    P.    780, 

of  manslaughter,  to  which  the  court  I6S  Cal.  536,  Ann.  Cas.  1915B,  1120; 

replied  that  it  thought  that  it  would  People  v.  Wilder,  66  P.  228,  134  Cal. 

be  better  to  so  charge  rather  than  to  1S2. 

deny  the  request,  although  it  did  not  Ga.     Dotson  v.  State,  71  S.  E.  164, 

see  the  applicability  of  it,  it  was  held  136  Ga.  243. 

that,  if  the  evidence  entitled  the  ac-  111.     Illinois  Cent.   R.   Co.   v.   Lar- 

cused  to  have  the  question  as  to  man-  son,  152  111.  326,  38  N.  E.  784. 

slaughter  submitted  to  the  jury,  the  Iowa.     Scott  v.  Chicago,  M.  &  St. 

court's  charge  was  erroneous,  as  the  P.  Ry.  Co.,  68  Iowa,  360,  24  N.  W. 

jury  probably  would  not  have  consid-  584. 

ered  the  case  in  connection  with  the  Neb.    Clawson  v.  State,  148  N.  W. 

crime  of  manslaughter  after  such  re-  524,  96  Neb.  499. 

mark  by  the  court.     People  v.  Rego,  Tex.     Lott  v.  State,  146  S.  W.  544, 

36  Htm,  129.  66  Tex.  Cr,  R.  152 ;    St.  Louis  South- 


875  REQUESTS   OR  PRAYERS   FOR  INSTRUCTIONS  §  492 

ment,^'*  will  not  ordinarily  constitute  reversible  error,  although  the 
practice  of  making  such  a  statement  is  not  commended,^^  and  if  by 
such  an  announcement  anything  may  be  added  to  or  detracted  from 
the  force  of  the  requested  instruction,  it  should  not  be  made.^''  The 
better  practice  is  to  give  all  proper  requests  as  emanating  from 
the  court  itself.^' 

It  is  not  improper  to  instruct  that  special  charges  given  at  the 
request  of  a  party  are  entitled  to  equal  weight  with  the  main 
charge.^*  The  order  in  which  instructions  are  given  is  usually  not 
material.^  Granted  requests,  however,  should,  if  possible,  be  in- 
corporated in  the  charge  in  connection  with  the  subject  of  which 
they  form  a  part;  if  this  cannot  be  done,  the  orderly  place  for 
them  is  after  the  court  has  completed  the  body  of  the  charge  and 
not  at  its  beginning.*"  In  a  criminal  case,  the  court  need  not  give 
instructions  requested  by  the  defendant  in  a  single  group,  but  may 
mingle  them  with  the  other  instructions  given,  as  a  logical  and  or- 
derly arrangement  of  the  instructions  as  a  whole  may  require." 

An  erroneous  refusal  of  a  requested  instruction  may  be  cured 
by  subsequently  recalling  the  jury  and  giving  the  instruction.'*'^ 

§  492.     Comments  and  explanations  by  court  on  refusing  requests 

On  refusing  requests  for  instructions,  the  court  is  not  required  to 
read  them  to  the  jury,  together  with  his  ruling.*^  If  the  trial 
judge  reads  only  such  points  as  he  affirms,  and  files  those  which 

western  Ry.  Co.  of  Texas  v.  Cleland,  4o  Gannon  v.   Sisk,   112  A.  697,  95 

110  S.  W.  122,  50  Tex.  Civ.  App.  499.  Conn.   6.39. 

Wash.     State    v.    Poyner,    107    P.  4i  Young  v.  People,  61  N.  E.  1104, 

181.  m  Wn.sh.  4S9.  193   111.    236;     Crowell   v.   People,   60 

Wis.     Meyer  v.  Milwaukee  Electric  N.  E.  872,  190  111.  508  ;    Harrington  v. 

Ry.  &  Light  Co.,  93  N.  W.  6,  116  Wig.  People,  90  111.  App.  456. 
^^^'  ^   ^                   ^,             n/.    ^T     -Ptr  ^'  Shepperd  v.   State.  94  Ala.   102, 

108      ^^T^?.   l■^c,^l%T'T^^^  "1^7-  ^^  So.  663;    Booker  v.  State,  76  Ala. 

1081,  114  ^  IS.  589,  58  L.  R.  A.  744.  02 ;     People   v    Turlev    50   Cal    469  • 

35  Meyer  V.  Milwaukee  Electric,  etc,  T^nHcmorp  v    Qtat-A   00' Pn    ioo'iqq' 

R.  Co.,  93  N.  W.  6,  116  Wis.  336.  ^    39     "^^  ^-  ^^''^^'  ^"^  ^'^-  ^-"'  ^^  S* 

soDodd'  V.  Moore,  91  Ind.  522.  ^'.^w         ci,  ox  i.      ■.„  -^ 

37  People  V.  Bundy,  145  P.  537,  168  .  ''  ^^'     Sherman  v.  State,  17  Fla. 

Cal.    777;     State   v.    Marren,    107    F.  ^^^        „,  ^    ^        ,r       ,      ^  t, 

993,  17  Idaho,  766;   Aneals  v.  People,  ^  ^^-     ^^^'IJ'  Sf  *^''''  ?o^''^^^.°'^  ?• 

134  111.  401,  25  N.  E.   1022;    Steven-  Co.,  70  A.  807,  221  Pa.  439;    Woeck- 

son  V.  Chicago  &  N.  W.  Ry.  Co.,  94  J}f  7«V  ^^^^  Sf  Tf  wm  ^''m  "^r  ^^n^' 

Iowa,   719,   61   N.   W.  964;    Jones  v.  i^'  ^fj  Pa.  206,  43  Wkly    Notes  Cas. 

State,  127- N.  W.  158,  87  Neb.  390.  J^'    ^"?5^''o^^S^  j^-  M^^^^'abe,  22  Pa. 

3  8  Goodley  v.  Northern  Texas  Trac-  ^nper.  ^Ct.    587;     Commonwealth    v. 

tion   Co.   (Tex.  Civ.  App.)   144  S.  W.  ^1'^^^''  -*  ^^-  ^uper.  Ct.  141. 

359.  S.   C.     Long  v.   Southern  Ry.   Co., 

39  People  V.  Holt,  136  P.  501,  22  Cal.  27  S.  E.  531,  50  S.  C.  49. 

App.  697;    Colombo  v.  People,  55  N.  Tenn.     Foutoh  v.  State,  45  S.  W. 

E.  519,  182  111.  411.  678,  100  Tenn.  334. 


§  492  INSTRUCTIONS  TO  JURIES  876 

he  refuses,  with  his  rulings  and  exceptions  which  may  be  taken, 
nothing  more  can  be  required  of  him,**  and  it  is  considered  im- 
proper to  read  requests  which  have  been  refused  in  some  juris- 
dictions.*^ 

Remarks  made  by  the  court,  on  refusing  an  instruction,  calcu- 
lated to  mislead  the  jury,  are  ground  for  reversal;*®  but,  where 
the  legal  proposition  in  controversy  is  fully  elucidated  by  the 
court  in  its  general  charge,  remarks  made  by  it  on  refusing  a 
requested  instruction  will  not  work  a  reversal,  in  the  absence  of 
a  clear  showing  of  prejudicial  error.*'  Thus  an  impropriety  in  in- 
structing the  jury  on  the  court's  own  motion  as  to  its  reasons  for 
refusing  certain  instructions  will  not  be  ground  for  reversal,  if  no 
prejudice  could  have  resulted  therefrom,**  and  the  giving  of  an 
erroneous  reason  for  the  refusal  of  an  instruction  which  ought  not 
to  be  given  is  no  cause  for  reversal.*^  A  doubt  expressed  by  the 
court  on  refusing  an  instruction  with  respect  to  a  certain  phase 
oi  it  does  not  amount  to  an  approval  of  it  in  other  respects,  which 
is  prejudicial  if  the  jury  are  fairly  and  fully  instructed.^ 

If  the  court  refuses  to  give  a  requested  charge  because  it  has 
already  been  given  in  another  form,  the  court  should  so  state,  if 
the  jury  would  otherwise  be  misled.^^  Such  a  statement  is  not  nec- 
essary where  the  jury  have  no  knowledge  of  refused  instructions.®^ 

The  rule  against  the  expression  of  an  opinion  by  the  court  on 
issues  of  fact  is  not  violated  by  a  statement  that  it  declines  to 
give  a  requested  instruction  because  there  is  no  evidence  in  the 

4  4  Cooper  V.  Altoona  C.  C.  &  S.  Co.,  all  these  words,  leaving  them  plainly 

53  Pa.  Super.  Ct.  141.  visible,   and   gave  it  to   the  jury,   it 

4  5  Ransone  v.  Christian,  56  Ga.  351.  was  held  not  error,  as  giving  special 

46  Biehler  v.  Coonce,  9  Mo.  347.  prominence     to    particular    evidence. 

Illustrations    of   misleading    re-  Cobb   Chocolate  Co.   v.   Knudson,  107 

marks.     WTiere    counsel    submit    re-  111.   App.   66S.   judgment  affirmed   69 

quests   to   charge   which    are   correct  N.  E.  816,  207  111.  452. 

both  as  to  the  facts  and  law,  a  ruling  47  Lake   Shore  &   M.    S.  R.   Co.   v. 

of  the  court  that  such  request  "has  Erie  County  Sup'rs,  2  N.  Y,  St.  Rep. 

been  sufllciently  covered  in  the  gen-  317. 

eral  charge,  and  is  declined"  is  erro-  4  8  Pennsylvania  Co.  v.  Frana,  112 

neous,  as  the  statement  that  the  point  111.   398. 

was  declined  has  a  tendency  to  mis-  49  Budd  v.  Brooke,  S  Gill  (Md.)  19S, 

lead.     IVIcNess  v.  Sims,  SO  A.  866,  231  43  Am.  Dec.  321. 

Pa.  3S6.  5  0  Coombs    v.    Radford,    110    Mich. 

Matters   not   constituting   error  192,   68   N.    W.   123. 

within  rule.     Where  the  court  made  si  People  v.  Williams,  17-Cal.  142; 

certain  changes  in  an  instruction,  and  People  v.  Ramirez,  13  Cal.  172 ;    Peo- 

wrote  upon  the  margin  the  sentence,  pie  v.  Hurley,  8  Cal.  390;    State  v. 

^'Refused    as    ignoring    the    specific  Ferguson,  9  Nev.  106. 

proof    of    specific    orders    to    do  the  52  People  v.  Barthleman,  52  P.  112, 

work  in  question,  and  for  other  rea-  120  Cal.  7 ;   People  v.  Douglass,  34  P. 

fions,"  and  then  ran  his  pen  through  490,  100  Cal.  1. 


877 


REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS 


493 


case  to  justify  it.®^  Where  a  statement  by  the  court  of  its  reasons 
for  refusing  a  requested  instruction  shows  a  misconception  of  the 
proposition  embodied  therein,  counsel  for  the  requesting  party 
should  explain  it  and  point  out  the  misconception.^* 

§  493.     Noting  disposition  of  requests 

There  are  statutory  requirements  in  some  jurisdictions  that  the 
court  shall  indicate  by  memorandum  the  numbers  of  requested,  in- 
structions given  and  of  those  refused,  and  that  such  memorandum 
shall  be  signed  by  the  judge.^^  In  other  jurisdictions  the  statute 
requires  the  trial  judge  to  indorse  on  a  requested  instruction  what 
disposition  he  has  made  of  it,  and  to  sign  his  name  to  such  nota- 
tion.^ 


5  3  PiUsbury  v.  Sweet,  SO  Me.  392, 14 
A,  742. 

J-*  Garbaczewski  v.  Third  Ave.  E. 
Co.,  5  App.  Div.  186,  39  N.  Y.  S.  33. 

5  5  Inland  Steel  Co.  v.  Smith.  75 
N.  E.  852,  39  Ind.  App.  636.  judgment 
affirmed  80  N.  E.  538,  168  Ind.  245. 

5  6  Wells  V.  Territory,  78  P.  124,  14 
Old.  436 ;  Peart  v.  Chicago,  M.  &  St. 
P.  Ry.  Co.,  8  S.  D.  431,  66  N.  W.  814 ; 
Missouri.  K.  &  T.  Ry.  Co.  of  Texas  v. 
Hurdle  (Tex.  Civ.  App.)  142  S.  W.  992. 

Sufficiency  of  compliance  ivith 
statute.  A  refusal  of  instructions 
asked  by  writing  at  the  bottom  of  the 
last  of  the  pages  on  which  they  were 
written,  "the  foregoing  are  all  refus- 
ed— some  because  they  are  embraced 
within  those  given  by  the  court ;  oth- 
ers because  they  are  believed  to  not 
accurately  state  the  law" — is  suffi- 
cient. Territory  v.  Baker,  4  N.  M. 
(Johns.)  117,  13  P.  30.  If  the  words 
"Given"  or  "Refused"  be  indorsed  up- 
on the  judge's  charge,  or  annexed 
thereto,  that  will  sufficiently  show  the 
disposition  of  the  charge,  and  subject 
it  to  revision  for  error.  Thompson  v. 
Chumney,  8  Tex.  389.  Where  several 
requests  for  instructions  were  on  the 
same  piece  of  paper,  and  unseparated, 
it  was  a  proper  mode  of  refusing  them 
for  the  judge  to  write  the  word  "Re- 
fused" on  the  pai)er,  and  sign  his 
name  thereto.  Pearce  v.  State,  22 
So.  502,  115  Ala.  115.  That  an  in- 
struction is  indorsed  by  the  court 
"Given  as  modified"  does  not  show 
that  part  of  it  was  refused,  so  as  to 


require  the  court,  as  provided  by  the 
statute  in  such  case,  to  make  an  in- 
dorsement showing  the  part  given 
and  the  part  refused,  as  the  modifica- 
tion may  have  consisted  in  something 
added  by  the  court  by  way  of  correc- 
tion or  otherwise.  People  v.  Owens, 
56  P.  251,  123  Cal.  482.  The  indorse- 
ment by  the  court  iipon  an  instruc- 
tion submitted  that  it  "did  not  consid- 
er and  pass  upon  said  proposition,  be- 
cause it  did  not  include  and  was  not 
based  on  the  leading  facts  upon  which 
the  case  was  tried," -amounts  to  a  re- 
fusal, and  is  a  sufficient  compliance 
with  the  practice  act.  Moore  v. 
Sweeney,  28  111.  App.  547.  Where  a 
party  asks  the  court  to  give  each  of 
seven  instructions  written  on  six 
leaves  of  paper  fastened  together  at 
the  top,  and  the  court  writes  on  the 
margin  of  the  first  of  said  leaves: 
"Instructions  one  to  seven  all  refused. 
Defendant  excepts" — and  signs  the 
same,  there  is  a  substantial  compli- 
ance with  the  statute,  requiring  the 
court  to  write  on  the  margin  of  each 
instruction  not  given  the  word  "Re- 
fused." Harvey  v.  Tama  County,  53 
Iowa,  228,  5  N.  W.  130.  An  instruc- 
tion, or  a  series  of  instructions,  head- 
ed, "Instructions  Given  by  the  Court 
on  Its  Own  Motion,"  and  so  placed 
in  the  record  as  to  be  clearly  separate 
and  distinguishable  from  the  instruc- 
tions presented  by  the  parties,  suffi- 
ciently complies  with  a  statute  pro- 
viding that  instructions  must  be 
marked  "Given"  or  "Refused"  on  the 


493 


INSTRUCTIONS  TO  JURIES 


878 


While  such  statutes  are  held  to  be  mandatory  in  some  jurisdic- 
tions,^' in  other  jurisdictions  they  are  held  to  be  directory  merely,^* 
and  ordinarily  the  mere  failure  of  the  trial  judge  to  indorse  "Given" 
or  "Refused"  on  each  instruction  asked  will  not  be  cause  for  re- 
versal, where  the  party  complaining  does  not  direct  attention  to 
the  omission,^^  or  where  it  can  be  ascertained  which  instructions, 
were  given  and  which  refused,^"  or  where  such  failure  is  not  prej- 
udicial to  the  losing  party ,^^  and  it  has  been  held  that  not  marking 
instructions  either  "Given"  or  "Refused,"  when  they  are  not  given, 
has  the  same  effect  as  marking  them  "Refused."  ^^ 

Such  a  statutory  provision  does  not  apply  to  instructions  given 
by  the  court  on  its  own  motion.^^  In  some  jurisdictions,  where 
an  instruction  is  refused  because  its  substance  has  been  given,  that 
fact  should  be  noted  on  the  instruction.^* 


margin.  Gilleu  v.  Riley,  27  Neb.  158, 
42  N.  W.  1054. 

Sufficiency  of  signature  of 
judge.  Tbe  statute  does  not  require 
the  judge  to  sign  liis  name  in  full  on 
charges  marked  by  him  "Given"  or 
"Refused,"  or  to  add  his  title  to  his 
name  in  such  cases.  Kennedy  v. 
Smith,  99  Ala.  S3,  11  So.  665. 

5  7  Levy  V.  Burkstrom,  174  111.  App. 
276:  Holcomb  v.  Norman,  87  N.  E. 
1057,  43  Ind.  App.  506. 

5  8  Farrell  v.  Citizens'  Light  &  Ry. 
Co.,  114  N.  W.  1063,  137  Iowa.  309; 
Van  Buskirk  v.  Quincy,  O.  &  K.  C.  R. 
Co.,  Ill  S.  W.  832,  131  Mo.  Ajip.  357. 

59  Barnewall  v.  Murrell,  108  Ala. 
366,  18  So.  831. 

60  People  V.  Duzan.  112  N.  E.  315, 
272  111.  478 ;  McDonald  v.  Fairbanks, 
Morse  &:  Co.,  161  111.  124,  43  N.  E. 
783;  Tobin  v.  People,  101  111.  121; 
Cook  V.  Hunt,  24  111.  535;  Chicago 
Union  Traction  Co.  v.  Olsen,  113  111. 
App.  303,  judgment  affirmed  71  N.  E. 
985,  211  111.  255 ;  Harrigan  v.  Turner, 
65  111.  App.  469;  Frame  v.  Murphy, 
56  111.  App.  .555:  St.  Louis,  A.  &  T. 
H.  R.  Co.  V.  Hawkins,  39  111.  App.  406; 
Clapp  V.  Martin,  33  111.  App.  438. 
See  Washington  v.  State,  106  Ala.  58, 
17  So.  546. 

Effect  of  error  in  marking  in- 
struction. Where,  in  a  closely-con- 
tested case,  an  instruction  which  cor- 
rectly states  the  law  upon  an  impor- 


tant branch  of  the  case  is  read  to  the 
jury,  marked  "Refused,"  and  given  to 
the  jury  with  other  instructions 
marked  "Given,"  and  no  other  in- 
struction covering  the  same  point  is 
given,  a  reversal  of  the  judgment  is 
justified.  Terre  Haute  &  I.  R.  Co.  v. 
Hybarger,  67  111.  App.  480. 

61  111.  Daxanbeklar  v.  People,  93 
111.  App.  .553 ;  World's  Columbian  Ex- 
position V.  Bell,  76  111.  App.  591. 

Iowa.  Turley  v.  Griffin,  76  N.  W. 
660,  106  Iowa,  161. 

Neb.  Clasen  v.  Pruhs,  95  N.  W. 
640,  69  Neb.  278,  5  Ann.  Cas.  112; 
Home  Fire  Ins.  Co.  v.  Decker,  75  N. 
W.  841,  55  Neb.  346;  Eickhoff  v.  Eik- 
enbary,  72  N.  W.  308,  52  Neb.  3.32. 

6  2  Leman  v.  United  States  Fidelity 
&  Guaranty  Co.  of  Maryland,  137  111. 
App.  258 ;  Chicago,  W.  &  V.  Coal  Co. 
v.  People,  114  111.  App.  75,  judgment 
affirmed  73  N.  E.  770,  214  111.  421. 

63  Territory  v.  Cordova,  68  P.  91^, 
11  N.  M.  367. 

6-1  State  V.  Ferguson,  9  Nev.  106. 

In  California,  since  the  jury  can 
take  into  their  room  only  instnietions 
given  and  have  no  knowledge  of  in- 
structions which  have  been  refused, 
the  court  need  not  state  to  the  jury 
that  it  refuses  to  give  certain  instruc- 
tions asked  because  they  have  been 
given  in  other  instructions.  People  v. 
Barthleman,  52  P.  112,  120  Cal.  7. 


879 


REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS 


494 


§  494.     Inconsistent  requests 

A  party  cannot  complain  of  the  refusal  of  a  requested  instruction 
which  is  inconsistent  with  one  given  at  his  own  instance.^^  At 
least  he  cannot  so  complain  without  first  asking  for  the  withdrawal 
of  the  prior  inconsistent  instruction."*'  Inconsistencies  between  in- 
structions given  at  the  request  of  the  respective  parties,  arising 
from  the  fact  that  the  instructions   given  at  the  instance  of  one 


GsAla.  Western  Union  Telegraph 
Co.  V.  Griffith,  50  So.  91,  161  Ala.  241. 

Colo.  Healey  v.  Rupp,  63  P.  319, 
2S  Colo.  102. 

111.  Chicago  City  Ry.  Co.  v.  Tay- 
lor, 48  N.  E.  831,  170  111.  49,  affirming 
judgment  68  111.  App.  613;  United 
States  Rolling  Stock  Co.  v.  Wilder, 
116  111.  100,  5  N.  E.  92 ;  Fitzsimmons- 
Kreider  Milling  Co.  v.  Millers'  INIut. 
Fire  Ins.  Ass'n  of  Illinois,  161  111. 
App.  542. 

Ky.  Louisville  &  N.  R.  Co.  v.  Hun- 
ter, 10  Ky.  Law  Rep.  (abstract)  871. 

Md.  ^^]tua  Indemnity  Co.  of  Hart- 
ford, Conn.,  V.  George  A.  Fuller  Co., 
73  A.  738,  111  Md.  321,  reargument 
denied  74  A.  369,  111  Md.  321 ;  B.  F. 
Sturtevant  Co.  v.  Cumberland  Dugan 
&  Co.,  68  A.  351,  106  Md.  587,  14  Ann. 
Cas.  675:  Cumberland  Coal  &  Iron 
Co.  V.  Tilghman,  13  Md.  74. 

Mass.     I'ercival  v.  Chase,  65  N.  E. 

800,  182  Mass.  371. 

Mo.  St.  Louis,  K.  &  N.  W.  R.  Co. 
Y.  Knapp,  Stout  &  Co.  Company,  61 
S.  W.  300,  160  Mo.  390 ;  Tetherow  v. 
St.  Joseph  &  D.  M.  R.  Co.,  98  Mo.  74, 
11  S.  W.  310,  14  Am.  St.  Rep.  617. 

Neb.  Missouri  Pac.  R.  Co.  v.  Fox, 
83  N.  W.  744,  60  Neb.  531. 

N.  Y.  Ramsey  v.  National  Con- 
tracting Co.,  63  N.  Y.  S.  286,  49  App. 
Div.  11, 

Pa.  Griesemer  v.  Stiburban  Elec- 
tric Co.,  73  A.  340,  224  Pa.  328. 

Tex.  Missouri.  K.  &  T.  Ry.,Co.  of 
Texas  v.  Reno  (Civ.  App.)  146  S.  W. 
207;  Texas  &  P.  Ry.  Co.  v.  Hassell,  58 
S.  W.  54,  23  Tex.  Civ.  App.  681; 
Scott  V.  Texas  &  P.  Ry.  Co.,  57  S.  W. 

801,  93  Tex.  625,  reversing  judgment 
(Civ.  App.)  56  S.  W.  97. 

Vt.  Briggs  V.  Town  of  Georgia,  12 
Vt.  60. 

Va.  City  of  Richmond  v.  Pember- 
ton,  61  S.  E.  787,  108  Va.  220. 


W.  Va.  Baltimore  &  O.  R.  Co.  v. 
Lafferty,  2  W.  Va.  104;  Lazzell  v. 
Napel,  1  W.  Va.  43. 

Requests  lield  not  inconsistent 
^xrithin  rule.  The  insertion  in  an 
instruction  requested  by  plaintiff  of  a 
requirement  that  the  jury  must  find 
that  the  west  side  of  a  street  intersec- 
tion was  the  regular  stopping  place 
for  street  cars  traveling  in  the  direc- 
tion plaintiff  was  going  at  the  time 
she  was  injured  in  attempting  to 
alight  did  not  preclude  her  from  hav- 
ing the  case  submitted  to  the  jury  in 
another  instruction,  to  the  effect  that, 
if  the  car  was  halted  in  obedience  to 
her  signal  to  permit  her  to  alight,  and 
was  started  carelessly  while  she  was 
doing  so,  she  was  entitled  to  recover, 
regardless  of  the  question  whether 
the  car  had  stopped  at  its  usual  stop- 
ping place.  Groshong  v.  United  Rys. 
Co.  of  St.  Louis,  121  S.  W.  1084,  142 
j\Io.  App.  718.  A  requested  charge  by 
defendant,  in  slander,  that,  unless  he 
spoke  the  words  charged  in  the  peti- 
tion or  enough  of  them  to  constitute 
the  charge  of  misconduct,  the  verdict 
should  be  for  him,  given  as  the  coun- 
terpart of  a  charge  given  for  plain- 
tiff", is  not  inconsistent  with  the  posi- 
tion taken  by  defendant  by  demurring 
to  the  evidence  on  the  ground  of  in- 
sufficiency to  support  the  petition. 
Kuuz  V.  Hartwig,  131  S.  W.  721,  151 
Mo.  App.  94.  In  action  for  injury  to 
a  person  struck  by  a  train  at  a  grade 
crossing,  plaintiff,  hy  submitting  the 
issue  of  the  humanitarian  doctrine, 
did  not  preclude  himself  from  sub- 
mitting his  theories  of  recovery  based 
on  negligence.  De  Rousse  v.  West, 
200  S.  W.  783,  198  Mo.  App.  293. 

6  6  Gregory  v.  Chicago,  R.  I.  &  P.  R. 
Co.,  124  N.  W.  797,  147  Iowa,  715, 
Ann.  Cas.  1912B,  723. 


4!)5 


INSTRUCTIONS  TO  JURIES 


880 


of  the  parties  are  too  favorable  to  him,  cannot  be  complained  of 
by  him.^' 


G.    Power  and  Duty  of  Court  with  Respect  to  the  Modieica- 

TION  OF,  OR  THE  SUBSTITUTION  OF  OTHER  INSTRUCTIONS       ' 

FOR,  Correct  Requests 

§  495.     Rule  that  court  may,  on  granting  a  correct  request,  vary 
its  phraseology 
The  general  rule  is,  both  in  civil  ^  and  in  criminal  cases,®^  that 
instructions  need  not  be  given  in   the   exact  language  in  which 


6  7  McNamara  v.  Macdonougli,  102 
Cal.  575,  36  P.  941. 

G8  U.  S.  Continental  Imp.  Co.  v. 
Stead,  95  U.  S.  161,  24  L.  Ed.  403; 
Law  V.  Cross,  1  Black,  533,  17  L.  Ed. 
185;  Clymer  v.  Dawkins,  44  U.  S.  (3 
How.)  674,  11  L.  Ed.  778;  (C.  C.  A. 
Cal.)  Mountain  Copper  Co.  v.  Van 
Buren,  133  F.  1,  66  C.  C.  A.  151;  (C. 
C.  Me.)  Pitts  V.  Whitman,  Fed.  Cas. 
No.  11,196,  2  Story,  609;  (C.  C.  A.  Vt.) 
Boston  &  M.  R.  Co.  v.  McDufEey,  79 
F.  934,  25  C.  C.  A.  247;  (C.  C.  A.  Va.) 
Mathieson  Alkali  Works  v.  Mathieson, 
150  F.  241,  80  C.  C.  A.  129  ;  (C.  C.  A. 
W.  Va.)  Southern  Bell  Telephone  & 
Telegraph  Co.  v.  Watts,  66  F.  460, 
13  C.  C.  A.  579. 

Ala.     Lon?  v.  Rodgers,  19  Ala.  321. 

Cal.  People  v.  Cox,  155  P.  1010,  29 
Cal.  App.  419;  Jamson  v.  Quivey,  5 
Cal.  490;  Conrad  v.  Lindley,  2  Cal. 
173. 

Conn.  Radwick  v.  Goldstein,  98  A. 
583,  90  Conn.  701;  Koskoff  v.  Gold- 
man, 85  A,  588,  86  Conn.  415;  Dun- 
ham V.  Co.^,  70  A.  1033,  81  Conn.  268; 
Tiesler  v.  Town  of  Norwich,  47  A.  161, 
73  Conn.  199 ;  Appeal  of  Livingston, 
63  Conn.  68,  26. A.  470. 

Dak.  Parllaraan  v.  Young,  2  Dak. 
175,  4  N.  W.  139,  711. 

Ga.  Ilolbert  v.  Allred,  102  S.  E. 
192,  24  Ga.  App.  727;  Atkinson  v.  F. 
S.  Dismuke  &  Bro.,  75  S.  E.  835,  11 
Ga.  App.  521 :  Southern  Ry.  Co.  v. 
Reynolds,  55  S.  E.  1039,  126  Ga.  657 ; 
Southern  Cotton  Oil  Co.  v.  Skipper, 
54  S.  E.  110,  125  Ga.  368 ;  Western  & 
A.  R.  Co.  V.  Clements,  60  Ga.  319; 
Hararaack  v.  State,  52  Ga.  397 ;  Long 
V.  State,  12  Ga.  293. 


111.  Jansen  v.  Grimshaw,  125  111. 
468,  17  N.  E.  850;  Chicago  &  N.  W. 
Ry.  Co.  V.  Goel^el,  119  111.  515,  10  N.  E. 
369 ;  Clinton  Wire  Cloth  Co.  v.  Gard- 
ner, 99  111.  151;  Needham  v.  People, 
98  111.  275;  Hays  v.  Borders,  1  Gil- 
man,  46;  Born  v.  Schrieber,  199  111. 
App.  101. 

Iowa.  State  v.  Gibbons,  10  Iowa, 
117. 

Kan.  Rouse  V.  Downs,  47  P.  982,  5 
Kan.  App.  549;  Reed  v.  Golden,  28 
Kan.  632,  42  Am.  Rep.  180;  Deitz  v. 
Regnier,  27  Kan.  94;  City  of  Topeka 
V.  Tuttle,  5  Kan.  311. 

Ky.  Slusher  v.  Hopkins,  89  S.  W. 
244,  28  Ky.  Law  Rep.  347. 

Me.  Godfrey  v.  Haynes,  74  Me.  96; 
Foye  V.  Southard,  64  Me.  389 ;  Treat 
V.  Lord,  42  Me.  552,  66  Am.  Dec.  298; 
Anderson  v.  City  of  Bath,  42  Me.  346. 

Md.  Higgins  v.  Carlton,  28  Md. 
115,  92  Am.  Dec.  666 ;  Hall  v.  Elall,  6 
Gill  &  J.  386. 

Mass.  Heuser  v.  Tileston  &  Hol- 
lingsworth  Co.,  119  N.  E.  683,  230 
Mass.  299 ;  Holbrook  v.  Seagrave,  116 
N.  E.  889,  228  Mass.  26 ;  Tripp  v.  Taft, 
106  N.  E.  578,  219  Mass.  81 ;  O'Leary 
V.  Boston  Elevated  Ry.  Co.,  95  N.  E. 
85,  209  Mass.  62 ;  Stubbs  v.  Boston  & 
N.  St.  Ry.  Co.,  79  N.  E.  795,  193  Mass. 
513;  Pereival  v.  Chase,  65  N.  E.  800, 
182  Mass.  371 ;  Davenport  v.  Johnson, 
65  N.  E.  392,  182  Mass.  269;  P.  P. 
Emery  Mfg.  Co.  v.  Rood.  65  N.  E.  58, 
182  Mass.  166;  Boston  Dairy  Co.  v. 
Mulliken,  175  Mass.  447,  56  N.  E.  711 ; 
Western  v.  Barnicoat,  175  Mass.  454, 
56  N.  E.  619,  49  L.  R.  A.  612 ;    O'Neil 

o»  See  note  69  on  page  884. 


881 


REQUESTS   OR  PRAYERS   FOR  INSTRUCTIONS 


§495 


they  are  requested,  although  the  requests  are  entirely  proper,  but 


V.  Hanscom,  175  Mass.  313,  56  N.  B. 
587 ;  Black  v.  Huokingliam,  174  Mass. 
102,  54  N.  E.  494;  Sullivan  v.  Sliee- 
han,  53  N.  E.  902,  173  Mass.  361; 
Spaulding  v.  Jennings,  173  Mass.  65, 
53  N.  E.  204 ;  Boylan  v.  Everett,  172 
Mass.  453.  52  N.  E.  541;  Frost  v.  Cour- 
tis, 172  Mass.  401,  52  N.  E,  515 ;  Dor- 
ev  V.  Metropolitan  Life  Ins.  Co.,  172 
Mass.  234,  51  N.  E.  974 ;  Ellis  v.  Si- 
monds,  47  N.  E.  116,  16S  Mass.  316; 
Noble  V.  Fagnant,  162  Mass.  275,  38 
N.  E.  507;  Commonwealth  v.  Farrell, 
160  Mass.  525,  36  N.  E.  475 ;  Breen  v. 
Field,  159  Mass.  582,  35  N.  E.  95; 
Turner  v.  Patterson,  160  Mass.  20,  34 
N.  B.  1083 ;  Norwood  v.  City  of  Som- 
erville,  159  Mass.  105,  33  N.  E.  1108; 
Commonwealth  v.  Mooro,  157  Mass. 
324,  31  N.  E.  1070 ;  O'Driscoll  v.  Fax- 
on, 156  Mass.  527,  31  N.  E.  685 ;  Merri- 
gan  V.  Boston  &  A.  R.  Co.,  154  Mass. 
189,  28  N.  E.  149 ;  Hudson  v.  Inhabit- 
ants of  Marlborough,  154  Mass.  218,  28 
N.  E.  147 ;  Weld  v.  Brooks,  152  Mass. 
297.  25  N.  E.  719 ;  Parker  v.  City  of 
Springfield.  147  Mass.  391,  18  N.  E. 
70;  Inhabitants  of  Deerfield  v.  Con- 
necticut River  R.  R.,  144  Mass.  325, 11 
N.  E.  105. 

Mich.  Alton  v.  Meenwenberg,  66 
N.  W.  571,  108  Mich.  629;  Lewis  v. 
Rice.  27  N.  W.  867,  61  Mich.  97. 

Minn.  Anderson  v.  Foley  Bros., 
124  N.  W.  987,  110  Minn.  151 ;  Smith 
v.  St.  Paul  &  D.  R.  Co.,  51  Minn.  86, 
52  N.  W.  1068;  Dodge  v.  Rogers,  9 
Minn.  223  (Gil.  209). 

Miss.  George  v.  State,  39  Miss. 
570. 

Mo.  Grimes  v.  Cole,  113  S.  W.  685, 
133  Mo.  App.  522;  Taylor  v.  Missouri 
Pac.  Ry.  Co..  16  S.  W.  206;  Stocke  v. 
Mueller,  1  Mo.  App.  163. 

Neb.  Meyer  v.  Shamp,  71  N.  W. 
57,  51  Neb.  424 ;  Lau  v.  Grimes  Dry 
Goods  Co.,  38  Neb.  215.  56  N.  W.  954 ; 
Jameson  v.  Butler,  1  Neb.  115. 

N.  H.  Kasjeta  v.  Nashua  Mfg.  Co., 
58  A.  874,  73  N.  H.  22;  Elwell  v. 
Roper.  58  A.  507,  72  N.  H.  585 ;  Bond 
v.  Bean,  57  A.  340,  72  N.  H.  444,  101 
Am.  St.  Rep.  686;  Wheeler  v.  Grand 
Trunk  Ry.  Co.,  50  A.  103,  70  N.  H. 
607.  54  L.  R.  A.  955;  Walker  v. 
Walker,  64  N.  H.  55.  5  A.  400;  Clark 
V.  Wood,  34  N.  H.  447. 

Inst. TO  Juries— 56 


N.  J.  Miller  v.  Delaware  River 
Tran.sp.  Co.,  90  A.  288,  85  N.  J.  Law, 
700,  Ann.  Cas.  1916C,  165;  Pavan  v. 
Worthen  &  Aldrich  Co.,  78  A.  658,  80 
N.  J.  Law,  567. 

N.  Y.  Sherman  v.  Wakeman,  11 
Barb.  254;  AYilliams  v.  Birch,  19  N. 
Y.  Super.  Ct.  299. 

N.  C.  Hall  V.  Geissell  &  Richard- 
son. 103  S.  E.  392,  179  N.  C.  657 ;  Beck 
V.  Sylva  Tanning  Co.,  101  S.  E.  498, 
179  N.  C.  123;  Hooker  v.  Norfolk  & 
S.  R.  Co.,  72  S.  E.  210,  156  N.  C.  155 ; 
Harris  v.  Atlantic  Coast  Line  R.  Co.. 
43  S.  E.  589.  132  N.  C.  160 ;  Bethea  v. 
Raleigh  &  A.  A.  L.  R.  Co.,  106  N.  C. 
279,  10  S.  E.  1045;  Carlton  v.  Wil- 
mington &  W.  R.  Co.,  104  N.  C.  365,  10 
S.  E.  516;  Newby  v.  Ilarrell,  99  N.  C. 
149,  5  S.  E.  284,  6  Am.  St.  Rep.  503; 
Patterson  v.  Mclver,  90  N.  C.  493; 
Overcash  v.  Kitchie,  89  N.  C.  384; 
Burton  v.  March,  51  N.  C.  409 ;  Mar- 
shall V.  Flinn.  49  N.  C.  199 ;  Town  of 
Newbern  Com'rs  v.  Dawson,  32  N.  C 
436. 

Ohio.  Ashtabula  Rapid  Transit 
Co.  V.  Dagenbach,  11  O.  C.  D.  307. 

Okl.  Veseley  v.  Engelkemier,  61  P. 
924,  10  Okl.  290. 

Or.  Booth-Kelly  Lumber  Co.  v.- 
WiUiams.  188  P.  213.  95  Or.  476; 
State  V.  Butler,  186  P.  55.  96  Or.  219 ; 
Stool  V.  Southern  Pac.  Co.,  172  P.  101, 
88  Or.  350. 

Pa.  Jones  v.  Greenfield,  25  Pa. 
Super.  Ct.  315;  Geiger  v.  Welsh,  1 
Rawle,  349. 

R.  I.  McGowan  v.  Court  of  Pro- 
bate of  City  of  Newport.  62  A.  571,  27 
R.  I.  394,  114  Am.  St.  Rep.  52. 

S.  C.  State  V.  Simmons,  100  S.  E. 
149.  112  S.  C.  451;  State  v.  Jones, 
88  S.  B.  444,  104  S.  C.  141;  Hair  v. 
Winnsboro  Bank,  88  S.  E.  26.  103  S. 
C.  343  ;  Broom  v.  Atlantic  Coast  Line 
R.  Co.,  80  S.  E.  616,  90  S.  C.  368; 
Pooler  V.  Smith,  52  S.  E.  967.  73  S.  C. 
102 ;  Edwards  v.  Wessinger,  43  S.  E. 
518,  65  S.  C.  161,  95  Am.  St.  Rep.  789. 

Tex.  Western  Union  Telegraph  Co. 
V.  Goodson  (Civ.  App.)  202  S.  W.  766 ; 
Gulf.  C.  &  S.  F.  Ry.  Co.  v.  Davis,  SO 
S.  W.  253,  35  Tex.  Civ.  App.  285. 

Utah.  Speight  v.  Rockv  Mountain 
Bell  Telephone  Co.,  107  P.  742,  30 
Utah,    483 ;     Hickey    v.    Rio    Grande 


§495 


INSTRUCTIONS  TO  JURIES 


882 


Western  Ry.  Co.,  82  P.  29,  29  Utah, 
392. 

Vt.  Rice  V.  Bennington  County 
Sav.  Bank.  108  A.  70S,  93  Vt.  493; 
Desmarchier  v.  Frost.  99  A.  782,  91 
Vt.  138 ;   Campbell  v.  Day,  16  Vt.  558. 

Wash.  Hall  v.  Northwest  Lumber 
Co.,  112  P.  369.  61  Wash.  351 :  Aver- 
buch  V.  Great  Northern  Ry.  Co..  104 
P.  1103,  55  Wash.  633  ;  Smith  v.  Mieh- 
ipan  Lumber  Co.,  86  P.  652.  43  Wash. 
402;  Gottstein  v.  Seattle  Lumber  & 
Commercial  Co.,  7  Wash.  424,  35  P. 
133 ;  Seattle  v.  Buzby,  2  Wash.  T.  25, 
3  P.  180. 

Wis.  Jones  v.  Monson,  119  N.  W. 
179.  137  Wis.  478,  129  Am.  St.  Rep. 
1082. 

Consent  to  modification.  It  was 
not  error  to  qualify  defendant's  re- 
quested instruction  in  giving  it,  where 
the  defendant  accepted  it  as  qualified. 
Tucker  v.  State,  150  S.  W.  190,  67 
Tex.  Cr.  R.  510. 

Illustrations  of  proper  modifica- 
tions. An  instruction  that  the  proof 
of  certain  disputed  facts  must  be  "af- 
firmative and  direct"  is  a  sufiicient 
compliance  with  the  prayer  that  it 
should  be  "affirmative  and  distinct." 
Cornelius  v.  Brawley,  109  N.  C.  542. 
14  S.  E.  78.  It  is  proper  to  modify 
an  instruction  which  states  that, 
"while  the  law  ]u-esumes  all  men  to 
be  sane,  yet  this  presumption  is  over- 
come by"  evidence  tending  to  prove 
insanity,"  so  as  to  make  it  read,  "yet 
this  presumption  may  be  overcome/' 
etc.  Jamison  v.  People,  145  111.  357. 
34  N.  E.  486.  An  instruction  "that 
the  plaintiff  must  prove  his  case  by  a 
preponderance  or  greater  weight  of 
evidence.  Therefore,  if  the  evidence 
in  this  case  preponderates  in  favor  of 
the  defendant,  or  if  the  evidence  fails 
to  preponderate  in  favor  of  the  plain- 
tiff, or  if  you  are  unable  to  say  on 
which  side  is  the  greater  weight  of 
the  evidence,  you  should  find  the  is- 
sues for  the  defendant" — is  not  mate- 
rially changed  by  inserting  "on  plain- 
tiff's case"  after  the  word,  "case." 
Frank  v.  Crane,  154  111.  App.  043.  In 
a  prosecution  for  procuring  an  abor- 
tion, it  was  not  error  for  the  court  to 
modify  instructions  given  at  defend- 
ant's request  by  including  in  the  hy- 
pothesis on  which  he  would  not  be  guil- 
ty the  fact   that  he  did  not  aid  or 


assist  in  the  act.  Cook  v.  People,  52 
N.  E.  273,  177  111.  146.  A  charge  that 
the  jury  is  not  to  decide  the  case  by 
sympathy  with  the  plaintiff  or  ill  feel- 
ing against  railroads,  but  according 
to  the  law  charged  and  the  evidence 
heard,  is  a  sufficient  answer  to  a  re- 
quest to  charge  that  it  would  be  not 
only  illegal,  but  disgraceful,  for  the 
.iury  to  be  swayed  by  any  outside  in- 
fluence. Hav  v.  Carolina  Midland 
Ry.  Co.,  41  S.  C.  542,  19  S.  E.  976. 
Where  requested  instructions  contain 
a  proposition  of  law  depending  on 
questions  of  fact,  regarding  which 
there  is  a  material  dispute,  the  court 
may  qualify  his  affirmance  of  the 
points  requested  by  telling  the  jury 
that  it  must  determine  the  disputed 
facts.  Snyder  v.  Loy,  4  Pa.  Super. 
Ct.  201,  40  Wkly.  Notes  Cas.  333. 
In  an  action  for  breach  of  a  contract 
to  feed  sheep  where  plaintiff  alleged 
defendant's  delay  in  constructing  cor- 
rals, the  sxibstitution  of  the  word 
"reasonable"  for  the  words  "reason- 
ably short"  in  a  requested  charge 
with  reference  to  the  time  for  such 
construction  was  not  error.  Rea  v. 
Alfalfa  Products  Co.,  161  P.  708,  53 
Mont.  90.  It  was  not  error  to  modify 
a  charge  that  if  the  jury  believed 
that  plaintiff  purchased  a  ticket  to  a 
certain  station,  but  remained  on  the 
train  and  did  not  get  off  there,  and 
did  not  communicate  his  intention  to 
get  off  at  a  place  further  on,  to  the 
conductor,  and  if  the  conductor  did 
not  know  that  plaintiff  intended  to 
leave  the  train  when  he  did,  they 
should  find  for  defendant,  by  substi- 
tuting "defendant's  servants"  for  the 
word  "conductor"  where  first  used, 
and  "such  .seiwant"  for  "conductor" 
where  it  later  appeared;  there  being 
no  substantial  difference  between  the 
words ;  ".servants"  including  "con- 
ductor." Cornell  v.  Chicago,  R.  I.  & 
P.  Ry.  Co.,  128  S.  W.  1021,  143  Mo. 
App.  598.  There  is  no  ground  of 
exception  to  instructions  by  the  court, 
stating  in  general  propositions  the 
law  of  domicile  as  applicable  to  the 
facts  of  the  case,  though  embraced 
in  a  different  form  from  the  in- 
structions asked  for ;  it  not  appearing 
that  the  judge  made  any  improper 
reference  to  the  evidence  applicable 
to  them,  or  that  the  jury  failed  to  ap- 


883 


REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS 


495 


preciate  them  and  apply  them  to  the 
case.      Wilson     v.     Terry,     11     Allen 
(Mass.)    20G.      Defendant    having    re- 
quested   an    instruction    that    if    the 
jury  believed  certain  facts  relative  to 
tlie  arrest  as  testified  to  by  the  magis- 
trate defendant  could  not  be  held  re- 
sponsible, it  was  not  error  to  give  the 
instruction,  with  the  omission  of  the 
words  "as  testified  to  by  the  justice." 
Lovick  v.  Atlantic  Coast  Line  R.  Co., 
40  S.  E.  191.  120  N.  C.  427.    A  request 
to  charge,   in   effect,   that  defendant 
could  not  complain  of  a  fraud,  if  at 
the  time  he  executed  the  note  he  en- 
tertained a  settled  conviction  that  he 
had  been  defrauded,  is  satisfied  by  a 
charge  that  if  defendant  knew  when 
he  signed  the  note  that  he  had  been 
defrauded     plaintiff     could     recover. 
Smith  V.    McDonald,  102  N.  W.  73S, 
1.39  Mich.  225.    Where  plaintiff  claim- 
ed that  a  conveyance  of  defendant's 
goods  was  in  fraud  of  creditors,  and 
requested  a  charge  that,  in  determin- 
ing whether  the  purchaser  knew  of 
the    debtor's    intention    to    defi-aud, 
facts  coming  to  the  notice  of  the  pur- 
chaser,  which   would   put  a  prudent 
man   on   inquiry   which,   if  followed, 
would  lead   to  the  knowledge  of  the 
fraud,  were  evidence  from  which  the 
jury  might  infer  knowledge  of  such 
fraud,  and  the  court  modified  instruc- 
tion by  striking  out  the  words,  "from 
which    the  jury  may   infer   that  the 
inirchaser    had    knowledge    of    such 
fraud,"  and  inserting,  "which  the  ju- 
ry    may     consider     in     determining 
w'bether    the    purchaser    had    knowl- 
edge of  such  fraud,"  the  modification 
was  not  error,  since  the  diffei-ence  in 
meaning  was  so  unsubstantial  that  the 
jury  could  not  have  been  misled  there- 
bv.    John  Deere  Plow  Co.  v.  Sullivan, 
59  S.  W.  1005, 158  Mo.  440.   Where  a  re- 
quest to  charge  is  simply  that  the  ju- 
ry determine  whether  or  not  a  mar- 
ried woman  knew  that  her  husband 
was    carrying    on    business    as    her 
agent,  it  is  a  compliance  with  the  re- 
quest for  the  court  to  go  further,  and 
charge  that  such  carrying  on  of  the 
business  must  be  witli  her  knowledge, 
consent,  and  approval.    Reed  v.  New- 
comb,    64    Vt.    49,    23    A.    589.      The 
court's  modification  of  a  requested  in- 
struction, that  an  employg  of  full  age 
and     ordinary     intelligence     assumes 


the  risk  of  dangers  which  ai'e  "open 
and  plain  to  his  sight,"  by  adding  the 
words  "and  understanding,"  does  not 
change  its  meaning.     Chicago,  R.  I. 
&  P.  Ry.  Co.  v.  Kinnare,  60  N.  E.  57, 
190  111.  9,  affirming  judgment  91  111. 
App.  508.     Upon  an  issue  as   to  the 
negligence    of    a    defendant    railroad 
company  in  failing  to  properly  inspect 
a  car,  a  defect  in  which  caused  plain- 
tiff's injury,  it  was  not  error  for  the 
court  to  modify  a  requested  instruc- 
tion, so  as  to  confine  the  considera- 
tion of  the  jury  to  the  inspection  of 
the  particular  car  in  question.     Illi- 
nois Cent.  R.  Co.  v.  Coughlin  (C.  C. 
A.  Tenn.)  145  F.  37,  75  C.  C.  A.  262. 
An  instruction  that  testimony   as  to 
other  defects  in  the  sidewalk  near  the 
place  where  plaintiff  was  injured  was 
admitted  for  the  purpose  of  showing 
notice  to  the  city  is  a  substantial  com- 
pliance with  a  request  to  charge  that 
the  consideration   of  such  testimony 
should   l>e   limited   to   the  sul)ject  of 
notice.    Moore  v.  City  of  Kalamazoo, 
109  Mich.  176,  66  N.  W.  1089.     In  an 
action  against   a   municipal  corpora- 
tion for  maintaining  a  dam,  so  as  to 
cause  plaintiff's  land  to  be  overflowed, 
defendant  claimed  that  the   right  to 
flow  the  land  had  been  dedicated  to 
the  public,  and  plaintiff  requested  an 
instruction  that  the  fact  that  hunting, 
fishing,  or  boating  were  done  over  or 
near  plaintiff's  overflowed  lands  was 
alone  not  eiiough  to  show  dedication, 
and   the   court  gave   the  instruction, 
adding,  "This  means,  of  course,  just 
what;  it  says — that  the  fact  of  hunt- 
ing or  fishing  upon  plaintiff's  land,  in 
and  of  itself,  is  not  enough  to  show 
that  there  had  been  any  dedication." 
Boye  v.  City  of  Albert  Lea,  100  N. 
W.  642,  93  Minn.  121.     Submitting  to 
the  jury  the  question  whether  a  so- 
ciety  arranging   a   bicycle   race  was 
guilty  of  negligence  in  permitting  a 
sulky  into  which  one  of  the  riders  ran 
to  be  standing  on   the  track   was  a 
sufficient  compliance  with  a  request  to 
charge  that  the  society  was  not  under 
the    duty    to    keep    the   whole    track 
clear,  but  only  so  much  as  was  neces- 
sary for  the  race.    Benedict  v.  Union 
Agricultural  Soc,  52  A.  110,  74  Vt.  91. 
A   response   to   a   request   to  charge 
that,  if  deceased's  negligence  conti'ib- 
uted   in   the   slightest  degree   to   the 


§495 


INSTRUCTIONS  TO  JURIES 


884 


accident,  plaintifJ  could  not  recover, 
wherein  the  court  stated  that,  if  de- 
ceased's negligence  contributed  at  all, 
it  would  defeat  the  action,  was  not 
erroneous  in  emphasizing  the  word 
'■contributed."  Predmore  v.  Consum- 
ers' Light  &  Power  Co.,  91  N.  Y.  S. 
nS,  99  App.  Div.  551.  In  replevin, 
where  defendant  claimed  property- 
had  been  abandoned,  action  of  court 
in  defining  term  "abandon,"  used  in 
requested  instruction  given  for  de- 
fendant, was  not  an  alteration  of 
such  instruction.  St.  Louis  Dairy  Co. 
v.  Northwestern  Bottle  Co.  (Mo.  App.) 
204  S.  W.  281.  In  an  action  for  milk 
sold  and  delivered,  defendant  request- 
ed the  court  to  rule  that  if  any  credit 
was  given  to  defendant's  sons,  to 
whom  the  milk  was  delivered,  a  prom- 
ise by  defendant  to  pay  for  it  would 
be  void  unless  in  writing  There  was 
evidence  that  defendant  had  signed 
and  delivered  to  plaintiff  a  writing, 
"Charge  milk  to  me,  and  I  will  pay 
for  it."  The  court  instructed  the  ju- 
ry that  if  they  found  the  credit  was 
given  to  the  sous,  and  that  defendant 
merely  contracted  to  be  responsible 
for  the  bill,  that  was  not  the  contract 
sued  on,  and  plaintiff  could  not  re- 
cover ;  adding  that  the  alleged  writing 
was  not  a  contract  of  .guaranty.  Bos- 
ton Dairy  Co.  v.  Mulliken,  56  N.  E. 
711,  175  Mass.  447.  The  modification 
of  a  charge  requested  by  plaintiff  in 
an  action  for  trespass,  one  defense 
to  which  was  adverse  possession,  by 
the  insertion  of  the  word  "mere"  be- 
fore the  word  "cultivation"  in  the 
statement  that  the  cultivation  of  the 
land  would  not  be  an  adverse  exclu- 
sive holding,  made  no  change  in  the 
meaning.  Southern  Realtv  &  Inv.  Co. 
v.  Keenan,  83  S.  E.  39.  99  S.  C.  200. 
AVhere  the  mother  of  certain  wit- 
nesses was  a  defendant  in  an  action  of 
ejectment,  it  was  not  en-or  for  the 
court  to  call  attention  to  such  fact,  as 
qualifying  a  charge,  given  by  defend- 
ants' request,  that  such  witnesses 
wore  not  interested  parties.  Fitz- 
pa trick  v.  Graham  (C.  C.  A.  N.  Y.)  122 
F.  401.  58  C.  C.  A.  619. 

In  Texas,  there  are  early  decisions 
holding  that  the  practice  of  making 
alterations  in  requested  instructions 
which  are  correct  is  improper.     Tre- 


zevant  v.  Rains  (Tex.  Civ.  App.)  25  S. 
W.  1092. 

6  9  U.  S.  (C.  C.  A.  N.  Y.)  Fraina  v. 
United  States,  255  F.  28,  166  C.  C.  A. 
356 ;  (C.  C.  A.  N.  D.)  O'Hare  v.  United 
States,  253  F.  538.  165  C.  C.  A.  208, 
certiorari  denied  39  S.  Ct.  257,  249  U. 
S.  598,  63  L.  Ed.  795. 

Ark.  Sheppard  v.  State,  179  S.  W. 
168,  120  Ark.  160. 

Cal.  People  v.  Lemperle,  94  Cal. 
45,  29  P.  709 ;  People  v.  Cadd,  60  Cal. 
640 ;    People  v.  Dodge,  30  Cal.  448. 

Conn.  State  v.  Castelli,  101  A.  476, 
92  Conn.  58;  State  v.  Lanyon,  76  A. 
1095,  83  Conn.  449  ;  State  v.  Rathbun, 
51  A.  540,  74  Conn.  524. 

Del.  Colombo  v.  State,  78  A.  595,  2 
Bovce,  28,  affirming  judgment  State  v. 
Colombo  (O.  &  T.)  75  A.  616,  1  Boyce, 
96. 

Ga.  Danzley  v..  State  (App.)  102 
S.  E.  915;  Mixon  v.  State,  68  S.  E. 
315,  7  Ga.  App.  805 ;  Whitley  v.  State, 
66  Ga.  656;   Long  v.  State,  12  Ga.  293. 

Kan.  State  v.  Bush,  79  P.  657,  70 
Kan.  739;  State  v.  Yolmer.  6  Kan. 
371 ;    Rice  v.  State,  3  Kan.  141. 

lia.  State  v.  Miller,  41  La.  Ann. 
677,  6  So.  546;  State  v.  Wright.  41 
La.  Ann.  605,  6  So.  137;  State  v.  Durr, 
39  La.  Ann.  751,  2  So.  546. 

Me.  State  v.  Reed,  62  Me.  129; 
State  V.  Barnes,  29  Me.  561. 

Mass.  Commonwealth  v.  Kronick, 
82  X.  E.  39.  196  Mass.  286 ;  Common- 
wealth V.  Tucker,  76  N.  E.  127,  189 
Mass.  457,  7  L.  R.  A.  (N.  S.)  1056; 
Commonwealth  v.  Johnson,  74  N.  E. 
939.  ISS  Mass.  382;  Commonwealth 
V.  Clancy,  72  N.  E.  842,  187  Mass. 
191:  Commonwealth  v.  Chance,  54  N. 
E.  551,  174  Mass.  245,  75  Am.  St.  Rep. 
306;  Commonwealth  v.  Uhrig,  167 
Mass.  420,  45  N.  E.  1047;  Common- 
wealth V.  Mullen,  150  Mass.  394,  23 
N.  E.  51;  Commonwealth  v.  Brown, 
121  Mass.  69;  Commonwealth  v.  Cobb. 
120  Mass.  356;  Commonwealth  v. 
Costley,  lis  Mass.  1. 

Mich.  People  v.  Sauerbier,  139  N. 
W.  260,  173  Mich.  521;  People  v. 
Quimby,  96  N.  W.  1061,  134  Mich. 
625 ;  People  v.  Weaver,  66  N.  W.  567, 
108  Mich.  649;  People  v.  Parsons,  105 
INIich.  177.  63  N.  W.  69;  Ulrich  v. 
People,  39  Mich.  245. 

Miss.     Matthews  v.   State,  66  So. 


885 


REQUESTS  OR  PRAYERS   FOR  INSTRUCTIONS 


495 


the  court  may  choose  its  own  form  of  expression,'®  it  being  suffi- 
cient if  the  substance  of  the  requested  instructions  is  given,'^  and 


S25,  108  Miss.  72;  Scott  v.  State,  56 
Miss.  287;  Evans  v.  State,  44  Miss. 
7G2;  Boles  v.  State,  9  Smedes  &  M. 
284. 

Mont.  State  V.  Wells,  83  P.  476,  33 
Mont.  291. 

Neb.  Johnson  v.  State,  129  N.  W. 
281,  88  Neb.  328 ;  Bradshaw  v.  State, 
17  Neb.  147,  22  N.  W.  361. 

N.  J.  State  V.  Rombolo,  103  A.  203, 
91  N.  J.  Law,  560 ;  Gardner  v.  State, 
55  N.  J.  Law,  17,  26  A.  30. 

N.  Y.  People  v.  Katz,  103  N.  E. 
305,  209  N.  Y.  311,  Ann.  Cas.  1915A, 
501,  afffrming  judgment  139  N.  Y.  S. 
137,  154  App.  Div.  44 ;  People  v.  Wil- 
liams, 92  Hun,  354,  36  N.  Y.  S.  511. 

N.  C.  State  v.  Baldwin,  100  S.  E. 
345,  178  N.  C.  693 ;  State  v.  Fulclier, 
97  S.  E.  2,  176  N.  C.  724;  State  v. 
Horner,  94  S.  E.  291,  174  N.  C.  788; 
State  V.  Price,  74  S.  E.  587,  158  N.  C. 
641 ;  SLtate  v.  Bowman,  67  S.  E.  1058, 
152  N.  C.  817;  State  v.  Barrett,  65 
S.  E.  894,  151  N.  C.  665;  State  v. 
Burnett,  55  S.  E.  72,  142  N.  C.  577; 
State  V.  Wilcox,  44  S.  E.  625,  132  N. 
C.  1120 ;  State  v.  Hicks,  41  S.  E.  803, 
130  N.  C.  705;  State  v.  Crews,  38  S. 
E.  293,  128  N.  C.  581 ;  State  v.  Mills, 
116  N.  C.  992,  21  S.  E.  106 ;  State  v. 
Wbitsou,  111  N.  C.  695,  16  S.  E.  332 ; 
State  V.  Hargett,  65  N.  C.  669 ;  Haw- 
kins V.  House,  65  N.  C.  614 ;  State  v. 
INIassage,  65  N.  C.  480;  State  v. 
Brantley,  63  N.  C.  518. 

Pa.  Commonwealth  v.  Lewis,  71  A. 
18,  222  Pa.  302;  Commonwealth  v. 
McManus,  143  Pa.  64,  21  A.  1018,  22 
A.  761.  14  L.  E.  A.  89. 

S.  C.  State  V.  Bethune,  67  S.  E. 
466,  86  S.  C.  143 ;  State  v.  Petsch,  43 
S.  C.  132,  20  S.  E.  993. 

S.  D.  State  v.  Kammel,  122  N.  W. 
420.  23  S.  D.  465. 

Tex.     Shultz  V.  State,  13  Tex.  401. 

Vt.     State  V.  Eaton,  53  Vt.  574. 

Wasli.  State  v.  Cherry  Point  Fish 
Co.,  130  P.  499,  72  Wash.  420 ;  State 
V.  Anderson,  70  P.  104,  30  Wash.  14; 
State  V.  Baldwin,  15  Wash.  15,  45  P. 
650. 

W.  Va.  State  v.  Rice,  98  S.  E.  432, 
83  W.  Va.  409L 


niustrations  of  roper  modifi- 
cations. Keiinestod  instruction  in  a 
liomicide  case  that  if  the  jury  found 
upon  the  whole  evidence  that  ac- 
cused did  not  have  mental  capacity 
to  enable  him  to  judge  the  nature  of 
his  act,  etc.,  "your  verdict  should  be 
aainittal,"  was  sufficiently  covered 
by  substituting  for  the  quoted  words, 
"then  there  could  be  no  crime."  State 
V.  Saxon,  86  A.  590,  87  Conn.  5. 
Where  the  jury  have  been  charged  to 
give  the  accused  the  benefit  of  ev- 
ery reasonable  doubt,  and  the  court, 
in  refusing  to  charge  that,  "should  a 
reasonable  doubt  be  entertained  by 
one  juror,  the  defendant  cannot  be 
found  guilty,"  said,  "I  won't  charge 
that  in  those  words,  but  I  charge  you 
that  as  I  have  already  charged  you 
in  my  own  language,"  the  response 
must  be  taken  to  mean  the  same  as 
the  request ;  and,  the  charge  given 
being  equivalent  to  that  requested, 
error  cannot  be  predicated  on  the 
refusal.  State  v.  Powers,  37  S.  E. 
690,  59  S.  C.  200. 

In  Indiana,  written  special  in- 
structions in  a  criminal  case  may  be 
modified  in  writing  by  the  court. 
Kocher  v.  State,  127  N.  E.  3. 

7  0  Mo.  Harman  v.  Shotwell,  49 
Mo.  423. 

N.  J.  Gluckman  v.  Darling  (Err. 
&  App.)  95  A.  1078,  87  N.  J.  Law,  320, 
affirming  judgment  (Sup.)  89  A.  1016, 
85  N.  J.  Law,  457. 

Pa.  Hufnagle  v.  Delaware  &  H. 
Co.,  76  A.  205,  227  Pa.  476,  40  L.  R. 
A.  (N.  S.)  982,  19  Ann.  Cas.  850 ;  Han- 
ratty  V.  Dougherty,  71  Pa.  Supei'.  Ct. 
248. 

Wash.  Lund  v.  Griffiths  &  Spra- 
gue  Stevedoring  Co.,  183  P.  123,  108 
Wash.  220. 

71 U.  S.  Sugai-man  v.  United 
States,  39  S.  Ct.  191,  249  U.  S.  182, 
63  L,  Ed.  550,  dismissing  writ  of  er- 
ror (D.  C.  Minn.)  United  States  v. 
Sugarman,  245  F.  604 ;  Cunningham 
V.  Springer,  27  S.  Ct.  301,  204  U.  S. 
647,  51  L.  Ed.  662,  9  Ann.  Cas.  897, 
affirming  judgment  13  N.  M.  259.  82 
P.  232 ;    (C.  C.  A.  N.  C.)  United  States 


INSTRUCTIONS  TO  JURIES 


886 


this  is  true  altkough  a  request  is  patterned  after  express  rulings 
of  the  court  of  last  resort  in  another  case ;  ^^  and  it  is  held  that, 
since  it  is  the  duty  of  the  court  to  simplify  its  charge  to  the  jury, 


Leather  Co.  v.  Howell,  151  F.  444,  80 
C.  C.  A.  674. 

Cal.  Colusa  &  H.  R.  Co.  v.  Leon- 
ard, 167  P.  S7S,  176  Cal.  109 ;  Miller 
V.  Fireman's  Fund  Ins.  Co.,  of  Sau 
Francisco,  92  P.  332,  6  Cal.  App.  395 ; 
Jenson  v.  Will  &  Finck  Co.,  89  P.  113, 
1.50  Cal.  398. 

Conn.  St.  Paul's  Episcopal  Church 
V.  Fields,  72  A.  145,  81  Conn.  670. 

Ga.  Atlantic  Coast  Line  R.  Co.  v. 
Odum,  63  S.  E.  1126,  5  Ga.  App.  780. 
ni.  Ramev  v.  Baltimore  &  O.  S. 
W.  R.  Co..  85  X.  E.  639,  235  111.  502, 
affirmin?  judgment  140  111.  App.  20.3 ; 
Koshinski  v.  Illinois  Steel  Co.,  83  N. 
E.  149,  231  111.  198. 

Mass.  Rich  v.  Silverman,  103  N. 
E  382,  216  Mass.  195 ;  Poole  v.  Bos- 
ton &  M.  R.  R.,  102  N.  E.  918,  216 
Mass.  12;  Raymond  v.  Phipps,  102 
X.  E.  905,  215  Mass.  559 ;  Delaney  v. 
Berkshire  St.  Ry.  Co.,  102  X.  E.  901. 
215  Mass.  591;  Hindle  v.  Healy,  90 
X.  E.  511,  204  Mass.  48;  Lord  v. 
Rowse,  80  X.  E.  822,  195  Mass.  216. 

Minn.  Petterson  v.  Butler  Bros., 
144  X.  ^y.  407,  123  Minn.  516. 

Mo.     McKay  v.  McKay,  182  S.  W. 

124,  192  Mo.  App.  221 ;    Miller  v.  Bar- 

nett,  101  S.  W.  155,  124  Mo.  App.  53. 

N.  H.     Marcotte  v.  IMaynard  Shoe 

Co.,  85  A.  2SA,  76  X.  H.  507. 

N.  J.  Karnitsky  v.  Machanic,  109 
A.  303. 

N.  C.  Reed  Coal  Co.  v.  Fain,  89 
S  E  29,  171  X.  C.  646;  Hopkins  v. 
Southern  Ry.  Co.,  87  S.  E.  320,  170  N. 
C.  485;  Lloyd  v.  Bowen,  86  S.  E.  797, 
170  X  C.  216;  Carter  v.  Seaboard  Air 
Line  Ry.  Co.,  81  S.  E.  .321,  165  X.  C. 
244 ;  Marcom  v.  Durham  &  S.  R.  Co., 
81  S.  E.  290,  165  X.  C.  259;  Irvin  v. 
Southern  Ry.  Co.,  80  S.  E.  78,  164  X. 
C.  5 :  Security  Life  &  Annuity  Co.  v. 
Forrest,  68  S.  E.  139,  152  X.  C.  621 ; 
Graves  v.  Jackson,  64  S.  E.  128,  150 
X.  C.  383. 

S.  C.    Bennett  v.  Colleton  Cypress 
Co..  84  S.  E.  882,  100  S.  C.  335. 
Va.    Baltimore  &  O.  R.  Co.  v.  Laf- 


fertvs,  14  Grat.  478 ;   Baltimore  &  O. 
R.  Co.  V.  Polly,  14  Grat.  447. 

VETasli.  Jones  v.  Elliott,  189  P. 
1007,  111  Wash.  138;  Fehler  v.  City 
of  Montesano,  ISS  P.  5,  110  Wash. 
143  •  Perry  Bros.  v.  Diamond  Ice  & 
Storage  Co.,  158  P.  1008,  92  Wash. 
105,  Ann.  Cas.  1918C,  891 ;  Harvey  v. 
Tacoma  Ry.  &  Power  Co.,  116  P.  644, 
64  Wash.  143;  Domke  v.  Gunning, 
114  P.  436,  62  Wash.  629;  Edwards 
v.  Seattle,  R.  &  S.  Ry.  Co.,  113  P.  563, 
62  W'ash.  77 ;  Harris  v.  Brown's  Bay 
Logging  Co.,  106  P.  152,  57  Wash.  8 ; 
Conrad  v.  John  W.  Graham  &  Co.,  103 
P.  1122,  54  Wash.  641,  132  Am.  St. 
Rep.  1137 ;  Rangenier  v.  Seattle  Elec- 
tric Co.,  100  P.  842,  52  Wash.  401; 
Pavne  v.  Whatcom  County  Ry.  & 
Light  Co.,  91  P.  1084,  47  Wash.  342. 

instructions  held  proper  within 
rule.  Where,  in  a  prosecution  for 
murder,  Avith  plea  of  self-defense,  de- 
fendant requested  an  instruction  that 
what  is  an  overt  act  or  demonstra- 
tion of  violence  varies  under  the  cir- 
cumstances; that  under  some  cir- 
cumstances a  slight  movement  may 
justify  action,  because  of  reasonable 
apprehension  of  danger,  but  that  un- 
der other  circumstances  such  will 
not  be  the  ca.se;  and  that  it  is  for 
the  jury  to  determine  how  it  may  be, 
and  the  court  charged  that  threats 
or  acts  of  hostility,  however  violent, 
will  not  avail,  but  that  there  must 
be  some  manifest  act  indicative  of 
intent  to  injure;  that  the  apprehen- 
sion of  danger  must  be  founded  on 
sutflcient  circumstances  to  authorize 
the  opinion  that  a  deadly  purpose  ex- 
ists ;  that  animosity,  as  indicated  by 
words  and  actions,  before  and  at  the 
time,  may  be  considered  on  the  ques- 
tion of  apprehension ;  and  that  the 
question  of  defendant's  apprehension 
of  danger  is  for  the  jury,  it  was  held 
that  the  charge  on  the  subject  of 
"overt  act"  embraced  the  request. 
Rav  V.  State,  67  S.  W.  553,  108  Tenn. 
282. 

■^2  Brodie  v.  Carolina  Midland  Rj'. 
Co.,  46  S.  C.  203,  24  S.  E.  180. 


887 


REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS 


495 


the  practice  of  taking  the  instructions  as  requested  by  the  respec- 
tive parties,  and  from  them  formulating  a  general  charge  embrac- 
ing all  the  matters  of  law  arising  upon  the  pleadings  and  evidence, 
is  always  to  be  commended,  because  in  this  way  the  points  in  issue 
may  be  sufficiently  declared  and  clearly  presented  to  the  jury  with- 
out unnecessary  repetition.''^  It  is  said  in  one  case  that  there  is  a 
living  reality  imparted  to  a  charge  when  the  trial  judge  naturally 
and  in  his  own  words  presents  the  vital  principles  of  law  which  are 
considered  important  lor  the  jury  to  know.'*  Under  this  rule  the 
court  may  add  other  proper  matters,  which  do  not  qualify  the  ideas 
contained  in  the  instructions  re'quested,'^  or  may  strike  out  of  a  re- 
quest matter  the  omission  of  which  does  not  change  the  meaning  of 
the  request,  or  which  is  but  a  repetition  or  restatement  of  other  mat- 
ters therein,'^  or  may  omit  matters  which  follow  as  a  necessary  con- 
clusion from  the  remainder  of  the  request,'''  and  it  is  proper  to  omit 
an  independent  proposition  which  should  have  been  preferred  as  a 
separate  request,''*  or  to  strike  out  an  irrelevant  clause  not  connect- 
ed with  the  remainder  of  the  request,'^  and  where  an  instruction  is 


73  Mountain  Copper  Co.  v.  Van  Bu- 
ren  (C.  C.  A.  Cal.)  1.33  F.  1,  66  C.  C. 
A.  151;  Bloch  v.  Detroit  United  Ry. 
(Mich.)  178  N.  W.  670;  Kinney  v. 
Ferguson,  59  N.  W.  401,  101  Mich. 
178. 

74  state  V.  Aughtry,  26  S.  E.  619,  49 
S.  C.  285. 

7  5  Ark.  Zinn  v.  State,  205  S.  W. 
704,  135  Arlv.  342. 

Cal.  FitJ^gerald  v.  Southern  Pac. 
Co.,  173  P.  91,  36  Cal.  App.  660 ;  Peo- 
ple V.  Weber,  86  P.  671,  149  Cal.  325 ; 
People  V.  Kelly,  46  Cal.  355. 

Ga.  Waller  v.  State,  97  S.  E.  876, 
23  Ga.  App.  156. 

111.  Chicago,  B.  &  Q.  R.  Co.  v. 
Pollock,  62  N.  E.  831,  195  111.  156,  af- 
firming .iudgment  93  111.  App.  483 ; 
North  Chicago  St.  R.  Co.  v.  Anderson. 
52  N.  E.  21,  176  111.  635,  affirming 
judgment  70  111.  App.  336 ;  Kinney  v. 
People,  108  111.  519. 

Pa.  Morris  v.  Guffey,  41  A.  731, 
188  Pa.  534,  29  Pittsb.  Leg.  J.  (N.  S.) 
233. 

Va.  Washington-Southern  Ry.  Co. 
V.  Cheshire,  65  S.  E.  27,  109  Va.  741. 

7  0  Cal.  Colusa  &  II.  R.  Co.  v. 
Leonard,  167  P.  878,  176  Cal.  109; 
People  V.  Ashland,  128  P.  798,  20  Cal. 
App.  168. 


111.  People  V.  Allegretti,  126  N.  E. 
158,  291  111.  364. 

Mo.  Berkshire  v.  Holcker,  216  S. 
W.  556,  202  Mo.  App.  433;  State  v. 
Fanuon,  59  S.  W.  75,  158  Mo.  149. 

Utah.  Broadbent  v.  Denver  &  R. 
G.  Ry.  Co.,  160  P.  1185,  48  Utah,  598. 

Va.  Vaughan  v.  Lytton,  101  S.  E. 
865.  126  Va.  671. 

Wash.  State  v.  Jones,  101  P.  708, 
53  Wash.  142. 

Instruction  on  willful  negli- 
gence. From  a  requested  instruction 
as  to  willful  negligence,  complete 
without  them,  it  is  not  error  to  omit 
the  words,  "there  is  little  distinction, 
except  in  degree,  in  a  positive  inten- 
tion to  do  wrong  and  an  indifEerence 
whether  wrong  is  done  or  not."  Sher- 
fey  V.  Evansville  &  T.  H.  R.  Co.,  121 
Ind.  427.  23  N.  E.  273. 

7  7  Virginia  Ry.  &  Power  Co.  v.  N. 
H.  Slack  Grocery  Co.,  101  S.  E.  878, 
126  Va.  685;  Seattle  &  M.  R.  Co.  v. 
Roeder,  70  P.  498,  30  Wash.  244,  94 
Am.  St.  Rep.  864. 

7  8  Kansas  City,  F.  S.  &  M.  R.  Co. 
V.  Stoner  (G.  C.  A.  Ark.)  49  F.  209, 
1  C.  C.  A.  231. 

7  9  People  V.  Cotta,  40  Cal.  166. 


§  495  INSTRUCTIONS  TO  JURIES 


888 


calculated  to  mislead  the  jury  by  barren  technicality  the  court  may 
prevent  the  mischief  by  correcting  the  same.^" 

The  court  may  substitute  for  the  words  "due  care"  the  words 
"ordinary  care"  and  "reasonable  care,"  ^^  and,  on  the  other  hand, 
the  striking  out  of  the  words  "ordinary  care"  and  substituting  there- 
for the  words  "due  care"  does  not  alter  their  legal  meaning.^-  A 
charge  abstractly  correct  may  be  modified,  so  as  to  make  it  ap- 
plicable to  the  case,*2  and  modifications  which  simply  render  re- 
quested instructions  more  specific,  definite,  and  certain  are  proper.** 

A  party  cannot  complain  because  an  instruction  requested  by 
him,  presenting  his  theory  of  the  case,  is  modified  so  as  to  present 
the  theory  of  his  adversary  at  the  same  time,*"  nor  because  an  in- 
struction asked  by  him  is  modified,  so  as  to  conform  to  other  in- 
structions which  he  has  requested;*^  nor  can  a  party  complain  of, 
the  modification  of  a  request  from  which  he  suffers  no  injury.*' 

§  496.  Rule  that  court  should  give  or  refuse  a  requested  charge 
without  alteration 
In  a  few  jurisdictions,  and  under  some  of  the  cases  in  other  ju- 
risdictions, where  the  authorities  are  conflicting  on  the  question 
herein  discussed,  if  requested  instructions  are  relevant  and  cor- 
rect, and  free  from  any  misleading  tendencies,  a  party  has  a  right 
to  have  them  given  precisely  as  written  by  him,**  and  where  a 

8  0  Chicago  Title  &  Trust  Co.  v.  Bra-  P.  98,  40  Or.  363  ;    Missouri,  K.  &  T. 

dv,  165  Mo.  197,  65  S.  W.  303.  Ry.  Co.  of  Texas  v.  Evans,  41  S.  W. 

^81  Chicago,  B.  &  Q.  R.  Co.  v.  Yorty,  SO,  16  Tex.  Civ.  App.  68. 

158  111.  321.  42  N.  E.  64.  se  Judy  v.  Sterrett,  153  111.  94,  38 

82  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  K  E.  633.  affirming  52  111.  App.  265: 

Waren,  48  S.  W.  222,  65  Ark.  619.  Feary  v.  Metropolitan  St.  Ry.  Co.,  62 

s3Fla.     Evans  v.  Givens,  22  Fla.  S.  W.  452,  162  Mo.  75;    Baltimore  & 

476,  O.  R.  Co.  V.  Few's  Ex'rs,  94  Va.  82, 

Ind.     Citizens'   St.  R.  Co.  v.  HofE-  26  S.  E.  406. 

baner,  56  X.  E.  54.  23  Ind.  App.  614.  s?  Moore  v.  Chicago.  B.  &  Q.  Ry.  Co., 

Iowa.    Hall  v.  Hunter,  4  G.  Greene,  65  Iowa,  505,  22  N.  W.  650,  54  Am. 

539.  Rep.  26;    Commonwealth  v.  Gill,   14 

La.    State  V.  Sehon,  68  So.  221,  137  B.  Mon.  (Kv.)  20  :    Bartlett  v.  Haw- 
La.  .^3.  ley,  38  Minn.  308,  37  N.  W.  580;   Dill- 
Minn.     Blackman  v.  Wheaton,  13  insrham  v.  Fields,  9  Tex.  Civ.  App.  1, 
Minn.  326  (Gil.  299^ ;    Dodge  v.  Rog-  29  S.  W.  214. 
ers,  9  Minn.  223  (Gil.  209).  ss  Ala.      Brewer   v.    State,    74    So. 

84  People  V.    Archibald,    101   N.    E.  764,  15  Ala.  App.  681;    Northern  Ala- 

582,  258  111.  383 ;    Kleet  v.   Southern  bama  Ry.  Co.  v.  White,  69  So.  308,  14 

Illinois  Coal  &  Coke  Co.,  197  111.  App.  Ala.  App.  228 ;    Franke  v.  Riggs,  93 

243 ;   L(  fever  v.  Stephenson  (Mo.)  193  Ala.  252,  9  So.  359 ;    Eiland  v.  State, 

S.  W.  840.  52  Ala.  322 ;    Edgar  v.  State,  43  Ala. 

sGLivezy   v.    Miller,    61    Md.    3.36;  45:    Polly  v.  McCall,  37  Ala.  20 ;   Bell 

Clark  v.  Soule,  137  Mass.  380 ;    Smith  v.  Trov,  35  Ala.  184. 

V.    State,   23    So.    260,   75   Miss.   542;  Mich.     Cook   v.    Brown,   62   Mich. 

Bingham  v.  Lipman,  Wolfe  &  Co.,  67  473,  29  N.  W.  46,  4  Am.  St.  Rep.  870. 


889 


REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS 


§  496 


Statute  provides  that  requested  instructions  must  be  given  or  re- 
fused without  modification,  the  court  cannot  give  a  requested  in- 
struction with  explanations  which  alter  its  tenor.*^  Under  this 
rule  a  charge  which  is  unintelligible  unless  some  change  is  made 
in  its  phraseology  is  properly  refused.*® 

Statutory  provisions,  however,  which  require  that  requested  in- 
structions, if  given,  shall  not  be  changed  or  modified  by  the  court, 
are  not  intended  to  preclude,  and  do  not  preclude,  the  giving  of 
further  and  proper  instructions  on  the  same  subject.*^  It  may  not 
be  improper  under  the  above  rule  to  modify  an  abstract  instruc- 
tion to  make  it  applicable  to  the  concrete  case  presented  by  the 
evidence,*^  and  such  rule  does  not  require  a  reversal  because  of 
a  modification  of  a  requested  instruction,  unless  the  complaining 
party  has  been  harmed  thereby.*^ 


Miss.  Cotton  V.  State,  31  Miss. 
504. 

Mo.  Turner  v.  Butler,  161  S.  W. 
745.  2.53  Mo.  202. 

Neb.  Severance  v.  Melick,  15  Neb. 
610.  19  N.  W.  596. 

N.  D.  Landis  v.  Fyles,  120  N.  W. 
566.  IS  N.  D.  5S7. 

Ohio.  Lake  Shore  &  M.  S.  Rv.  Co. 
v.  Shultz,  19  Ohio  Cir.  Ct.  R.  6.39,  9 
O.  C.  D.  816;  Lutterbeck  v.  Toledo 
Consol.  St.  Ry.  Co.,  5  O.  C.  D.  141. 

W.  Va.  State  v.  Verto,  64  S.  E. 
1025.  65  W.  Va.  628;  Morri.son  v. 
Fairmont  &  C.  Traction  Co.,  55  S.  E. 
669.  60  W.  Ya.  441;  Jordan  v.  City 
of  Benwood,  26  S.  E.  266,  42  W.  Va. 
ai2.  36  L.  R.  A.  519,  57  Am.  St.  Rep. 
859 ;  State  v.  Evans,  33  W.  Va.  417. 10 
S.  E.  792. 

In  AlaTiaina,  a  statutory  provision 
embodying  the  text  rule  does  not  ap- 
ply to  oral  requests.  Warren  v.  State, 
46  Ala.  549.  Under  such  provision  the 
court  may,  on  giving  a  requested  in- 
struction, accompany  It  with  an  ex- 
planatory statement,  Montgomery 
Light  &  Water  Power  Co.  v.  Thombs, 
87  So.  205,  204  Ala.  678;  Callaway 
&  Truitt  v.  Gay,  39  So.  277,  143  Ala. 
524;  Jackson  v.  State,  34  So.  1S8, 
1.36  Ala.  22 ;  Eiland  v.  State,  52  Ala. 
322.  Such  provision  is  not  violated 
by  giving  a  request  in  connection 
with  the  general  charge.  Baker  v. 
State,  49  Ala.  350. 

In  'Wisconsin,  where  the  statute 
requires  that  each  instruction  asked 


by  counsel  shall  be  given  without 
change  or  modification,  or  refused  in 
full,  it  is  held  that  a  modification  is 
to  be  deemed  a  refusal  to  give  as  re- 
quested, and,  that  where  the  court 
modifies  a  requested  instruction  and 
then  gives  it,  and  such  instruction  in- 
cludes all  of  that  requested,  and,  as 
modified,  correctly  states  the  law  ap- 
plicable to  the  case,  it  is  not  prejudi- 
cial error.  Grace  v.  Dempsey,  75  Wis. 
313.  43  N.  W.  1127. 

Illustrations  of  improper  modi- 
fications. The  giving  of  a  charge  on 
reasonable  doubt  in  a  murder  case, 
with  the  remark:  "This  is  a  fool 
charge,  but  I  will  give  it  to  you,  gen- 
tlemen of  the  jury,  as  the  Supreme 
Court  has  said  it  was  good  law ;  but 
in  my  opinion  it  is  misleading" — is  a 
modification  or  a  criticism  of  the 
charge,  constituting  reversible  error. 
Barker  v.  State,  57  So.  88,  2  Ala.  App. 
92. 

8  9  Galloway  v.  McLean,  2  Dak.  372, 
9  N.  W.  98. 

»o  Southern  Industrial  Institute  v. 
Hellier,  39  So.  163,  142  Ala.  686. 

91  Doan  V.  Town  of  Willow  Springs, 
76  N.  W.  1104,  101  Wis.  112. 

9  2  Greer  v.  Arrington,  79  S.  E.  720, 
72  W.  Va.  693 ;  Parfitt  v.  Sterling  Ve- 
neer &  Basket  Co.,  69  S.  E.  985,  68  W. 
Va.  438. 

9  3  Tompkins  V.  Kanawha  Board,  21 
W.  Va.  224. 


§  496  INSTRUCTIONS  TO  JURIES  ,   890 

In  Texas  the  general  rule  is  that  the  court  should  either  give 
a  requested  charge  as  presented  or  refuse  it  in  toto  and  not  give  the 
requested  charge  as  modified,^*  and  while  the  court,  where  the 
charge  requested  consists  of  separate  subdivisions  defining  distinct 
conditions  of  fact  essential  to  be  found,  and  contains  a  subdivision 
which  is  erroneous  as  applied  to  the  facts,  may  modify  it  by  elim- 
inating the  erroneous  subdivision,  and  give  the  special  charge  as 
modified,  and  the  same  will  not  be  reversible  error,  yet  the  court 
is  not  required  to  make  such  modification  and  give  the  remaining 
portion  in  the  terms  asked.^^ 

In  Mississippi  it  is  held  that,  while  the  court  may  decline  the 
charges  propounded  by  the  parties,  and  may  modify  them,  or  re- 
duce to  writing  its  own  conception  of  the  law  upon  the  points  em- 
braced in  the  charges  asked,  yet,  if  the  charges  as  asked  are  cor- 
rect and  pertinent,  the  safe  practice  is  to  give  them  as  propounded.^®  ■ 

In  another  jurisdiction  the  rule  is  stated  to  be  that  the  qualifica- 
tion of  a  correct  and  pertinent  instruction  asked  is  error,  if  its 
force  is  essentially  changed,  unless  the  change  merely  states  the 
law  to  cover  the  case  more  fuUy.^' 

§  497.     Power  of  court  to  substitute  instructions  of  its  own  for 
correct  instructions  requested 

The  trial  court  may  refuse  correct  instructions  requested  by  a 
party,  and  instead  thereof  give  instructions  of  its  own  covering  the 
same  ground,  or  expressing  the  rule  embraced  in  the  instructions 
requested  from  a  different  angle,^*  and,  as  a  general  rule,  the  im- 

f'4  Missouri,    K.    &    T.    Ry.    Co.    of  111.     City  of  Cliicaso  v.  Moore,  139 

Texas  v.  Gilleriwater  (Tex.  Civ.  App.)  111.   201,  28  N.  E.  1071,  affirming  40 

146  S.  W.  589;    Gulf,  0.  &  S.  F.  Ity.  111.  App.  332;    Birminsliara  Fire  In.s. 

Co.   V.   Farniei-   (Tex.   Civ.   App.)    108  Co.  v.  Pulver,  126  111.  329,  18  N.  E. 

S.  W.  729;    St.  Louis  S.  W.  Ry.  Co.  804,  9  Am.  St.  Rep.  598,  affirming  27 

v.  Ball,   G6   S.   W.   879,  28  Tex.   Civ.  111.  App.   17;     Hanchett  v.  Kimbark, 

App.  287.  118  111.  121,  7  N.  E.  491 ;    Alexander 

Harmless   error.      The   mere   fact  v.  Mandeville,  33  111.  App.  589. 

that  a  modified  requested  instruction  Imd.      Williamson    v.    Yingling,    80 

is  given  as  one  requested  is  not  mate-  Ind.  379. 

rial    if   the   instruction   is   otherwise  Iowa.    National  State  Bank  v.  Del- 
unobjectionable.     St.  Louis  Southwes-  ahaye,  82  Iowa,  34,  47  N.  W.  999. 
tern  Ry.  Co.  of  Texas  v.   Shipp,  109  Kan.     Evans  v.  Lafeyth,  29  Kan. 
S.  W.  286,  48  Tex.  Civ.  App.  565.  736. 

9  5  Grigsby  v.  Reib  (Tex.  Civ.  App.)  Ky.     The  Blue  Wing  v.  Buckner, 

139  S.  W.  1027.  12  B.  Mon.  246;    Lowry  v.  Beekner, 

9  6  Archer  v.  Sinclair,  49  Miss.  343.  5  B.  Mon.  41. 

9-  Young  v.    State,   24  Fla.   147,    3  Md.    Rosenkovitz  v.  United  Rvs.  & 

So.  881.  Electric  Co.  of  Baltimore  Citv,  70  A, 

OS  Coim.     Board  of  Water  Com'rs  108,  108  Md.  306;   Coates  v.  Sangston, 

of  City  of  New  London  v.  Bobbins  &  5  Md.  121. 

Potter,  74  A.  938,  82  Conn.  623.  Mich.     Miller  v.   Sharp,  31  N.  W. 


891 


REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS 


§498 


proper  refusal  of  a  correct  instruction  will  be  cured  by  the  giving 
by  the  court,  either  on  its  own  motion  or  on  request,  of  an  in- 
struction substantially  equivalent  to  the  one  refused.®* 

Where,  however,  the  court  gives  no  explanation  of  its  refusal 
of  a  correct  instruction,  and  other  instructions  given  by  the  court, 
in  which  it  intends  to  embody  the  requested  instruction,  do  not, 
by  their  phraseology,  disclose  such  intention,  such  refusal  may  be 
ground  for  new  trial,^  and  where  instructions  requested  are  perti- 
nent they  should  be  given,  rather  than  others  of  a  more  general 
nature  substituted  by  the  court.~ 

§  498.     Manner  of  making  modification 

Where  the  court  regards  a  part  of  a  requested  instruction  as 
an  incorrect  statement  of  the  law,  the  court  should  not  tell  the 
jury  that  it  charges  such  request  except,  so  far  as  modified  by  its 
general  charge ;  it  being  the  duty  of  the  court  to  strike  out  of  such 
request  the  erroneous  part.^  It  is  not  fatal,  however,  to  a  re- 
quested instruction,  that  the  court  in  amending  it  strikes  out  a 
portion  in  such  a  manner  as  to  leave  the  part  so  stricken  out  to 
some  extent  legible,*  when  the  instruction  without  the  modification 


608,  65  Mich.  21 ;  Pound  v.  Port  Hur- 
on &  S.  W.  liy.  Co.,  M  Mich.  13,  19 
N.  W.  570;  Campau  v.  DuLois,  39 
Mich.  274. 

Mo.  Mitchell  v.  City  of  Plattsburg, 
33  Mo.  App.  555. 

Neb.  Western  Mattress  Co.  v.  Os- 
tersaard,  101  N.  W.  334,  71  Neb.  572, 
affirming  judgment  on  rehearing  99 
N.  W.  229,  71  Neb.  572. 

N.  C.  Cuthbertson  v.  North  Caro- 
lina Home  lus.  Co.,  96  N.  C.  480,  2 
S.  E.  258. 

Ohio.  Rheinheimer  v.  JEtna  Life 
Ins.  Co.,  83  N.  E.  491,  77  Ohio  St.  360, 
15  L.  R.  A.  (N.  S.)  245. 

Va.  Rosenberg  v.  Turner,  98  S.  E. 
763,  124  Ya.  769 ;  Fitzgerald  v.  South- 
ern Farm  Agency.  94  S.  E.  761,  122 
Va.  264 ;  Home  Life  Lis.  Co.  v.  Sibert, 
31  S.  E.  519,  96  Va.  403. 

9  9  Ark.  Ft.  Smith  Lumber  Co.  v. 
Cathey,  86  S.  W.  806,  74  Ark.  604; 
Vlser  V.  Bertrand,  16  Arli.  296. 

Cal.    Davis  v.  Perley,  30  Cal.  630. 

111.  Willard  v.  Swanson,  126  111. 
381,  18  N.  E.  548. 

N.  Y.  Parkes  v.  StafCord,  61  Hun, 
623,  16  N.  Y.  S.  756. 

Va.  Proctor  v.  Spratley,  78  Va. 
254. 


1  Davis  V.  Richmond  &  D.  R.  Co.. 
30  S.  C.  013,  9  S.  E.  105. 

Equivalency  not  apparent  ex- 
cept   upon    critical    examination. 

Where  a  charge  conforms  to  the  law 
and  is  authorized  by  the  evidence,  it 
should  be  given  in  the  terms  in  which 
it  is  asked,  tliough  it  may  be  neces- 
sary for  the  court  to  give  additional 
or  explanatory  instructions ;  and  the 
error  of  a  refusal  cannot  be  repaired 
by  giving  another  charge,  which, 
when  critically  examined,  will  be 
found  to  lay  down  substantially  the 
same  principle.  Clealand  v.  Walker, 
11  Ala.  1058,  46  Am.  Dec.  2.38. 

2  State  v.  McCann,  49  P.  216,  16 
Wash.  249. 

3  Averv  v.  House,  2  Ohio  Cir.  Ct.  R. 
246,  1  O.  C.  D.  468. 

4  Union  Ry.  &  Transit  Co.  v.  Kal- 
laher,  114  111.  325,  2  N.  E.  77. 

Necessity  that  requesting  party 
should  ask  leave  to  rewrite  in- 
struction. Where  the  court  modified 
an  instruction  by  erasing  the  words, 
"and  the  jury  must  find  for  the  de- 
fendant," with  one  stroke  of  the  pen, 
leaving  them  legible  to  the  jury,  it 
was  held,  that  it  was  the  privilege 
of  appellant  to  ask  leave  to  rewrite 


498  INSTRUCTIONS   TO  JURIES 


892- 


would  have  been  correct.^  If  the  trial  judge  refuses  to  give  a 
charge  as  asked,  but  gives  it  in  a  qualified  form,  the  charge  given 
should  be  explicit,  and  should  immediately  follow  the  refusal,  or 
the  jury  should  otherwise  be  made  to  understand  that  the  charge 
asked  is  not  entirely  rejected.^ 

In  some  jurisdictions  a  requested  instruction  may  be  modified  by 
inserting  or  striking  out  matters,  and,  as  so  modified,  given  to  the 
jury  without  being  rewritten.'  In  other  jurisdictions  statutes  pro- 
vide that  the  court,  on  giving  a  requested  instruction  with  a 
modification,  shall  not  make  such  modification  by  interlineation 
or  erasure,*  although  such  statutes  have  been  considered  to  be 
merely  directory,  and  not  to  make  an  erasure,  not  prejudicial  to 
the  party  objecting  thereto,  a  ground  for  reversal.^ 

In  jurisdictions  where  the  judge  should  give  or  refuse  a  charge 
asked  in  the  very  terms  of  the  request,  and  if  he  wishes  to  give 
it  with  a  qualification  he  should  rewrite  the  instruction  embodying 
the  qualification,  it  has  been  held  that  when  a  modification  is  ap- 
pended to  a  requested  charge  in  such  a  manner  as  to  show  the  pre- 
cise charge  requested  and  the  precise  modification,  and  the  whole 
is  intelligible  to  the  jury,  no  injury  results  to  the  party  making 
the  request.^®  A  modification  necessary  to  certain  numbered  in- 
structions may  properly  be  given  in  instructions  of  a  different  num- 
ber." 


H.    Ri:que;sts  for  Instructions  Already  Covered  by  Other 

Instructions 

§  499.     General  rule 

While  there  are  scattering  decisions  to  the  effect  that  it  is  er-^ 
ror  for  the  court  to  refuse  an  instruction  on  the  ground  that  the 
same  instruction  has  already  been  given  in  substance,  both  be- 
cause a  party  has  a  right  to  instructions  in  his  own  language  and 
because  such  refusal,  if  in  the  presence  of  the  jury  and  unexplained, 
has  a  tendency  to  raise  in  their  minds  a  presumption  that  the  in- 

the  instruction,  or  obliterate  the  re-  "^  People  v.  Foster,  123  N.  E.  534, 

jected  words,   and   that,   not   having  288  111.  371. 

done  so,  he  was  not  in  a  position  to  §  Ham   v,   Wisconsin,  I.   &  N.  Ry. 

complain  of  the  action  of  the  court;  Co.,  61  Iowa,  716,  17  N.  W.  157. 

the  instruction  being  otherwise   cor-  ^  Denver  &  R.  G.  Ry.  Co.  v.  Har- 

rect.    Allison  v.  Hagan,  12  Nev.  38.  ris,  3  N.  M.  (Johns.)  109,  2  Pac.  369. 

5  State  V.  Patchen,  137  P.  406,  36  ..'l^^,!T'ii^4'\?- S''-  ''ip^l"'''"<^^ 
XT Kin  '  7o  Tex.  4,  12  S.  W.  83o,  16  Am.  St. 

^^^-  ^1^-  Rep.  867. 

6  Selden  v.  Bank  of  Commerce,  3  n  Columbia  &  P.  S.  R.  Co.  v.  Haw- 
Minn.  IGG  (Gil.  108).                                      thorne,  3  Wash.  T.  353,  19  P.  25. 


893 


REQUESTS   OR  PRAYERS   FOR  INSTRUCTIONS 


499 


struction  does  not  state  the  law/^  the  general  rule  is  that  it  is 
proper  to  refuse  an  instruction  embodying  principles  already  sub- 
stantially covered  by  other  instructions  given/^  which  state  such 


12  People  V.  Bonds,  1  Nev.  33. 

13  U.  S.  (C.  C.  A.  Ala.)  United 
States  Fidelity  &  Guaranty  Co.  v. 
Walker,  248  F.  42,  IGO  C.  C,  A.  182 ; 
(C.  C.  A.  Ark.)  Wayne  v.  Venable,  260 
F.  64,  171  C.  C.  A.  100;  Salmon  v. 
Helena  Box  Co.,  147  F.  408,  77  O,  C. 
A.  OSG;  (C.  C.  A.  Cal.)  American 
Trading  Co.  v.  North  Alaska  Salmon 
Co.,  248  F.  665,  160  O.  C.  A.  565,  cer- 
tiorari denied  38  S.  Ct.  581,  247  U.  S. 
518,  62  L.  Ed.  1245 ;  Atchison,  T.  &  S. 
F.  Ry.  Co.  V.  Phillips,  176  F.  663,  100 
C.  C,  A.  215 ;  (C.  O.  A.  Colo.)  West- 
ern Inv,  Co.  V.  McFarland,  166  F.  76, 
91  C.  C.  A.  504 ;  (C.  C.  A.  Iowa)  Illi- 
nois Cent.  Ry.  Co.  v.  Kelson,  212  F.  69, 
128  C.  C.  A.  525;  Illinois  Cent.  R. 
Co.  V.  Egan,  203  F.  937,  122  C.  C. 
A.  239;  Chicago  Great  Western  R. 
Co.  V.  McCormick,  200  F.  375,  118  C. 
C.  A.  527,  47  L.  R.  A.  (N.  S.)  18; 
(C.  C.  A.  Mass.)  Boston  &  M.  R.  R.  v. 
Baker,  236  F.  896,  150  C.  C.  A.  158; 
(C.  O.  A.  Mich.)  Detroit  United  Ry. 
V.  Weintrobe,  259  F.  64,  170  C.  C.  A. 
132 ;  Farmers'  &  Merchants'  Bank  of 
Vandalia,  111.,  v.  Maines,  195  Fed. 
62,  115  C.  C.  A.  64;  (C.  C.  A.  Mo.) 
Northern  Central  Coal  Co.  v.  Barrow- 
man,  246  F.  906,  159  C.  C.  A.  178; 
^tna  Life  Ins.  Co.  v.  Davis,  191  F. 
343,  112  C.  O.  A.  87;  (C.  C.  A.  Neb.) 
Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Bald- 
win, 204  F.  768,  123  O.  C.  A.  218; 
Chicago,  B.  &  Q.  R.  Co.  v.  Upton,  194 
F.  371,  115  C.  C.  A.  379;  Gering  v. 
Levda,  186  F.  110,  108  C.  C.  A.  222; 
(C.  C.  A.  N.  H.)  Lane  v.  Sargent,  217 
F.  237,  133  C.  C.  A.  231;  (C.  C.  A. 
N.  J.)  Mills  Novelty  Co.  v.  Peck,  158 
F.  811,  86  C.  C.  A.  71;  (C.  C.  A.  N. 
T.)  Whitcomb  v.  Shultz,  215  F.  75, 
131  G.  C.  A.  383;  (C.  C.  A.  Ohio) 
Toledo,  St.  L.  &  W.  R.  Co.  v.  Rear- 
don,  159  F.  366,  86  C.  C.  A.  366; 
(C.  C.  A.  Obi.)  Winfrey  v.  Missouri, 
K.  &  T.  Ry.  Co.,  194  F.  808,  114  C.  C. 
A.  218;  (C.  C.  A.  Tenn.)  Jackson 
Fibre  Co.  v.  Meadows,  159  F.  110,  86 
C.  C.  A.  300 ;  (C.  C.  A.  Va.)  Missouri 
Valley  Bridge  &  Iron  Co.  v.  Blake, 
231  F.  417,  145  C.  O.  A.  411 ;   Pulaski 


Mining  Co.  v.  Hagan,  196  F.  724,  116 
C.  C.  A.  352 ;  (O.  C.  A.  Wash.)  Tacoma 
Ry.  &  Power  Co.  v.  Erpelding,  202  F. 
187,  120  C.  C.  A.  401 ;  Idaho  &  W.  N. 
R.  R.  v.  Wall,  184  F.  677,  106  C.  C. 
A.  631;  (C.  C.  A.  W.  Va.)  Baer  Gro- 
cer Co.  V.  Barber  Milling  Co.,  223  F. 
969,  139  C.  O.  A.  449 ;  Fitch  v.  Huff, 
218  F.  17,  134  C.  C.  A.  31 ;  (C.  C.  A. 
Wis.)  Simmons  Mfg.  Co.  v.  Eskridge, 
168  F.  675,  94  C.  C.  A.  161;  (C.  C. 
A.  Wyo.)  Owl  Creek  Coal  Co.  v.  Goleb, 
232  F.  445,  146  C.  C.  A.  439. 

Ala.  Baker  v.  Green,  84  So,  545, 
17  Ala.  App,  290 ;  Anders  v.  Wallace, 
82  So.  644,  17  Ala.  App.  154 ;  Love  v. 
State,  82  So.  639,  17  Ala.  App.  149; 
Battles  v.  Whitley,  82  So.  573,  17  Ala. 
App.  125;  Finney  v.  Newson,  82  So. 
441,  203  Ala.  191;  Alabama  Water  Co. 
V.  Barnes,  82  So.  115,  203  Ala.  101; 
S.  S.  Steel  &  Iron  Co.  v.  White,  82  So. 
96,  203  Ala.  82;  Shelby  Iron  Co.  v. 
Bean,  82  So.  92,  203  Ala.  78;  Bir- 
mingham Fuel  Co.  V.  Taylor,  81  So. 
630,  202  Ala.  674 ;  Atlantic  Coast  Line 
R.  Co.  V.  Jones,  78  So.  645,  16  Ala. 
App.  447 ;  Johnson  v.  Johnson,  77  So. 
335,  201  Ala.  41,  6  A.  L.  R.  1031; 
Smith  V.  Sharp  Real  Estate  Co.,  77 
So.  40,  200  Ala.  666 ;  Louisville  &  N. 
R.  Co.  V.  Davis,  75  So.  977,  200  Ala. 
219;  Woodward  Iron  Co.  v.  Boswell, 
75  So.  3,  199  Ala.  424;  Southern 
States  Fire  Ins.  Co.  of  Birmingham  v. 
Kronenberg,  74  So.  63,  199  Ala.  164 ; 
Lewis  V.  Isbell  Nat.  Bank,  73  So.  655, 
198  Ala.  484 ;  City  of  Birmingham  v. 
Muller,  73  So.  30,  197  Ala.  554 ;  Lon- 
don V.  G.  L.  Anderson  Brass  Woi'ks, 
72  So.  359,  197  Ala.  16;  Alabama 
Great  Southern  R.  Co.  v.  Loveman 
Compress  Co.,  72  So.  311,  196  Ala. 
683;  Republic  Iron  &  Steel  Co.  v. 
Howard,  72  So.  263,  196  Ala.  663. 

Ariz.  Albert  Steinfeld  &  Co.  v. 
Wing  Wong,  128  P.  354,  14  Ariz.  336; 
Grant  Bros.  Const.  Co.  v.  United 
States,  114  P.  955,  13  Ariz.  388; 
Southern  Pac.  Co.  v.  Svensden,  108 
P.  262,  13  Ariz.  Ill;  Southern  Pac. 
Co.  V.  Hogan,  108  P.  240,  13  Ariz.  34, 
29  L.  R.  A,  (N.  S.)  813;    Title  Guar- 


§  499 


INSTRUCTIONS   TO  JURIES 


894 


anty  &  Surety  Co.  v.  Nichols,  100  P. 
825, 12  Ariz.  405 ;  Greene  v.  Hereford, 
95  P.  105,  12  Ariz.  85. 

Ark.  Stone  v.  Suckle,  224  S.  W. 
735;  North  American  Union  v.  Oli- 
phint,  217  S.  W.  1,  141  Ark.  346;  A. 
L.  Clark  Lumber  Co.  v.  Edwards,  216 
S.  W.  18,  144  Ark.  641;  Kansas  City 
Southern  Ry.  Co.  v.  Simmons,  215  S. 
W.  167,  140  Ark.  SO ;  Ft.  Smith  Iron 
«&  Steel  Mills  v.  Southern  Round  F>ale 
Press  Co..  213  S.  W.  21,  139  Ark.  101 ; 
C.  H.  Robinson  Co.  v.  Hudgins  Prod- 
uce Co.,  212  S.  W.  305.  138  Ark.  500 ; 
Bocquin  v.  Theurer,  202  S.  W.  845, 
133  Ark.  448 :  Horton  v.  Huddleston, 
200  S.  W.  1003,  132  Ark.  396;  Central 
Coal  &  Coke  Co.  v.  Graham,  196  S. 
W.  940,  129  Ark.  550;  Mutual  Aid 
Union  v.  Blacknall,  196  S.  W.  792,  129 
Ark.  450;  A.  L.  Clark  Lumber  Co. 
V.  Pickett.  193  S.  W.  793,  128  Ark. 
639 ;  Arnold  v.  Wood.  191  S.  W.  960, 
127  Ark.  234;  St.  Louis,  I.  M.  &  S. 
Ry.  Co.  V.  Howard,  188  S.  W.  14,  124 
Ark.  588 ;  Miller  v.  Summers,  187  S. 
W.  664,  124  Ark.  599 ;  Chicago,  R.  I. 
&  P.  Ry.  Co.  V.  Jones,  187  S.  W.  436. 
124  Ark.  523:  Redman  v.  Hudson,  186 
S.  W.  312,  124  Ark.  26 ;  City  of  Little 
Rock  V.  Ilolden,  186  S.  W.  293,  124 
Ark.  599;  Shearer  v.  Farmers'  &  Mer- 
chants' Bank,  182  S.  W.  262,  121 
Ark.  599;  National  Fruit  Px'oducts 
Co.  V.  Garrett.  181  S.  W.  926.  121  Ark. 
570 ;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v. 
Gilley,  181  S.  W.  918,  121  Ark.  507. 

Cal.  Boa  V.  San  Francisco-Oak- 
land Terminal  R.vs.,  187  P.  2,  182  Cal. 
93;  Baldarachi  v.  Leach  (App.)  186 
P.  1060;  Commonwealth  Bonding  & 
Casualty  Ins.  Co.  v.  Pacific  Electric 
Ry.  Co.'(App.)  184  P.  29;  Baillargeon 
V.  Myers,  182  P.  37,  180  Cal.  504; 
Gumpel  V.  San  Diego  Electric  Ry.  Co., 
172  P.  605,  178  Cal.  166;  Gerardi  v. 
Bonoff,  172  P.  596,  178  Cal.  147 ;  Tit- 
low  V.  Florence  Trading  Co.,  170  P. 
172,  35  Cal.  App.  457;  Bruce  r. 
Western  Pipe  &  Steel  Co..  169  P.  660, 
177  Cal.  25 ;  Braun  v.  Vallade,  164  P. 
904,  33  Cal.  App.  279;  Fiori  v.  Agnew, 
164  P.  899,  33  Cal.  App.  284;  Ban- 
nister V.  H.  Jevne  Co.,  151  P.  546,  28 
Cal.  App.  133;  Neff  v.  Mattern,  151 
P.  3S2.  28  Cal.  App.  99;  Bid  well  v. 
Los  Angeles  &  S.  D.  B.  Ry.  Co.,  148 
P.  197,  169  Cal.  780 ;  Pacific  Improve- 


ment  Co.  v.  Maxwell,  146  P.  900,  26 
Cal.  App.  265;  Price  v.  Northern 
Electric  Ry.  Co.,  142  P.  91,  168  Cal. 
173 ;  In  re  Everts'  Estate,  125  P.  1058, 
163  Cal.  449;  Worley  v,  Spreckles 
Bros.  Commercial  Co.,  124  P.  697,  163 
Cal.  60;  Bonneau  v.  North  Shore  R. 
Co.,  93  P.  106,  152  Cal.  406,  125  Am. 
St.  Rep.  68;  Central  Pac.  Ry.  Co.  v. 
Feldman,  92  P.  849,  152  Cal.  303; 
Henderson  v.  Los  Angeles  Traction 
Co.,  89  P.  976,  150  Cal.  689. 

Colo.  Empson  Packing  Co.  v.  Hop- 
kins, 182  P.  876,  66  Colo.  421 ;  W^est- 
ern  Investment  &  Land  Co.  v.  First 
Nat.  Bank,  172  P.  6,  64  Colo.  37 ;  Inde- 
pendence Coffee  &  Spice  Co.  v.  Kalk- 
man,  156  P.  135,  61  Colo.  98;  Kim- 
mins  V.  City  of  Montrose,  151  P.  434, 
59  Colo.  578,  Ann.  Cas.  1917A,  407; 
Denver  &  R.  G.  R.  Co.  v.  A.  Peterson 
Grocery  Co.,  147  P.  663,  59  Colo.  125; 
Finding  v.  Gitzen,  131  P.  1042,  24 
Colo.  App.  38;  City  and  County  of 
Denver  v.  Monroe,  121  P.  684,  21  Colo. 
312;  Denver  Omnibus  &  Cab  Co.  v. 
Madigan,  120  P.  1044,  21  Colo.  App. 
131 ;  Denver  City  Tramway  Co.  v. 
Brumley,  116  P.  1051,  51  Colo.  251; 
Denver  City  Tramway  Co.  v.  Cowan, 
116  P.  136,  51  Colo.  64 ;  Denver  City 
Tramway  Co.  v.  Hills,  116  P.  125,  50 
Colo.  328,  36  L.  R.  A.  (N.  S.)  213; 
Doty  V.  Heizer,  111  P.  67,  48  Colo.  490; 
Gutshall  V.  Cooper,  109  P.  428,  48 
Colo.  160 ;  Allen  v.  Shires,  107  P.  1072, 
47  Colo.  139;  Allen  v.  Shires,  107  P. 
1070,  47  Colo.  433;  Bonnet  v.  Foote, 
107  P.  252,  47  Colo.  282,  28  L.  R.  A. 
(N.  S.)  136 ;  Mahler  v.  Beishline,  105 
P.  874,  46  Colo.  603;  Fidelity  &  De- 
posit Co.  of  Maryland  v.  Colorado  Ice» 
&  Storage  Co.,  103  P.  383,  45  Colo. 
443;  Colorado  Midland  Ry.  Co.  v. 
Brady,  101  P.  62,  45  Colo.  203;  Denver 
City  Tramwav  Co.  v.  Martin,  98  P. 
836,  44  Colo.  324. 

Conn.  Hawes  v.  Engler,  103  A. 
975,  92  Conn.  60S ;  Mills  v.  Davis,  101 
A.  657,  92  Conn.  154;  H.  Wales  Lines 
Co.  V.  Hartford  Citv  Gaslight  Co.,  93 
A.  129,  89  Conn.  117 ;  Easton  v.  Con- 
necticut Co.,  91  A.  644,  88  Conn.  494 ; 
Sansona  v.  Laraia,  90  A.  28,  88  Conn. 
136;  Eckler  v.  Wake,  88  A.  369,  87 
Conn.  708 ;  Koskoff  v.  Goldman,  85  A. 
588,  86  Conn.  415;  Temple  v.  Gilbert, 
85  A.  380,  86  Conn.  335 ;   Harper  Ma- 


895 


REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS 


§  499 


ehinery  Co.  v.  Ryan-Uumack  Co.,  82 
A.  1027,  85  Conu.  '359;  Stevens  v. 
Smoker,  SO  A.  788,  84  Conn.  569; 
Worden  v.  Gore-Meeban  Co.,  78  A. 
422,  S3  Conn.  642 :  Bosjiidsky  v.  Back- 
es,  76  A.  540,  S3  Conn.  208 ;  Beattie  v. 
McMuUon,  Weand  &  McDei-molt,  74 
A.  7G7,  82  Conu.  484 ;  Johnson  County 
Sav.  Bank  v.  Walker,  72  A.  579,  82 
Conn.  24;  Berman  v.  KUng,  71  A.  507, 
81  Conu.  403 ;  Joyce  v.  Joyce,  67  A. 
374,  SO  Conn.  88;  Houghton  v.  City  of 
New  Haven,  66  A.  509,  79  Conn.  659. 

Del.  Philadelphia,  B.  &  W.  R.  Co. 
V.  Buchanan,  78  A.  776,  2  Boyce,  202 ; 
McFeat  v.  Philadelphia,  W.  &  B.  R. 
Co.,  69  A.  744,  6  Peunewill,  513. 

D.  C.  Maudes  v.  Midgett,  261  F. 
1019,  49  App.  D.  C.  139 ;  Washington 
&  R.  Ry.  Co.  V.  La  Fourcade>  48  App. 
D.  C.  364;  W>st  Disinfecting  Co.  v. 
Plummer,  44  App.  D.  C.  345 ;  Dixon  v. 
Great  Falls  &  O.  D.  Ry.  Co.,  43  App. 
D.  C.  206;  United  Cigar  Stores  Co.  v. 
Young,  36  App.  D.  C.  390 ;  Baltimore 
&  O.  R.  Co.  v.  Onorato,  35  App.  D.  C. 
383;  Sullivan  v.  Capital  Traction  Co., 
34  App.  D.  C.  358  ;  Washington,  Alex- 
andria &  Mt.  Vernon  Ry.  Co.  v.  Luk- 
ens,  32  App.  D.  C.  442;  District  of 
Columbia  v.  Duryee,  29  App.  D.  C. 
327,  10  Ann.  Cas.  675;  Pickford  v. 
Talbott,  28  App.  D.  C.  498;  Robin- 
son v.  Duvall,  27  App.  D.  C.  535. 

Fla.  Burnett  v.  Soule.  83  So.  461, 
78  Fla.  507;  Atlanta  &  St.  A.  B.  Ry. 
Co.  V.  Kelly,  82  So.  57.  77  Fla.  479; 
Wiufield  V.  Truitt,  70  So.  775,  71  Fla. 
38;  Atlantic  Coast  Line  R.  Co.  v. 
Wallace,  63  So.  583,  66  Fla.  321 ;  Lou- 
isville &  N.  R.  Co.  V.  Croxton,  58  So. 
369,  63  Fla.  223;  Escambia  County 
Electric  Light  &  Power  Co.  v.  Suther- 
land, 55  So.  S3,  61  Fla.  167:  Florala 
Sawmill  Co.  v.  Biltt-Carson  Shoe  Co., 
47  So.  924,  56  Fla.  301 ;  Clary  v.  Isom, 
47  So.  919,  56  Fla.  236:  Jacksonville 
Electric  Co.  v.  Hellenthal,  47  So.  812, 
56  Fla.  443;  Florida  East  Coast  Rv. 
Co.  V.  Welch,  44  So.  250,  .53  Fla.  145, 
12  Ann.  Cas.  210;  Atlantic  Coast  Line 
R.  Co.  V.  Crosby,  43  So.  318,  53  Fla. 
400 ;  Jacksonville  Electric  Co.  v. 
Schmetzer,  43  So.  85,  53  Fla.  370; 
Jacksonville  Electric  Co.  v.  Sloan,  42 
So.  516,  52  Fla.  257. 

Ga.  Melvin  v.  Askew,  100  S.  E.  49, 
24  Ga.  App.  164;    Fay  v.  Burton,  95 


S.  E.  224,  147  Ga.  648;  Union  Bank- 
ing Co.  V.  Jenkins,  94  S.  E.  998,  147 
Ga.  573;  Simmons  v.  Lanford,  94  S.  E. 
907,  21  Ga.  App.  (iSii ;  Peterson  v.  Mc- 
Allister, 93  S.  E.  524,  21  Ga.  App.  48; 
Seaboard  Air  Line  Ry.  v.  Hollis.  93 
S.  E.  264,  20  Ga.  App.  555 ;  Chamblee 
V.  Farmers'  &  Merchants'  Bank,  93  S. 
E.  239,  20  Ga.  App.  527 ;  Bradley  v. 
Lithonia  &  A.  M.  Ry.  Co.,  92  S.  E. 
539,  147  Ga.  22 ;  Powell  t.  Berry,  89 
S.  E.  753,  145  Ga.  696,  L.  R.  A.  1917A, 
306;  Shockley  v.  Smith,  87  S.  E. 
671,  144  Ga.  507;  La  FoUette  Iron  Co. 
V.  Wiley,  85  S.  E.  828,  143  Ga.  552; 
Fambrough  v.  De  Vane,  82  S.  E.  249, 
141  Ga.  794;  Hill  v.  Duke,  77  S.  E. 
584,  139  Ga.  508;  Exchange  Nat. 
Bank  of  Fitzgerald  v.  Henderson,  77 
S.  E.  36,  139  Ga.  260,  51  L.  R.  A.  (N. 
S.)  549;  Seaboard  Air  Line  Ry.  v. 
Gnann  &  De  Loach,  75  S.  E.  611,  138 
Ga.  .536;  Columbus  R.  Co.  v.  Asbell, 
70  S.  E.  1016,  136  Ga.  166 ;  Central  of 
Georgia  Ry.  Co.  v.  Ray,  65  S.  E.  281, 
133  Ga.  126;  Southern  Ry.  Co.  v. 
Brock,  64  S.  B.  1083,  132  Ga.  858; 
McGee  v.  Young,  64  S.  E.  689,  132 
Ga.  606;  Savannah  Electric  Co.  v. 
Jackson,  64  S.  E.  680,  132  Ga.  559. 

Idalio.  John  V.  Farwell  Co.  \. 
Craney,  157  P.  382,  29  Idaho,  82: 
Tucker  v.  Palmberg,  155  P.  981,  28 
Idaho,  693 ;  Woodland  v.  Portneuf 
Marsh  Valley  Irr.  Co.,  146  P.  1106, 
26  Idaho,  789;  Tildeu  v.  Hubbard, 
138  P.  1133,  25  Idaho,  677 ;  Breshears 
v.  Callender,  131  P.  15,  23  Idaho,  348 ; 
Malonev  v.  Winston  Bros.  Co.,  Ill  P. 
1080,  18  Id'aho,  740,  47  L.  R.  A.  (N. 
S.)  634 ;  Roseborough  v.  Whittington, 
96  P.  437,  15  Idaho,  100;  Younie  v. 
Blackfoot  Light  &  Water  Co.,  96  P. 
193.  15  Idaho,  56. 

111.  Sullivan  v.  William  Ohlhav- 
er  Co.,  126  N.  E.  191,  291  111.  359 
People  V.  Karpovich,  123  N.  E.  324 
2SS  111.  268;  Heineke  v.  Chicago  Rys 
Co.,  116  N.  E,  761,  279  111.  210.  af 
firming  judgment  199  111.  App.  399 
City  of  East  St.  Louis  v.  Vogel,  114 
N.  E.  941,  276  111.  490;  Hartrick  v. 
Hartrick,  112  N.  E.  364,  272  111.  613; 
Bell  V.  Toluca  Coal  Co.,  112  N.  E. 
311,  272  111.  576;  Korn  v.  Chicago 
Rys.  Co.,  Ill  N.  E.  85,  271  111.  329, 
affirming  judgment  191  111.  App.  498 ; 
City  of  Kankakee  v.  Illinois  Cent.  R. 


§499 


INSTRUCTIONS  TO  JURIES 


896 


Co.,  105  N.  E.  73^  263  111.  589;  Gib- 
bons V.  Aurora,  E.  &  C.  R.  Co.,  104 
N  E.  1063,  263  111.  266.  affirming  judg- 
ment 177  111.  App.  572;  Newell  v. 
Cleveland,  C,  C.  &  St.  L.  Ry.  Co.,  104 
N  E.  223,  261  111.  505.  reversing  judg- 
ment 179  111.  App.  497;  Grannon  v. 
Donk  Bros.,  Coal  &  Coke  Co.,  102  N. 
E.  769.  259  111.  350,  affirming  judgment 
173  111.  App.  395 ;  Loescber  v.  Consol- 
idated Coal  Co.,  102  N.  E.  196.  259 
111.  126,  affirming  judgment  173  111. 
App.  526;  Kellan  v.  Kellan,  101  N. 
E  614,  258  111.  256:  Doyle  v.  Doyle, 
100  N.  E.  950,  257  111.  229;  Inlet 
Swamp  Drainage  Dist.  v.  Anderson, 
100  N.  E.  909,  257  111.  214;  Shella- 
barger  Elevator  Co.  v.  Illinois  Cent. 
R.  Co..  212  111.  App.  1 ;  Yates  v.  Pliil- 
lins.  211  111.  App.  643;  Brautigan  v. 
Union  Overall  Laundry  &  Supply  Co., 
211  111.  App.  356;  Poland  v.  Supreme 
Tribe  of  Ben  Hur.  211  111.  App.  176 ; 
McCormick  v.   Decker,   204  111.  App. 

W.  Haskell  &  Barker  Car  Co.  v. 
Erickson  (App.)  128  N.  E.  466 ;  Walk- 
er Hospital  V.  Pulley  (App.)  127  N. 
E.  559;  Morgan  v.  Winsbip  (App.) 
126  N.  E.  37;  Lake  Erie  &  W.  R. 
Co.  v.  Douglas  (App.)  125  N.  E.  474; 
Chesapeake  &  O.  Ry.  Co.  v.  Perrj- 
(App.)  125  N.  B.  414;  Terre  Haute, 
I.  &  E.  Traction  Co.  v.  Stevenson 
(Sup.)  123  N.  E.  785,  rehearing  de- 
nied 126  N.  E.  3;  Cleveland,  C,  C. 
&  St.  D.  Ry.  Co.  V.  Markle.  119  N, 
E.  371,  187  ind.  553,  superseding  opin- 
ion on  rehearing  114  N.  E.  440 ;  In- 
diana Steel  &  Wire  Co.  v.  Studes,  119 
N  E.  2,  187  Ind.  469;  Chicago  &  E. 
R.  Co.  V.  Steele,  118  N.  E.  824,  187 
Ind.  358,  rehearing  denied  119  N.  E. 
483,  187  Ind.  .3.58;  Chicago,  I.  &  L. 
Ry.  Co.  V.  Medlock,  118  N.  E.  810, 
187  Ind.  224:  Kawneer  Mfg.  Co.  v. 
Kalter,  118  N.  E.  561,  187  Ind.  99; 
Cleveland,  C,  C.  &  St.  L.  Ry.  Co.  v. 
Wise,  116  N.  E.  299,  186  Ind.  316; 
Union  Traction  Ck>.  of  Indiana  v. 
Ha  worth,  115  N.  E.  753,  187  Ind.  451; 
Lavene  v.  Friedrichs,  115  N.  E.  .324, 
186  Ind.  333.  rehearing  denied  116  N. 
E.  421,  186  Ind.  333 ;  Guarantee  Tire 
&  Rubber  Od.  v.  Vehicle  Apron  & 
Hood  Co.,  115  N.  E.  89,  186  Ind.  145 ; 
Citizens'  Bank  of  Michigan  City  v. 
Opperman,  115  N.  E.  55,  188  Ind.  212 ; 


American  Maize  Products  Co.  v.  Widi- 
ger,  114  N.  E.  457,  186  Ind.  227 ;  City 
of  Kokomo  V.  Loy,  112  N.  E.  994,  185 
Ind.  18,  reversing  judgment  (App.) 
110  N.  E.  694:  New  York,  C.  &  St. 
L.  R.  Co.  V.  Shields,  112  N.  E.  76a, 
185  Ind.  704;  Vandalia  Coal  Co.  v. 
Coaklev.  Ill  N.  E.  426,  184  Ind.  661. 

Ind.T.     Atoka  Coal  &  Mining  Co. 
V.    Miller,  104   S.  W.   555,   7   Ind.  T. 
104 ;    (Ind.  T.  1902)  Ward  v.  Bass,  69  ' 
S.  W.  879,  4  Ind.  T.  291. 

Iowa.  Adami  v.  Fowler  &  Wilson 
Coal  Co.,  179  N.  W.  422;  Arnett  v. 
Illinois  Cent.  R.  Co.,  176  N.  W.  322, 
188  Iowa,  540;  Bennetr  v.  Atchison, 
T.  &  S.  F.  Ry.  Co.,  174  N.  W.  798; 
Bashaw-Joy  Co.  v.  Walsh,  174  N.  W. 
.399,  187  Iowa,  574 ;  Fuller  v.  Illinois 
Cent.  R.  Co.,  173  N.  W.  137,  186  Iowa,  , 
686;  Turner  v.  Brien,  167  N.  W.  584, 
184  Iowa,  320,  3  A.  L.  R.  1585 ;  Allen 
V.  City  of  Ft.  Dodge,  167  N.  W.  577, 
183   Iowa,   818;    Hess  v.   McCardell, 

166  N.  W.  470,  182  Iowa,  1121 ;  Smith 
V.  Blakesburg  Savings  Bank,  164  N. 
W.  762,  182  Iowa,  1190;  Schultz  v. 
Starr,  164  N.  W.  163,  ISO  Iowa,  1319 ; 
Hanley  v.  Travelers'  Protective  Ass'n, 
161  N.  W.  125 ;  Hanley  v.  Fidelity  & 
Casualty  Co.,  161  N.  W.  114,  180  Iowa, 
805;  Clark  v.  Sioux  County,  159  N. 
W.  664,  178  Iowa,  176;  In  re  Evel- 
eth's  Will,  157  N.  W.  257,  177  Iowa, 
716;  Garvey  v.  Boody-Holland  & 
New,  155  N.  W.  1027,  176  Iowa,  273 ; 
Johnston  v.  Delano,  154  N.  W.  1013, 
175  Iowa,  498 ;  Hutchinson  Purity 
Ice  Cream  Co.  v.  Des  Moines  City  Ry. 
Co.,  154  N.  W.  890,  172  Iowa,  527: 
Ball  V.  Davenport,  152  N.  W.  69,  170 
lovv-a,  33 ;  Merchants'  Transfer  & 
Storage  Co.  v.  Chicago,  R.  I.  &  P.  Ry. 
Co.,  150  N.  W.  720,  170  Iowa,  378; 
Depugh   V.   Frazier,    149   N.    W.   854, 

167  Iowa,  742. 

Kan.  Turner  v.  St.  Louis-San 
Francisco  Ry.  Co.,  189  P.  376,  106 
Kan.  591;  Stanly  v.  Buser,  185  P. 
39,  105  Kan.  510,  10  A.  L.  R.  218; 
Berry  v.  Dewey,  172  P.  27,  102  Kan. 
593;  Madey  v.  Swift  &  Co.,  168  P. 
1105,  101  Kan.  771;  Patton  v.  Union 
Traction  Co.,  167  P.  1041,  101  Kan. 
388;  Cox  v.  Chase,  163  P.  184,  99 
Kan.  740;  Murray  v.  Empire  Dist. 
Electric  Co.,  162  P.  1145,  99  Kan.  507 ; 
Park  View  Hospital  Co.  v.  Randolph 


807 


REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS 


§499 


Lodge,  No.  216,  I.  O.  O.  F.,  162  P. 
302,  99  Kan.  4SS;  Hayes  v.  Nutter, 
157  P.  42S,  98  Kail.  75,  2  A.  L.  R.  365 ; 
Smith  V.  St.  L.  &  S.  F.  R.  Co.,  14S  P. 
759,  95  Kan.  451 ;  Thompson  v.  Ault- 
man  &  Taylor  Mach.  Co.,  146  P.  1188, 
94  Kan.  453;  Peufield  v.  Berhenke, 
146  P.  1187,  94  Kan.  532 ;  Leavens  v. 
Hoover,  145  P.  877,  93  Kan.  661 ;  Cul- 
bertson  v.  Shc^ridan,  144  P.  268,  93 
Kan.  268;  Martin  v.  City  of  Colum- 
bus, 143  P.  421,  93  Kan.  79;  Rogers 
V.  Kansas  Co-operative  Refining  Co., 
137  P.  991,  91  Kan.  351,  rehearing  de- 
nied 139  P.  1030,  92  Kan.  256;  Mc- 
Clintick  v.  Pyle.  137  P.  788,  91  Kan. 
393  ;  Taylor  v.  Atchison  Gravel,  Sand 
&  Rock  Co.,  135  P.  576.  90  Kan.  452 ; 
Stroupe  V.  Hewitt,  133  P.  562,  90  Kan. 
200;  Carroll  v.  Kansas  Buff  Brick  & 
Mfg.  Co.,  129  P.  196.  S8  Kan.  519. 

Ky.  iEtna  Life  Ins.  Co.  v.  McCul- 
lagh,  215  S.  W.  821.  1S5  Ky.  664; 
Chesapeake  &  O.  Ry.  Co.  v.  "Williams' 
Adm'r,  200  S.  W.  451.  179  Ky.  333; 
Chesapeake  &  O.  Ry.  Co.  v.  Hogg,  197 
S.  W.  840.  177  Ky.  425;  Sovereign 
Camp  of  Woodmen  of  tlie  World  v, 
Valentine,  190  S.  W.  712,  173  Ky.  182 ; 
Kinnaird  v.  E.  R.  Spotswood  4S:  Son, 
389  S.  W.  904,  172  Ky.  612;  Louisville 
&  N.  R.  Co.  v.  Long,  189  S.  W.  435, 
172  Ky.  436 ;  Spiegle  v.  Cincinnati,  N. 
O.  &  T.  P.  R.  Co..  185  S.  W.  113S, 
170  Ky.  285  ;  Monongahela  River  Con- 
sol.  Coal  &  Coke  Co.  v.  Lancaster's 
Adm'r.  183  S.  W.  258,  169  Ky.  24; 
Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  v. 
Murphy,  178  S.  W.  1127.  166  Ky.  19; 
Cincinnati.  N.  O.  &  T.  P.  Rv.  Co..  v. 
Guinn,  173  S.  W.  357,  163  Ky.  157; 
New  Bell  .Jellico  Coal  Co.  v.  Oxendine, 
160  S.  W.  737.  155  Ky.  840;  Ligon  v. 
Osborn,  159  S.  W.  801.  155  Ky.  32S : 
East  Tennessee  Telephone  Co.  v.  Jef- 
fries, 154  S.  W.  1112,  153  Ky.  1.33; 
Louisville  &  ?^.  R.  Co.  v.  Woodford, 
353  S.  W.  722,  1.52  Ky.  398.  rehearing 
denied  154  S.  W.  1083,  153  Ky.  185; 
.Tones  v.  Dodson's  Ex'rs,  152  S.  W. 
.559,  151  Ky.  492 ;  City  of  Carlisle  v. 
Campbell.  151  S.  W.  673.  151  Ky.  279 ; 
Tyler  v.  First  Nat.  Bank,  150  S.  W. 
665,  150  Ky.  515 ;  Sizemore  v.  Nantz, 
149  S.  W.  1126,  149  Ky.  819;  Chesa- 
peake &  O.  Ry.  Co.  V.  Booth,  148 
S.  W.  61,  149  Ky.  245;  Chesapeake 
Inst. TO  Juries— 57 


&  O.  Ry.  Co.  V.  Robinson,  147  S.  W, 
886,   149  Ky.  258. 

Me.  Kittredge  v.  Frothingham, 
96  A.  1063,  114  Me.  537 ;  Lunge  v.  Ab- 
bott, 95  A.  942,  114  Me.  177 ;  Janilus 
v.  International  Paper  Co.,  92  A.  653, 
112  Me.  519;  Miller  v.  Haddock, 
82  A.  701,  109  Me.  98. 

Mel.  Rasst  V.  Morris,  108  A.  787, 
185  Md.  243;  Leckie  v.  Clemens,  108 
A.  684,  135  Md.  264 ;  Maryland  Casu- 
alty Co.  V.  East  Baltimore  Driving 
Ass'n,  108  A.  517,  135  Md.  105;  Ep- 
stein V.  Ruppert,  99  A.  685,  129  Md. 
432;  Commonwealth  Bank  of  Balti- 
more V.  Goodman,  97  A.  1005,  128  Ma. 
452 ;  Bosnian  v.  Travelers'  Ins.  Co. 
of  Hartford,  Conn..  96  A.  875,  127  Md. 
689,  Ann.  Cas.  1918C,  1047;  Patter- 
son V.  City  of  Baltimore,  96  A.  458, 
127  Md.  233;  Bernstein  v.  Merekel, 
95  A.  55,  126  Md.  454 ;  City  of  Balti- 
more V.  Ault,  94  A.  1044,  126  Md. 
402 ;  American  Express  Co.  v.  Terry, 
94  A.  1026,  126  Md.  254.  Ann.  Cas. 
1917C,  650;  Ewing  v.  Rider,  93  A. 
409,  125  Mil.  149 ;  Baltimore  &  O.  R. 
Co.  v.  Whitacre,  92  A.  1060,  124  Md. 
411 ;  Shoop  V.  Fidelity  &  Deposit  Co. 
of  Maryland.  91  A.  753,  124  Md.  130, 
Ann.  Cas.  1916D,  954 ;  New  York,  P. 
&  N.  R.  Co.  V.  Penninsula  Produce 
Exchange  of  Mar.vland,  89  A.  433, 
122  Md.  215 ;  Hunner  v.  Stevenson, 
89  A.  418,  122  Md.  40;  E.  Beck  & 
Co.  v.  Hanline  Bros..  89  A.  377,  122 
Md.  68 ;  Winner  v.  Linton,  87  A.  674, 
120  Md.  276;  White  Automobile  Co. 
V.  Dorsey.  86  A.  617.  119  Md.  251; 
Smith  V.  Brown,  86  A.  609,  119  IMd. 
236 ;  Board  of  Com'rs  of  Howard 
County  V.  Pindell,  85  A.  1041,  119  Md. 
69. 

Mass.  Betts  v.  Rendle,  128  N.  E. 
790,  236  Mass.  441 ;  Coyne  v.  Maniat- 
ty,  126  N.  E.  377,  235  Mass.  181: 
Clapp  v.  American  Express  Co.,  125 
N.  E.  162,  234  Mass.  174:  Mones  v. 
Bay  State  St.  Ry.  Co.,  125  N.  E.  151, 
234  Mass.  82 ;  Morrissev  v.  Connecti- 
cut Valley  St.  Ry.  Co..  124  N.  E.  435, 
2.33  Mass.  554;  McNeil  v.  Middlesex 
&  B.  St.  Ry.  Co.,  123  N.  E.  676,  233 
Mass.  254 ;  Chaplin  v.  Brookline 
Taxi  Co.,  119  N.  E.  650,  230  Mass. 
155;  McLellan  v.  Fuller,  115  N.  E. 
481,  226  Mass.  374 ;    Nye  v.  Louis  K. 


499 


INSTRUCTIONS  TO  JURIES 


898 


Liggett  Co.,  113  N.  E.  201,  224  Mass. 
401;  Brereton  v.  Milfoid  &  U.  St. 
Rv.  Co.,  Ill  N.  E.  715,  223  Mass. 
130;  Altaville  v.  Old  Colony  St.  Ry. 
Co.,  110  N.  E.  970,  222  Mass.  322; 
Levesque  v.  Charlton  Mills,  110  N.  E. 
307,  222  Mass.  305 ;  Shea  v.  American 
Hide  &  Leather  Co.,  109  N.  E.  158, 
221  Mass.  282;  Duuster  v.  Coward, 
108  K  E.  1085,  221  Mass.  339 ;  Ken- 
nedy V.  Hub  Mfg.  Co.,  108  N.  E.  932, 
221  Mass.  13©;  Donnelly  v.  Harris, 
107  N.  E.  435,  219  Mass.  466;  Man- 
ley  V.  Bay  State  St.  Ry.  Co.,  107  N. 
E.  409,  220  Mass.  124;  Nicholson  v. 
Feindel,  107  N.  E.  353,  219  Mass. 
490;  Dewey  v.  Boston  Elevated  Ry., 
105  N.  E.  366,  217  Mass.  599;  Hus- 
sey  V.  HollQway,  104  N.  E.  471,  217 
Mass.  100. 

Mich.  O'Dell  V.  Straith,  175  N. 
W.  441,  208  Mich.  497;  Kiowiatkow- 
ski  V.  Duluth-Superior  Dredging  Co., 
167  N.  W.  970,  201  Mich.  251 ;  Simon 
V.  Detroit  United  Ry.,  162  N.  W.  1012, 
196  Mich.  586 ;  Miller  v.  Du  Yal,  158 
X  W.  140,  191  Mich.  386 ;  Thompson  v. 
W.  W.  Kimball  Co..  157  N.  W.  63, 
190  Mich.  579;  Tiley  v.  Detroit 
United  Rv.,  155  N.  W.  728.  190  Mich. 
7 ;  Feist  V.  Root,  155  N.  W.  491,  189 
MicJi.  595;  Dyer  v.  People's  Ice  Co., 
154  N.  W.  135,  188  Mich.  202 ;  Chis- 
holm  V.  Ann  Arbor  R.  Co.,  153  N.  W. 
818,  187  Mich.  214;  Brown  v.  Mitts, 
153  N.  W.  714,  187  Mich.  469 ;  Krolik 
V.  Lang,  153  N.  W.  686,  187  Mich.  280; 
Pennsylvania  Rubber  Co.  v.  Detroit 
Sliipbuilding  Co.,  152  N.  W.  1071,  186 
Mich.  305;  Great  Lakes  Laundry  Co. 
V.  iEtna  Life  Ins.  Co.,  151  N.  W.  744, 
184  Mich.  294 ;  Bamlet  Realty  Co.  v. 
Doff,  150  N.  W.  307.  183  Mich.  694; 
Showen  v.  J.  L.  Owens  Co.,  148  N.  W. 
666,  182  INIich.  264 :  Karwick  v.  Pick- 
ands,  147  N.  W.  605,  181  Mich.  169; 
Sievers  v.  Barton,  146  N.  W.  416,  180 
Mich.  59;  Oiva  v.  Calumet  &  Hecla 
Mining  Co.,  146  N.  W.  181,  178  Mich. 
G45 ;  Silverstone  v.  London  Assur. 
Corporation,  142  N.  W.  776,  176  Mich. 
525 ;  Galvin  v.  Detroit  Steering 
Wheel  &  Windshield  Co.,  142  N.  W. 
742.  176  Mich.  569. 

Minn.  Farrcll  v.  G.  O.  Miller  Co., 
170  N.  W.  mC:  Wellberg  v.  Duluth 
Auto  Supply  Co.,  177  N.  W.  924,  146 
Minn.  29 ;   McKay  v.  Minnesota  Com- 


mercial Men's  Ass'n,  165  N.  W.  1061, 
139  Minn.  192 ;   Drimel  v.  Union  Pow- 
er Co.,  165  N.  W.  1058,  139  Minn.  122 
H.  L.  Elliott  Jobbing  Co.  v.  Chicago 
St.  P.,  M.  &  O.  Ry.  Co.,  161  N.  W 
390,  136  Minn.  138;    Skar  v.  McKen 
ney,  160  N.  W.  247,  135  Minn.  477 
Burke  v.  Chicago  &  N.  W.  Ry.  Co.,  154 
N    W.  960,   131  Minn.  209;    Duer  v 
Gagnon,    152    N.    W.   880,    129   Minn 
517;    Klemik  v.  Henricksen  Jewelry 
Co.,   151   N.   W.   203,   128   Minn.   490 
Gronlund  v.  Cudahy  Packing  Co.,  150 
N.  W.  176,  127  Minn.  515;    Fairchild 
V.  Fleming,  147  N.  W.  434,  125  Minn. 
431 ;    Pierson  v.  Modern  Woodmen  of 
America,  145   N.   W.   806,   125  Minn. 
150;    Benson   v.  Lehigh  Valley  Coal 
Co.,  144  N.  W.  774,  124  Minn.  222,  50 
L.  R.  A.  (N.  S.)  170 ;    Obert  v.  Board 
of  Commerce  of   Otter  Tail   County, 
141  N.  W.  810,  122  Minn.  20 ;   Johnson 
V.  Scott,  138  N.  W.  694,  119  Minn.  470; 
Millman  v.  Drake  &  Stratton  Co.,  137 
N.  W.  300.  119  Minn.  124;    Evans  v. 
Drake  &  Stratton  Co.,  137  N.  W.  189, 
119  Minn.  55  ;   Carleton  County  Farm- 
ers' Mut.  Fire  Ins.  Co.  v.  Foley  Bros., 
134  N.  W.  309,  117  Minn.  59,  38  L.  R. 
A.  (N.  S.)  175 ;    Bloomquist  v.  Minne- 
apolis Furniture  Co.,  127  N.  W.  481, 
112  Minn.  143 ;   Campbell  v.  Duluth  & 
N.  E.  Ry.  Co.,  127  N.  W.  413,  127  Minn. 
410. 

Miss.  Yazoo  &  M.  V.  R.  Co.  v. 
Dees,  83  So.  613,  121  Miss.  439 ;  Gulf 
&  S.  I.  R.  Co.  V.  Meyers,  75  So.  244, 
114  Miss.  458 ;  Yazoo  &  M.  V.  R.  Co. 
V.  Walls,  70  So.  349,  110  Miss.  256; 
Illinois  Cent.  R.  Co.  v.  Nixon,  68  So. 
466,  109  ]\Iiss.  308;  Reid  v.  Yazoo  & 
M.  V.  R.  Co..  47  So.  670,  94  Miss.  639. 

Mo.  Duffy  V.  Kansas  Citv  Rys. 
Co.  (App.)  217  S.  W.  883;  Robertson 
V.  Kochtitzky  (App.)  217  S.  W.  543; 
Fore  V.  Rodgers  (App.)  216  S.  W.  566 ; 
Berkshire  v.  Holcker,  2161  S.  W.  556, 
202  Mo.  App.  433 ;  Cunningham  v. 
Chicago  &  A.  R.  Co.,  215  S.  W.  5 ; 
Argeropoulos  v.  Kansas  Citj^  Rys.  Co., 
212  S.  W.  369,  201  Mo.  App.  287; 
Hunt  V.  City  of  St.  Louis,  211  S.  W. 
673,  278  Mo.  213;  Miller  v.  Lloyd, 
204  S.  W.  257.  275  Mo.  35;  City  of 
Kennett  v.  Katz  Const.  Co.,  202  S.  W. 
558,  273  Mo.  279;  Hoyt  v.  Kansas 
City  Stockyards  of  Missouri,  188  S. 
W.    106;    Trebbe   v.   American    Steel 


899 


REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS 


499 


Foundries,  185  S.  W.  179;  Moore  v. 
King,  178  S.  W.  124 ;  City  of  Spring- 
field V.  Owen,  170  S.  W.  1118,  262 
Mo.  92;  Holzemer  v.  Metropolitan 
St.  Ry.  Co.,  169  S.  W.  i02,  261  Mo. 
379;  Rutledge  v.  Swinuey,  169  S. 
W.  17,  261  Mo.  128 ;  Springfield  Crys- 
tallized Egg  Co.  V.  Springfield  Ice  & 
Refrigerating  Co.,  168  S.  W.  772,  259 
Mo.  664 ;  Biranierle  v.  Langdeau,  167 
S.  W.  532,  258  Mo.  202;  Gentry  v. 
Wabash  R.  Co.,  156  S.  W.  27,  172  Mo. 
App.  6«3S;  Stricklen  v.  Coiube  Print- 
ing Co.,  155  S.  W.  829,  249  Mo.  614; 
Benton  v.  City  of  St.  Louis,  154  S. 
W.  473,  248  Mo.  98. 

Mont.  Daniels  v.  Granite  Bimetal- 
lic Consolidated  Mining  Co.,  184  P. 
836,  56  Mont.  284;  Stokes  v.  Long, 
159  P.  28,  52  Mont.  470;  Wallace  v. 
Chicago,  M.  &  P.  S.  Ry.  Co.,  157  P. 
955,  52  Mont.  345;  Chilcott  v.  Ilea, 
155  P.  1114,  52  Mont.  134;  Murray 
V.  City  of  Butte,  151  P.  1051,  51  Mont 
258 ;  Blaustein  v.  Pincus,  131  P.  1064, 
47  Mont.  202,  Ann.  Cas.  1915C,  405; 
Vasby  v.  United  States  Gypsum  Co., 
128  P.  606,  46  Mont.  411 ;  Mattisou  v. 
Connerly,  126  P.  851,  46  Mont.  103; 
Heitmau  v.  Chicago,  M.  &  St.  P.  Ry. 
Co.,  123  P.  401,  45  Mont.  406:  Mc- 
Crimmon  v.  ]Murray,  117  P.  73,  43 
Mont.  457 ;  Longijre  v.  Big  Blackfoot 
Milling  Co.,  99  P.  131,  38  Mont.  99; 
Hagerty  v.  Montana  Ore  Purchasing 
Co.,  98  P.  643,  38  Mont.  69,  25  L.  R. 
A.  (N.  S.)  356. 

Neb.  Britt  v.  Omaha  Concrete 
Stone  Co.,  150  N.  W.  497,  99  Neb.  300 ; 
HuxoU  V.  Union  Pac.  R.  Co.,  155  N. 
W.  900,  99  Neb.  170 ;  Welsh  v.  City  of 
South  Omaha,  152  N.  W.  302,  98  Neb. 
148;  Dore  v.  Omaha  &  C.  B.  St.  R. 
Co.,  149  N.  W.  792,  97  Neb.  250; 
Cole  V.  Gerstenberger,  148  N.  W. 
79,  96  Neb.  451;  Warner  v.  City  of 
Wayne,  146  N.  W.  9-34,  95  Neb.  682; 
Bethel  v.  Pawnee  County,  145  N.  W. 
363,  95  Neb.  203 ;  Johnson  v.  Ish,  133 
N.  W.  201,  90  Neb.  173 ;  Blado  v.  Dra- 
per, 132  N.  W.  410,  89  Neb.  787; 
Bradstreet  v.  Grand  Island  Banking 
Co.,  131  N.  W.  956,  89  Neb.  590: 
Brown  v.  Chicago,  B.  &  Q.  R.  Co.,  130 
N.  W.  265,  88  Neb.  604;  McGahev 
V.  Citizens'  Ry.  Co.,  129  N.  W.  293, 
88  Neb.  218;  Jeffries  v.  Chicago,  B. 
&  Q.  Ry.  Co.,  129  N.  W.  273,  88  Neb. 


268;  Severa  v.  Village  of  Battle 
Creek,  129  N.  W.  186,  88  Neb.  127; 
Blair  v.  Kingman  Implement  Co.,  128 
N.  W.  632,  S7  Neb.  736;  Cornell  v. 
Haight,  127  N.  W.  901,  87  Neb.  508 ; 
Otto  V.  Chicago,  B.  &  Q.  R.  Co.,  127 
N.  W.  857,  87  Neb.  503,  31  L.  R.  A. 
(N.  S.)  632,  138  Am.  St.  Rep.  496; 
Quimby  v.  Bee  Bldg.  Co.,  127  N.  W. 
lis,  87  Neb.  193,  138  Am.  St.  Rep. 
477 ;  Anderson  v.  Carlson,  125  N.  W. 
157,  80  Neb.  126 ;  Carlon  v.  City  Sav. 
Bank  of  Omaha,  124  N.  W.  91,  85  Neb. 
659 ;  Suiter  v.  Chicago,  R.  I.  &  P.  Ry. 
Co.,  121  N.  W.  113,  84  Neb.  256. 

Nev.  Konig  v.  Nevada-Califomia- 
Oregon  Ry.,  135  P.  141,  36  Nev.  181 ; 
Burch  V.  Southern  Pac.  Co.,  104  P. 
225,  32  Nev.  75,  Ann.  Cas.  1912B, 
1166;  Murphy  v.  Southern  Pac.  Co., 
101  P.  322,  31  Nev.  120,  21  Ann.  Cas. 
502. 

N.  H.  Lindell  v.  Stone,  94  A.  963, 
77  N.  H.  582;  Marcotte  v.  Maynard 
Shoe  Co.,  85  A.  284,  76  N.  H.  507; 
Piper  V.  Boston  &  M.  R.  R.,  72  A. 
1024,  75  N.  H.  228. 

N.  J.  Grybowski  v.  Erie  R.  Co.,  98 
A.  10S5,  89  N.  J.  Law,  361,  affirming 
judgment  (Sup.)  95  A.  764,  88  N.  J. 
Law,  1;  Miller  v.  I.  P.  Thomas  & 
Son  Co.,  98  A.  193,  89  N.  J.  Law,  364 ; 
Parks  V.  Delaware,  L.  &  W.  R.  Co., 
92  A.  1087,  86  N.  J.  Law,  696,  af- 
firming judgment  (Sup.)  89  A.  983, 
85  N.  J.  Law,  577;  Parks  v.  Dela- 
ware, L.  &  W.  R.  Co.  (Sup.)  SO*  A. 
983,  85  N,  J.  Law,  577;  Danskin  v. 
Pennsylvania  R.  Co.,  83  A.  1000,  83 
N.  J.  Law,  522 ;  Armstrong  v.  Le- 
high &  N.  E.  R.  Co.,  82  A.  899,  82  N. 
J.  Law,  704 ;  Schreiner  v.  New  York 
&  N.  J.  Telephone  Co.,  82  A.  887, 
82  N.  J.  Law,  743;  Merklinger  v. 
Lambert,  72  A.  119,  76  N.  J.  Law, 
806 ;  Daggett  v.  North  Jersey  St.  Ry. 
Co.,  68  A.  179,  75  N.  J.  Law,  630. 

N.  M.  Jackson  v.  Brower,  167  P. 
6,  22  N.  M.  615. 

N.  Y.  Schoenherr  v.  Hartfield,  158 
N.  Y.  S.  388,  172  App.  Div.  294 ;  Hall 
V.  New  York  Telephone  Oft.,  144  N.  Y. 
S.  322,  159  App.  Div.  53;  McCherry 
V.  Snare  &  Triest  Co.,  114  N.  Y.  S. 
674,  130  App.  Div.  241;  Meltzer  v. 
Straus,  113  N.  Y.  S.  583,  61  Misc.  Rep. 
250;    Hanley  v.  Brooklyn  Heights  R. 


499 


INSTRUCTIONS   TO  JURIES 


900 


Co.,  Ill  N.  Y.  S.  575,  127  App.  Div. 
355. 

N.  C.  Daniels  &  Cox  v.  Southern 
Distributing  Co.,  100  S.  E.  112,  178 
X.  C.  15;  Patterson  v.  Cliampion 
Dumber  Co.,  94  S.  E.  692,  175  N.  O. 
90;  Dee  V.  Melton,  91  S.  E.  697,  173 
N.  C.  704 ;  S.  Sternberg  &  Co.  v.  Cro- 
hon  &  Roden  Co.,  90  S.  E.  935,  172 
N.  C.  731;  Cochran  v.  Smith,  88  S. 
E.  499,  171  N.  C.  369 ;  Medlin  v.  West- 
ern Union  Telegraph  Co.,  86  S.  E. 
366,  169  N.  C.  495;  Shaw  v.  North 
Carolina  Public  Service  Corporation, 
84  S.  E.  1010,  168  N.  C.  611;  Win- 
borne  Guano  Co.  v.  Plymouth  Mer- 
cantile Co..  84  S.  E.  272,  168  N.  C. 
223;  South  Atlantic  Waste  Co.  v. 
Raleigh  C.  &  S.  Ry.  Co.,  83  S.  E.  618, 
167  N.  C.  340 ;  Tilghman  v.  Seaboard 
Air  Dine  R.  Co.,  S3  S.  E.  315,  167  N. 
C.  163 ;  Steeley  v.  Dare  Dumber  Co., 
SO  S.  E.  963,  165  N.  C.  27 :  Green  v. 
Dunn,  78  S.  E.  211,  162  N.  C.  340; 
Daniel  v.  Dixon,  77  S.  E.  .305,  161  N. 
C.  377 ;  Southerland  v.  Atlantic  Coast 
Dine  R.  Co.,  74  S.  E.  102.  158  N.  O. 
327;  State  Board  of  Education  v. 
Roanoke  R.  &  Dumber  Co.,  73  S.  E. 
994.  15S  N.  C.  313 ;  Pritchett  v.  South- 
ern Ry.  Co.,  72  S.  E.  828,  157  N.  C. 
88;  Kivett  v.  Western  Union  Tele- 
graph Co.,  72  S.  E.  3SS,  156  N.  C.  296 ; 
Sanford,  Chamberlain  &  Albers  Co. 
V.  Eubanks,  68  S.  E.  219,  152  X.  C. 
607,  136  Am.  St.  Rep.  862;  Coore  v. 
Seaboard  Air  Dine  Ry.  Co.,  68  S.  E. 
210.  152  N.  C.  702;  Burlington  Dum- 
ber Co.  V.  Southern  Ry.  Co.,  67  S.  E. 
167.  152  N.  C.  70. 

N.  D.  Yollraer  v.  Stregge.  147  N. 
W.  797,  27  N.  D.  579;  Kersten  v. 
Great  Northern  Ry.  Co.,  147  N.  W. 
787,  28  N.  D.  3 ;  Willoughby  v.  Smith, 
144  N.  W.  79,  26  N.  D.  209. 

Oliio.  Dimbaush  v.  Western  Ohio 
R.  Co.,  113  N.  E.  687,  94  Ohio  St.  12; 
McDonald  &  Frazier  v.  Schervish,  8 
Ohio  App.  386. 

Okl.  Oil  Fields  &  S.  F,  Ry.  Co.  v. 
Treesp  Cotton  Co.,  187  P.  201,  78  Okl. 
25  ;  Missouri,  K.  &  T.  Ry.  Co.  v.  Wolf, 
184  P.  765,*76  Okl.  195 ;  Dusk  v.  Ban- 
dy, 184  P.  144,  75  Okl.  108;  Garden 
V.  Humble,  184  P.  104,  76  Okl.  165; 
Holmes  v.  Halstid,  183  P.  969,  76  Okl. 
31;  IMiddleton  v.  State,  183  P.  626, 
16  Okl.Cr.  320;   Rennie  v.  Gibson,  183 


P.  483,  75  Okl.  282;  St.  Douis  &  S.  F. 
Ry.  Co.  V.  Eraser,  183  P.  478,  75  Okl. 
265;  Whitehead  Coal  Mining  Co.  v. 
Schneider,  183  P.  49,  75  Okl.  175; 
Citizens'  Bank  of  Headrick  v.  Cit- 
izens' State  Bank  of  Altus,  182  P. 
657,  75  Okl.  225;  Rock  Island  Coal 
Mining  Co.  v.  Toleikis,  171  P.  17; 
Fowler  v.  Fowler,  161  P.  227,  61  Okl. 
280,  D.  R.  A.  1917C,  89;  Chickasha 
Inv.  Co.  V.  Phillips,  161  P.  223,  58  Okl. 
760;  Simpson  v.  Mauldin,  160  P.  481, 
61  Okl.  92;  Davenport  v.  Mitchell, 
155  P.  869,  56  Okl.  175;  Minnetonka 
Oil  Co.  V.  Haviland,  155  P.  217,  55 
Okl.  43 ;  Missouri,  O.  &  G.  Ry.  Co.  v. 
Davis,  154  P.  503,  54  Okl.  672;  St. 
Douis  &  S.  F.  Ry.  Co.  v.  Clampitt,  154 
P.  40,  55  Okl.  686;  Moorehead  v.  Dan- 
iels, 153  P.  623,  57  Okl.  298;  Tisho- 
mingo Electric  Dight  »&  Power  Co.  v. 
Gullett,  152  P.  849,  52  Okl.  ISO. 

Or.  Emmett  v.  Astoria  Marine 
Iron  Works,  192  P.  1113,  97  Or.  6-32 ; 
Marsters  v.  Isensee,  192  P.  907,  97 
Or.  567;  Caldwell  v.  Hoskius,  186  P. 
50,  94  Or.  567;  Ashmun  v.  Nichols, 
180  P.  510,  92  Or.  223,  affirming  judg- 
ment on  rehearing  178  P.  234,  92  Or. 
223;  Northwest  Door  Co.  v.  Dewis 
Inv.  Co.,  180  P.  495,  92  Or.  186 ;  De 
War  V.  First  Nat.  Bank,  171  P.  1106, 
88  Or.  541 ;  Emerson  v.  Portland,  E. 
&  E.  R.  Co.,  166  P.  946,  85  Or.  229; 
Columbia  County  v.  Consolidated  Con- 
tract Co.,  163  P.  43S,  83  Or.  251 ;  Barn- 
hart  V.  North  Pacific  Dumber  Co.,  162 
P.  843,  82  Or.  657 ;  Brewster  v.  Crook 
Coimty,  159  P.  1031,  81  Or.  435;  Chil- 
ders  v.  Brown.  158  P.  166,  81  Or.  1, 
Ann.  Cas.  1918D,  170 ;  Nordin  v.  Love- 
gren  Dumber  Co.,  156  P.  587,  80  Or. 
140;  Mackay  v.  Commission  of  Port 
of  Toledo,  152  P.  250,  77  Or.  611; 
Walling  V.  Portland  Gas  &  Coke  Co., 
147  P.  399,  75  Or.  495 ;  Gekas  v.  Ore- 
gon-Washington R.  &  Nav.  Co.,  146  P. 
970,  75  Or.  243;  Everart  v.  Fischer, 
145  P.  33,  75  Or.  316,  judgment  re- 
versed on  rehearing  147  P.  189,  75  Or. 
316 ;  Pfeifter  v.  Oregon-Washington 
R.  &  Nav.  Co.,  144  P.  762,  74  Or.  307 ; 
Powder  Valley  State  Bank  v.  Hudel- 
son,  144  P.  494,  74  Or.  191;  Da  Salle 
V.  Central  R.  R.  of  Oregon,  144  P.  414, 
73  Or.  203;  Pilson  v.  Tip-Top  Auto 
Co.,  136  P.  642,  67  Or.  528. 

Pa.     Baxter  v.  Philadelphia  &  R. 


901 


REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS 


§499 


Ry.  Co.,  107  A.  881,  264  Pa.  467,  9 
A.  L.  K.  504;  Guarautee  Trust  &  Safe 
Deposit  Co.  V.  Waller,  88  A.  13,  240 
Pa.  575;  Newiugluim  v.  J.  C.  Blair 
Co.,  81  A.  556,  232  Pa.  511 ;  Bracken 
V.  Peunsylvania  R.  Co.,  71  A.  926,  222 
Pa.  410,  34  L.  K.  A.  (N.  S.)  790 
Miller  v.  James  Smith  Woolen  Ma- 
chinery Co.,  69  A.  598,  220  Pa.  181 
Person  &  Riegel  Co.  v.  Lipps,  67  A. 
1081,  219  Pa.  99;  Dungan,  Hood  «& 
Co.  V.  Philadelphia  &  R.  Ry.  Co.,  41 
I'a.  Super.  Ct.  269. 

R.  I.  Kirby  v.  Richardson,  103  A. 
904;  Gaenon  v.  Rhode  Island  Co.,  101 
A.  104,  40  R.  I.  473,  L.  R.  A.  1917E, 
1017;  C.  C.  C.  Fire  Hose  &  Rubber 
Co.  V.  Decker,  95  A.  668;  Clark  v. 
New  York,  N,  H.  &  H.  R.  Co.,  87  A. 
206,  35  R.  I.  479;  St.  Pierre  v.  Mc- 
Maugh,  86  A.  896,  rehearing  denied 
86  A.  1055;  Ralph  v.  Taylor,  85  A, 
941;  Messier  v.  Messier,  82  A.  996, 
34  R.  I.  233;  White  v.  Almy,  82  A. 
397,  34  R.  I.  29 ;  Cole  v.  Barber,  82  A. 
129,  33  R.  I.  414;  Underwood  v.  Old 
Colony  St.  Ry.  Co.,  80  A.  390,  33  R.  I. 
319;  Blake  v.  Rhode  Island  Co.,  78 
A.  834.  32  R.  I.  213,  Ann.  Cas.  1912D, 
852;  Mohr  v.  Prudential  Ins.  Co.  of 
America,  78  A.  554,  32  R.  I.  177; 
Manzi  v.  Washburn  Wire  Co.,  77  A. 
827;  J.  W.  Bishop  Co.  v.  Curran  & 
Burton,  76  A.  275,  30  R.  I.  504 ;  Perry 
V.  Sheldon,  75  A.  690,  30  R.  I.  426; 
Robinson  v.  Morris  &  Co.,  73  A.  611. 
30  R.  I.  132;  Tiffany  v.  Morgan,  73 
A.  465;  Fugere  v.  Cook,  69  A.  555; 
Wilson  V.  New  York,  N.  H.  &  H.  R.  . 
Co.,  69  A.  364,  29  R.  I.  146;  Barber 
V.  Allen,  68  A.  366. 

S.  C.  Standard  Boiler  &  Plage 
Iron  Co.  V.  Brock,  99  S.  E.  769,  112 
S.  C.  323 ;  Guimarin  v.  Southern  Life 
&  Trust  Co.,  90  S.  E.  319,  106  S.  O. 
87;  Moore  v.  Marion  Cotton  Oil  Co., 
85  S.  E.  52.  100  S.  C.  499 ;  Turner  v. 
Columbia  Nat.  Life  Ins.  Co.,  84  S.  E. 
413,  100  S.  C.  121;  Kirkland  v.  Au- 
gusta-Aiken Rv.  &  Electric  Corpora- 
tion, 81  S.  E.  306,  97  S.  C.  61 ;  Tucker 
V,  Clinton  Cotton  Mills,  78  S.  E.  890, 
95  S.  C.  302 ;  Smoothing  Iron  Heater 
Co.  V.  Blakely,  77  S.  E.  945,  94  S.  C. 
224;  Joyner  v.  Atlantic  Coast  Line  R. 
Co..  74  S.  E.  825,  91  S.  C.  104;  Brock 
V.  J.  J.  Haley  &  Co.,  70  S.  E.  1011,  88 
S.  C.  373 ;  Brown  v.  Northwestern  R. 


Co.  of  South  Carolina,  70  S.  E.  319, 
88  S.  C.  15;  Building  Supply  Co.  v. 
Jones,  69  S.  E.  881,  87  S.  C.  426 ;  Tant 
V.  Southern  Ry.  Co.,  69  S.  E.  158,  87 
S.  C.  184;  Turbyfill  v.  Atlanta  &  O. 
Air  Line  Ry.  Co.,  68  S.  E.  687,  86  S. 
C,  379;  Martin  v.  Columbia  Electric 
St.  Ry.,  Light  &  Power  Co.,  66  S.  E, 
993,  84  S.  C.  568 ;  Auten  v.  Catawba 
Power  Co.,  65  S.  E.  274,  84  S.  C.  399, 
judgment  modified  on  rehearing  66  S. 
E.  180,  84  S.  C.  399;  Crossland  v. 
Graham,  65  S.  E.  233,  83  S.  C.  228; 
Stoufeer  V.  Erwin,  62  S.  E.  843,  81  S. 
C.  541 ;  J.  C.  Stevenson  Co.  v.  Bethea, 
61  S.  E.  99,  79  S.  C.  478;  Southern 
Ry.  Co.  V.  Gossett,  60  S.  E.  956,  79  S. 
C.  372;  Thompson  v.  Seaboard  Air 
Line  Ry.,  58  S.  E.  1094,  78  S.  C.  384. 

S.  D.  Ellwein  v.  Town  of  Roscoe, 
174  N.  W.  748,  42  S.  D.  298 ;  De  Noma 
V.  Sioux  Falls  Traction  System,  162 
N.  W.  746,  39  S.  D.  10;  Klink  v. 
Quinn,  156  N.  W.  797,  37  S.  D.  83; 
Roskay  v.  Hessenius,  153  N.  W.  936, 
36  S.  D.  163;  Hauff  &  Stormo  v.  South 
Dakota  Cent.  Ry.  Co.,  147  N.  W.  986, 
34  S.  D.  183;  Davis  v.  C.  &  J.  Michel 
Brewing  Co.,  140  N.  W.  694,  31  S.  D. 
284;  Yeager  v.  South  Dakota  Cent. 
Ry.  Co.,  140  N.  W.  690,  31  S.  D.  304 ; 
Whaley  v.  Vidal,  132  N.  W.  248,  27 
S.  D.  642;  Whaley  v.  Vidal,  132  N. 
W.  242,  27  S.  D.  627;  Snee  v.  Clear 
Lake  Telephone  Co.,  123  N.  W.  729, 
24  S.  D.  361 ;  Comeau  v.  Hurley,  123 
N.  W.  715,  24  S.  D.  275 ;  McCarthv  v. 
Fell,  123  N.  W.  497,  24  S.  D.  74;  Miles 
V.  Penn  Mut.  Ins.  Co.  of  Philadelphia, 
122  N.  W.  249,  23  S.  D.  400;  Smith 
V.  City  of  Yankton,  121  N.  W.  848,  23 
S.  D.  352;  Neilson  v.  Oium,  114  N. 
W.  691,  21  S.  D.  541. 

Tenn.  Middle  Tennessee  R.  Co.  v. 
McMillan,  184  S.  W.  20,  134  Tenn.  490. 

Tex.  San  Antonio  &  A.  P.  R.  Co. 
V.  McGill  (Civ.  App.)  222  S.  W.  699; 
Wight  V.  Bell  (Civ.  App.)  218  S.  W. 
532 ;  Lancaster  v.  Keebler  (Civ.  App.) 
217  S.  W.  1117 ;  Buchannan  v.  Gribble 
(Civ.  App.)  216  S.  W.  899 ;  Melton  v. 
Manning  (Civ.  App.)  216  S.  W.  488; 
Southwestern  Portland  Cement  Co.  v. 
Bustillos  (Civ.  App.)  216  S.  W.  268, 
confoi'ming  to  opinion  of  Supreme 
Court  (Com.  App.)  Bustillos  v.  South- 
western Portland  Cement  Co.,  211  S. 
W.   929,   which   reversed   (Civ.   App.) 


§  499 


INSTRUCTIONS  TO  JURIES 


902 


Southwestern  Portland  Cement  Co.  v. 
Bust'llos,  169  S.  W.  638;  Moye  v. 
Park  (Civ.  App.)  216  S.  W.  205;  Ft. 
Worth  &  D.  C,  R.  Co.  v.  Courtney 
(Civ.  App.)  214  S.  W.  839;  Schaff  v. 
Hollin  (Civ.  App.)  213  S.  W.  279 ;  Tex- 
as Electric  Ky.  Co.  v.  Crump  (Civ. 
App.)  212  S.  W.  827;  Wofford  v. 
Herndon  (Civ.  App.)  204  S.  W.  353; 
Schaff  V.  Wilson  (Civ.  App.)  204  S.  W. 
251;  Raehofskv  v.  Rachofsky  (Civ. 
App.)  203  S.  W.  1134 ;  Schaub  v.  Ruck- 
er  &  Heartsill  (Civ.  App.)  203  S.  W. 
939;  Durham  v.  Wichita  Mill  &  Ele- 
vator Co.  (Civ.  App.)  202  S.  W.  138; 
Corpus.  Christi  Street  &  Interurban 
Ry.  Co.  V.  Kjellberg  (Civ.  App.)  201  S. 
W.  1032 ;  Hudson  v.  Salley  (Civ.  App.) 
201  S.  W.  665 ;  Andre\vs  v.  Rice  (Civ. 
App.)  198  S.  W.  666 ;  St.  Louis,  B.  & 
M.  R.  Co.  V.  Green  (Civ.  App.)  196  S. 
W.  555;  Sherman  Ice  Co.  v.  Klein 
(Civ.  App.)  195  S.  W.  918. 

Utah.  Emelle  v.  Salt  Lake  City, 
181  P.  266,  54  Utah,  360;  Arrascada 
v.  Silver  King  Coalition  Mines  Co., 
181  P.  159,  54  Utah,  386;  Urich  v. 
Utah  Ai>ex  Mining  Co.,  169  P.  263,  51 
Utah.  206;  Eleganti  v.  Standard  Coal 
Co.,  168  P.  266,  50  Utah,  585;  Murray 
Meat  &  Live  Stock  Co.  v.  New-House 
Realty  Co.,  155  P.  442,  47  Utah,  622 ; 
Hunt  V.  P.  J.  Moran,  Inc.,  150  P.  953, 
46  Utah.  888 ;  Salt  Lake  &  U.  R.  Co. 
V.  Butterfield,  150  P.  931,  46  Utah, 
431;  Boyd  v.  San  Pedro,  L.  A.  &  S. 
L.  R.  Co.,  146  P.  282,  45  Utah,  449; 
.Tensen  v.  Denver  &  R.  G.  R.  Co.,  138 
P.  1185,  44  Utah,  100 ;  Lindsay  Land 
&  Livestock  Co.  v.  Smart  Land  &  Live 
Stock  Co.,  137  P.  837,  43  Utah,  554; 
Geanakoules  v.  Union  Portland  Ce- 
ment Co.,  126  P.  329,  41  Utah,  486; 
Hirabelli  v.  Daniels.  121  P.  966,  40 
Utah,  513;  Myers  v.  San  Pedro,  L.  A. 
&  S.  L.  R.  Co.,  116  P.  1119,  31  Utah, 
198;  Holt  V.  Nielson,  109  P.  470,  37 
Utah,  566;  Evans  v.  Oregon  Short 
Line  R.  Co.,  108  P,  638,  37  Utah,  431, 
Ann.  Cas.  1912C,  2.59;  Si>eight  v. 
Rockv  Moimtain  Bell  Telephone  Co., 
107  I'.  742,  36  Utah,  483 ;  Wall  Rice 
Mill.  Co.  v.  Continental  Supplv  Co., 
103  P.  242,  36  Utah,  121,  140  Am.  St. 
Rep.  815;  In  re  Miller's  Estate,  102 
P.  99(5,  36  Utah,  228;  Morris  v.  Ore- 
gon Short  Line  R.  Co.,  102  1'.  629,  36 
Utah,    14;     Davidson   v.    Utah    Inde- 


pendent Telephone  Co.,  97  P.  124,  3-i 
Utah,  249. 

Vt.  De  Nottbeck  v.  Chapman,  108 
A.  338,  93  Vt.  378;  Nemi  v.  Todd,  96 
A.  14,  89  Vt.  502;  Fitzgerald  v.  Con- 
nors, 92  A.  456,  88  Vt.  365 ;  Green  v. 
Stockwell,  89  A.  870,  87  Vt.  459 ;  Lee 
V.  Follensby,  85  A.  915,  86  Vt.  401; 
Duggan  V.  Heaphy,  83  A.  726,  85  Vt. 
515 ;  Lang  v.  Clark,  81  A.  625,  85  Vt. 
222 ;  Blanchard  v.  Vermont  Shade 
Roller  Co.,  79  A.  911,  84  Vt.  442;  Jen- 
ness  V.  Simpson,  78  A.  886,  84  Vt.  127. 

Va.  Nelson  County  v.  Loving,  101 
S.  E.  406,  126  Va.  283;  Eastern  Coal 
&  Export  Corp.  v.  Beazley  tS:  Blan- 
ford,  92  S.  E.  824,  121  Va.  4;  City 
of  Danville  v.  Lipford,  91  S.  E.  168. 
120  Va.  280 ;  Ramsay  v.  Harrison,  89 
S.  E.  977,  119  Va.  682 ;  Sutherland  v. 
Wampler,  89  S.  E.  875,  119  Va.  800; 
Carpenter  v.  Smithey,  88  S.  E.  321, 
118  Va.  5.33;  Powhatan  Lime  Co.  v. 
Whetzel's  Adm'x,  86  S.  E.  898,  118 
Va.  161;  Wygal  v.  Wilder,  86  S.  E. 
97,  117  Va.  896;  Nev  v.  Wrenn.  84  S. 
E.  1,  117  A^a.  85;  Norfolk  &  W.  Ry. 
Co.  V.  Perdue,  S3  S.  E.  1058;  Chesa- 
peake &  O.  Ry.  Co,  V.  Swartz,  80  S. 
E.  568,  115  Va.  723;  Southern  Ry. 
Co.  V.  Rice's  Adm'x,  78  S.  E.  592,  115 
Va.  235;  Middle  Atlantic  Immigra- 
tion Co.  V.  Ardan,  78  S.  E.  588,  115''Va. 
148;  Washington-Virginia  Ry.  Co.  v. 
Bouknight,  75  S.  E.  1032,  113  Va.  696, 
Ann.  Cas.  1913E,  546 ;  Clinchfield  Coal 
Corporation  v.  Osborne's  Adm'r,  75  S. 
E.  750,  114  Va.  13;  Williams  Print- 
ing Co.  V.  Saunders,  73  S.  E.  472,  113 
Va.  156.  Ann.  Cas.  1913E,  693;  Dudley 
V.  Lewis  Shoe  Co.,  73  S.  E.  433,  113 
Va.  41;  Roanoke  Ry.  &  Electric  Co.  v. 
Carroll,  72  S.  E.  12.5,  112  Va.  598; 
Virginian  Ry.  Co.  v.  Jeffries'  Adm'r, 
66  S.  E.  731 ;  110  Va.  471 ;  Norfolk  & 
P.  Traction  Co.  v.  Forrest's  Adm'x, 
64  S.  E.  1034,  109  Va.  658. 

Wash.  Ziomko  v.  Puget  Sound 
Electric  Ry.,  192  P.  1009,  112  Wash. 
426 ;  Buckley  v.  Massachusetts  Bond- 
ing &  Insurance  Co.  192  P.  924 ;  Seal 
v.  Long,  192  P.  896,  112  Wash.  370; 
Johnson  v.  Pearson,  186  P.  067,  109 
Wash.  147 ;  McDonald  v.  Lawrence, 
170  P.  576,  100  Wash.  215 ;  Lagomar- 
sino  V.  Pacific  Alaska  Nav.  Co.,  170 
P.  368,  100  Wash.  105;  Gilson  v. 
Washington  Water  Power  Co.,  161  P. 


903 


REQUESTS   OR   PRAYERS   FOR  INSTRUCTIONS 


499 


352,  93  Wash.  480;  George  v.  Kurdy, 
158  P.  965,  92  Wash.  277 ;  J.  L.  Mott 
Iron  Works  v.  Metropolitan  Bank,  156 
P.  864.  90  Wash.  655;  Hargrave  v. 
Citv  of  Colfax,  154  P.  824,  89  Wash. 
467;  Payzant  v.  Caudill,  154  P.  170, 
89  Wash.  250 ;  Lehtinon  v.  Holpa,  151 
P.  829,  87  Wash.  284;  Blair  v.  Cal- 
houn, 151  P.  259,  87  Wash.  154;  Bag- 
ley  V.  Foley,  144  P.  25,  82  Wash.  222; 
Mickelsou  v.  Fischer,  142  P.  1160,  81 
Wash.  423  ;  Woodard  v.  Cline  Lumber 
Co.,  142  P.  475,  81  Wash.  85 ;  Norton 
V.  Pacific  Power  &  Light  Co.,  140  P. 
905,  79  Wash.  625;  Johausen  v.  Pio- 
neer Mining  Co.,  137  P.  1019,  77  Wash. 
421;  Murray  v.  Wishkah  Boom  Co., 
137  P.  130,  76  Wash.  605 ;  Mcllwaine 
V.  Tacoma  Ry.  &  Power  Co.,  129  P. 
1093,  72  Wash.  184. 

W.  Va.  Cain  v.  Kanawha  Trac- 
tion &  Elec-trie  Co.,  102  S.  E.  119,  85 
W.  Va.  434;  Bartlett  v.  Baltimore  & 
O.  R.  Co.,  99  S.  E.  .322,  84  W.  Ya.  120 ; 
Polino  V.  Keck,  92  S.  E.  665,  80  W. 
Va.  426 ;  Howes  v.  Baltimore  &  O.  R. 
Co.,  87  S.  E.  456,  77  W.  Va.  362 ;  An- 
grist  V.  Burk,  87  S.  E.  74,  77  W.  Va. 
192;  Hains  v.  Parkersburg,  M.  &  I. 
Ry.  Co..  84  S.  E.  923,  75  W.  Va.  613 ; 
H.  C.  Powell  Music  Co.  v.  Parkers- 
burg Transfer  &  Storage  Co.,  84  S.  E. 
563,  75  W.  Va.  659 ;  Adkinson  v.  Bal- 
timore &  O.  R.  Co.,  S3  S.  E.  291,  75 
W.  Va.  156;  Martin  v.  Reiniger,  82 
S.  E.  221,  74  W.  Va.  439;  Shires  v. 
Boggess.  77  S.  E.  542,  72  W.  Va.  109 ; 
Bluefleld  Produce  &  Commission  Co. 
V.  City  of  Bluefleld,  77  S.  E.  277,  71 
W.  Va.  696;  Duty  v.  Chesapeake  & 
O.  Rv.  Co.,  73  S.  E.  331,  70  W.  Va.  14 ; 
'Mate  Creek  Coal  Co.  v.  Todd,  66  S. 
E.  1066,  66  W.  Va.  671;  Pennington 
V.  Gillaspip.  66  S.  E.  1009.  66  W.  Va. 
643;  Squilache  v.  Tidewater  Coal  & 
Coke  Co.,  62  S.  E.  446.  64  W.  Va.  337. 

Wis.  Olson  V.  Laun,  174  N.  W. 
473,  170  Wis.  106;  Scheuer  v.  Man- 
itowoc &  Northern  Traction  Co.,  159 
N.  W.  901,  164  Wis.  .833;  Koenig  v. 
Sproesser,  152  N.  W.  473,  161  Wis. 
8;  Taylor  v.  Northern  Coal  &  Dock 
Co.,  152  N.  W.  465.  161  Wis.  223,  Ann. 
Cas.  1915C,  167 ;  Oleson  v.  Fader,  152 
N.  W.  290.  160  Wis.  473,  Ann.  Cas. 
1917D,  314 ;  Behling  v.  Wisconsin 
Bridge  &  Iron  Co.,  149  N.  W.  484.  15S 
Wis.  584 ;    Sobek  v.  George  H.  Smith 


Steel  Casting  Co.,  149  N.  W.  152,  158 
Wis.  517;  Dixon  v.  Russell,  145  N.  W. 
761,  156  Wis.  161;  Panolf  v.  Chica- 
go, M.  &  St.  P.  Ry.  Co.,  143  N.  W. 
1070,  155  Wis.  99;  Hilton  v.  Hayes, 
141  N.  W.  1015,  154  Wis.  27;  Lang- 
owski  V.  Wisconsin  Cent.  Ry.  Co.,  141 
N.  W.  236,  153  AVis.  418;  Merchants' 
&  Manufacturers'  Bank  of  Milwaukee 
V.  Moeller,  140  N.  W.  335,  152  Wis. 
600;  lyemke  v.  Milwaukee  Electric 
Ry.  &  Light  Co.,  136  N.  W.  286,  149 
Wis.  535 ;  Hcrlitzke  v.  La  Crosse  In- 
tenirban  Telephone  Co.,  130  N.  W.  59, 
145  Wis.  185 ;  Hippler  v.  Quaudt,  129 
N.  W.  1099,  145  Wis.  221;  Fidelity 
Trust  Co.  V.  Wisconsin  Iron  &  Wire 
Works,  129  N.  W.  615,  145  Wis.  385 ; 
Miske  V.  Thom,  128  N.  W.  858,  144 
Wis.  178 ;  Jirachek  v.  Milwaukee 
Electric  Ry.  &  Light  Co.,  121  N.  W. 
326.  139  Wis.  505.  131  Am.  St.  Rep. 
1070;  Gould  v.  Merrill  Rv.  &  Light- 
ing Co.,  121  N.  W.  161,  139  Wis.  433 ; 
Ryan  v.  Oshkosh  Gaslight  Co.,  120  N. 
W.  264,  138  Wis.  466. 

Wyo.  Mutual  Life  Ins.  Co.  v. 
Summers,  120  P.  185,  19  Wyo.  441; 
Henderson  v.  Coleman,  115  P.  439,  19 
Wyo.  183,  rehearing  denied  115  P. 
1136.  19  Wyo.  183. 

Illustration  of  requests  properly 
refused  TJidthin  rule.  Where,  in  an 
action  against  a  carrier  for  in.jui'y  to 
a  shipment  of  horses,  the  court  charg- 
ed that  for  plaintiff  to  recover  the  ju- 
ry must  find  that  the  carrier  was  neg- 
ligent and  that  the  horses  were  in- 
jured as  the  proximate  result  there- 
of, the  refusal  to  charge  that,  unless 
the  .iury  believed  that  rough  handling 
of  the  horses  was  due  to  negligence 
which  was  the  proximate  cause  of  the 
in.iury,  no  damages  could  be  awarded 
on  account  of  rough  handling,  was 
not  erroneous.  Gulf.  C.  &  S.  F.  Ry. 
Co.  V.  Cunningham.  113  S.  W.  767.  51 
Tex.  Civ.  App.  368.  Where  in  an  action 
for  injuries  by  falling  through  a  de- 
fective depot  seat,  the  court  instruct- 
ed that  plaintiff  must  have  used  ordi- 
nary care,  and  also  charged  on  con- 
tributory negligence,  an  instruction 
that  it  was  plaintiff's  d'uty,  before 
sitting,  to  look  at  the  seat,  and  if  he 
did  not  do  so,  or  the  defect  was  ob- 
vious, he  was  nesligent  was  properly 
refused.    St.  Louis,  I.  M.  &  S.  Ry.  Co. 


§499 


INSTRUCTIONS  TO  JURIES 


904 


V.  Grimsley,  ll'(  S.  W.  1064,  90  Ark. 
64.  TMiere,  in  an  action  for  injuries 
to  a  passenger,  the  court  charged  that 
it  was  tlie  duty  of  the  carrier  to  ex- 
ercise tliat  degree  of  care  for  the  pas- 
senger's personal  safety  wlaieh  a  very 
cautious  and  prudent  person  would 
exercise  under  the  same  circumstanc- 
es, the  refusal  to  charge  that  the  car- 
rier was  required  to  exercise  the  high- 
est degree  of  care  that  could  reason- 
ably be  exercised  to  protect  the  pas- 
senger from  injury,  was  not  errone- 
ous. Cornelison  v.  Ft.  Worth  &  R.  G. 
Ky.  Co..  103  S.  W.  1186,  46  Tex.  Civ. 
App.  509.  An  instruction,  in  an  ac- 
tion for  injuries  to  a  passenger,  that 
defend'ant  was  hound  to  exercise  the 
highest  degree  of  care,  consistent  with 
the  operation  of  the  railway  and  tak- 
ing into  consideration  the  existing 
conditions,  to  prevent  the  injury,  and 
that  defendant  was  liable  for  the 
slightest  negligence,  covered  all  the 
substantial  features  of  a  refused  in- 
struction that  defendant  was  not  re- 
quired to  exercise  the  highest  degree 
of  care  possible  to  avoid  the  accident, 
but  only  the  highest  degree  reason- 
ably practicable  under  the  circum- 
stances, and'  that  by  "highest  degree 
of  care"  was  meant  that  degree  which 
would  be  exercised  under  like  cir- 
cumstances bj'  careful  and  experienc- 
ed conductors  and  motormen.  .Jordan 
V.  Seattle,  R.  &  S.  Ry.  Co.,  92  P.  284, 
47  Wash.  .503.  In  an  action  against 
a  carrier  for  injuries  to  an  alighting 
passenger,  where  the  only  contribu- 
tory negligence  claimed  was  that 
plaintiff  attempted  to  alight  while  the 
car  was  in  motion,  and  the  court  ful- 
ly charged  that  if  he  did  so  he  was 
negligent,  it  was  not  error  to  refuse 
a  request  that  a  slight  want  of  ordi- 
nary' care  by  pl.iintiff  contributing  to 
bis  injurj-  would  render  him  negli- 
gent. Jirachek  v.  Milwaukee  Electric 
Ry.  &  Light  Co.,  121  N.  W.  826,  139 
Wis.  505,  131  Am.  St.  Rep.  1070. 
Where,  in  an  action  against  a  rail- 
road company  for  personal  injuries, 
all  the  damages  suffered  by  plaintiff 
were  shown  by  the  undisputed  evi- 
dence to  have  been  the  proximate  con- 
sequences of  the  injury,  unless  the  evi- 
dence raised  the  issue  that  such  dam- 
ages  were  aggravated    by   plaintiff's 


failure  to  follow  instructions  given 
by  the  physician  who  treated  him, 
and  such  issue  was  submitted  to  the 
jury  in  a  charge  requested  by  defend- 
ant, there  was  no  error  in  refusing  to 
charge  at  defendant's  request  on  the 
issue  whether  the  damages  sustain- 
ed were  the  proximate  result  of  the 
injury.  San  Antonio  &  A.  P.  Ry.  Co. 
v.  Muecke,  105  S.  W.  1009,  47  Tex. 
Civ.  App.  380.  Where  a  court,  in  an 
action  for  negligent  death,  charged 
that  the  damages  recoverable  were 
the  damages  occasioned  to  the  estate 
of  the  decedent  by  his  premature 
death,  taking  into  consideration  his 
age,  health,  occupation,  earnings,  abil- 
ity to  earn,  and  other  matters  show- 
ing the  extent  of  the  loss,  the  refusal 
to  charge  that  in  estimating  the  dam- 
ages to  decedent's  estate  the  jury 
should  not  allow  anything  for  deced- 
ent's pain  and'  suffering  or  as  exem- 
plary damages,  etc.,  was  not  errone- 
ous. Kelly  V.  Chicago.  R.  I.  &  P.  Ry. 
Co.,  114  N.'W.  .536,  1.38  Iowa,  273.  128 
Am.  St.  Rep.  195.  Wliere  an  instruc- 
tion on  the  issue  of  value  of  property 
in  controversy  directed  that  the  jury 
might  consider  the  return  of  the  prop- 
erty for  taxes  as  a  circumstance  with 
other  circumstances  in  the  case  in  de- 
termining the  value  of  the  property, 
the  failure  to  charge  that  such  return 
should  be  considered  as  an  admission 
was  not  ground  for  a  new  trial.  West- 
ern &  A.  R.  Co.  V.  Tate,  59  S.  E.  266, 
120  Ga.  .526.  A  requested  instruction 
that  if  defendant  had  a  mortgage  on 
the  goods  of  her  hushand.  and  that 
if  the  jury  believed  that  plaintiff  at- 
tempted to  collect  his  notes  against 
the  husband,  that  he  employed  coun- 
sel and  threatened  to  attack  thf^  mort- 
gage, and  that  thereupon  defendant 
executed  the  note,  then  the  note  was 
a  valid  contract  and  could  be  enforc- 
ed, was  fully  covered  by  a  charge  that 
a  wife  may  make  a  valid  obligation 
in  settlement  of  notes  of  her  husband 
if  they  apparently  constitute  a  prior 
claim  against  property  derived  from 
her  husband  and  to  which  she  has  ti- 
tle. Sims  V.  Scheussler,  64  S.  E.  99, 
5  Ga.  App.  850.  In  libel,  where  trial 
court  charged  the  issue  of  privilege 
in  the  language  of  the  statute,  which 
clearly   defines    and   enumerates    the 


905" 


REQUESTS   OR   PRAYERS   FOR  INSTRUCTIONS 


499 


matter  made  privileged  thereby,  a 
cliarge  that  defendant  was  not  re- 
quired to  prove  its  defense  of  priv- 
ilege literally,  but  only  substantially, 
Avas  properlv  refused.  San  Antonio 
Light  Pub.  Co.  V.  Lewy,  113  S.  W.  r)74, 
52  Tex.  Civ.  App.  22.  Where,  in  an 
action  for  injuries  to  an  employe,  the 
court  charged  that  to  find  a  verdict 
for  the  employ^  they  must  find  by 
preponderance  of  the  evidence  that 
the  injuries  were  not  the  result  of  the 
employe's  own  carelessness,  or  the  re- 
sult of  the  negligence  of  a  fellow  serv- 
ant, the  refusal  to  charge  that  if  the 
injuries  were  occasioned  by  the  em- 
]iloye's  own  negligence,  or  that  of  a 
fellow  servant,  the  jury  should  render 
a  verdict  for  defendant,  was  not  er- 
roneous. Clifford  V.  Pioneer  Fire- 
proofing  Co.,  8.3  N.  E.  448,  232  111.  150. 
A  requested  charge,  in  an  action  for 
injuries  sustained  by  a  fall  over  an 
obstruction  on  a  sidewallc,  that  plain- 
tiff is  required  to  exercise  ordinary 
care  for  his  own  safety,  was  covered 
by  an  instruction  given  that,  if  plain- 
tiffs injury  was  wholly  or  in  part 
caused  by  his  negligence  "in  failing 
to  watch  or  observe  his  footsteps," 
the  verdict  must  be  for  defendant. 
Lattimore  v.  Union  Electric  Light  & 
Power  Co..  l(Mi  P.  W.  543.  128  Mo. 
App.  37.  Where,  in  an  action  for  in- 
juriv^'s  by  falling  down  an  unguarded 
cellar  way  in  a  store,  the  court  charg- 
ed that  defendant  was  bound  only  to 
vise  ordinarv  care,  and.  if  he  discharg- 
ed the  obligation  to  warn  plaintiff 
that  the  cellar  way  was  oppn,  the  ju 
ry  should  find  for  defendant,  there 
was  no  error,  in  denying  defendant's 
request  to  charge  that  the  mere  ex- 
istence of  the  trapdoor  and  the  cel- 
lar way  in  the  way  in  which  defend- 
ant maintained  it  was  not  negligence 
per  se.  IMontague  v.  Hanson,  f>n  P. 
1003,  38  Mont.  370.  Where  plaintitT 
in  an  action  for  nesrligencp  had  made 
oiit  a  prima  facie  case,  it  was  not  er- 
ror to  refuse  to  charge  that  the  bur- 
ilen  of  proving  negligence  on  the  part 
f)f  one  defendant  was  on  the  plain- 
tiff, where  the  court  charged,  not  only 
that  the  jui-y  should  be  satisfied  that 
snch  defendant  was  negligent,  but  it 
must  appear  from  all  the  evidence 
that    such    conclusion    is   established. 


Daggett  v.  North  Jersey  St.  Ey.  Co., 
68  A.  179,  75  N.  J.  Law,  630.  An  in- 
struction, as  to  the  burden  of  proof 
as  to  contributory  negligence,  tliat  the 
jury,  in  determining  whether  defend- 
ant had  "'discharged  such  burden," 
should  look  to  all  the  evidence, 
whether  introduced  by  either  party, 
or  both,  is  not  materially  different 
from  a  charge  requested  by  defend- 
ant, to  the  effect  that  the  jury  should 
look  to  all  siich  evidence  in  determin- 
ing, not  whether  defendant  had  "dis- 
charged the  burden,"  but  whether 
plaintiff  was  guilty  of  contributory 
negligence.  Beaumont  Traction  Co. 
v.  Happ,  122  S.  W.  610,  57  Tex.  Civ. 
App.  427.  An  instruction  that,  where 
a  person  deals  with  an  agent,  he  must 
assure  himself  that  the  agent  has  the 
necessary  authority  in  the  transaction 
in  question,  sufficiently  covered  a  re- 
quest that  it  is  not  sufficient  to  estab- 
lish agency  that  the  agent  had  claim- 
ed to  be  such,  but  that  it  is  the  duty 
of  the  person  dealing  with  the  agent 
to  ascertain  the  act  of  agency  and  his 
authority  to  do  the  particular  act. 
Johnson  v.  W.  H.  Goolsby  Lumber 
Co.  (Tex.  Civ.  App.)  121  S.  W.  883. 
Where,  in  an  action  for  damages  for 
a  nuisance  incident  to  the  construc- 
tion and  operation  of  a  railroad,  tlie 
instructions  only  authorized  a  recov- 
ery for  damages  incident  to  the  con- 
struction of  the  road  along  a  strip 
lying  between  plaintiff's  lots,  and  only 
in  the  event  that  such  strip  was  not 
a  part  of  a  public  street,  defendant 
was  not  entitled  to  an  instruction  re- 
quiring the  jury  to  find  for  defend- 
ant, if  they  were  unable  to  separate 
the  injuries  caused  by  the  construc- 
tion of  the  road  on  the  strip  between 
plaintiffs  lands  from  the  injuries 
caused  by  the  construction  of  the 
road  on  such  strip  and  on  other  lands. 
St.  Louis,  S.  F.  &  T.  Ry.  Co.  v.  Pavne, 
104  S.  W.  1077,  47  Tex.  Civ.  App.  194. 
Where  the  court  in  its  general  charge 
restricted  plaintiff's  right  to  recover 
to  defendant's  negligence  in  operating 
a  switch  engine,  refusal  of  an  instruc- 
tion that  plaintiff  could  not  recover 
because  of  the  proximity  of  a  post  to 
the  track  was  properly  refused.  Cun- 
ningham V.  Neal,  109  S.  W.  455,  49 
Tex.   Civ.   App.   613.     Wliere,   in    au 


499 


INSTRUCTIONS   TO  JURIES 


906 


action  for  injuries  to  a  child  strucli 
by  a  switch  engine,  the  court  left  it 
to  the  jury  whether  there  was  proof 
that  the  trainmen  exercised  ordinary 
care,  and  might  have  seen  the  child 
in  time  to  have  avoided  the  injury, 
the  refusal  to  give  an  instniction  that, 
if  the  child  was  a  licensee,  he  assum- 
ed the  risk  of  dangers  caused  by  the 
proper  use  of  the  tracks  and  operation 
of  trains,  was  not  erroneous.  Tar- 
ashonsky  v.  Illinois  Cent.  R.  Co.,  117 
N.  W.  1074,  139  Iowa,  709.  Where 
the  court  stated  the  nature  of  the 
jiiental  disability  to  avoid  a  release 
for  injury,  and  that  the  burden  was 
on  plaintiff  to  establish  such  disabil- 
ity, refusal  to  charge  that  the  burden 
was  on  plaintiff  to  show  himself  in- 
competent when  the  release  was  ex- 
ecuted was  not  erroneous.  Schmidt  v. 
Southwestern  Brewery  &  Ice  Co.,  107 
P.  677,  15  N.  M.  2.32.  Where,  in  an 
action  for  seduction,  there  was  no  evi- 
dence of  loss  of  wages,  an  instruction 
that  the  jury  could  not  find  anything 
on  that  score,  because  there  was  noth- 
ing on  which  they  could  compute  dam- 
ages, sufficiently  covered  a  request  to 
charge  that  plaintiff  could  not  recover 
for  any  loss  of  his  daughter's  serv- 
ices or  earnings  after  the  date  of 
the  writ.  Thiebault  v.  Prendergast, 
(H.  I.)  69  A.  922.  In  an  action  for 
injuries  to  plaintiff  by  being  stnick 
by  a  street  car  after  being  thrown 
from  his  bicycle  at  a  cross-over 
switch,  a  request  to  charge  that, 
though  plaintiff  was  guilty  of  negli- 
gence in  attempting  to  ride  over  the 
cro.?s-over  track,  if  the  motorman  saw 
the  peril  of  plaintiff  in  time  to  have 
stopped  the  car  by  ordinary  diligence 
before  it  ran  onto  plaintiff,  and  he 
failed  to  do  so,  then  defendant  was  li- 
able, and  if  the  motorman,  by  reason- 
able care  ought  to  have  seen  plaintifC, 
plaintiff  was  entitled  to  recover  is  sub- 
stantially covered  by  an  instruction 
given  that,  if  plaintiff's  negligence 
was  the  proximate  cause  of  the  in- 
jury, he  could  not  recover,  unless  de- 
ff>ndant,  having  knowledge  of  plain- 
tiff's negligence  could,  by  the  use  of 
ordinary  care,  have  prevented  the  in- 
jury. Hall  v.  Washington  Water 
Power  Co.,  S9  P.  553,  46  Wash.  207. 
In  an  action  against  a  street  railroad 


company  for  injuries  received  while 
driving  on  the  track,  defendant's  re- 
quest for  a  ruling  that,  if  plaintiff 
intrusted  the  care  of  the  horse  to  the 
driver,  in  order  to  recover  she  must 
show  that  he  exercised  due  care  and 
diligence,  is  properly  refused,  where 
the  court  instructed'  that,  if  plaintiff 
had  authority  or  control  over  the  driv- 
er, she  could  not  recover  where  be 
was  at  fault,  but  if  she  had  no 
authority  or  control,  and  was  under 
no  duty  to  warn  him,  and  had  no  rea- 
son to  suspect  want  of  care  and  skill 
on  his  part,  she  could  recover,  al- 
though he  was  at  fault.  Miller  v. 
Boston  &  N.  St.  Ry.  Co.,  83  N.  E.  990, 
197  :Mass.  535.  In  action  for  injury 
when  struck  by  automobile,  plaintiff's 
refused  instruction  that,  even  if  its 
speed  was  lawful  and  reasonable,  de- 
fendant might  be  liable  if  injury  re- 
sulted from  his  failure  to  keep  suffi- 
cient lookout,  was  properly  covered  by 
other  instructions  that  he  should  have 
kept  a  lookout,  and  should  have  used 
ordinary  care  to  avoid  iniurv.  Cough- 
lin  V.  Layton,  180  P.  805,"  104  Kan. 
752.  A  requested  instniction,  in  an 
action  for  the  overflow  of  plaintiffs' 
land,  that,  if  the  •  washing  of  plain- 
tiffs' land  was  caused  by  the  break- 
ing of  a  milldam,  the  verdict  should 
be  for  defendant,  although  defendant 
had,  by  obstructing  the  stream,  divert- 
ed it  towards  the  bank  on  plaintiffs' 
side,  was  substantially  covc^red  by  an 
instruction  that  the  verdict  should 
be  for  defendant  unless  it  had  thrown 
dirt  or  other  obstructions  into  the 
stream,  and  thereby  diverted  it  and 
caused  the  water  to  overflow  the  land 
of  plaintiffs,  in  which  case  the  ver- 
dict should  be  for  plaintiffs.  Louis- 
ville &  N.  R.  Co.  V.  Ponder,  104  S.  W. 
279.  31  Ky.  Law  Rep.  878.  In  a  will 
contest,  it  was  not  error  to  refuse  a 
charge  consisting  of  a  definition  of  un- 
cTne  influence  and  a  proposition  as  to 
the  influence  resulting  from  relation- 
ship, where  the  definition  of  undue  in- 
fluence was  fully  covered  by  the 
court's  general  charge,  since  it  would 
not  be  proper  to  repeat  the  one,  and 
it  was  not  incumbent  on  the  court  to 
separate  the  propositions.  Goodloe  v. 
Goodloe.  105  S.  W.  533,  47  Tex.  Civ. 
App.    493. 


907 


REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS 


§499 


Illnstrations  of  requested  in- 
structions not  -witliin  rule.  In  det- 
inue for  oxen  which  plaintiff  claim- 
ed were  sold  to  him  by  a  third  per- 
son authorized  by  defendant  to  do  so, 
a  requested  charge  that,  though  the 
jury  might  believe  that  he  made  an 
admission  of  authority,  plaintiff  could 
not  recover  unless  the  jury  was  rea- 
sonably satisfied  that  he  in  fact  au- 
thorized the  sale,  was  not  covered  by 
a  charge  that  the  burden  of  proof 
was  on  plaintiff  to  prove  to  the  rea- 
sonable satisfaction  of  the  jury  that 
defendant  authorized  the  third  person 
to  sell  the  steers.  Boswell  v.  Thomp- 
son, 49  So.  73,  160  Ala.  306.  A  charge 
that  damages  in  a  libel  case  could 
not  be  awarded  for  injury  to  plain- 
tiff's business  does  not  fairly  cover 
the  theory  of  a  requested  charge  that 
plaintiff  could  not  recover  such  dam- 
ages unless  the  plaintiff  at  such  time 
was  in  the  exercise  of  or  actually  per- 
forming such  business.  Age-Herald 
Pub.  Co.  v.  Waterman,  81  So.  621,  202 
Ala.  665.  In  an  action  for  the  wrong- 
ful discharge  of  an  employ^  under 
contract  to  act  as  general  manager  of 
defendant's  stores,  an  instru'^tion 
that,  if  the  jury  found  and  believed 
from  the  evidence  that,  because  of 
employe's  refusal  to  change  his  em- 
ployment to  one  materially  different 
and  inferior  from  that  which  he  had 
contracted  for.  the  keys  of  the  store 
in  which  his  headquarters  as  general 
manager  were  located  were  demanded 
from  and  surrendered  by  him,  the 
plaintiff  was  wrongfully  discharged 
was  not  objectionable  as  being  cover- 
ed by  the  main  charge,  where  no  ref- 
erence to  the  surrender  of  the  keys  was 
made  in  the  main  charge.  Wolf  Cigar 
Stores  Co.  v.  Kramer,  100  S.  W.  990, 
50  Tex.  Civ.  App.  411.  Wliere,  in  an 
action  against  a  railroad  for  injuries 
to  an  employe  through  a  defective  car 
step,  the  charge  permitted  a  recov- 
ery only  on  the  facts  and  theoi-y  al- 
leged by  plaintiff,  and  instructed  that, 
unless  the  jury  believed  the  facts  set 
forth,  they  should  find  for  defendant, 
the  refusal  of  a  charge  that  plaintiff 
alleged  that  he  was  injured  by  reason 
of  the  step  or  stirrup  on  the  car  being 
loose  and  by  his  attempting  to  get  on 
the   car  by  putting  his  foot  on   the 


stirrup,  and  that  in  so  doing  the  stir- 
rup moved,  and  he  was  injured,  and 
that,  if  the  jury  believed  he  was  in- 
jured in  any  other  manner  than  in 
the  manner  alleged  by  him,  the  ver- 
dict must  be  for  defendant,  was  error. 
El  Paso  &  S.  W.  R.  Co.  v.  O'Keefe,  110 
S.  W.  1002,  50  Tex.  Civ.  App.  579.  A 
requested  instruction  that  the  employ- 
er was  only  obliged  to  use  reasonable 
care  for  the  safety  of  the  employe 
held  not  sufficiently  covered  by  an  in- 
struction merely  that  the  employer 
was  not  an  insurer  of  the  employe's 
safety.  Mitchell  v.  T.  A.  Gillespie  Co., 
137  N.  Y.  S.  550.  152  Api^.  Div.  536. 
In  an  action  for  injuries  to  a  servant, 
alleged  to  be  d'ue  to  the  defective  con- 
dition of  a  car,  it  was  error  to  refuse 
an  instruction  that  defendant  was 
not  an  insurer  of  plaintiff's  safety, 
but  was  obliged  only  to  exercise  rea- 
sonable care  to  provide  a  reasonably 
safe  car,  and  was  not  bound  to  know 
of  hidden  defects  not  discoverable  by 
the  exercise  of  reasonable  care,  on 
the  ground  that  it  was  covered  by  a 
given  instruction  that  if  the  car  was 
reasonably  safe  on  the  morning  of  the 
day  of  plaintiff's  injuiy,  and  became 
out  of  repair  later,  so  as  to  cause  the 
accident,  plaintiff  could  not  recover 
unless  defendant  knew,  or  by  the  ex- 
ercise of  reasonable  care  might  have 
known,  of  its  defects.  Clippard  v. 
St.  Louis  Transit  Co..  101  S.  W.  44, 
202  Mo.  432.  Where,  in  an  action  for 
injuries  to  a  pedestrian  falling  into  a 
drain  on  the  side  of  a  public  high- 
way, there  was  evidence  that  she  be- 
came confused  and  lost  all  sense  of 
direction,  and  stumbled  along  in  the 
dark  without  knowing  where  she  wag 
going  and  fell  into  the  ditch,  and  that 
she  knew  of  its  existence  near  by, 
the  refusal  to  charge  that  if  she  real- 
ised that  she  was  confused,  and  did 
not  know  where  she  was  going,  but 
continued  hlindlv.  she  was  guilty  of 
contributory  negligence,  was  reversi- 
ble error,  though  the  court  charged 
generally  on  contributory  negligpnce. 
Hnnt  V.' Douglass  Tp.,  130  N.  W.  648, 
165  Mich.  187.  Instructions  that  the 
presumption  of  negligence  arising 
from  evidence  that  fire  was  communi- 
cated from  defendant's  engines  was 
rebuttable,  and  might  be  overcome  by 


499 


INSTRUCTIONS  TO  JURIES 


908 


principles  in  as  favorable  a  form  to  the  party  making  the  request 
as  the  instructions  offered/*  although  the  instruction  refused  em- 
braces correct  legal  doctrine.*^ 


proof  that  the  engines  alleged  to  have 
caused  the  fire  were  properly  con- 
structed, and  had  the  most  approved 
appliances  for  arresting  sparks,  and 
were  carefully  operated  in  a  skillful 
manner  by  competent  employes,  that 
defendant  was  not  bound  to  use  the 
best  and  most  approved  appliances, 
but  was  bound  to  exercise  reasonable 
care  in  obtaining  the  most  approved 
mechanical  engines  and  appliances  to 
prevent  the  escape  of  fire  and  putting 
them  into  practical  use,  and  that  the 
gist  of  the  action  was  negligence, 
which  must  be  sustained  by  proof,  as 
defendant  could  not  be  liable  for  un- 
avoidable or  unusual  consequences  of 
the  proper  operation  of  his  trains,  did 
not  cover  a  requested  charge  that  if 
the  jury  found  defendant's  servants, 
in  operating  the  train  in  question,  act- 
ed as  reasonably  prudent  and  careful 
persons  having  due  regard  of  the 
rights  of  others  would  have  acted  un- 
der the  same  circumstances,  defend- 
ant was  not  negligent,  and  that  if 
defendant  actually  used  on  the  engine 
the  most  approved  appliances  to  ar- 
lest  fire,  or  had  exercised  reasonable 
care  and  diligence  to  obtain  and  use 
them,  defendant  was  not  negligent 
in  that  respect,  and  the  refusal  of 
such  request  was  error.  Chenoweth 
V.  Southern  Pac.  Co.,  99  P.  86,  53  Or. 
111.  In  action  for  injuries  resulting 
from  collision  between  automobiles,  in 
which  it  was  shown  that  a  defendant, 
in  whose  car  plaintiff  was  a  passen- 
ger, turned  to  the  left,  a  requested 
instruction  that  driver  of  car  of  oth- 
er defendant  could  assume  that  a 
turn  to  the  right  would  be  made  until 
such  time  as  that  an  ordinarily  pru- 
dent person  would  know  otherwise,  is 
not  covered  by  given  instruction  in 
abstract  terms  of  duty  to  avoid  inju- 
ry. John  V.  Pierce,  178  N.  W.  297, 
172  Wis.  44. 

14  Ilaman  v.  Preston,  173  N.  W. 
894, 186  loAva,  1292  ;  Fred  -Mercer  Dry 
Goods  Co.  V.  Fikes  (Tex.  Civ.  App.) 
:211  S.  W.  83D. 

10  IT.  S.     Indianapolis  &  St.  L,  R. 


Co.  V.  Horst,  93  U.  S.  291.  23  L.  Ed. 
898 ;  Chicago  &  N.  W.  R.  Co.  v.  Whit- 
ton,  SO  U.  S.  (13  Wall.)  270,  20  L.  Ed. 
571 ;  St.  Louis  Public  Schools  v.  Ris- 
lev.  77  IT.  S.  (10  Wall.)  91,  19  L.  Ed. 
850;  Laber  v.  Cooper,  74  U.  S.  (7 
Wall.)  565,  19  L.  Ed.  151;  Jelke  v. 
United  States,  255  F.  264,  166  C.  C. 
A.  434. 

Ark.  Crismao  v.  McDonald,  28 
Ark.   8. 

Cal.  People  V.  Shortridge,  177  P. 
458.  179  Cal.  507. 

Fla.  Atlantic  Coast  Line  R.  CO/  v. 
Dees,  48  So.  28,  56  Fla.  127;  Sea- 
board Air  Line  Ry.  v.  Scarborough,  42 
So.  706,  52  Fla.  425. 

Ga.  Henderson  v.  Francis,  75  Ga. 
178  :    Powers  v.  State,  44  Ga.  209.. 

m.  Town  of  Nomial  v.  Bright,  79 
N.  E.  90,  223  111.  99,  affirming  judg- 
ment 125  111.  App.  478;  Jansen  v. 
Grimshaw,  125  111.  468,  17  N.  E.  850; 
Germania  Fire  Ins.  Co.  v.  Hick,  125 
111.  361,  17  N.  E.  792.  8  Am.  St.  Rep. 
384;  Fairbank  Canning  Co.  v.  Innes, 
125  III.  410,  17  N.  E.  720;  Brace  v. 
Black,  125  111.  33,  17  N.  E.  66;  City 
of  Sterling  v.  Merrill,  124  lU.  522,  17 
N.  E.  6,  affirming  25  111.  App.  596; 
Keeler  v.  Stuppe.  86  111.  309;  Prior 
v.  White,  12  111.  261 ;  Andrews  v.  City 
of  White  Hall,  184  111.  App.  298; 
Chicago  City  Ry.  Co.  v.  Kastrzewa, 
141  111.  App.  10. 

Ind.  Deep  Vein  Coal  Co.  v.  Ward 
(App.)  123  N.  E.  228;  Cleveland.  C. 
C.  &  St.  L.  Ry.  Co.  V.  Schneider,  82  N. 
E.  538,  40  Ind.  App.  524;  White  v. 
Gregory,  126  Ind.  95,  25  N.  E.  806. 
Iowa.  Parsons  v.  Thomas,  62 
Iowa,  319,  17  N.  W.  526. 

Kan.  Sibley  v.  Kansas  City  Cot- 
ton Mills  Co.,  116  P.  889,  85  Kan.  256 ; 
City  of  Emporia  v.  Schmidliug,  33 
Kan.  485,  6  P.  893. 

Ky.  Stafford  v.  Hussey,  33  S.  W. 
1115.  17  Ky.  Law  Rep.  1194. 

Md.  Mason  v.  Poulson,  43  Md. 
161 ;  Philadelphia,  W.  &  B.  R.  .Co.  v. 
Harper,  29  Md.  330;  Baltimore  & 
O.  R.  Co.  V.  Worthington,  21  Md.  275, 
83  Am,  Dec.  578;    Pettigrew  v.  Bar- 


909  REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS  §  499 

The  above  rule  applies  in  criminal  prosecutions/^  and  in  a  crim- 


num,  11  Md.  434,  69  Am.  Dec.  212; 
Mutual  Safety  Ins.  Co.  v.  Cohen,  3 
Gill.  4.j9,  43  Am.  Dec.  341. 

Mich.  Westra  v.  Westra's  Estate, 
101  Mich.  526,  60  N.  W.  55;  Ander- 
son V.  Walter,  34  Mich.  113. 

Mo.  Levering  v.  Union  Transp.  & 
Ins.  Co.,  42  Mo.  88,  97  Am.  Dec.  320; 
Bay  V.  Sullivan,  30  Mo.  191;  Car- 
roll V.  Paul's  Adta'r,  19  Mo.  102; 
Young  V.  T^^lite,  18  Mo.  93;  Phillips 
V.  Smoot,  15  Mo.  59S ;  Pond  v.  Wy- 
man,  15  Mo.  175 ;  Flynn  v.  St.  I^uis 
&  S.  F.  Ry.  Co.,  43  Mo.  App.  424; 
Teiclmian  Commission  Co.  v.  Ameri- 
can Banlv,  35  Mo.  App.  472. 

Neb.  Campbell  v.  Holland,  22  Neb. 
587,  35  N.  W.  871 ;  Hitchcock  v.  Hass- 
ler,  16  Neb.  467,  20  N.  W.  396. 

N.  J.  Smith  V.  Irwin,  51  N.  .T. 
Law  (22  Vroom)  507,  18  A.  852,  14 
Am.  St.  Hep.  699. 

N.  Y.  Garbaczewski  v.  Tliird  Ave. 
R.  Co.,  5  App.  Div.  186,  39  N.  Y.  S. 
33. 

N.  C.  Muse  V.  Seaboard  Air  Line 
Ry.,  63  S.  E.  102,  149  N.  C.  443,  19 
L.  R.  A.  (N.  S.)  453;  Redmond  v. 
Stepp,  100  N.  C.  212.  6  S.  E.  727. 

Ohio.  United  States  Home  & 
Dower  Ass'n  v.  Kirk,  8  Ohio  Dec.  59'i, 
9  VTkly.  Law  Bui.  48. 

Or.  Roth  V.  Northern  Pacific  Lum- 
bering Co.,  18  Or.  205,  22  P.  842. 

Tex.  Blackwell  v.  Speer  (Civ. 
App.)  98  S.  W.  903 ;  Gulf,  C.  &  S.  F. 
Ry.  Co.  V.  Duvall,  12  Tex.  Civ.  App. 
348,  35  S.  W.  699:  Bewley  v.  Massie 
(Civ.  App.)  31  S.  W.  1086;  Wilson  v. 
Lorane,  15  Tex.  492 ;  Robinson  v. 
State,  15  Tex.  311;  Austin  City 
Water  Co.  v.  Capital  Ice  Co..  1  White 
&  W.  Civ.  Cas.  Ct.  App.  §  1132. 

Utah.  Cunningham  v.  Union  Pac. 
Ry.  Co.,  4  Utah,  206,  7  P.  795. 

Va.  Harman  v.  Cundift",  82  Va. 
239. 

16  U.  S.  Sugarman  v.  United 
States,  39  S.  Ct.  191,  249  U.  S.  182, 
63  L.  Ed.  550.  dismissing  writ  of  er- 
ror United  States  v.  Sugarman  (D. 
C.  Minn.)  245  F.  604 ;  Humes  v.  Unit- 
ed States.  18  S.  Ct.  602,  170  U.  S.  210, 
42  L.  Ed.  1011;  (C.  C.  A.  Alaska) 
Stockslager  v.  United  States,  116  F. 
590,  54  C.  C.  A.  46;    (O.  C.  A.  Cal.) 


Pappens  v.  United  States,  252  F.  55, 

164  C.  C.  A.  167 ;  Dimmick  v.  United 
States,  135  F.  257,  70  C.  C.  A.  141; 
(C.  C.  A.  Ga.)  Lamb  v.  U.  S.,  204  F. 
660 ;  (C.  C.  A.  Ind.)  Brown  v.  United 
States,  142  F.  1,  73  C.  C.  A.  187 ;  (C. 
C.  A.  La.)  Apgar  v.  United  States,  255 
F.  16,  166  C.  C.  A.  344,  certiorari 
denied  39  S.  Ct.  492,  250  U.  S.  642,  63 
L.  Ed.  1185;  Le  More  v.  United 
States,  253  F.  887,  165  C.  C.  A.  367, 
certiorari  denied  39  S.  Ct.  184,  248  U. 
S.  586,  63  L.  Ed.  434 ;  Alexis  v.  Unit- 
ed States,  129  F.  60,  63  C.  C.  A.  502 ; 
(C.  C.  A.  Mo.)  Hamilton  v.  United 
States,  255  F.  511,  1G7  C.  C.  A.  1,  cer- 
tiorari denied  39  S.  Ct.  291,  249  U.  S. 
610,  63  L.  Ed.  800;  Dr.  J.  H.  Mc- 
Lean Medicine  Co.  v.  United  States, 
253  F.  694,  165  C.  C.  A.  288;  (D.  C. 
N.  J.)  United  States  v.  Le  Fanti.  255 
F.  210,  judgment  affirmed  Le  Fanti 
v.  United  States,  259  F.  460,  170  C. 
C.  A.  436 ;  (C.  C.  A.  N.  Y.)  Browne  v. 
United  States,  145  F.  1,  76  C.  C.  A.  31, 
affirming  judgments  United  States  V. 
Rosenthal  (C.  C.)  126  F.  766,  and  Unit- 
ed States  V.  Cohn  (C.  C.)  128  F.  615 ; 
(C.  C.  A.  N.  D.)  O'Hare  v.  United 
States,  253  F.  538,  165  C-  C.  A.  208. 
certiorari  denied  39  S.  Ct.  257,  249 
U.  S.  598,  63  L.  Ed.  795;  (C.  C.  A. 
Ohio)  Shea  v.  United  States,  251  F. 
440,  168  C.  C.  A.  458,  writ  of  certio- 
rari denied  39  S.  Ct.  132,  248  U.  S. 
581,  63  L.  Ed.  431;  (C.  C.  A.  Okl.) 
Bradley  v.  United  States,  254  F.  289, 

165  C.  C.  A.  577 ;  (C.  C.  A.  Tex.)  Rob- 
erts V.  United  States,  126  F.  897,  61 
C.  C.  A.  427 ;  (C.  C.  A.  Wash.)  Wells 
V.  United  States,  257  F.  605,  168  C. 
C.  A.  555 ;  (C.  C.  A.  W.  Ya.)  Showal- 
ter  V.  U.  S.,  260  P.  719,  171  C.  C.  A. 
457,  certiorari  denied  40  S.  Ct.  14, 
2.50  U.  S.  672,  63  L.  Ed.  1200. 

Ala.  Castona  v.  State,  84  So.  871, 
17  Ala.  App.  421 ;  Evans  v.  State,  82 
So.  645,  17  Ala.  App.  155 ;  Id.,  82  So. 
625,  17  Ala.  App.  141;  Buckner  v. 
State,  81  So.  687,  17  Ala.  App.  57; 
Crawley  v.  State,  79  So.  804.  16  Ala. 
App.  545,  certiorari  denied  Ex  parte 
Crawley,  80  So.  893,  202  Ala.  698; 
Craut  V.  State,  79  So.  76S,  16  Ala. 
App.  548;  Barnett  v.  State,  79  So. 
675,  16  Ala.  App.  539,  certiorari  de- 


§  499  INSTRUCTIONS  TO  JURIES  910 

inal  case  it  is  uot  reversible  error  to  refuse  an  instruction  requested 


nied  State  v.  Barnett,  79  So.  677,  202 
Ala.  191 ;  Kuhn  v.  State,  79  So.  394, 
16  Ala.  App.  489,  certiorari  denied 
79  So.  877,  202  Ala.  697 ;  Hardley  v. 
State,  79  So.  362,  202  Ala.  24 ;  Tucker 
V.  State,  79  So.  303,  202  Ala.  5 ;  Griz- 
zard  V.  State,  79  So.  266.  16  Ala.  App. 
505;  Moore  v.  State,  79  So.  201,  16 
Ala.  App.  .503;  Sims  v.  State,  41  So. 
413.  146  Ala.  109 ;  Patterson  v.  State, 
41  So.  157,  146  Ala.  39;  Whatley  v. 
State,  39  So.  1014,  144  Ala.  68 :  Par- 
rish  V.  State,  30  So.  1012,  139  Ala. 
16;  Rollini?s  v.  State.  34  So.  349,  136 
Ala.  126 ;  Jacobi  v.  State,  32  So.  158, 
133  Ala.  1;  Winter  v.  Same,  32  So. 
125,  133  Ala.  176;  Raglaud  t.  State, 
27  So.  983.  125  Ala.  12  ;  Liner  v.  State, 
27  So.  438.  124  Ala.  1;  Lodge  v.  State, 
26  So.  200,  122  Ala.  107;  Koch  v. 
State.  22  So.  471,  115  Ala.  99. 

Ariz.  Sheehy  v.  Territory,  80  P. 
356.  9  Ariz.  269:  Elias  v.  Territory, 
76  P.  605,  9  Ariz.  1,  11  Ann.  Cas.  11.53. 

Ark.  Paxtou  v.  State,  224  S.  W. 
437;  Jordan  v.  State,  217  S.  W.  788, 
141  Ark.  504:  McCully  v.  State.  217 
S.  W.  453,  141  Ark.  4.50;  Dean  v. 
State.  214  S.  W.  38..  139  Ark.  433; 
Howard  v.  State,  208  S.  W.  293,  137 
Ark.  Ill;  Lind  v.  State,  207  S.  W. 
47,  137  Ark.  92 ;  Barker  v.  State,  205 
S.  W.  805,  135  Ark.  404 ;  Lasater  v. 
State,  94  S.  W.  59,  77  Ark.  468 ;  Hol- 
land V.  State,  84  S.  W.  468.  73  Ark. 
425 ;  Furlow  v.  State,  81  S.  W.  232,  72 
Ark.  384. 

Cal.  People  v.  Nunes  (App.)  190  P. 
486;  People  v.  Lnttrell  (App.)  183  P. 
681 ;  People  v.  Bonfanti,  181  P.  80,  40 
Cal.  App.  614;  People  v.  Bernal,  180 
P.  825,  40  Cal.  App.  3.58;  People  v. 
Seelev,  179  P.  541,  39  Cal.  App.  .586 ; 
People  V.  Tyren,  178  P.  132,  179  Cal. 
575";  People  v.  Hartwell,  177  P.  885, 
39  Cal.  App.  24 ;  People  v.  Votaw,  177 
P.  485.  38  Cal.  App.  714;  People  v. 
Swenson,  173  P.  934,  37  Cal.  App.  262  ; 
I'eople  V.  Castile,  86  P.  746,  3  Cal. 
App.  487 ;  People  v.  Castile,  86  P.  745, 
3  Cal.  App.  485;  People  v.  Cook.  83 
P.  43,  148  Cal.  334 ;  People  v.  Jailles, 
79  P.  965,  146  Cal.  301;  People  v. 
Donnollv.  77  P.  177,  143  Cal.  394; 
People  V.  Buckley,  77  P.  169,  143  Cal. 
375 ;   People  v.  Amaya,  66  P.  794,  134 


Cal.  531 ;  People  v.  Ross,  66  P.  229, 
134  Cal.  256 ;  People  v.  Clementshaw, 
59  Cal.  385. 

Colo.  Covington  v.  People,  85  P. 
^2,  30  Colo.  183;  Thompson  v.  Peo- 
ple, 59  P.  51,  26  Colo.  496. 

Conn.  State  v.  Laudano,  51  A.  860, 
74  Conn.  638. 

D.  C.  Norman  v.  United  States,  20 
App.  D.  C.  494;  Howgate  v.  United 
States,  7  App.  D.  C.  217 ;  Travers  v. 
United  States,  6  App.  D.  C.  450. 

Fla.  Hall  v.  State,  83  So.  513,  78 
Fla.  420,  8  A.  L.  R.  1234 ;  Howard  v. 
State,  83  So.  297.  78  Fla.  413;  Long 
V.  State,  S3  So.  293,  78  Fla.  464 ;  Rus- 
sell V.  State,  82  So.  805,  78  Fla.  223 ; 
Miller  v.  State,  80  So.  314,  76  Fla. 
518;  Maloy  v.  State,  41  So.  791,  52 
Fla.  101;  Blanton  v.  State.  41  So. 
789,  52  Fla.  12 ;  Robinson  v.  State,  39 
So.  465,  50  Fla.  115 ;  Jordan  v.  State, 
39  So.  355,  50  Fla.  94;  Snelling  v. 
State.  37  So.  917,  49  Fla.  34 ;  Starke 
V.  State,  37  So.  850,  49  Fla.  41 ;  Har- 
mon Y.  State,  37  So.  520,  48  Fla.  44 ; 
Parnell  v.  State,  36  So.  165,  47  Fla. 
90;  Pea  den  v.  State,  35  So.  204,  46 
Fla.  124;  Sylvester  v.  State,  35  So. 
142,  46  Fla.  160;  Brown  v.  State,  35 
So.  82,  46  Fla.  159 ;  Driggers  v.  State, 
20  So.  758,  88  Fla.  7. 

Qa.  Hollingsworth  v.  State,  101  S. 
E.  115,  149  Ga.  512;  Brown  v.  State, 
100  S.  E.  452.  24  Ga.  App.  268 ;  Phil- 
lips v.  State.  99  S.  E.  874. 149  Ga.  255 ; 
Wooten  V.  State,  99  S.  E.  316.  23  Ga. 
App.  768;  Smith  v.  State,  99  S.  E. 
142.  23  Ga.  App.  541 ;  Cook  v.  State, 
97  S.  E.  264.  22  Ga.  App.  770;  Cop- 
pedge  V.  State.  96  S.  E.  1046.  22  Ga. 
App.  631;  Darby  v.  State,  96  S.  E. 
707,  22  Ga.  App.  606;  Fordham  v. 
State,  54  S.  E.  694,  125  Ga.  791; 
White  V.  State,  54  S.  E.  188,  125  Ga. 
256;  Xapper  v.  State,  51  S.  E.  592, 
123  Ga.  571 ;  McDufHe  v.  State,  49  S. 
E.  708.  121  Ga.  580;  Griner  v.  State, 
49  S.  E.  700,  121  Ga.  614;  Pike  v. 
State,  49  S.  E.  680,  121  Ga.  604 ;  Jor- 
dan V.  State,  48  S.  E.  352, 120  Ga.  864  ; 
Jiay  V.  State,  47  S.  E.  548,  120  Ga. 
135;  Johnson  v.  State,  47  S.  E.  510, 
120  Ga.  1.35;  Taylor  v.  State,  25  S. 
E.  320,  97  Ga.  432. 

Idaho.      State    v.    Cotterel,    86    P. 


911 


REQUESTS   OR   PRAYERS   FOR  INSTRUCTIONS 


499 


by   the  defendant,   if  one   given   for  the   state   contains   the  same 


527,  12  Idaho,  572;  State  v.  Roland, 
83  P,  337,  11  Idaho,  490;  State  v. 
Rooke,  79  P.  82,  10  Idaho,  3SS ;  State 
V.  Rathbone,  67  P.  186,  8  Idaho,  161 ; 
State  V.  Lyons,  64  P.  236,  7  Idaho, 
530. 

111.  People  V.  Marx,  125  N.  E.  719, 
291  111.  40;  People  v.  Meyer,  124  N. 
-E.  447,  289  111.  184;  People  v.  Fos- 
ter, 123  N.  E.  534,  288  111.  371 ;  Peo- 
ple V.  Dear,  121  N.  E.  615,  286  111. 
142,  writ  of  error  dismissed  Dear  v. 
People  of  State  of  Illinois,  39  S.  Ot. 
493,  250  U.  S.  685,  63  L.  Ed.  1182; 
I'eople  V.  Findlev,  121  N.  E.  608,  286 
111.  368;  People  v.  Bopp,  120  N.  E. 
790,  285  111.  396 ;  People  v.  Robertson, 
120  N.  E.  539,  284  111.  620,  affirming 
judgment  210  111.  App.  234 ;  Peiople  v. 
Grove,  120  N.  E.  277,  284  111.  429: 
Spears  v.  People,  77  N.  E.  112,  220 
111.  72,  4  L.  R.  A.  (N.  S.)  402 ;  Mash 
V.  People,  77  N.  E.  92,  220  111.  86; 
Hoch  V.  People,  76  N.  E.  356,  219  111. 
265,  109  Am.  St.  Rep.  327;  Parsons 
V.  People,  75  N.  E.  993,  218  111.  386 ; 
Donovan  v.  People,  74  N.  E.  772,  215 
111.  520 ;  Kyle  v.  People,  74  N.  E.  146, 
215  111.  250 :  Delahoyde  v.  People,  72 
N.  E.  732,  212  111.  554 ;  Moore  v.  Peo- 
ple, 60  N.  E.  5.35,  190  111.  331 ;  Schintz 
V.  People,  52  N.  E.  903,  178  111.  320; 
People  V.  Snsmarski,  210  111.  App. 
233;  People  v.  Jones,  207  111.  App. 
218. 

Ind.  Bush  V.  State  (Sup.)  128  N. 
E.  443;  Jackson  v.  State,  121  N.  E. 
114,  187  Ind.  694;  Guy  v.  State,  77 
N.  E.  855,  37  Ind.  App.  691 ;  Coolman 
V.  State,  72  N.  E.  568.  163  Ind.  503; 
Ginn  v.  State,  68  N.  E.  294,  161  Ind. 
292 ;  Musser  v.  State,  61  N.  E.  1,  157 
Ind.  423 ;  Whitney  v.  State,  57  N.  E. 
.398,  154  Ind.  573;  Blume  v.  State, 
56  N.  E.  771,  154  Ind.  343 ;  Thravplev 
V.  State,  55  N.  E.  95,  153  Ind.  375; 
Cromer  v.  State,  52  N.  E.  2.39,  21  Ind. 
App.  502;  Hinshaw  v.  State,  47  N. 
E.  157,  147  Ind.  334 ;  Siberry  v.  State, 
39  N.  E.  936,  149  Ind.  684 ;  Richie  v. 
State,  5S  Ind.  355. 

Ind.  T.  Jennings  v.  United  States, 
53  S.  W.  456,  2  Ind.  T.  670. 

Iowa.  State  v.  Schumann,  175  N. 
W.  75,  187  Iowa,  1212  ;  State  v.  Athey, 
108  N.  W.  224,  133  Iowa,  382;  State 


V.  Linhoff,  97  N.  W.  77,  121  Iowa,  632; 
State  V.  Soper,  91  N.  W.  774,  118 
Iowa,  1 ;  State  v.  Maxwell,  91  N.  W. 
772,  117  Iowa,  482 ;  State  v.  Comer, 
90  N.  W.  825 ;  State  v.  Shunka,  89  N. 
W.  977,  116  Iowa,  206 ;  State  v.  Mul- 
holland,  88  N.  W.  325,  115  Iowa,  170 ; 
State  V.  Easton,  85  N.  W.  795,  113 
Iowa,  516,  86  Am.  St.  Rep.  389,  revers- 
ed Easton  v.  State  of  Iowa,  23  S.  Ct. 
288,  188  U.  S.  220,  47  L.  Ed.  452; 
State  V.  Hamann,  85  N.  W.  614,  113 
Iowa,  367;  State  v.  Petersen,  82  N. 
AV.  329,  110  Iowa,  647 ;  State  v.  Fog- 
erty,  74  N.  W.  754.  105  Iowa,  32; 
State  v.  Case,  68  X.  W.  434,  99  Iowa, 
743. 

Kan.  State  v.  Tucker,  84  P.  126,  72 
Kan.  481;  State  v.  Bufhngton,  81  P. 
465,  71  Kan.  804,  4  L.  R.  A.  (N.  S.) 
154 ;  State  v.  Appleton,  78  P.  445.  70 
Kan.  217 ;  State  v.  Elliott,  64  P.  1027, 
63  Kan.  879;  State  v.  Start,  63  P. 
448,  10  Kan.  App.  583;  State  v.  Tulip, 
60  P.  659,  9  Kan.  App.  454. 

Ky.  Thomas  v.  Commonwealth, 
214  S.  W.  929,  185  Ky.  226;  Ulrich  v. 
Commonwealth,  205  S.  W.  586,  181  Ky. 
519;  Havens  v.  Commonwealth.  82 
S.  W.  369,  26  Ky.  Law  Rep.  706; 
Alderson  v.  Commonwealth,  74  S.  W. 
679,  25  Ky.  Law  Rep.  32 ;  Stevens  v. 
Commonwealth,  45  S.  W.  76,  20  Ky. 
Law  Rep,  48;  Temple  v.  Common- 
wealth, 14  Bush,  769,  29  Am.  Rep 
442. 

La.  State  v.  Le  Blanc,  41  So.  105, 
116  La.  822 ;  State  v.  xVspara.  37  So. 
883,  113  La.  940 ;  State  v.  Guidor,  37 
So.  622,  113  La.  727;  State  v.  Woods, 
36  So.  626,  112  La.  617;  State  v. 
Brown,  35  So,  501,  111  La.  170 ;  State 
V.  Sims,  31  So.  645,  107  La.  188 ;  State 
v.  Cain,  31  So.  300,  106  La.  708, 

Mass.  Commonwealth  v.  Magoon, 
51  N.  E.  1082,  172  Mass.  214;  Com- 
monwealth V,  Burns,  167  Mass.  374, 
45  N.  E.  755 ;  Commonwealth  v.  Dill, 
156  Mass.  226,  30  N.  E.  1016, 

Mich.  People  v.  Rice,  173  N.  AV. 
495,  206  Mich.  644 ;  People  v.  Hawks, 
172  N.  W.  405,  206  Mich.  2.33 ;  People 
V.  Ilutchings,  100  N.  W.  753,  137 
Mich.  527;  People  v.  Hilliard,  77  N. 
W,  306,  119  Mich.  24;  People  v. 
Swartz,  76  N.  W.  491,  118  Mich.  292 ; 


499 


INSTRUCTIONS  TO  JURIES 


912 


legal  principle  and  is  aptly  drawn,  intelligible,  and  pertinent.^'    In 
Alabama  the  rule  of  the  text  is  embodied  in  statutory  form.-^* 


People  V.  Hughes,  74  N.  W.  309,  116 
Mich.  80;  People  v.  Hare,  24  N.  W. 
S43,  57  Mich.  505;  People  v.  Marion, 
29  Mich.  31. 

Minn.  State  v.  Ronk,  98  N.  W. 
334,  91  Minn.  419. 

Miss.  Schrader  v.  State,  36  So. 
385,  84  Miss.  593. 

Mo.  State  v.  Gallagher  (Sup.)  222 
S.  W.  465 ;  State  v.  Canton  (Sup.)  222 
S.  W.  448 ;  State  v.  Dooms,  217  S.  W. 
43,  280  Mo.  84 ;  State  v.  Conley,  217 
S.  W.  29,  280  Mo.  21;  State  v.  Cole 
(Sup.)  213  S.  W.  110;  State  v.  Bow- 
man, 213  S.  W.  64,  278  Mo.  492 ;  State 
V.  Mastin,  211  S.  W.  15.  277  Mo.  495 ; 
State  V.  Jones,  207  S.  W.  793.  276  Mo. 
299;  State  v.  Yocum  (App.)  205  S. 
W.  232 ;  State  v.  Martin  (Sup.)  204  S. 
W.  537 ;  State  v.  Barrington,  95  S.  W. 
235,  198  Mo.  23,  writ  of  error  dismiss- 
ed 27  S.  Ct.  582,  205  U.  S.  483,  51  L. 
Ed.  890 ;  State  v.  Valle,  93  S.  W.  1115, 
196  Mo.  29;  State  v.  Maupiu,  93  S. 
W.  379.  196  Mo.  164;  State  v.  Davis, 
92  S.  W.  484,  194  Mo.  485,  4  L.  R.  A. 
(N.  S.)  1023,  5  Ann.  Cas.  1000;  State 
V.  Day,  87  S.  W.  465.  188  Mo.  359; 
State  V.  Atchley,  84  S.  W.  984, 186  Mo. 
174;  State  v.  Brown,  79  S.  W.  1111, 
181  Mo.  192;  State  v.  Bauerle,  145 
Mo.  1,  46  S.  W.  609 ;  State  v.  Breit- 
weiser,  88  Mo.  App.  648;  State  v. 
Baber,  11  Mo.  App.  586. 

Mont.  State  v.  Kahn,  182  P.  107, 
56  Mont.  108;  State  v.  Kremer,  85 
P.  736,  34  Mont.  6;  State  v.  Martin, 
74  P.  725,  29  Mont.  273 ;  State  v.  Dot- 
son,  67  P.  938,  26  Mont.  305 ;  State  v. 
Howell,  66  P.  291,  26  Mont.  3;  State 
V.  Mahoney,  61  P.  647,  24  Mont.  281 ; 
State  V.  Bowser,  53  P.  179,  21  Mont. 
133. 

Neb.  Neal  v.  State,  175  N.  W.  669, 
104  Neb.  56  ;  Williams  v.  State,  174  iN. 
W.  302,  103  Neb.  710 ;  Reed  v.  State, 
106  N.  W.  649,  75  Neb.  509;  Sweet  v. 
State,  106  N.  W.  31,  75  Neb.  203; 
Keeler  v.  State,  103  N.  W.  64,  73  Neb. 
441 ;  Palmer  v.  State,  97  N.  W.  235, 
70  Neb.  136 ;  Lamb  v.  State,  95  N.  W. 
1050,  69  Neb.  212:  McCormick  v. 
State,  92  N.  W.  606.  66  Neb.  337; 
Rhea  v.  State,  88  N.  W.  789,  63  Neb. 


461;  Argabright  v.  State,  87  N.  W. 
146,  62  Neb.  402;  Coil  v.  State,  86 
N.  W.  925,  62  Neb.  15;  Chapman  v. 
State,  86  N.  W.  907,  61  Neb.  888; 
Spaulding  v.  State,  85  N.  W.  80,  61 
Neb.  289;  Smith  v.  State,  85  N.  W. 
49,  61  Neb.  296 ;  Kastner  v.  State,  79 
N.  W.  713,  58  Neb.  767. 

Nev.  State  v.  Burns,  74  P.  983,  27 
Nev.  289 ;  State  v.  Buraill,  71  P.  532, 
27  Nev.  41;  State  v.  Maher,  62  P. 
236,  25  Nev.  465. 

N.  H.  State  v.  Buzzell,  59  N.  H. 
65. 

N.  J.  State  V.  Haines,  106  A.  27, 
92  N.  J.  Law,  642. 

N.  M.  State  v.  Martino,  192  P. 
507;  State  v.  Goodrich,  176  P.  813, 
24  N.  M.  660 ;  State  v.  Sedillo,  174  P. 
985,  24  N.  M.  549;  State  v.  Starr,  173 
P.  674,  24  N.  M.  180:  Miera  v.  Terri- 
tory, 81  P.  586,  13  N.  M.  192 ;  Terri- 
tory V.  Taylor,  71  P.  489,  11  N.  M. 
588. 

N.  Y.  People  v.  Ammon,  71  N.  E. 
1135,  179  N.  Y.  540,  affirming  judg- 
ment 87  N.  Y.  S.  358,  92  App.  Div. 
205;  People  v.  Benham,  55  N.  E.  11, 
160  N.  Y.  402 ;  People  v.  Polstein,  171 
N.  Y.  S.  501,  184  App.  Div.  260 ;  Peo- 
ple v.  Conrad,  92  N.  Y.  S.  606,  102 
App.  Div.  566,  affirmed  74  N.  E.  1122. 
182  N.  Y.  529;  People  v.  Ammon,  87 
N.  Y.  S.  358,  92  App.  Div.  205,  affirm- 
ed 71  N.  E.  1135,  179  N.  Y.  540 ;  Peo- 
ple V.  Mills,  3  N.  Y.  Cr.  R.  184. 

N.  C.  State  v.  Baldwm,  100  S.  E. 
345,  178  N.  C.  693;  State  v.  Booker, 
31  S.  E.  376.  123  N.  C.  713. 

Oliio.  Donald  v.  State,  21  Ohio 
Cir.  Ct.  R.  124,  11  O.  C.  D.  483. 

Okl.  Lamb  v.  State,  185  P.  1101, 
16  Okl.  Cr.  724;  Welch  v.  State,  185 
P.  119,  16  Okl.  Cr.  513;  Creek  v. 
State,  184  P.  917,  16  Okl.  Cr.  492; 
Johnson  v.  State,  183  P.  926,  16  Okl. 

17  State  V.  Rice,  98  S.  E.  432,  83  W. 
Va.  409. 

18  Welch  V.  Evans  Bros.  Const.  Co., 
78  So.  850,  201  Ala.  496;  Hood  & 
Wheeler  Furniture  Co.  v.  Royal,  76 
So.  965,  200  Ala.  607;  Southern  Ry. 
Co.  v.  Fisher,  74  So.  580,  199  Ala.  377. 


913 


REQUESTS   OR  PRAYERS  FOR  INSTRUCTIONS 


§  499 


It  is  enough  that  the  court  by  its  charge  concretely  applies  to 
the  facts  the  principle  of  law  which  a  party  attempts  to  state  ab- 


Cr.  428;  Harding  v.  State,  ISO  P.  391, 
16  Old.  Cr.  47 ;  Conley  v.  State,  179  P. 
4S0,  15  Okl.  Cr.  531 ;  Clingan  v.  State, 
378  P.'486,  15  Okl.  Cr.  483 ;  McClatch- 
ey  V.  State,  177  P.  922,  15  Okl.  Cr.  448; 
Davis  V.  State,  177  P.  621,  15  Okl.  Cr. 
386;  Lewis  v.  State,  174  P.  1094,  15 
Okl.  Cr.  1 ;  Morgan  v.  Territory,  85  P. 
718,  16  Okl.  530:  Robinson  v.  Terri- 
tory, 85  P.  451,  16  Okl.  241,  reversed 
148  F.  830,  78  C.  C.  A.  520 ;  Wells  v. 
Territory,  78  P.  124,  14  Okl.  430; 
Queenan  v.  Territory,  71  P.  218,  11 
Okl.  261,  01  L.  R.  A.  324,  judgment 
affirmed  23  S.  Ct.  762.  190  U.  S.  548, 
47  L.  Ed.  1175;  Watkins  v.  United 
States,  50  P.  88.  5  Okl.  729. 

Or.  State  v.  Stickel,  176  P.  799, 
99  Or.  415;  State  v.  Gray,  79  P.  53, 
46  Or.  24;  State  v.  Eggleston,  77  P. 
738,  45  Or.  346;  State  v.  Sally,  70  P. 
396.  41  Or.  366;  State  v.  McDaniel, 
56  P.  520,  39  Or.  161 ;  State  v.  Tuck- 
er, 61  P.  894,  36  Or.  291,  51  L.  R.  A. 
246;  State  v.  Magers,  58  P.  892,  36 
Or.  38;  State  v.  Branton,  56  P.  267, 
33  Or.  533. 

Pa.  Commonwealth  v.  Danz,  60  A. 
1070,  211  Pa.  507. 

R.  I.  State  V.  Quigley,  58  A.  905, 
*J6  R.  I.  263,  67  L.  R.  A.  322,  3  Ann. 
Cas.  920. 

S.  C.  State  V.  Ready,  96  S.  E.  287, 
110  S.  C.  177 ;  State  v.  Dean.  51  S.  E. 
524,  72  S.  C.  74 ;  State  v.  Gadsen,  50 
S.  E.  16,  70  S.  C.  430. 

S.  D.  State  v,  Larson,  172  N.  W. 
114,  41  S.  D.  553. 

Tex.  Earnest  v.  State,  224  S.  W. 
777,  87  Tex.  Cr.  R.  651:  Narango  v. 
State,  222  S.  W.  564,  87  Tex.  Cr.  R. 
493:  Dollar  v.  State,  216  S.  W.  1089, 
86  Tex.  Cr.  R.  398;  MeCormick  v. 
State,  216  S.  W.  871,  86  Tex.  Cr.  R. 
366 ;  Brown  v.  State,  215  S.  W.  97,  85 
Tex.  Cr.  R.  618 ;  Gribble  v.  State,  210 
S.  W.  215,  85  Tex.  Cr.  R.  52,  3  A.  L. 
R.  1096;  Alsup  v.  State,  210  S.  W. 
195,  85  Tex.  Cr.  R.  36;  Gill  v.  State, 
208  S.  W.  926,  84  Tex.  Cr.  R.  531; 
Roach  V.  State,  208  S.  W.  520,  84  Tex. 
Cr.  R.  471;  Ice  v.  State,  208  S.  W. 
843,  84  Tex.  Cr.  R.  509;  Rice  v.  State, 
94  S.  W.  1024,  49  Tex.  Cr.  R.  569; 
Inst. TO  .TrrRiES — fuS 


Counts  V.  State,  94  S.  W.  220,  49  Tex. 
Cr.  R.  329 ;  Willis  v.  State,  90  S.  W. 
1100,  49  Tex.  Cr.  R.  139;  Grant  v. 
State,  89  S.  W.  274,  48  Tex.  Cr.  R. 
418 ;  Tones  v.  State,  88  S.  W.  217,  48 
Tex.  Cr.  R.  363,  1  L.  R.  A.  (N.  S.)  1024, 
122  Am.  St.  Rep.  759,  13  Ann.  Cas. 
455 ;  Sanders  v.  State  (Cr.  App.)  85  S. 
W.  1147 ;  Johnson  v.  State,  84  S.  W. 
824,  47  Tex.  Cr.  R.  523;  Wright  v. 
State,  84  S.  W.  593,  47  Tex.  Cr.  R. 
433;  Bearden  v.  State,  83  S.  W.  808, 
47  Tex.  Cr.  R.  271;  Kimberlain  v. 
State,  82  S.  W.  1043,  47  Tex.  Cr.  R. 
235 ;  Beckuell  v.  State,  82  S.  W.  1039, 
47  Tex,  Cr.  R.  240 ;  Fine  v.  State  (Cr. 
App.)  81  S.  W.  723 ;  Teague  v.  State, 
4  Tex.  App.  147. 

Utah.  State  v.  Morgan,  74  P.  526, 
27  Utah,  103;  State  v.  Haworth,  68 
P.  155,  24  Utah,  398 ;  People  v.  Cal- 
laghan,  6  P.  49,  4  Utah,  49. 

Vt.  State  V.  Warm,  105  A.  244, 
92  Vt.  447,  2  A.  L.  R.  811. 

Va.  Lufty  v.  Commonwealth,  100 
S.  E.  829,  126  Va.  707;  Karnes  v. 
Commonwealth,  99  S.  E.  562,  125  Va. 
758,  4(  A,  L.  R.  1509;  Robinson  v. 
Commonwealth,  52  S.  E.  690,  104  Va. 
888;  McCue  v.  Commonwealth,  49  S. 
E.  623,  103  Va.  870;  Litton  v.  Com- 
monwealth, 44  S.  E.  923,  101  Va.  833 ; 
Longlev  v.  Commonwealth,  37  S.  E. 
339,  99  Va.  807. 

Wash.  State  v.  Storrs,  192  P.  984, 
112  Wash.  675 ;  State  v.  Vane,  178  P. 
456.  105  Wash.  421;  State  v.  Vane, 
177  P.  728,  105  Wash.  170;  State  v. 
Palmer,  176  P.  547,  105  Wash.  .396; 
State  V.  Armstrong,  79  P.  490,  37 
Wash.  51;  State  v.  Clark,  70  P.  98, 
34  Wash.  485,  101  Am.  St.  Rep.  1006; 
State  V.  Vance.  70  P.  34,  29  Wash. 
435;  State  v.  Webb,  55  P.  935,  20 
Wash.  500;  State  v.  Gushing,  50  P. 
512,  17  Wash.  M4. 

W.  Va.  State  v.  Vineyard,  101  S. 
E.  440,  85  W.  Va.  293 ;  State  v.  Panet- 
ta,  101  S.  E.  360.  85  W.  Va.  212; 
State  V.  Dillard,  53  S.  E.  117,  59  W. 
Va.  197;  State  v.  Cottrill,  43  S.  E. 
244,  52  W.  Va.  363;  State  v.  Clark, 
41  S.  B.  204,  51  W.  Va.  457;  State 
V.  Sheppard,  .39  S.  E.  676,  49  W.  Va. 


500 


INSTRUCTIONS   TO  JURIES 


9U 


stractly  in  his  request  to  warrant  a  refusal  of  the  request/^  and 
where  instructions  sufficiently  set  forth  the  concrete  claims  of 
a  party  to  give  the  jury  a  proper  understanding  of  the  issues,  it 
is  not  error  to  refuse  instructions  stating  the  claimed  facts  more 
in  detail."® 

§  500.     Specific  applications  of  rule 

The  above  rule  has  been  applied  in  civil  cases  to  sustain  the 
refusal  of  the  trial  court  to  instruct  on  the  issue  of  the  abandon- 
ment of  a  contract,-^  on  whether  a  broker  suing  for  commissions 
was  the  procuring  cause  of  a  sale,^'  on  the  issue  of  the  liability  of 
a  carrier  for  injuries  to  live  stock,~^  on  the  care  required  to  pre- 
vent injuries  by  fire,^*  on  the  care  required  from  a  master  in  sup- 
plying a  safe  place  to  work,^^  on  the  duty  of  a  locomotive  engi- 
neer to  heed  stop  signals,-^  on  the  duty  of  a  city  to  place  warning 
signals  around  obstructions  in  the  street,^'  on  the  liability  of  a  land- 
owner for  the  diversion  of  surface  water,^*  on  the  issue  of  remote 
and  proximate  cause/*  on  the  issue  of  contributor}^  negligence,^® 


582 ;  State  v.  Stalej',  32  S.  E.  198,  45 
W.  Va.  792. 

Wis.  Eoszczyniala  v.  State,  104  N. 
W.  113,  125  Wis.  414;  Murphy  v. 
State,  102  N.  W.  1087,  124  Wis.  635 : 
Suckow  V.  State,  99  N.  W.  440,  122 
Wis.  156;  Lowe  v.  State,  96  N.  W. 
417,  118  Wis.  641;  Bannen  v.  State, 
91  N.  W.  107,  115  Wis.  317,  reversed 
91  X.  W.  965.  115  Wis.  317;  Cornell 
V.  State,  80  N.  W.  745.  104  Wis.  527 ; 
Buel  V.  State,  80  N.  W.  78,  104  Wis. 
132. 

Wyo.  Horn  v.  State,  73  P.  705,  12 
Wyo.  80. 

1 9  Condie  v.  Rio  Grande  Western 
Ry.  Co.,  97  P.  120,  34  Utab,  237. 

2  0  Hopson  V.  Union  Traction  Co., 
167  P.  10.59,  101  Kan.  499. 

21  Bush  V.  Wofford,  213  S.  W.  7-51, 
139  Ark.  330. 

2  2  Thomas  v.  Wyckoff,  174  N.  W. 
26,  187  Iowa,  148. 

2  3  Missouri  Pac.  R.  Co.  v.  Hill,  215 
S.  W.  6i76,  144  Ark.  641. 

2  4  Northwest  Door  Co.  v,  Lewis  Inv. 
Ca,  180  P.  495,  92  Or.  186. 

2  5  Seitz  V.  Pelligreen  Const.  &  Inv. 
Co.  (Mo.  App.)  215  S.  W.  485. 

2  6  McGillivray  v.  Great  Northern 
Ry.  Co.,  176  N.  W.  200,  145  Minn.  51. 

2T  Emelle  v.  Salt  Lake  Citv,  181  P. 
266.  54  Utah,  360. 


2  8  Rehfuss  V.  Weeks,  182  P.  137,  93 
Or.  25. 

2  9Tillery  v.  Harvey  (Mo.  App.)  214 
S.  W.  240. 

Issue  of  wlietlier  carrier  liable 
for  injuries  caused  by  wild,  and 
unruly  nature  of  animals.  In  ac- 
tion for  injuries  to  shipper  of  stock 
caused  by  a  member  of  the  train  crew 
flashing  his  lantern  at!  night  before 
horses  and  mules  on  loading  chute, 
causing  them  to  rush  back  and  tram- 
ple plaintiff,  who  was  loading  them  on 
the  chute,  a  requested  charge  that,  if 
plaintiff  was  injured  as  the  "sole 
proximate  cause"  of  the  wild  and  im- 
ruly  nature  and  disposition  of  the 
mules  and  horses,  verdict  should  be 
for  defendant,  even  though  defend- 
ant was  guilty  of  negligence  was  suf- 
ficiently presented  by  a  charge  that 
if  their  wild  and  unruly  nature  and 
disposition,  if  any,  was  the  sole  prox- 
imate cause  of  plaintiffs  injuries,  to 
find  for  defendant.  Galveston,  H.  & 
S.  A.  Ry.  Co.  V.  Wilson  (Tex.  Civ. 
App.)  214  S.  W.  773. 

30  Ark.  Central  Coal  &  Coke  Co. 
v.  Burns,  215  S.  W.  265,  140  Ark.  147. 

Cal.  Fernald  v.  Eaton  &  Smith, 
ISO  P.  944,  40  Cal.  App.  498. 

S.  D.  True  v.  Chicago  &  N.  W.  Rv. 
Co.,  173  N.  W.  642,  42  S.  D.  35. 

Tex.     Texas  Power  &  Light  Co.  v. 


915 


REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS 


§  500 


on  the  effect  of  the  knowledge  by  a  pedestrian  of  defects  in  a 
street  as  precluding  recovery  for  injuries  caused  thereby ,^^  on  the 
issue  of  comparative  negligence,^^  on  the  question  of  the  burden 
of  proof,^^  on  the  question  of  the  credibility  of  witnesses/*  and 
to  the  refusal  to  give  instructions  defining  words.^^ 

Where  the  court  defines  proximate  cause,  and  clearly  states 
that  contributory  negligence  will  not  defeat  a  recovery,  unless  con- 
current with  the  negligence  of  the  defendant,  it  is  not  required  to 
also  define  proximate  and  remote  cause,  with  special  reference  to 
the  doctrine  of  last  clear  chance.'*® 

In  criminal  cases  it  has  been  held  proper,  on  the  ground  of  in- 
structions already  given,  to  refuse  instructions  on  the  issue  of  self- 
defense  or  certain  phases  thereof,^^  on  the  necessity  for  corrobora- 
tion of  the  testimony  of  an  accomplice,^*  on  the  effect  of  the  good 
character  of  defendant,^^  on  the  issue  of  the  voluntary  character 
of  an  admission  or  confession,*"  on  the  effect  of  an  explanation  of 
the  possession  of  stolen  property,"  on  circumstantial  evidence,*^ 
on  the  doctrine  of  reasonable  doubt,*^  on  principals  and  accesso- 

charges  telling  the  jury  that  they 
could  consider  the  weakened  condi- 
tion of  accused's  mind  in  deciding 
whether  to  him  the  danger  of  death 
or  serious  bodily  injury  was  real  or 
apparent,  the  court  having  instructed 
that  defendant  be  discharged  if  the 
conduct  of  the  deceased  produced  in 
accused's  mind  a  reasonable  appre- 
hension of  fear  of  death  or  serious 
bodily  injury,  viewed  from  accused's 
standpoint  alone.  Zimmerman  v. 
State,  215  S.  W.  101,  85  Tex.  Cr.  R. 
630. 

38  Housley  v.  State,  220  S.  W.  460, 
143  Arli.  425. 

3  9  Le  More  v.  United  States  (C.  C. 
A.  La.)  253  F.  887,  165  G.  C.  A.  367, 
certiorari  denied  39  S.  Ct.  184,  248  U. 
S.  586,  63  L.  Ed.  434;  Phillips  v. 
State,  99  S.  E.  874,  149  Ga.  255 ;  State 
V.  Jones,  123  N.  W.  960,  145  Iowa, 
176;  People  v.  Mathews,  174  N.  W. 
532,  207  Mich.  526. 

40  Hardin  v.  State,  211  S.  W.  233, 
85  Tex.  Cr.  R.  220,  4  A.  L.  R.  1308. 

41  Vaughn  v.  State,  208  S.  W.  527, 
84  Tex.  Cr.  R.  483. 

42  Porter  v.  State,  215  S.  W.  201, 
S6i  Tex.  Cr.  R.  23;  State  v.  Turfey, 
176  P.  563,  100  Wash.  5. 

43  Ala.  Vaughn  v.  State,  84  So. 
879,  17  Ala.  App.  383. 

Ark.     Barker  v.  State,  205   S.  W. 


Bristow  (Civ.  App.)  213  S.  W.  702; 
Texas  Electric  Ry.  v.  Hooks  (Civ. 
App.)  211  S.  W.  654. 

Wasli.  Reames  v.  Heymanson,  186 
P.  325,  109  Wash.  132. 

31  Junkins  v.  Inhabitants  of  Town 
of  Stoneham,  125  N.  E.  140,  234  Mass. 
130. 

32  Western  &  A.  R.  Co.  v.  Jarrett, 
100  S.  E.  231,  24  Ga.  App.  175. 

33  Haun  V.  Tally,  181  P.  81,  40  Cal. 
App.  585. 

34  King  V.  ]\Ietropolitan  Life  Ins. 
Co.  (Mo.  App.)  211  S.  W.  721. 

35  Missouri  Pac.  R.  Co.  v.  Carey, 
212  S.  W.  80,  138  Ark.  563:  .^tna 
Life  Ins.  Co.  v.  McCullagh,  215  S.  W. 
821,  185  Ky.  664. 

3  6  Duprat  v.  Chesmore,  110  A.  305, 
94  Vt.  218. 

3T  Ark.  Smith  V.  State,  213  S.  W. 
403,  139  Ark.  356. 

Cal.  People  v.  Hopper  (App.)  183 
P.  836. 

Miss.  Higgins  v.  State,  83  So.  245, 
120  Miss.  823. 

Tex.  Bozeman  v.  State,  215  S.  W. 
319.  85  Tex.  Cr.  R.  653;  Mauney  v. 
State,  210  S.  W.  959,  85  Tex.  Cr.  R. 
184 ;  Davis  v.  State,  204  S.  W.  652,  83 
Tex.  Cr.  R.  539. 

Beasonableness  of  apprekension 
of  danger.  In  a  prosecution  for 
murder  there  was  no  need  for  special 


§  500  INSTRUCTIONS  TO  JURIES  916 

ries,"  on  the  issue  of  included  offenses,*^  and  to  the  refusal  to  in- 
struct the  jury  to  disregard  certain  matters  not  in  evidence.*® 

The  denial  of  a  request  that  evidence  of  the  good  character  of 
the  defendant  may  alone  create  a  reasonable  doubt  is  not  error, 
where  the  court  charges  that  the  reputation  of  the  accused  for  good 
character  should  be  considered  together  with  all  the  other  evi- 
dence in  the  case,  and  that  if  the  jury  should  have  a  reasonable 
doubt  of  his  guilt  he  should  be  acquitted ;  *''  and  where  the  court 
charges  correctly  upon  reasonable  doubt  and  the  presumption  of 
innocence,  it  is  not  error  to  refuse  to  instruct  that  defendant  is 
presumed  to  be  innocent,  and  that  that  presumption  goes  to  the 
jury  as  independent  evidence."**  So  an  instruction  that  each  juror 
should  adhere  to  his  own  opinion  until  convinced  beyond  a  rea- 
sonable doubt  is  covered  by  an  instruction  that  the  jury  will  not 
be  justified  in  finding  a  verdict  of  guilty  unless  they  are  convinced 
by  the  evidence  beyond  a  reasonable  doubt.*® 

§  501.     Limitations  of  rule 

Where  instructions  are  asked  by  either  party  to  a  suit  which 
correctly  state  the  law  on  the  issues  presented  and  the  evidence, 
it  is  error  to  exclude  them,  unless  the  points  are  fairly  covered  by 
other  instructions  given  by  the  court  on  its  own  motion.^  With- 
in such  rule  it  is  not  sufficient  that  the  instruction  requested  is 
inferentially  given  in  the  main  charge  of  the  court,^^  or  in  other 

S0.5,  135  Ark.  404;   Gramlich  v.  State,  4- Warren  v.  United  States  (C.  C. 

204  S.  W.  848,  135  Ark.  243.  A.  Okl.)  250  F.  89,  162  O.  C.  A.  261. 

Cal.     People  v.   Epperson,   176   P.  4  8  Hall  v.  State,  83  So.  513,  78  Fla. 

702,  38  Cal.  App.  486.  420,  8  A.  L.  R.  1234. 

Fla.     Witherspoon  v.  State,  SO  So.  4  9  People  v.  Epperson,  176  P.  702, 

61,  76  Fla.  445 ;    Street  v.   State,   79  38  Cal.  App.  486. 

So.  729,  76  Fla.  217.  so  Struble  v.  Village  of  De  Witt,  116 

Ga.     Brown  v.  State,  96  S.  E.  435,  K  W.  154,  81  Neb.  504. 

148  Ga.  264.  si  State  v.  Williams,  169  N.  W.  371, 

Mo.      State  V.   Finley,   213    S.   W.  184    Iowa,    1070;     Isley    v.    Virginia 

463,  278  Mo.  474.  Bridge  &  Iron  Co.,  55  S.  E.  416,  143 

N.  J.     State  V.  Runyon,  107  A.  33,  K.  C.  51. 

93  N.  J.  Law,  16.  Instructions  improperly  refused 

Okl.     Burton  v.  State,  185  P.  842^  within  rule.     In  an  action  for  the 

16  Okl.  Or.  602 ;    Bornheim  v.  State,  malicious   prosecution   of   a   replevin 

183  P.  514,  16i  Okl.  Cr.  704.  suit,  an  instruction  that  the  burden 

Pa.     Commonwealth  v.  Ross,   110  of  proof  was  upon  plaintiff  was  in- 

A.  327,  266  Pa.  580.  sufficient    to    justify    the    refusal    of 

W.  Va.     State  v.  Panetta,  101  S.  requests  to  charge  that  it  was  incum- 

E.  360,  85  W.  Va.  212.  bent  on  plaintiff  to  show  that  defend- 

**  State  V.   Stickel,  176  P.  799,  90  ants    acted    without   probable   cause. 

Or.  415.  Harris  v.  Thomas.  103  N.  W.  863,  140 

45  Morris  v.  State,  206  S.  W.  82,  84  INIich.  462.    Though  the  court  instruct- 

Tex.  Cr.  R.  100.  ed  that  plaintiff  could  not  recover  for 

•»6  Grammer  v.  State,  172  N.  W.  41,  injuries  received  in  a  prior  accident, 

103  Neb.  325.  the  refusal  to  instruct  that  plaintiff 


917 


REQUESTS   OR  PRAYERS  FOR  INSTRUCTIONS 


501 


special  requests  which  the  court  has  granted,^'  and  a  requested  in- 
struction correctly  defining  the  special  rule  of  law  on  which  a 
party  relies,  and  grouping  the  facts  to  establish  it,  should  not  be 
refused  because  the  jury  might  infer  from  the  general  charge  that 
the  requested  rule  is  correct,^^  or  because  the  court  has  made  a 
general  and  abstractly  correct  presentation  of  the  issues  involved.^ 

The  court  should  not  refuse,  as  having  been  already  more  cor- 
rectly given  in  accordance  with  the  evidence,  a  correct  instruction 
requested  by  the  accused,  when  the  charge  given  makes  condi- 
tions that  are  not  contained  in  the  proffered  instruction  essential 
to  an  acquittal.*^^ 

Although,  technically  speaking,  a  general  statement  in  a  charge 
may  be  said  to  include  the  specific  application  of  the  law  to  the 
evidence  in  the  case  as  expressed  in  a  request,  yet  if  it  is  proba- 
ble that  the  jury  will  not  understand  that  the  request  is  included 


could  not  recover  for  aggravation  of 
previous  injuries,  not  pleaded,  vpas 
error.  Boatright  v.  Portland  Ry., 
Light  &  Power  Co.,  135  P.  771,  68  Or. 
26. 

5  2  People  V.  Taleisnik,  122  N.  B. 
615,  225  N.  Y.  4S9,  reversing  judgment 
(Sup.)  172  N.  Y.  S.  912. 

53  Yellovt'  Pine  Oil  Co.  v.  Noble,  105 
S.  W.  318,  101  Tex.  125,  affirming 
judgment  (Civ.  App.)  101  S.  W.  276; 
El  Paso  &  S.  W.  R.  Co.  v.  Foth,  105 
S.  W.  322,  101  Tex.  133,  reversing 
judgment  (Civ.  App.)  100  S.  W.  171. 

5  4  Western  Coal  &  Mining  Co.  v. 
Buchanan,  102  S.  W.  094,  82  Ark.  499 ; 
Texas  &  N.  O.  R.  Co.  v.  McAllister 
(Tex.  Civ.  App.)  183  S.  W.  82 ;  Atchi- 
son, T.  &  S.  F.  Ry.  Co.  v.  Hill  (Tex. 
Civ.  App.)  171  S.  W.  1028 ;  J.  H.  W. 
Steele  Co.  v.  Dover  (Tex.  Civ.  App.) 
170  S.  W.  809. 

Effect  of  general  instruction  as 
dispensing  ivith  specific  instruc- 
tions. In  an  action  on  an  insurance 
policy,  the  company  is  entitled  to  a 
special  instruction  as  to  any  defect 
in  or  failure  to  furnish  proof  of  loss 
within  time,  although  the  court  has 
given  a  general  instruction  on  that 
point.  American  Fire  Ins.  Co.  v. 
Haynie,  120  S.  W.  825,  91  Ark.  43. 
It  is  error  in  an  action  for  negligence 
to  refuse  a  request  of  defendant 
pointing  out  the  concrete  question 
of  fact  as  to  which  the  parties  differ, 


but  on  vphich  the  existence  of  negli- 
gence is  predicated,  and  a  statement 
to  the  jury  in  lieu  thereof  of  a  general 
rule  of  law  in  general  terms  is  in- 
sufficient. Mellon  V.  Victor  Talking 
Mach.  Co.,  73  A.  494,  77  N.  J.  Law, 
670.  In  an  action  for  failure  to  de- 
liver a  telegram,  where  it  appeared 
that  upon  the  receipt  of  the  message 
defendant's  agent  made  inquiry,  and 
learned  that  the  plaintiff  lived  in  the 
country  several  miles  away,  and  im- 
mediately mailed  the  message  to  him, 
and  thereafter  sent  a  service  mes- 
sage to  the  plaintiff's  agent,  stating 
that  the  message  was  not  delivered, 
and  that  the  party  lived  in  the  coun- 
trj^  and  that  he  had  mailed  it  to  him. 
it  was  error  for  the  court  to  refuse 
an  instruction  grouping  these  facts, 
and  charging  that,  if  the  defendant's 
agent  in  so  doing  exercised  such  care 
as  an  ordinarily  prudent  person  would 
have  exercised  under  the  same  cir- 
cumstances, the  verdict  should  be  for 
defendant,  although  the  court  had 
instructed  in  its  main  charge  in  gen- 
eral terms  that,  if  the  agent  acted 
with  such  ordinary  care  and  diligence 
in  attempting  to  deliver  the  message 
as  an  ordinarily  pinident  person  would 
have  exei'cised,  then  the  verdict 
should  be  for  the  defendant.  West- 
ern Union  Telegraph  Co.  v.  Timmons, 
125  S.  W.  376,  59  Tex.  Civ.  App.  146. 
5  5  Marshall  v.  State,  32  Fla.  462.  14 
So.  92. 


§  501  INSTRUCTIONS  TO  JURIES  918 

in  the  general  charge,  it  will  be  error  to  refuse  the  request.^^  Thus 
the  giving  of  a  general  instruction,  as  required  by  a  statute,  that 
to  recover  the  plaintiff  must  prove  the  material  allegations  of  the 
complaint  by  a  preponderance  of  the  evidence,  does  not  authorize 
the  refusal  of  a  particular  instruction  applicable  to  the  evidence 
and  issues,""  and  a  general  charge  upon  the  issue  of  contributory 
negligence  is  not  sufficient  to  warrant  refusing  a  special  charge 
upon  the  issue  of  assumption  of  risk.^* 

In  a  criminal  case  a  pertinent  charge  adjusted  to  the  particular 
facts  relied  on  as  a  defense  should  be  given  on  request,  although 
the  judge  in  his  charge  states  generally  the  abstract  principle  of 
law  applicabfe  to  the  facts.^®  The  right  of  a  party  to  have  given 
an  instruction  presenting  his  theory  of  the  case  is  not  impaired 
by  the  fact  that  instructions  presenting  practically  the  same  legal 
propositions  from  the  viewpoint  of  his  adversary  have  been  given. ^* 

In  some  jurisdictions  under  statutory  provisions  the  court  is 
not  justified,  in  a  criminal  case,  in  refusing  a  special  charge  be- 
cause it  is  covered  by  a  paragraph  of  the  general  charge  of  the 
court.®^ 

I.    Erroneous  Requests 

§  502.     Rule  that  such  requests  may  be  refused  without  attempt 
at  correction 

It  is  not  the  duty  of  the  court  to  grant  a  request  for  an  instruc- 
tion which  is  incorrect  or  inaccurate  in  the  form  in  which  it  is 
prayed.®^     It  is  therefore  proper  to  refuse,  as  an  entirety,  an  in- 

•^c  Simoiiean  v.  Keene  Electric  Ry.,  Ark.     Newman  v.  Peay,  176  S.  W. 

100  A.    551,   78   N.   H.  363,   L.   R.   A.       143,  117  Ark.  579. 

1918A,  620.  D.  C.     Jackson  v.  U.  S.,  48  App.  D. 

5  7  Baltimore  &  O.  R.  Co.  v.  Peck,  C.  272. 

101  N.  E.  674,  53  Ind.  App.  281.  Ga.      Spillar  v.   Dickson,  95  S.  E. 
5  8  Cleburne  Electric  &   Gas  Co.  v.  994,  148  Ga.  90 :    Macon.  D.  &  S.  R. 

McCoy  (Tex.  Civ.  App.)  128  S.  W.  457.       Co.  v.  Joyner,  59  S.  E.  902,  129  Ga. 

5  0  Striblin^  v.  State,  65  S.  E.  1068,       ^^-   ,       ^  .  ^  .     ,     ^ 

6  Ga.  App.  864.  ,  ?»*•     ^"™^J"^  I"  ?™  a""^  %S'" 

^  ..             ^         .        1       -r.       ^  tate,  43  K  E.  322.  14  Ind.  App.  641 : 

60  Fujise  V.  Los  Angeles  Ry.  Co.,  teller  v.  Reynolds.  40  N.  E.  76.  12 
107  P.  317,  12  Cal.  App  20  <  ;  Icemen-  j^^^  ^pp.  383;  Goodwine  v.  State,  5 
do  V.  Fruit  Dispatch  Co.,  131  S.  W.  j^^  ^pp.  63.  31  N.  E.  554 :  Morfer  v. 
73,  61  Tex.  Civ.  App.  631 ;  Northern  gt^jj  20  N.  E.  752,  119  Ind.  244. 
Texas  Traction  Co.  v.  Moberly  (Tex.  Jq^^.  Mickev  v.  Citv  of  Indiano- 
Civ.  App.)  109  S.  W.  483.  la.  114  n.  W.  1072. 

61  Snyder  v.  State,  40  So.  978,  145  Kan.  Douglas  v.  Wolf,  6  Kan.  88. 
Ala.  33 ;  Orr  v.  State,  23  So.  696,  117  Mass.  Martineau  v.  National 
Ala.  69.  Blank  Book  Co.,  166  Mass.  4,  43  N.  E. 

62  U.    S.      (C.    C.    Mass.)    Locke   v.  513. 

United    States,    Fed.    Cas.   No.    8,442,  Mich.    Brown  v.  Harris,  102  N.  W. 

2  Cliff.  574a.  960,  139  Mich.  372. 


919 


REQUESTS   OR  PRAYERS   FOR  INSTRUCTIONS 


502 


struction  which  is  erroneous  in  part,^^  or  which  needs  to  be  quali- 


Mont.      Herrin    v.    Sieben,    127   P. 

323,  46   Mont.    226. 

N.  M.  State  v.  StaiT,  173  P.  674, 
24  N.  M.  180. 

N.  Y.  Garduer  v.  Clark,  17  Barb. 
538;    Doughty  v.  Hope,  3  Denio,  594. 

R.  I.  Periy  V.  Sheldon,  75  A.  690, 
30  R.  I.  426. 

S.  D.  Grant  v.  Whorton,  134  N.  W. 
803.  28  S.  D.  599. 

Tenn.  Raine  v.  State,  226  S.  W. 
189.  143  Tenn.  168. 

Tex.  Turner  v.  Missouri,  K.  &  T. 
Rv.  Co.  of  Texas  (Civ.  App.)  177  S.  W. 
204 ;  Summerhill  v.  Wilkes.  133  S.  W, 
492,  63  Tex.  Civ.  App.  456;  Board- 
man  V.  Woodward  (Civ.  App.)  118  S. 
W.  550;  San  Antonio  Light  Pub.  Co. 
V.  Lewy,  113  S.  W.  574,  52  Tex.  Civ. 
App.  22. 

Wash.    Larson  v.  McMillan,  170  P. 

324,  99  Wash.  626. 

63  u.  S.  .  Sweeney  v.  Erving,  33  S. 
Ct.  416,  228  U.  S.  233,  57  L.  Ed.  815, 
Ann.  Cas.  1914D,  905,  affinning  judg- 
ment 35  App.  D.  C.  57,  43  L.  R.  A. 
(N.  S.)  734;  (C.  C.  A.  Colo.)  Liberty 
Bell  Gold  Mining  Co.  v.  Smuggler- 
Union  Mining  Co.,  203  F.  795,  122  C. 
C.  A.  113;  (C.  C.  A.  Minn.)  Chicago 
Great  Western  Ry.  Co.  v.  Roddy,  131 
F.  712,  65  C.  C.  A.  470 ;  (C.  C.  A.  Mo.) 
Kercheval  v.  Allen,  220  F.  263,  135  C. 
C.  A.  1 ;  (C.  C.  A.  N.  J.)  Buckeye  Pow- 
der Co.  V.  E.  I.  Du  Pont  de  Nemours 
Powder  Co.,  223  F.  881,  139  C.  C.  A. 
319 ;  Porter  v.  Buckley,  147  F.  140,  78 
C.  C.  A.  138 ;  (C.  C.  A.  Ohio)  Monarch 
Cycle  Mfg.  Co.  v.  Royer  Wheel  Co., 
105  F.  324,  44  C.  C.  A.  523 ;  (C.  C.  A. 
Okl.)  Chicago,  R.  I.  &  P.  Ry.  Co.  v. 
Hale,  176  F.  71,  99  C.  C.  A.  379. 

Ala.  Dunaway  v.  Roden,  71  So. 
70,  14  Ala.  App.  501,  certiorari  de- 
nied Ex  parte  Dunaway,  72  So.  1019, 
196  Ala.  701 ;  Williamson  Iron  Co.  v. 
McQueen,  40  So.  306,  144  Ala.  265; 
Southern  Ry.  Co.  v.  Bradford,  40  So. 
100,  145  Ala.  684;  Southern  Ry.  Co. 
V.  Douglass,  39  So.  268,  144  Ala.  351; 
United  States  Life  Ins.  Co.  v.  Lesser, 
28  So.  646,  126  Ala.  568;  Alabama 
State  Land  Co.  v.  Slaton,  24  So.  720, 
120  Ala.  259. 

Ariz.  Arizona  Eastern  R.  Co.  v. 
Bryan,  157  P.  376,  18  Ariz.  106. 

Ark.     Kanis  v.  Rogers,  177  S.  W. 


413,  119  Ark.  120 ;  Randleman  v.  Tay- 
lor, 127  S.  W.  723,  94  Ark.  511,  140 
Am.  St.  Rep.  141;  C.  H.  Smith  Tie  & 
Timber  Co.  v.  Weatherford,  121  S.  W. 
943.  92  Ark.  6. 

Cal.  People  v.  Wong  Sang  Lung, 
84  P.  843.  3  Cal.  App.  221 ;  William- 
son V.  Tobey,  86  Cal.  497,  25  P.  65 ; 
Smith  V.  Richmond,  19  Cal.  476. 

Colo.  Gill  V.  Schneider,  110  P.  62, 
48  Colo.  382;  Greeley  Irr.  Co.  v.  Von 
Trotha,  108  P.  985,  48  Colo.  12 ;  Allen 
V.  Shires,  107  P.  1072,  47  Colo.  439; 
Allen  V.  Shires,  107  P.  1070,  47  Colo. 
433. 

Conn.  Urbansky  v.  Kutinsky,  84 
A.  317,  86  Conn.  22 ;  Johnson  v.  Con- 
necticut Co.,  83  A.  530,  85  Conn.  438 ; 
Allen  v.  Lyness,  71  A.  936,  81  Conn. 
626;  Stern  v.  Leopold  Simons  &  Co., 
58  A.  696,  77  Conn.  150. 

Fla.      Florida   Ry.   Co.   v.   Dorsey, 

52  So.  963,  59  Fla.  260 ;  Jacksonville 
Electric  Co.  v.  Schmetzer,  43  So.  85, 

53  Fla.  370. 

Ga.  Seaboard  Air  Line  Ry.  v.  Mose- 
ley,  85  S.  E.  1021,  144  Ga.  35 ;  Bush  v. 
Fourcher,  59  S.  E.  459,  3  Ga.  App.  43; 
Roberts,  Cranford  &  Co.  v.  Devane,  59 
S.  E.  289,  129  Ga.  604 ;  Citv  of  Rome 
v.  Sudduth,  49  S.  E.  300,  121  Ga.  420; 
Thompson  v.  O'Connor,  41  S.  E.  242. 
115  Ga.  120;  Grace  v.  McKinney,  37 
S.  E.  737.  112  Ga.  425. 

111.  Kelly  V.  Chicago  Citv  Rv.  Co., 
119  N.  E.  622,  283  111.  640;'  Indiana, 
I.  &  I.  R.  Co.  V.  Otstot,  72  N.  E.  387, 
212  111.  429,  affirming  .iudgmeut  113 
111.  App.  37;  Chicago  &  E.  I.  R.  Co.  v. 
Burridge,  71  N.  E.  838,  211  111.  9,  re- 
versing judgment  107  111.  App.  23 : 
Smythe's  Estate  v.  Evans,  70  N.  E. 
906.  209  111.  376,  reversing  judgment 
108  111.  App.  145 ;  Nelson  v.  Fehd.  67 
N.  E.  828,  203  111.  120,  affirming  judg- 
ment 104  111.  App.  114. 

Ind.  Howlett  v.  Dilts,  30  N.  E. 
313.  4  Ind.  App.  23. 

Kan.  Western  Union  Tel.  Co.  v. 
Getto-McClung  Boot  &  Shoe  Co.,  61  P. 
504,  9  Kan.  App.  863;  Kansas  Ins. 
Co.  V.  Berry,  8  Kan.  159 ;  Mayberry 
V.  Kelly,  1  Kan.  116. 

Ky.  Stringtown  &  B.  Turnpike 
Road  Co.  V.  Riley  (Super.)  8  Ky.  Law 
Rep.  (abstract)  267. 

Me.      National    Furniture    Co.    v. 


502 


INSTRUCTIONS  TO  JURIES 


920 


fied  or  explained,®*  although  a  charge  on  the  subject  of  the  re- 


Prussian  Nat.  Ins.  Co.,  91  A.  785,  112 
Me.  557;  York  v.  Parker,  84  A.  939, 
109  Me.  414. 

Md.  F.  W.  Dodge  Co.  v.  H.  A. 
Hughes  Co.,  72  A.  1036,  110  Md.  374. 

Mass.  Gardiner  v.  City  of  Brook- 
line,  181  Mass.  162,  63  N.  E.  397; 
Twomey  v.  Linnehan,  161  Mass.  91, 
36  N.  E.  590. 

Mich.  Williams  v.  City  of  Lans- 
ing, 115  N.  W.  961,  152  Mich.  169; 
Courtemanche  v.  Supreme  Court,  I. 
O'.  O.  F.,  98  N.  W.  749,  136  Mich.  30, 
64  L.  R.  A.  668,  112  Am.  St.  Rep.  345; 
Bedford  v.  Penny,  25  N.  W.  381,  58 
Mich.  424;  Weschester  Fire  Ins.  Co. 
V.  Earle,  33  Mich.  143. 

Minn.  Hayward  v.  Knapp,  23 
Minn.  430 ;  Simmons  v.  St.  Paul  &  C. 
Ry.  Co.,  18  Minn.  184  (Gil.  168);  Vil- 
lage of  Mankato  v.  Meagher,  17  Minn. 
265  (Gil.  243);  Dodge  v.  Rogers,  9 
Minn.  223  (Gil.  209) ;  Selden  v.  Bank 
of  Commerce,  3  Minn.  166  (Gil.  108) ; 
Bond  V.  Corbett,  2  Minn.  248  (Gil. 
209) ;  Castner  v.  The  Dr.  Franklin,  1 
Minn.  73  (Gil.  51). 

Miss.     Doe  V.  King,  3  How.  125. 

Mo.  Viles  V.  Viles  (App.)  190  S.  W. 
41;  Thomas  v.  Thomas,  186  S,  W. 
993 ;  Fisher  v.  St.  Louis  Transit  Co., 
95  S.  W.  917,  198  Mo.  562 ;  McManus 
V.  Metropolitan  St  Ry.  Co.,  92  S.  W. 
176,  116  Mo.  App.  110;  Howerton  v. 
Iowa  State  Ins.  Co.,  105  Mo.  App. 
575,  80  S.  W.  27 ;  Trustees  of  Chris- 
tian University  v.  Hoffman,  69  S.  W, 
474,  95  Mo.  App.  488;  Lail  v.  Pacific 
Exp.  Co.,  81  Mo.  App.  232. 

Mont.  Ford  v.  Drake,  127  P.  1019, 
40  Mont.  314 ;  Pelican  v.  Mutual  Life 
Ins.  Co.  of  New  York,  119  P.  778,  44 
Mont.  277. 

Neb.  Buck  v.  Hogeboom,  90  N.  W. 
635,  2  Neb.  (Unof.)  853. 

N.  J.  Max  V.  Kabn,  102  A.  737,  91 
N.  J.  Law,  170 ;  Dederick  v.  Central 
R.  Co.  of  New  Jersey  (Sup.)  05  A. 
833,  74  N.  J.  Law,  424;  Consolidated 
Traction  Co.  v.  Chenowith,  58  N,  J. 
Law,  416,  34  A.  817. 

N.  Y.  Kenney  v.  South  Shore  Nat- 
ural Gas  &  Fuel  Co.,  119  N.  Y.  S. 
363,  134  App.  Div.  859;  Wittleder  v. 
Citizens'  Electric  Illuminating  Co.  of 
Brooklyn,  62  N.  Y.  S.  297,  47  App. 
Div.  410 ;   Hodges  v.  Cooper,  43  N.  Y. 


216;  Keller  v.  New  York  Cent.  R.  Co., 
24  How.  Prac.  172 ;  Vallance  v.  King, 
3  Barb.  548;  Halsey  v.  Rome,  W.  & 
O.  R.  Co.,  12  N.  Y.  St.  Rep.  319. 

N,  C.  Washington  Horse  Exchange 
V,  Louisville  &  N.  R.  Co..  87  S.  E.  941, 
171  N.  C.  65 ;  Phifer  v.  Commission- 
ers of  Cabarrus  County,  72  S,  E.  852, 
157  N.  0.  150 ;  Vanderbilt  v.  Brown, 
39  S.  E.  36,  128  N.  C.  498. 

Ohio.  Columbus  Ry.  v.  Connor, 
27  Ohio  Cir.  Ct.  R.  229;  Holmes  v. 
Ashtabula  Rapid  Transit  Co.,  10  O.  C. 
D.  638. 

Okl.  Missouri,  O.  &  G.  Ry.  Co.  v. 
Collins,  150  P.  142,  47  Okl.  761 ;  Mis- 
souri, K.  &  T.  Ry.  Co.  V.  West,  134  P. 
655,  38  Okl.  581 ;  Continental  Casual- 
ty Co.  V.  Owen,  131  P.  1084,  38  Okl. 
107;  Sanders  v.  Cline,  101  P.  267,  22 
Okl.  154;  Friedman  v.  Weisz,  58  P. 
613,  8  Okl.  392. 

Pa.  Seifred  v.  Pennsylvania  RL 
Co.,  55  A.  1061,  206  Pa.  399. 

S.  C.  McMahan  v.  Walhalla  Light 
&  Power  Co.,  86  S.  E.  194,  102  S.  C. 
57 ;  Lorenzo  v.  Atlantic  Coast  Line  R. 

6  4  Ala.  Knowles  v.  Ogletree,  9o 
Ala.  555,  12  So.  397;  Callan  v.  Mc- 
Daniel,  72  Ala.  96;  Kirkland  v.  Trott, 
66  Ala.  417 ;  Godbold  v.  Blair,  27  Ala. 
592  ;    Rolston  v.  Langdon,  26  Ala.  660. 

Cal.  Garlick  v.  Bowers,  66  Cal. 
122.  4  P.  1138. 

111.  Coney  v,  Pepperdine,  38  111. 
App.  403. 

Ind.  Kluse  v.  Sparks,  10  Ind.  App. 
444,  37  N.  B.  1047;  Rogers  v.  Leyden, 
127  Ind.  50,  26  N.  E.  210;  Over  v. 
Schiffling,  102  Ind.  191,  26  N.  E.  91; 
Ricketts  v.  Harvey,  106  Ind.  564,  6 
N.  E.  325;  Howard  County  Com'rs  v. 
Legs,  93  Ind.  523,  47  Am.  Rep.  390; 
Roots  V.  Fyner,  10  Ind.  87. 

Iowa.  Bevan  v.  Hayden,  13  Iowa, 
122 ;  Keenan  v.  Missouri  State  Mut. 
Ins.  Co.,  12  Iowa,  126;  Morrison  v. 
Myers,  11  Iowa,  538 ;  Grimes  v.  Mar- 
tin, 10  Iowa,  347;  Tifield  v.  Adams,  3 
Iowa  (3  Clarke)  487. 

Kan.     Douglas  v.  Wolf,  6  Kan.  88. 

Me.  Tower  v.  Haslam,  84  Me.  86, 
24  A.  587. 

Okl.  Fulsom-Morris  Coal  &  Min- 
ing Co.  V.  Mitchell,  132  P.  1103,  37 
Okl.  575. 


921 


REQUESTS   OR   PRAYERS   FOR   INSTRUCTIONS 


502 


quest  should  be  given ;  ^^  it  not  being  considered  that  the  court 
is  under  any  obligation  to  reform  a  requested  instruction,  and  to 
cast  out  such  parts  as  render  it  improper  as  a  whole.®* 


Co.,  85  S.  E.  964,  101  S.  C.  409 :  Earle 
V.  Poat.  41  S.  E.  52.5,  6.3  S.  C.  4.39; 
Raprsdale  v.  Southern  Ry.  Co.,  38  S. 
E.  009,  60  S.  C.  381;  Pickens  v.  South 
Carolina  &  G.  R.  Co.,  32  S.  E.  567,  54 
S.  C.  498 ;  McGee  v.  Wells,  30  S.  E. 
602,  52  S.  C.  472;  Gandy  v.  Orient 
Ins.  Co.,  29  S.  E.  655,  52  S.  C.  224. 

Tenn.  Louisville  &  N.  R.  Co.  v. 
Smith,  134  S.  W.  866,  123  Tenn.  678 ; 
Pennsylvania  R.  Co.  v.  Naive,  79  S. 
W.  124.  112  Tenn.  239,  64  L.  R.  A. 
443 ;  City  of  Knoxville  v.  Cox,  53  S. 
W.  734,  103  Tenn.  368. 

Tex.  Quanah,  A.  &  P.  Rv.  Co.  v. 
Bone  (Civ.  App.)  199  S.  W.  332 ;  Ben- 
nett V.  Foster  (Civ.  App.)  161  S.  W. 
1078  ;  Peacock  v.  Coltrane  (Civ.  App.) 
156  S.  W.  1087;  Souther  v.  Hunt  (Civ. 
App.)  141  S.  W.  359:  Evart  v.  Dal- 
rymple  (Civ.  App.)  131  S.  W.  223; 
Lyon  V.  Bedgood,  117  S.  W.  897,  54 
Tex.  Civ.  App.  19;  Arthur  v.  Porter 
(Civ.  App.)  116  S.  W.  127;  Missouri, 
K.  &  T.  Ry.  Co.  of  Texas  v.  Wall  (Civ. 
App.)  110  S.  W.  453 :  Galveston,  H.  & 
S.  A.  Ry.  Co.  V.  Still,  100  S.  W.  176, 
45  Tex.  Civ.  App.  169;  St.  Louis 
Southwestern  Ry.  Co.  of  Texas  v. 
Baer,  86  S.  W.  653.  39  Tex.  Civ.  App. 
16;  Dolan  v.  Meehan  (Civ.  App.)  SO 
S.  W.  99;  CranfiU  v.  Hayden  (Civ. 
App.)  75  S.  W.  573,  reversed  80  S.  W. 
609,  97  Tex.  544 ;  Western  Union  Tel. 
Co.  V.  McConnico,  66  S.  W.  592,  27 
Tex.  Civ.  App.  610 ;  Milmo  Nat.  Bank 
V.  Convery  (Civ.  App.)  49  S.  W.  926; 
St.  Louis  S.  W.  Ry.  Co.  of  Texas  v. 
Cassedav  (Civ.  App.)  48  S.  W.  6,  re- 
versed 50  S.  W.  125,  92  Tex.  525; 
Clack  V.  Wood  (Civ.  App.)  46  S.  W. 
11.32;  Dublin  Cotton-Oil  Co.  v.  Jar- 
rard.  42  S.  W.  9.59,  91  Tex.  289,  affirm- 
ing judgment  (Civ.  App.)  40  S.  W. 
531 ;  Riviere  v.  Missouri,  K.  &  T.  Ry. 
Co.  (Civ.  App.)  40  S.  W.  1074. 

Utah.  Jensen  v.  Denver  &  R.  G. 
R.  Co.,  138  P.  1185,  44  Utah,  100; 
Evans  v.  Oregon  Short  Line  R.  Co., 
108  P.  638,  37  Utah,  431,  Ann.  Cas. 
1912C,  259. 

Vt.  Needham  v.  Boston  &  M.  R. 
Co.,  74  A.  226,  82  Vt.  518 ;    Terrill  v. 


Tillison,  54  A.  187,  75  Vt.  193 ;  Ams- 
den  V.  Atwood,  38  A.  263,  69  Vt.  527. 

Va.  Keen's  Ex'r  v.  Monroe,  75  Va. 
424  ;  Kincheloe  v.  Tracewells,  11  Grat. 
587. 

Wash.  Singer  v.  Martin,  164  P. 
1105,  96  Wash.  231;  Nollmeyer  v. 
Tacoma  Ry.  &  Power  Co..  164  P.  229, 
95  Wash.  595 ;  Howe  v.  West  Seattle 
Land  &  Improvement  Co.,  59  P.  495, 
21  Wash.  594. 

W.  Va.  Berry  v.  Huntington 
Masonic  Temple  Ass'n,  93  S.  E.  355, 
80  W.  Va.  342. 

Wis.  Lyle  v.  McCormick  Harvest- 
ing Mach.  Co.,  84  N.  W.  18.  108  Wis. 
81,  51  L.  R.  A.  906;  Stucke  v.  Mil- 
waukee. C.  M.  R.  Co..  9  Wis.  202. 

6  5  Rudolph  V.  Holmes,  78  So.  8.39, 
201  Ala.  461;  Hydraulic  Cement  Block 
Co.  V.  Christensen,  114  P.  524,  38 
Utah.  .525. 

CO  U.  S.  (C.  C.  A.  Mo.)  Exchange 
Bank  v.  Moss,  149  F.  340,  79  C.  C.  A. 
278. 

Ark.  American  Fire  Ins.  Co.  v. 
Haynie,  120  S.  W.  825,  91  Ark.  43. 

Colo.  Blackmore  v.  Neale,  60  P. 
952,  15  Colo.  App.  49. 

Conn.  Rathbone  v.  City  Fire  Ins. 
Co.,  31  Conn.  193. 

D.  C.     Robinson  v.  Parker,  11  App. 

D.  C.  132. 

Ga.  Seaboard  Air  Line  Ry.  v. 
Blackshear,  75  S.  E.  902,  11  Ga.  App. 
579;    Carter  &  Ford  v.  Brown,  61  S. 

E.  142,  4  Ga.  App.  238. 

111.  Rolfe  V.  Rich,  149  111.  436.  35 
N.  E.  352,  affirming  46  111.  App.  406 ; 
Weeks  v.  Jones,  200  111.  App.  215; 
Swigart  v.  Savely,  176  111.  App.  369, 

Ind.  Town  of  Newcastle  v.  Grubbs, 
86  N.  E.  757,  171  Ind.  482 ;  Toops  v. 
State,  92  Ind.  13. 

Ind.  T.  Gulf,  C.  &  S.  F.  Rv.  Co. 
v.  Moseley,  98  S.  W.  129,  6  Ind.  T. 
369. 

Mo.  Davis  v.  Springfield  Hospital 
(App.)  196  S.  W.  104. 

Mont.  Anderson  v.  Northern  Pac. 
Ry.  Co.,  85  P.  884,  34  Mont.  181. 

N.  J.  Christy  v.  New  York  Cent.  & 
II.  R.  R.  Co.,  101  A.  372,  90  N.  J.  Law, 


502 


INSTRUCTIONS   TO  JURIES 


922 


This  rule  applies  where  a  number  of  propositions  are  requested 
en  masse  and  one  or  more  of  them  are  improper,**'  or  where  an  in- 


540;  Manchester  Building  &  Loan 
Ass'n  V.  Allee,  80  A.  466,  81  N.  J. 
Law,  605,  reversing  judgment  (Sup.) 
76  A.  1012,  80  N,  J.  Law,  185. 

N.  Y.  Dooling  v.  City  of  New 
Yorlj,  132  N.  Y.  S.  1012,  148  App.  Div. 
713,  Ai)peal  to  Court  of  Appeals  de- 
nied 133  N.  Y.  S.  1119 ;  Lee  v.  Ster- 
ling Silk  Mfg.  Co.,  118  N.  Y.  S.  852, 
134  App.  Div.  123;  Frank  v.  Metro- 
politan St.  Ky.  Co.,  86  N.  Y.  S.  1018, 
91  App.  Div.  485 ;  Smith  v.  New  York 
Cent.  &  H.  R.  R.  Co.,  9  N.  Y.  St.  Rep. 
612. 

N.  C.  Edwards  v.  Western  Union 
Telegraph  Co.,  60  S.  E.  900,  147  N.  C. 
126 ;  Harris  v.  Atlantic  Coast  Line  R. 
Co.,  43  S.  E.  589,  132  N.  C.  160. 

S.  C.  Stanton  v.  Southern  Ry.  Co., 
34  S.  E.  695,  56  S.  C.  398. 

Tex.  Cunningham  v.  State,  166  S. 
W.  519,  73  Tex.  Cr.  R.  565 ;  San  An- 
tonio &  A.  P.  Ry.  Co.  v.  McBride  & 
Dillard,  116  S.  -W.  638;  Houston  & 
T.  C.  R.  Co.  v.  Oram,  107  S.  W.  74,  47 
Tex.  Civ.  App.  526;  Missouri,  K.  & 
T.  Ry.  Co.  of  Texas  v.  Smith  (Civ. 
App.)  100  S.  W.  182;  Gulf,  C.  &  S.  F. 
Ry.  Co.  V.  Minter,  93  S.  W.  516,  42 
Tex.  Civ.  App.  235 ;  Creager  v.  Yar- 
borough  (Civ.  App.)  87  S.  W.  376 ;  Cit- 
izens' Nat.  Bank  v.  Cammer  (Civ. 
App.)  86  S.  W.  625;  International  & 
G.  N.  R.  Co.  V.  Shuford,  81  S.  W. 
1189,  36  Tex.  Civ.  App.  251 ;  St.  Louis 
Southwestern  Ry.  Co.  of  Texas  v. 
Kennemore  (Civ.  App.)  81  S.  W.  802 ; 
Williams  v.  Yoe,  54  S.  W.  614,  22  Tex. 
Civ.  App.  446;  Waco  Artesian  Water 
Co.  V.  Cauble,  47  S.  W.  538,  19  Tex. 
Civ.  App.  417;  Harris  v.  First  Nat. 
Bank  (Civ.  App.)  45  S.  W.  311 ;  Law- 
rence V.  State,  20  Tex.  App.  536. 

Va.  Peele  v.  Bright,  89  S.  E.  238, 
119  Va.  182;  Chesapeake  &  O.  Ry, 
Co.  v.  F.  W.  Stock  &  Sons,  51  S.  E. 
161,  104  Va.  97. 

Wast.  Croft  V.  Northwestern  S. 
S.  Co.,  55  P.  42,  20  Wash.  175. 

W.  Va.  Shrewsbury  v.  Tufts,  41 
W.  Va.  212,  23  S.  E.  692. 

G7  Ala.  Goldstein  v.  Self,  62  So. 
369,  9  Ala.  App.  100;  Bohanan  v. 
Dodd,  60  So.  955,  7  Ala.  App.  220;  Mo- 


bile &  Ohio  R.  Co.  V.  Minor,  60  So. 
951,  6  Ala.  App.  633,  certiorari  de- 
nied  Ex  parte  Mobile  &  O.  R.  Co. 
(Sup.)  61  So.  1005;  Birmingham  Ry., 
Light  &  Power  Co.  v.  Leach,  59  So. 
358,  5  Ala.  App.  546 ;  Stowers  Furni- 
ture Co.  V.  Brake,  48  So.  89,  158  Ala. 
639;  McEntyre  v.  Hairston,  44  So. 
417,  152  Ala.  251. 

Ga.  Atlantic  Coast  Line  R.  Co.  v. 
Hill,  77  S:  E.  316,  12  Ga.  App.  392. 

111.  Springfield  Electric  Light  & 
Power  Co.  v.  Mott,  120  111.  App.  39. 

N.  J.  Schreiher  v.  Public  Service 
Ry.  Co.,  98  A.  316,  89  N.  J.  Law,  183; 
Miller  v.  I.  P.  Thomas  &  Son  Co.,  98 
A.  193,  89  N.  J.  Law,  364. 

N.  C.  Johnson  County  Sav.  Bank 
V.  Chase,  65  S.  E,  745,  151  N.  C.  108. 

Tex.  Merchants'  Ice  Co.  v.  Scott 
&  Dodson  (Civ.  App.)  186  S.  W.  418; 
Hermann  v.  Bailey  (Civ.  App.)  174  S. 
W.  865;  Western  Union  Telegraph 
Co.  V.  Glass  (Civ.  App.)  154  S.  W.  604 ; 
Wall  V.  Lubbock,  118  S.  W.  886,  52 
Tex.  Civ.  App.  405;  Gulf,  C.  &  S.  F. 
Ry.  Co.  V.  Garrett  (Civ.  App.)  98  S. 
W.  657;  International  &  G.  N.  R.  Co. 
V.  Sein,  26  S.  W.  788  ;  International  & 
G.  N.  R.  Co.  V.  Nefe  (Civ.  App.)  26  S.  W. 
784;  Missouri  Pac.  Ry.  Co.  v.  King, 
2  Tex.  Civ.  App.  122,  20  S.  W.  1014, 
23  S.  W.  917. 

Contrary  rule.  In  .some  jurisdic- 
tions, where  a  request  to  charge  con- 
tains two  independent  and  distinct 
propositions,  one  of  which  is  proper 
to  be  given  and  the  other  not,  the 
proper  course  is,  not  to  refuse  it  as  a 
whole,  but  to  refuse  the  erroneous 
proposition,  and  grant  that  which  is 
correct.  Sword  v.  Keith,  31  Mich.  247; 
Peshine  v.  Shepperson,  17  Grat.  (Va.) 
472,  94  Am.  Dec.  468. 

Charges  vrritten  on  separate 
sheets  of  paper.  Where  five  special 
charges  requested  are  written  on  sep- 
arate sheets  of  paper,  which  are 
pinned  together  so  as  to  be  easily  sep- 
arated, and  the  style  of  the  cause  ap- 
pears only  on  the  first  one,  and  the 
signature  of  counsel  only  on  the  last, 
they  must  be  considered  together ; 
and,  if  one  is  incorrect,  all  are  prop- 


923  REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS         §  503 

struction  contains  several  alternative  propositions,  one  of  which 
is  unsound,**  or  where,  in  an  action  based  on  two  counts,  instruc- 
tions asked  as  applicable  to  the  whole  complaint  are  good  only  as 
to  one  count,**  or  where  part  of  an  instruction  is  argumentative,'** 
or  where  a  requested  charge  contains  an  incorrect  statement  of 
fact,'^  or  requests  the  withdrawal  of  both  improper  and  proper  evi- 
dence,''^ or  where  a  part  of  a  request  to  charge  is  not  applicable  to 
the  facts,'^  or  invades  the  province  of  the  jury.'*  So  requested  in- 
structions, unintelligible  for  lack  of  punctuation,  may  be  refused.'** 

§  503.     Qualifications  of  rule 

If  instructions,  taken  as  a  whole,  present  the  law  correctly,  and 
arc  neither  inconsistent  nor  misleading,  they  should  be  given,  al- 
though one  of  them,  considered  by  itself,  is  defective  or  errone- 
ous ;  '*  and  where  different  charges,  although  written  upon  a  sin- 
gle piece  of  paper,  are  acted  upon  by  the  court  as  separate  charges, 
and  a  separate  exception  is  reserved  to  the  refusal  of  each  charge, 
the  fact  that  one  of  them  is  faulty  will  not  absolve  the  court  from 
error  in  refusing  them  all,"  and  while  in  some  jurisdictions  it  is 
not  error  to  refuse  an  instruction  unless  it  ought  to  be  given  pre- 
cisely in  the  terms  prayed,'*  and  in  one  jurisdiction  the  court  has 
no  power  to  correct  even  mere  verbal  inaccuracies,  being  bound 
to  give  or  refuse  instructions  as  requested,'*  it  is  held  in  some 
jurisdictions  that  an  error  in  a  requested  instruction  may  be  so  ap- 
parently clerical  that  it  will  be  the  duty  of  the  court  to  reform  the 

orlv  refused.     International  &  G.  N.  Tex.  Civ.  App.  .385;   Brooke  v.  Young, 

R.'Co.  V.  Neff  (Tex.  Civ.  App.)  26  S.  3  Rand.  (Va.)  106. 

W.  784:    Same  v.  Sein,  Id.  788.  ^r.  Bailey  v.  State,  53  So.  296,  168 

0  8  Whitsett  V.  Belue,  54  So.  677,  172  Ala.  4. 
Ala.  2.56;   Boyden  v.  Fitebburg  R.  Co.,  ^6  Wbalen  v.  St.  Louis,  K.  C.  &  N. 

47  A.  409,  72  Vt.  89.  Ry.    Co.,    60    Mo.    323 ;     Callaway    v. 

6  9  Manchester    Fire   Assur.    Co.    v.  Fasb,  50  Mo.  420. 

Feibelman,  23  So.  759.  118  Ala.  30S.      s*        "  Tennessee  Coal,  Iron  &  R.  Co.  v. 

7  0  Sloss-Sheffield   Steel  &  Iron  Co.       Bonner,  51  So.  145,  164  Ala.  57. 

v.  Sampson,  48  So.  493,  158  Ala.  590.  ^s  American  Motor  Car  Co.  v.  Rob- 

71  McNetton  V.  Herb,  123  N.  W.  17,  bins,    103   N.    E.   641,    181   Ind.   417; 

158  Mich.  525.  Pittsburg,  C,  0.  &  St.  L.  Ry.  Co.  v. 

7  2  Kendrick  v.  Ryus,  123  S.  W.  937,  Sudboff,  90  N.  E.  467,  173  Ind.  314; 

225  Mo.  150,  135  Am.  St.  Rep.  585.  transferred  from  Appellate  Court  88 

7  3  Knecht  v.  Moouey,  85  A.  775,  118  N.  E.  702;    Lawrenceburgh  &  U.  M. 

Md.  583 ;    Jackson  v.  Southwest  Mis-  R.    Co.   v.  Montgomery,    7   Ind.   474 ; 

souri  R.  Co.,  156  S.  W.  1005,  171  Mo.  Cbilders  v.  Southern  Pac.  Co..  149  P. 

430 ;     Zarate  v.   Villareal    (Tex.   Civ.  S07,  20  N.  M.  306 ;    Lynch  v.  Town  of 

App.)  155  S.  W.  328 ;    Sabine  &  E.  T.  Waldwick,  101  N.  W.  925,  123  Wis. 

Ry.  Co.    V.    Ewing,  21   S.   W.   700,   1  351. 

Tex.  Civ.  App.  531.  79  Barfield  v.  Evans,  65  So.  928,  187 

74Mesker  v.  Bishop,  103  N.  E.  492,  Ala.  579:    Louisville  &  N.  R.  Co.  v. 

56  Ind.  App.  455;   International  &  G.  Lile,  45  So.  699,  154  Ala.  556;    Banks 

N.  R.  Co.  V.  Haddox,  81  S.  W,  1036,  36  v.  State  (Ala.)  39  So.  921. 


§  503 


INSTRUCTIONS  TO  JURIES 


924 


request,  so  as  to  eliminate  such  error,  and  to  charge  the  request 
as  so  reformed,*"  as  where  a  request  improperly  uses  the  word 
"plaintiff,"  instead  of  "defendant."  " 

In  Virginia  the  rule  is  that,  while  the  court  may,  as  a  general 
rule,  refuse  to  give  an  instruction  which  does  not  correctly  expound 
the  law,  and  is  not  bound  to  modify  it,  or  give  any  other  instruc- 
tion in  its  place, *~  yet,  where  the  request  is  so  equivocal  that  to 
give  or  generally  refuse  it  might  mislead  the  jury,  the  court  should 
either  accompany  a  refusal  with  an  explanation  to  the  jury,*^  or 
should  substitute  a  correct  instruction  for  the  one  requested,**  or 
should  modify  the  request,  so  as  to  clearly  give  it  the  meaning 
which  will  make  it  proper,  and  then  give  the  request  as  so  modi- 
fied.*^   In  West  Virginia  a  similar  rule  prevails.*^ 

§  504.     Power  of  court  to  reform  an  erroneous  request 

In  some  jurisdictions,  where  an  instruction  requested  is  in  part 
correct  and  in  part  erroneous,  the  court  may  give  the  part  which 
is  correct,*'  or  may  modify  the  instruction  asked,  so  as  to  make 
it  correct  as  a  whole,**  as  by  eliminating  argumentative  matter,*® 


80  Kenny  v.  Marquette  Cement  Mfg. 
Co.,  149  111.  App.  173,  judgment  affirm- 
ed 90  N.  E.  724,  243  111.  396;  Ft. 
Worth  &  D.  C.  Ry.  Co.  v.  Anderson 
(Tex.  Civ.  App.)  194  S.  W,  847 ;  Mont- 
gomery V.  State,  107  N.  W,  14,  128 
Wis.  183. 

81  Hauev  v.  Mann  (Tex.  Civ.  App.) 
'81  S.  W.  66. 

In  Alabama,  where,  as  stated  else- 
where, requests  must  be  given,  if  giv- 
en at  all,  in  the  exact  language  in 
which  they  are  framed,  the  improper 
use  of  the  woi-d  "defendant"  for 
"plaintiff"  in  a  requested  instruction 
need  not  be  corrected  by  the  trial 
court,  hut  the  instruction  may  be  re- 
fused. Western  Ry.  of  Alabama  v. 
Stone,  39  So.  723,  145  Ala.  663. 

8  2  Keen's  Ex'r  v.  Monroe,  75  Va. 
424. 

8  3  Peshine  v.  Shepperson,  17  Grat. 
(Va.)  472,  94  Am.  Dec.  468. 

84  l.ufty  v.  Commonwealth,  100  S. 
E.  829.  126  Va.  707. 

85  Virginian  Ry.  Co.  v.  Bell,  79  S. 
E.  396.  115  Va.  429,  Ann.  Cas.  191.5A, 
804;  Rosenbaum  v.  Weeden,  18  Grat. 
(Va.)  785,  98  Am.  Dec.  737;  Ward  v. 
Chum,  18  Grat.  (Va.)  801,  98  Am.  Dec. 
749 :  Baltimore  &  O.  R.  Co.  v.  Tolly, 
14  Grat.  (Va.)  447. 


8  6  Carrico  v.  West  Virginia  Cent.  & 
P.  Ry.  Co.,  35  W.  Va.  389,  14  S.  E.  12. 

8  7  Marlborough  v.  Sisson,  23  Conn. 
44 ;  Bush  v.  Fourcher,  59  S.  E.  459,  3 
Ga.  App.  43;  French  v.  Millard,  2 
Ohio  St.  44;  St.  Louis,  I.  M.  &  S.  Ry. 
Co.  V.  Berry,  93  S,  W.  1107,  42  Tex. 
Civ.  App.  470. 

8  8  u.  S.  (C.  C.  A.  Mass.)  American 
Agricultural  Chemical  Co.  v.  Hogan, 
213  F.  416,  130  C.  C.  A.  52. 

Ark.  Texas  &  P.  Ry.  Co.  v.  Krie- 
ger,  185  S.  W.  44S,  123  Ark.  619 ;  Dent 
V.  People's  Bank  of  Imboden,  175  S. 
W.  1154,  118  Ark.  157,  1  A.  L.  R.  688. 
'■')  Cal.  Fitzgerald  v.  Southern  Pac. 
Co.,  173  P.  91,  36  Cal.  App.  660 ;  Fiorl 
v.  Agnew,  164  P.  899,  33  Cal.  App. 
284 ;  Boyce  v.  California  Stage  Co.,  25 
Cal.  460. 

Fla.  Western  Union  Telegraph  Co. 
V.  Merritt,  46  So.  1024,  55  Fla.  462, 
127  Am.  St.  Rep.  169. 

111.  Chenoweth  v.  Burr,  89  N.  E. 
1008.  242  111.  312,  affirming  judgment 
146  111.  App.  443 ;  Pauckner  v.  Wak- 
em,  S3  N,  E.  202,  231  111.  276,  14  L.  R. 

8  9  Koshinski  v.  Illinois  Steel  Co., 
83  N.  E.  149,  231  111.  198;  Gibson  v. 
George  C.  Doyle  &  Co.,  106  P.  512,  37 
Utah,  21. 


925 


REQUESTS   OR  TRAYERS  FOR  INSTRUCTIONS 


§  505 


or  by  reforming  the  instruction,  so  as  to  prevent  it  from  invading 
the  province  of  the  jury,^"  or  from  being  misleading/**^  In  other 
jurisdictions,  however,  under  statutes,  if  instructions  are  given  at 
all,  they  must  be  given  in  the  precise  terms  in  which  they  are 
asked,  and  the  court  has  no  power  to  amend  or  correct  them.^~ 

§  505.  Effect  of  erroneous  request  as  making  it  duty  of  court  to 
give  a  proper  charge 
In  some  jurisdictions  the  rule  is  that  the  court,  on  refusing  a 
requested  instruction  which  is  incorrect  in  some  particular,  is  not 
bound,  of  its  own  motion,  to  give  a  proper  instruction  upon  the 
question  involved  in  the  request.**  In  Missouri  this  is  the  rule 
in  civil  cases,^*  but  in  criminal  cases,  in  which  the  court  is  re- 
quired to  give  all  the  law  of  the  case  necessary  for  the  information 


A.  (N.  S.)  Ills ;  Illinois  Collieries  Co. 
V.  Haveron,  137  111.  App.  22 ;  Illinois 
Collieries  Co.  v.  Davis,  137  111.  App. 
15,  iudgment  affirmed  Davis  v.  Illinois 
Collieries  Co.,  83  N.  E.  836,  232  111. 
284;  Citizens'  Sav.,  Loan  &  Building 
Ass'n  V.  Weaver,  127  111.  App.  252; 
Gary  v.  Norton,  35  111.  App.  365. 

Kan.  St.  Joseph  &  D.  C.  R.  Co.  V. 
Chase,  11  Kan.  47. 

Ky.     Theobald  v.  Hare,  47  Ky.  (8 

B.  yion.)  39;  Pleak  v.  Chambers,  46 
Ky.  (7  B.  Mon.)  565. 

Md.  Blackburn  v.  Beall,  21  Md. 
208. 

Miss.  Louisville,  N.  O.  &  T.  R.  Co. 
V.  Suddoth,  70  Miss.  265,  12  So.  205. 

Mo.  Richardson  v.  St.  Louis  &  H. 
Ry.  Co.,  123  S.  W.  22,  223  Mo.  325. 

Nev.  Burch  v.  Southern  Pae.  Co., 
104  P.  225,  32  Nev.  75,  Ann.  Cas. 
1912B,  1166. 

S.  C.  Dutton  V.  Atlantic  Coast 
Line  R.  Co.,  88  S.  E.  263,  104  S.  C.  16. 

Tex.  Industrial  Lumber  Co.  v. 
Bivens,  105  S.  W.  831,  47  Tex.  Civ. 
App.  396;  Wells  v.  Barrent,  7  Tex. 
584. 

Wash.  Kennedy  v.  Supreme  Tent 
of  Knights  of  Maccabees  of  the 
World,  170  P.  371.  100  Wash.  36. 

W.  Va.  Griffith  v.  American  Coal 
Co.  of  Allegheny  County,  88  S.  E.  595, 
78  W.  Va.  34. 

Wis.  Sterling  v.  Ripley,  3  Chand. 
(Wis.)  1G6. 

8  0  Bidwell  v.  Los  Angeles  &  S.  D. 
B.  Ry.  Co.,  148  P.  197,  169  Cal.  780; 
Scott  v.  Sovereign  Camp  of  Woodmen 


of  the  World,  129  N.  W.  302,  149  Iowa, 
562 ;  Miller  v.  Mantik,  81  A.  797,  116 
Md.  279 ;  Gill  v.  Ruggles,  78  S.  E.  536, 
95  S.  C.  90. 

91  East  St.  Louis  &  St.  Louis  Ex- 
press Co.  V.  Illinois  Traction  Co.,  169 
111.  App.  24;  Commonwealth  v.  Mc- 
Murray,  47  A.  952,  198  Pa.  51,  82  Am. 
St.  Rep.  787. 

9  2  Pensacola  &  A.  R.  Co.  v.  Atkin- 
son, 20  Fla.  450. 

93  Ark.  Atkinson  v.  State,  202  S. 
W.  709,  133  Ark.  341;  St.  Louis,  I. 
M.  &  S.  R.  Co.  V.  Duncan,  177  S.  W. 
1132,  119  Ark.  287;  Lucius  v.  State, 
116  Ark.  260,  170  S.  W.  1016 ;  Horton 
V.  Jackson,  113  S.  W.  45,  87  Ark.  528. 

111.  Willison  v.  Deriug  Coal  Co., 
156  111.  App.  209. 

lad.  Spurlin  v.  State,  124  N.  E. 
753. 

Or.  Naftzger  v.  Henneman,  185  P. 
233,  94  Or.  109. 

Va.  Ratcliffe  v.  Walker,  85  S.  E. 
575.  117  Ya.  569,  Ann.  Cas.  1917E, 
1022 ;  Borland  v.  Barrett,  76  Va.  128, 
44  Am.   Rep.   152. 

Wash.  Ramm  v.  Hewitt-Lea  Lum- 
ber Co.,  94  P.  1081,  49  Wash.  263. 

84  Mo.  Alexander  v.  Star-Chroni- 
cle Pub.  Co.,  198  S.  W.  467,  197  Mo. 
App.  601 ;  Lester  v.  Sampson  (App.) 
180  S.  W.  419;  D'Arcy  v.  Catherine 
Lead  Co.,  133  S.  W.  1191,  155  3Mo. 
App.  266;  Voelker  v.  Hill-0'Meara 
Const.  Co.,  131  S.  W.  907,  153  .Mo. 
App.  1 ;  Barnett  v.  Sweringen,  77  Mo. 
App.  64 ;  Dempsey  v.  Reinsedler,  22 
IMo.  App.  43. 


§  505  INSTRUCTIONS  TO  JURIES  926 

of  the  jury,  whether  so  requested  or  not,  the  rule  is  otherwise.^^ 
In  other  jurisdictions  the  rule  prevails  that,  although  error  may 
be  so  intermingled  in  a  requested  charge  as  to  make  the  refusal 
of  such  request  proper,  it  will  nevertheless  be  error  for  the  court, 
whose  attention  has  thus  been  called  to  the  subject  of  the  errone- 
ous request,  to  fail  to  give  an  instruction  of  its  own  thereon,^® 
where  the  matters  involved  ifn  such  erroneous  request  are  impor- 
tant, and  not  sufficiently  covered  by  the  general  charge.'^'  Thus, 
where  a  requested  instruction  in  a  criminal  case,  although  faulty, 
is  sufficient  to  challenge  the  court's  attention  to  the  only  defense 
on  which  the  accused  relies,  and  in  support  of  which  some  sub- 
stantial evidence  has  been  offered,  it  will  be  error  to  give  no  in- 
struction stating  the  law  in  reference  to  such  defense.^* 

In  Texas,  although  there  are  cases  to  the  contrary,"^  a  large  num- 
ber of  the  decisions  support  the  proposition  that  if  the  court,  in 
its  main  charge,  has  failed  to  instruct  on  a  material  issue  raised 
by  the  pleadings  and  the  evidence,  and  a  special  charge  requested, 
although  incorrect  in  itself,  is  sufficient  to  call  the  attention  of 
the  court  to  the  omission,  it  is  error  to  fail  to  correctly  instruct 
on  the  subject  indicated.^*^  In  Kentucky  the  rule  is  that,  where 
a  party  is  entitled  to  an  instruction  on  the  point  attempted  to  be 

0  5  state  Y.  Goode   (Mo.)   220  S.  W.  Cr.  617,  rehearing  denied  101  P.  Ill, 

854;    State  v.  Lewkowitz,  178  S.  W.  1  Okl.  Cr.  617. 

58,  265  Mo.  613 ;    Grant  City  v.  Sim-  Utah.     State  v.  Terrell,  186  P.  108, 

mons,   151    S.  W.  187,   167  Mo.  App.  55  Utah.  314. 

1,S3 ;    State  v.  Little,  128  S.  W.  971,  Vt.    Hazard  v.  Smith,  21  Vt.  123. 

028  Mo    273  Wis.     Borchardt  v.  Wausau  Boom 

Contra.      State  v.   McNamara,   100  Co.,  54  Wis.  107,  11  N.  W.  440,  41  Am. 

Mo.  100,  13  S.  W.  938.  Rep.  12. 

36  u.   S.     (C.  O.  A.  La.)  Audubon  Wyo.    Union  Pac.  Ry.  Co.  v.  Jarvi, 

Bldg.  Co.  V.  F.  M.  Andrews  &  Co.,  187  3  Wyo.  375,  23  P.  398. 

F.  254,  111  C.  C.  A.  92.  9  7  Rothe  v.  Pennsylvania  Co.  (C.  C. 

Colo.    Harris  v.  People,  135  P.  785,  A.  Ohio)  195  F.  21.  114  C.  C.  A.  627 ; 

55  Colo.  407.  People  v.   Scott,  10  Utah,  217,  37  P. 

Conn.     State  v.  Wakefield,   90  A.  335.     See  Rome  Ins.  Co.  v.  Thomas, 

230,  88  Conn.  164.  75  S.  E.  894,  11  Ga.  App.  539. 

D.  C.     Freed  v.  U.  S.,  266  F.  1012,  98  state  v.   Miller,   114  P.   855,   84 

49  App.  D.  C.  392 ;    HeniT  v.  U.  S.,  Kan.  667,  reversing  judgment  on  re- 

263  F.  459.  49  App.  D.  C.  207.  hearing  111  P.  437,  83  Kan.  410. 

Iowa.     State  V.  Cessna,  153  N.  W.  99  Missouri,  K.  &  T.  Ry.  Co.  of  Tex- 

194,  170  Iowa,  726,  Ann.  Cas.  1917D,  as   v.   Dunn   (Tex.   Civ.  App.)   157   S. 

289.  W.  434  ;  Texas  Telegraph  &  Telephone 

Jian.    Kansas  City,  M.  e<c  O.  Ry.  Co.  Co.  v.  Scott,  127  S.  W.  587,  60  Tex. 

V.  Loosley,  90  P.  990,  76  Kan.  103.  Civ.  App.  39. 

Mich.     Dodge  V.  Brown,  22  Mich.  100  Hines  v.  Parry  (Tex.  Civ.  App.) 

446.  227  S.  W.  339 ;    Alamo  Iron  Works  v. 

Okl.    Mcintosh  v.  State,  128  P.  735,  Prado  (Tex.  Civ.  App.)  220  S.  W.  282 ; 

8   Okl.  Cr.   409;    Robisou   v.   United  Chicago,  R.  I.  &  G.  Ry.  Co.  v.  Went- 

States,  111   P.  984,  4   Okl.   Cr.  336;  zel  (Tex.  Civ.  App.)  214  S.  W.  710: 

Morris  v.  Territory,  99  P.  760,  1  Okl.  Rounds  v.  Coleman   (Tex.  Civ.  App.) 


927  REQUESTS  OR  PRAYERS  FOR  INSTRUCTIONS  §  505 

covered  by  a  request,  and  the  court  refuses  it  because  of  error 


214  S.  W.  496;  Roberts  v.  Houston 
Motor  Car  Co.  (Tex.  Civ.  App.)  188  S. 
W.  257;  Stirling  v.  Bettis  Mfg.  Co. 
(Tex.  Civ.  App.)  159  S.  W.  915; 
Quanah.  A.  &  P.  Ry.  Co.  v.  Gal- 
loway (Tex.  Civ.  App.)  154  S.  W. 
(i53;  Wichita  Falls  &  W.  Ry.  Co. 
V.  Wyrick  (Tex.  Civ.  App.)  147  S. 
W.  694;  Davis,  Pninor  &  Howell  v. 
Woods  (Tex.  Civ.  App.)  143  S.  W.  950 ; 
Warren  v.  Kimmoll  (Tex.  Civ.  App.) 
141  S.  W.  159;  Southwestern  Port- 
land Cement  Co.  v.  ]McBrayer  (Tex. 
Civ.  App.)  140  S.  W.  388;  Porter  v. 
State,  132  S.  W.  9.35,  60  Tex.  Cr.  R. 
588;  Cox  v.  State,  126  S.  W.  886, 
58  Tex.  Cr.  R.  545 ;  Moore  v.  State, 
125  S.  W.  34,  58  Tex.  Cr.  R.  183; 
Johnson  v.  State,  122  S.  W.  877,  57 
Tex.  Cr.  R.  308;  Eubanks  v.  State, 
122  S.  W.  35,  57  Tex.  Cr.  R.  153 ;  Lee 
V.  Hail,  114  S.  W.  403,  51  Tex.  Civ. 
App.  a32;  Rushing  v.  Lanier,  111  S. 
W.  1089.  51  Tex.  Civ.  App.  278 ;  Wade 
V.  Galveston,  H.  &  S.  A.  Ry.  Co.  (Civ. 
App.)  110  S.  W.  84;  McAdaras  v. 
Hooks,  104  S.  W.  432,  47  Tex.  Civ. 
App.  79 ;  St.  Louis  Southwestern  Ry. 
Co.  of  Texas  v.  Fowler  (Tex.  Civ. 
App.)  93  S.  W.  484:  McNeese  v.  Car- 
ver, 89  S.  W.  430,  40  Tex.  Civ.  App. 
129 ;  Ray  v.  Pecos  &  N.  T.  Rv.  Co.,  88 
S.  W.  466,  40  Tex.  Civ.  App.  99 ;  St. 
Louis  Southwestern  Ry.  Co.  of  Texas 
V.  Lowe  (Tex.  Civ.  App.)  86  S.  W. 
1059;  Texas  Loan  &  Trust  Co.  v. 
Angel,  86  S.  W.  1056,  39  Tex.  Civ. 
App.  166 ;  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Minterv  S5  S.  W.  477,  38  Tex.  Civ. 
App.  S ;  Rea  v.  St.  Louis  Southwest- 
ern Ry.  Co.  of  Texas  (Tex.  Civ.  App.) 
73  S.  W.  555;  City  of  Sherman  v. 
Greening  (Tex.  Civ.  App.)  73  S.  W. 
424;  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Maugham,  69  S.  W.  80,  29  Tex.  Civ. 
App.  486 ;  Johnston  v.  John^^ton  (Tex. 
Civ.  App.)  67  S.  W.  123;  Neville  v. 
Mitchell,  66  S.  W.  579.  28  Tex.  Civ. 
App.  89 ;  Corsicana  Nat.  Bank  v. 
Baum  (Tex.  Civ.  App.)  02  S.  W.  812 ; 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Hill  (Tex. 
Civ.  App.)  58  S.  W.  255;  Texas  & 
P.  Ry.  Co.  V.  Short  (Tex.  Civ.  App.) 
58  S.  W.  56 ;  Williams  v.  Emberson, 
55  S.  W.  595,  22  Tex.  Civ.  App.  522; 
Texas  &  Ft.   S.  Ry.  Co.   v.  Atchison 


(Tex.  Civ.  App.)  ,54  S.  W.  1075;  Mis- 
souri, K.  &  T.  Ry.  of  Texas  v.  Miles, 
50  S.  W.  168,  20  Tex.  Civ.  App.  570; 
Denison  &  P.  Suburban  Rv.  Co.  v. 
James,  49  S.  W.  660,  20  Tex.  Civ.  App. 
358;  Missouri,  K.  &  T.  Rv.  Co.  of 
Texas  v.  Webb,  49  S.  W.  526,  20  Tex. 
Civ.  App.  431 ;  San  Antonio  &  A. 
P.  Ry.  Co.  V.  Horkan  (Tex.  Civ.  App.) 
45  S.  W.  .391;  Sharrock  v.  Ritter 
(Tex.  Civ.  App.)  45  S.  W.  156 ;  I^eds 
V.  Reed  (Tex.  Civ.  App.)  36  S.  W.  347 ; 
Gulf,  C.  &  S.  F.  Rv.  Co.  V.  Cusenber- 
ry,  86  Tex.  525,  26  S.  W.  43;  Car- 
penter V.  Dowe  (Civ.  App.)  26  S.  W. 
1002;  Cleveland  v.  Empire  Mills.  6 
Tex.  Civ.  App.  479,  25  S.  W.  1055; 
Bexar  Bldg.  &  Loan  As.s'n  v.  Newnltin 
(Tex.  Civ.  App.)  25  S.  W.  461 :  Willis 
V.  Smith,  72  Tex.  565,  10  S.  W.  683. 

niustrations  of  cases  \i7ithui 
rule.  A  carrier's  conductor  having 
claimed  that  his  assault  was  in  self- 
defen.«e,  a  request  to  charge  that  if 
plaintiff  struck  the  conductor  or  jerk- 
ed his  arm  violently,  or  both,  and  the 
conductor  in  slapping  plaintiff  was 
only  resisting  the  force  used  by  plain- 
tiff, and  was  acting  in  self-defense 
and  used  no  more  force  than  was  nec- 
essary, defendant  was  entitled  to  a 
verdict,  though  objectionable,  was 
sufficient  to  require  the  court  to  give 
a  proper  charge  on  such  subject. 
Dallas  Consol.  Electric  St.  Ry.  Co.  v. 
Pettit,  105  S.  W.  42,  47  Tex.  Civ.  App. 
354.  Where,  in  an  action  for  inju- 
ries to  a  servant,  the  court  failed  to 
charge  on  an  issue  as  to  defendant's 
alleged  violation  of  a  speed  ordinance. 
a  requested  instruction  that,  if  the 
movement  of  the  cars  was  at  a  speed 
not  greater  than  that  allowed  by  the 
ordinance,  plaintiff  could  not  recover 
on  the  alleged  ground  of  negligence 
that  the  speed  of  the  cars  was  unlaw- 
ful, was  sufficient  to  call  the  court's 
attention  to  such  issue.  Houston  &  T. 
C.  R.  Co.  V.  Turner,  78  S.  W.  712,  34 
Tex.  Civ.  App.  397. 

The  rale  of  the  text  does  not 
apply  as  indicated  by  the  state- 
ment thereof,  where  the  issue  in- 
volved in  the  request  has  been  sub- 
stantially covered,  or  where  it  is 
sought  merely  to  have  placed  before 


§  505 


INSTRUCTIONS  TO  JURIES 


928 


therein,  it  is  Its  duty  to  give  a  proper  charge  on  the  subject  in- 
volved.i"! 

The  above  rule  as  to  the  effect  of  an  erroneous  request,  as  mak- 
ing it  the  duty  of  the  trial  court  to  give  a  proper  charge,  is  vig- 
orously opposed  in  a  well-considered  case  in  Oregon,  where  the 
court  says  thati  such  a  rule  makes  it  unnecessary  for  counsel  to 
carefully  prepare  requested  instructions  and  that  such  a  course 
of  practice  is  not  fair  to  the  court,  which  at  the  close  of  a  trial  has 
not  the  time  to  carefully  consider  all  the  matters  that  may  be  thus 
thrust  upon  it.  This  criticism  of  the  Oregon  court,  however,  so 
far  as  it  is  directed  against  the  injustice  to  the  trial  court,  seems 
to  ignore  the  fact  that  such  rule  is  intended  to  remedy  the  orig- 
inal dereliction  of  the  court  in  failing  to  charge  on  a  material  is- 
sue."2 


the  jury,  the  converse  of  that  which 
has  already  been  submitted.  Jack- 
sonville Ice  &  Electric  Co.  v.  Moses, 
134  S.  W.  379,  63  Tes.  Civ.  App.  490; 
Vieksburg,  S.  &  P.  Ry.  Co.  v.  Jackson 
(Tex.  Civ.  App.  133  S.  W.  925. 

101  Louisville  &  N.  R.  Co.  v.  Ste- 
phens, 220  S.  W.  746,  188  Ky.  1 ;  Cin- 
cinnati, N.  O.  &  T.  P.  Ry.  Co.  v.  Fran- 
cis, 220  S.  W.  739,  187  Ky.  703 ;  Clif- 
ton Land  Co.  v.  Reister,  216  S.  W.  342, 
186  Kv.  155:  Louisville  &  N.  R.  Co. 
V.  McCoy,  197  S.  W.  801,  177  Ky.  415 ; 
Stearns  Coal  &  Lumber  Co.  v.  Sprad- 
lin,  195  S.  W.  781,  176  Ky.  405 ;  Cum- 
berland R.  Co.  V.  Girdner,  192  S.  W. 
873,  174  Ky.  761;  Steams  Coal  & 
Lumber  Co.  v.  Williams,  186  S.  W. 
931,  171  Kv.  46 ;  Charles  Taylor  Sons 
Co.  V.  Hunt,  173  S.  W.  333,  163  Ky. 
120 ;  Western  Union  Telegraph  Co.  v. 
Sisson,  160  S.  W.  168,  155  Ky.  624; 
Illinois  Cent.  R.  Co.  v.  Dallas'  Adm'x, 
150  S.  W.  536,  150  Ky.  442;  Louis- 
ville, H.  &  St.  L.  Ry.  Co.  v.  Roberts, 
139  S.  W.  1073,  144  Ky.  820;  Lewis, 
Wilson  &  Hicks  v.  Durham,  139  S.  W. 
952,  144  Kv.  704;  West  Kentucky 
Coal  Co.  V.  Davis,  128  S.  W.  1074,  138 
Ky.  667;  Crane  v.  T.  J.  Congleton  «& 
Bro.,  116  S.  W.  341 ;  Louisville  &  N. 
R.  Co.  V.  King's  Adm'r,  115  S.  W.  196, 
1.31  Ky.  347;  Whitley  v.  Whitley's 
Adm'r,  108  S.  W.  241.  32  Ky.  Law 
Rep.  1211,  rehearing  denied  109  S.  W. 


908,  33  Ky.  Law  Rep.  281 ;  Troutwine 
v.  Louisville  &  N;  R.  Co.,  105  S.  W. 
142,  32  Ky.  Law  Rep.  5;  South  Cov- 
ington &  C.  St.  Ry.  Co.  V.  Core,  96 
S.  W.  562,  29  Ky.  Law  Rep.  836; 
Blimm  v.  Commonwealth,  70  Ky.  (7 
Bush)  320. 

Effect  of  erroneous  request  as 
to  measure  of  damages.  Where  it 
was  a  contested  issue  whether  de- 
fendant had  erected  a  depot  which 
complied  with  its  contract,  but  the 
instruction  on  damages  applied  only 
to  damage  in  case  of  failure  to  con- 
struct, an  incorrect  instruction  re- 
quested by  defendant  on  the  measure 
of  damages  if  the  company  had  erect- 
ed the  depot  as  agreed,  but  not  within 
the  time  provided  by  the  contract, 
was  sufficient  to  cast  on  the  court  the 
duty  to  give  a  correct  instruction  on 
the  subject.  Elkhorn  &  B.  V.  Ry. 
Co.  V.  Dingus,  220  S.  W.  1047,  187 
Ky.  812. 

Necessity  of  \pritteii  request. 
To  make  applicable  the  rule  requix-ing 
the  court  to  give  a  correct  instruc- 
tion in  lieu  of  one  asked,  which  is  in- 
correct, either  in  form  or  substance, 
the  instruction  must  be  properly  ask- 
ed— that  is,  presented  in  writing. 
Bell's  Adm'r  v.  Louisville  Ry.  Co., 
146  S.  W.  383,  148  Ky.  189. 

102  Sorenson  v.  Kribs,  161  P.  405, 
82  Or.  130. 


929  OBJECTIONS  AND   EXCEPTIONS  §  506 

CHAPTER  XXXVII 
OBJECTIONS  AND  EXCEPTIONS 

A.     Right  to  Obtkct  or  Except  as  Affected  by  Waiver  and  Estoppel 

§  506.     Gouoral  rnlo. 

507.  Specific  applications  of  rule. 

508.  Limitations  of  rule. 

B.     Time  for  Objections  or  Exceptions 

509.  Rule  that  objections  should  be  made  before  retirement  of  jury  or  be- 

fore verdict. 

510.  Rule  permitting  objections  after  retirement  of  jury  or  after  verdict. 

511.  Extension  of  time. 

C.  Mode  of  Making  Objections  and  Manner  of  Taking  and  Noting 

Exceptions 

512.  Mode  of  making  objections  in  general. 

513.  General  requirements  with  respect  to  manner  of  taking  and  noting 

exceptions. 

514.  Noting  exceptions  on  margin  of  instructions. 

515.  Knowledge  of  court  or  opposing  party. 

516.  Necessity  of  formal  exception. 

D.  Sufficiency  of  Objections  or  Exceptions  with  Respect  to  Their 

Substance 

517.  Oral  charges. 

518.  Joint  exceptions. 

E.  Rule  that  JilxcEPTiONS  to  Instructions  or  the  Refusal  Thereof 

Should  be  Specific 

519.  In  general. 

520.  Specific  applications  of  rule. 

521.  Application  of  rule  in  criminal  cases. 

522.  Exceptions  to  instructions  correct  in  part. 

523.  Exception  to  each  and  every  part  of  a  charge. 

524.  Exception  directed  against  several  instructions  designated  by  certain 

numbers. 

525.  Exceptions  to  refusals  to  instruct. 

526.  Limitations  of  rule. 

F.     Effect  of  Failure  to  ObjBct  oe  Except 

5i27.     General  rule. 

528.  Limitations  of  rule. 

529.  Specific  applications  of  rule. 

A.    Right  to  Object  or  Except  as  Affected  by  Waiver  and 

Estoppel 
§  506.     General  rule 

Objections  to  the  substance  of  instructions,  or  to  their  form  or 
the   mode  of  giving  them,   or  with   respect  to  the  failure  of  the 
Inst. TO  Juries— 59 


§507 


INSTRUCTIONS   TO  JURIES 


930 


court  to  charge  on  certain  matters,  may  be  waived  by  a  party,  or 
hs  may  be  estopped  by  his  conduct  to  raise  such  objections.^ 

§  507.     Specific  applications  of  rule 

Under  the  above  rule,  a  party  cannot  found  an  objection  on  er- 
rors  in   instructions   given  at  his  own   request,^   and   the  consent 


1  111.  Northwestern  Elevator  & 
Grain  Co.  v.  Smiley,  154  111.  App.  351. 

Iowa.  Ottoway  v.  Milroy.  12.3  N. 
W.  467,  144  Iowa,  &S1 ;  Kinney  v.  Mc- 
Faul.  98  N.  W.  276,  122  Iowa,  452; 
Shoemaker  v.  Turner,  90  N.  W.  709, 
117  Iowa,  340;  Delmoniea  Hotel  Co. 
V.  Smith,  84  N.  W.  906.  112  Iowa, 
659. 

Kan.  Chicago,  R.  I.  &  P.  Ry.  Co. 
V.  Spring  Hill  Cemetery  Ass'n,  57  P. 
252,  9  Kan.  App.  882. 

Ky.  Elizabethtown  Milling  &  Coal 
Co.  V.  Elizabethtown  Milling  Co.,  13 
Ky.  T/aw  Rep.  (abstract)  96. 

Mass.  Rand  v.  Farquhar,  115  N. 
E.  286,  226  Mass.  91. 

Miim.  Shattuck  v.  Shattnck's  Es- 
tate. 136  N.  W.  409.  lis  Minn.  60. 

Mo.  Welland  v.  ^Nletroitolitan  St. 
Ry.  Co.,  129  S.  W.  441,  144  Mo.  App. 
205. 

N.  Y.  Person  v.  Stoll,  67  N.  E. 
1089,  174  N.  Y.  548,  affirming  judg- 
ment 76  N.  Y.  S.  324,  72  App.  Div. 
141. 

Pa.  Fern  v.  Pennsylvania  R.  Co., 
93  A.  590,  250  P.  487. 

S.  C.  Bedenbaugh  v.  Southern  Ry. 
Co.,  48  S.  E.  53,  69  S.  C.  1. 

S.  D.  Kirby  v.  Berguin,  90  N.  W. 
8.56,  15  S.  D.  444. 

Tex.  Tavlor  v.  Lafevers  (Civ. 
App.)  198  S.  W.  651  >  Galveston.  H. 
&  S.  A.  Ry.  Co.  V.  Sanchez,  122  S.  W. 
44,  57  Tex.  Civ.  App.  87. 

Illustrations  of  estoppel  or 
waiver,  ^^'here,  in  an  action  for  in- 
juries at  a  crossing,  defendant  con- 
tends that  an  instruction  is  erroiieous 
as  using  the  words  "contributed  to," 
instead  of  "caused."  and  also  con- 
tends that  the  complaint  is  erroneous 
as  using  the  word  "caused,"  instead 
of  the  woi'ds  "contributed  to,"  the 
contentions  are  inconsistent  and  un- 
tenable. Lee  v.  Northwestern  R.  Co., 
<'5  S.  K.  1031.  84  S.  C.  125. 

^  Ala.     Dunn  &   Lallande  Bros.  v. 


Gunn,  42  So.  686,  149  Ala.  583 ;  Louis- 
ville &  N.  R.  Co.  v.  Hurt,  101  Ala. 
34.  13  So.  1.30. 

Ark.  Dunnington  v.  Frick  Co.,  60 
Ark.  250,  30  S.  W.  212. 

Cal.  Emerson  v.  Santa  Clara 
County,  40  Cal.  .543. 

Colo.  Orman  v.  Mannix,  17  Colo. 
564,  30  P.  1037.  17  L.  R.  A.  602,  31 
Am.  St.  Rep.  340. 

m.  Illinois  Cent.  R.  Co.  v.  Harris. 
162  111.  200.  44  N.  E.  498,  affirming  63 
111.  App.  172 ;  Chicago  &  A.  R.  Co.  v. 
Sanders,  154  111.  531.  39  N.  E.  481; 
Ives  V.  INIcHard,  103  111.  97;  City  of 
Fai-mington  v.  Wallace,  134  111.  App. 
366,  judgment  affirmed  Wallace  v. 
City  of  Farmington,  S3  N.  E.  ISO,  231 
111.  232;  Wabash  R.  Co.  v.  Howard, 
57  111.  App.  66;  Solomon  v.  Friend, 
42  111.  App.  407. 

Iowa.  Hamilton  v.  Hartlnger,  96 
Iowa,  7,  64  N.  W.  592. 

Kan.  Ft.  Scott,  W.  &  W.  Ry.  Co. 
V.  Fortney,   51  Kan.   287,   32  P.  904. 

Me.     Frye  v.  Hinkley,  18  INIe.  320. 

Md.  Hess  v.  Newcomer,  7  Md. 
325. 

Mass.  Copp  v.  Williams,  135  Mass. 
401 ;  Commonwealth  v.  Brigham,  123 
Mass.  2-18. 

Micli.  Alberts  v.  Village  of  Ver- 
non. 96  Mich.  549,  55  N.  W.  1022; 
Silsby  V.  Michigan  Car  Co.,  95  Mich. 
204,  54  N.  W.  761. 

Minn.  Redmond  v.  St.  Paul,  M.  & 
M.  Ry.  Co.,  39  Minn.  248,  40  N.  W.  64. 

Miss.  Queen  City  Mfg.  Co.  v.  Bin- 
lack,  18  So.  800,  31  L.  R.  A.  222 ;  Wil- 
son v.  Zook,  69  Miss.  694.  13  So.  .351. 

Mo.  Olfermann  v.  Union  Depot  R. 
Co.,  125  Mo.  408,  28  S.  W.  742,  46 
Am.  St.  Rep.  483;  Kansas  City  Sub- 
urban Belt  R.  Co.  v.  Kansas  City  St. 
L.  &  C.  R.  Co.,  118  Mo.  599,  24  S.  W. 
478;  Hazell  v.  Bank  of  Tipton,  95 
:Mo.  60,  8  S.  W.  173,  6  Am.  St.  Rep. 
22;    Reilly  v.  Hannibal  &   St.  J.   R. 


931 


OBJECTIONS  AND   EXCEPTIONS 


§507 


of  a  party  to  an  objectionable  instruction  waives  the  same  ob- 
jection to  another  instruction.^  So  an  error  in  an  instruction  given 
at  the  request  of  a  party  is  waived  by  his  adversary  by  request- 
ins^  an  instruction  containing  the  same  error,*  and  a  party  cannot 
complain  of  an  instruction  which  is  in  full  accord  with  his  theory 
of  the  case.^  So,  where  the  court  gives  an  instruction  of  its  own 
motion,  on  a  subject  concerning  which  it  is  prohibited  from  charg- 
ing, except  on  the  request  of  a  party,  the  error  is  cured  by  the 
subsequent  giving  of  the  same  instruction  on  request,**  and  error 
in  an  instruction  is  waived  by  asking  for  a  modification  thereof 
which  does  not  cover  the  error.'  A  party  who  asks  for  an  im- 
proper instruction  cannot  complain  of  the  action  of  the  court  in 
modifying  it,  even  though,  according  to  some  of  the  cases,  the  modi- 
fication is  wrong.* 

The  above  rule  has  been  applied  in  criminal  cases  to  the  fail- 
ure of  the  court  to  reduce  its  charge  to  writing,^  to  the  failure  to 
read  the  instructions  to  the  jury,*"  to  the  failure  to  accord  the  right 


Co..  04  Mo.  600,  7  S.  W.  407 ;  Thorne 
V.  Missouri  Pac.  Ry.  Co.,  89  Mo.  OHO, 
2  S.  W.  3,  58  Am.  Rep.  120 ;  Holmes 
V.  Braid  wood,  82  Mo.  610;  McGonigle 
V.  Dauglierty,  71  Mo.  259:  Crutch- 
field  V.  St.  Louis,  K.  C.  &  X.  R.v.  Co., 
64  Mo.  255 ;  Flowers  v.  Helm.  29  Mo. 
324;  Farrell  v.  Farmei-s'  Mut.  Fire 
Ins.  Co.,  66  Mo.  App.  153:  Hall  v. 
St.  Joseph  Water  Co.,  48  :\Io.  App. 
356 :   Bybee  v.  Irons,  33  Mo.  App.  659. 

Neb.  Omaha  Fair  »&  Exposition 
Ass'n  V.  Missouri  Pac.  Ry.  Co..  42 
Nf  b.  105,  60  N.  W.  330 :  Richard.?  v. 
Borowsky,  39  Neb.  774,  58  N.  W.  277 ; 
Dawson  v.  Williams,  37  Xeb.  1.  55  X. 
W.  284. 

N.  C.  INIcI^nnan  v.  Cbishnlm,  60 
X.  C.  100;  Buie  v.  Buie,  24  X.  C. 
87. 

Tenn.  East  Tennessee,  Y.  &  G.  R. 
Co.  y.  Fain,  12  Lea.  35. 

Tex.  Byrd  v.  Ellis  (Civ.  App.)  35 
S.  W.  1070;  International  &  G.  X.  R. 
Co.  V.  Sein,  33  S.  W.  558,  11  Tex.  Civ. 
App.  386;  Id.,  89  Tex.  63.  ?,S  S.  W. 
215;   Needham  v.  State,  19  Tex.  382. 

Wash.  State  v.  Duncan,  7  Wa.sh. 
336,  35  P.  117,  38  Am.  St.  Rep.  888. 

a  Eoecker  v.  City  of  Xaperville,  48 
N.  E.  1061,  160  111.  151. 


4  Chioaso.  R.  L  &  P.  Rv.  Co.  v. 
Smith,  127  S.  W.  715.  94  Ark.  524; 
Gracy  v.  Atlantic  Coast  Line  R.  Co., 
42  So.  903,  53  Fla.  350. 

5  Rehfuss  V,  Hill,  90  N.  E.  187,  243 
111.  140. 

6  Gulf  City  Shingling  Co.  v.  Boyles, 
29  So.  800,  129  Ala.  192. 

7  Southern  Anthracite  Coal  Co.  v. 
Bowen,  124  S.  W.  1048,  93  Ark.  140. 

8  Ala.  Southern  Rv.  Co.  v.  How- 
ell, 34  So.  6.  135  Ala.  639. 

CaJ.  Harrington  v.  Los  Angeles 
Ry.  Co.,  74  P.  15,  140  Cal.  514,  03  L. 
R.  A.  238,  98  Am.  St.  Rep.  85 ;  Cook 
V.  Los  Angeles  &  P.  Electric  Rv.  Co., 
C6  P.  306,  134  Cal.  279. 

111.  Crown  Coal  &  Tow  Co.  v.  Tav- 
lor,  56  N.  E.  328,  184  111.  250,  aflirm- 
ing  judgment  81  111.  App.  66 ;  .Deca- 
tur Cereal-Mill  Co.  v.  Gogertv,  54  X. 
E.  231,  180  HI.  197. 

N.  Y.  Cochran  v.  Sess,  62  N.  T. 
S.  1088,  49  App.  Div.  223,  judgment 
reversed  61  N.  E.  639,  168  N.  Y.  372. 

9  Lane  v.  State,  70  S.  E.  1118,  9  Ga 
App.  294;  Spence  v.  Commonwealth, 
204  S.  W.  SO,  181  Ky.  206. 

10  Boyd  V.  State,  45  So.  634,  154 
Ala.  9. 


§  508  OBJECTIONS  AND   EXCEPTIONS  932 

to   the   accused   to   examine   the   charge   before   giving   it  to   the 
jury,"  and  to  the  omission  to  charge  on  certain  matters.^^ 

§  508.     Limitations  of  rule 

Acquiescence  by  a  party  in  an  erroneous  view  of  the  law  taken 
by  the  court,  by  amending  the  pleadings  and  introducing  evi- 
dence to  meet  the  opinion,  is  not  a  waiver  of  the  error,  and  does 
not  preclude  such  party  from  insisting  on  a  correct  statement  of 
the  law  in  the  instructions,^^  and  an  objection  to  an  erroneous  in- 
struction is  not  waived  by  a  failure  to  request  an  instruction  in 
relation  to  the  subject-matter  of  such  instruction." 

B.    Time:  for  Objections  or  Exceptions 

§  509,  Rule  that  objections  should  be  made  before  retirement  of 
jury  or  before  verdict 
A  party  deeming  himself  aggrieved  by  the  instructions  of  the 
court  or  by  omissions  therefrom  should  seasonably  call  the  at- 
tention of  the  court  to  such  errors  of  commission  or  omission,  in 
order  that  it  may  have  an  opportunity  to  correct  the  same,^^  as  a 
party  will  not  be  permitted  to  speculate  on  a  favorable  verdict, 
and,  if  disappointed,  seek  to  question  the  proceedings  by  a  motion 
for  new  trial,^®  and  undoubtedly  good  practice  requires  that  ob- 
jections or  exceptions  to  instructions  or  to  the  failure  or  refusal 
of  the  court  to  instruct  should  be  made  at  the  time  the  charge  is 
given  or  the  request  refused,  and  before  the  jury  retire,  and  this 
is  the  rule  in  many  jurisdictions.^'     This  rule  is  generally  applica- 

11  Freeman  v.  State,  188  S.  W.  425,  le  Colsan  v.  Farmers'  &  Mechanics' 
80  Tex    Cr.  R.  20.  Bank,  114  P.  460.  59  Or.  469. 

12  State  V  Paxton,  126  Mo.  500.  29  i^  U.  S.  United  States  v.  Carey, 
S.  W.  705 ;  State  v.  Debnam,  98  N.  C.  110  U.  S.  51,  3  Sup.  Ct.  424,  28  L.  Ed. 
712  3  S  E.  742 ;  State  v.  Reynolds,  87  67 ;  Hnnnicutt  v.  Peyton,  102  U.  S. 
N  C.  544 ;  State  v.  Owens,  44  S.  C.  333,  26  L.  Ed'.  113 ;  Stanton  v.  Embry, 
3'>4  T>  S  'b.  244;  State  v.  Davis,  27  93  TJ.  S.  548,  23  I/.  Ed.  983;  French 
sT  C.  609,  4  S.  E.  567.  v.  Edwards,  13  Wall.  506,  20  L.  Ed. 

13  M.  M.  Walker  Co.  v.  Dubuque  702;  Barton  v.  Forsyth,  20  How.  532, 
Fruit  &  Produce  Co.,  85  N.  W.  614,  15  L.  Ed.  1012;  United  States  v. 
113  Iowa,  428,  53  L.  R.  A.  775.  Breitling,    20    How.    232,    15    L.    Ed. 

i-t  Warrington  v.  Kallauner,  115  S.  900;    Phelps  v.  Mayer,  15  How.  160, 

W.  492,   135  Mo.  App.  5.     See,   also,  14  L.   Ed.   643;    (C.   C.   A.  Ark.)    St. 

ante,  §  472.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Spencer, 

15  Jacobs  V.  Mitchell,  2  Colo.  App.  71  F.  93,  18  C.  O.  A.  114;    (C.  C.  A. 

456,  31  P.  2.35;    Busch  v.  Tjentland,  Ga.)  Greene  v.  United  States,  154  F. 

165  N.  W.  999,  182  Iowa,  360;    R.  W.  401,   85   C.    C.   A.   251,   certiorari   de- 

Bouyea  Piano  Co.  v.  Wendt,  160  N.  W.  nied  28  S.  Ct.  261,  207  U.  S.  596,  52 

10.30,    135    Minn.    378;     Middleton    v.  L.  Ed.  357,  affirming  judgment  United 

State,  217  S.  W.  1046,  86  Tex.  Cr.  R.  States  v.  Greene  (D.  C.)  146  F.  803 ; 

307.  (C.  C.  A.  Ky.)  Hindman  v.  First  Nat. 


933  OBJECTIONS    AND   EXCEPTIONS  §       509 

ble  to  criminal  cases/*  and  has  been  applied  to  objections  based 


Bank,  112  F.  931,  50  C.  C.  A.  623,  57 
L.  R.  A.  108;  (C.  C.  A.  Minn.)  Wells 
Fargn  ct  Co.  v.  Zinimer,  186  F.  130, 
108  C.  C.  A.  212;  (C.  C.  A.  Mo.) 
Nortliprn  Central  Coal  Co.  v.  Mil- 
bui-n,  205  F.  270.  123  O.  C.  A.  450; 
(Vj.  C.  a.  Neb.)  Bracken  v.  Union  Pac. 
Ry.  Co.,  56  F.  447,  5  C.  C.  A.  548; 
iC.  C.  A.  N.  Y.)  Mann  v.  Dempster, 

181  F.  76.  104  C.  C.  A.  110;  Klaw 
V.  Life  Pub.  Co.,  145  F.  184,  76  C.  C. 
A.  154 ;  Park  Bro-s.  &  Co.  v.  Bushnell, 
60  F.  583,  9  C.  C.  A.  138 ;  (C.  C.  A, 
Ohio)  American  Issue  Pub.  Co.  v. 
Sloan,  248  F.  251,  160  C.  C.  A.  329: 
Sutherland  v.  Round,  57  F.  467,  6 
C.  C.  A.  428 ;  (C.  C.  A.  Tex.)  Emanuel 
V.  Gates,  53  F.  772,  3  C.  C.  A.  663; 
(C.  C.  A.  Utah)  Southern  Pac.  Co.  v. 
Arnett,  126  F.  75.  61  C.  C.  A.  131; 
(C.  C.  A.  Wash.)  Western  Union  Tel. 
Co.  V.  Baker,  85  F.  690,  29  C.  C,  A. 
392;  Stone  v.  United  States,  64  F. 
667.   12  C.  C.  A.  451. 

Ala.     Meadows  v.  State.  62  So.  737, 

182  Ala.  51.  Ann.  Cas.  1915D,  663; 
City  Council  of  ^Montgomei-y  v.  Gil- 
mer, 33  Ala.  116.  70  Am.  De?.  562. 

Cal.  Sharp  v.  Hoffman  79  Cal. 
404.  21  P.  846;  Sierra  Union  Water 
&  :^[inins;  Co.  v.  Baker,  70  Cal.  .572, 
S  P.  305;  Mallett  v.  Swain,  56  Cal. 
171;  Robinson  v.  Western  Pac.  R. 
Co.,  48  Cal.  409;  Hicks  v.  Coleman, 
25  Cal.  122.  85  Am.  Dec.  103. 

Colo.  Taylor  v.  Randall,  3  Colo. 
399 :    Smith  v.  Cisson,  1  Colo.  29. 

Fla.  Clark  v.  State,  .52  So.  518, 
59  Fla.  9,  15;  Jenkins  v.  Lykes,  19 
Fla.  148.  45  Am.  Rep.  19. 

111.  Edson  Keith  &  Co.  v.  Eisen- 
drath.  192  111.  App.  1.55:  Illinois  Cent. 
R.  Co.   V.  Ferrell,  108  111.   App.  6.59. 

Iiid.  Rlaeketer  v.  House,  67  Ind. 
414:  Murray  v.  State,  26  Ind.  141; 
Atkinson  v.  Gwin,  8  Ind.  376;  Ledley 
V.  State,  4  Ind.  580. 

Kan.  State  v.  Sparks,  99  P.  1130, 
79  Kan.  548. 

Ky.  Letton  v.  Young,  2  ^Vlete.  558 ; 
Kennedy  v.  Cunningham,  2  Mete.  538 ; 
Carey  v.  Callan's  Ex'rs,  0  R.  Mon.  44; 
Hughes  V.  Robinson,  1  T.  B.  Mon.  215, 
15  Am.  Dec.  104;  Ilallowell  v.  Hal- 
lowell,  1  T.  B.  Mon.  1.30. 

Lra.      State  v.   Ryan,   30  La.   Ann. 


1176 :  Hathcock  v.  Gray,  22  La.  Ann. 
472 ;  State  v.  McClanahan.  9  La.  Ann. 
210;  Buel  v.  The  New  York,  17  La. 
541 ;   Penn  v.  Collins,  5  Rob.  213. 

Me.  Poland  v.  McDowell,  96  A. 
.s;^4,  114  Me.  511;  McKown  v.  Pow- 
ers, 86  Me.  291,  29  A.  1079;  State  v. 
Richards.  85  Me.  252,  27  A.  122; 
State  V.  Wilkinson.  76  INIe.  317. 

Mass.  Jones  v.  Newton  St.  Ry. 
Co.,  71  N.  E.  114,  186  IMass.  113 :  Mc- 
Coy V.  Jordan,  69  N.  E.  358,  184  Mass. 
575;  Spooner  v.  Handley,  151  Mass. 
313,  23  N.  E.  840;  Lee  v.  Gibbs  (10 
Allen)  248. 

Mich.  People  y.  Wallin,  55  Mich. 
497,  22  N.  W.  15 ;  Maclean  v.  Scripps, 

18  Fla.  lister  v.  State,  37  Fla. 
.382,  20  So.  2.32;  Shepherd  v.  State, 
36  Fla.  374,  18  So.  773. 

Ky.  Reed  v.  Commonwealth,  7 
Bush,  641 ;  Burns  v.  Commonwealth, 
3  Mete.  13. 

La.  State  v.  Johnson,  68  So.  843, 
1.37  La.  505;  State  v.  Harri-s.  31  So. 
782.  107  La.  325;  State  v.  West.  30 
So.  119,  105  La.  639 ;  State  v.  Wright, 
28  So.  909,  104  La.  44. 

Minn.  State  v.  Shtemme,  158  N. 
W.  48,  133  Minn.  184. 

Mo.  State  v.  Bailey,  88  S.  W.  733, 
190  Mo.  257:  State  v.  Westlake,  61 
S.  W.  243,  159  Mo.  669;  State  v. 
Sacre.  141  Mo.  64.  41  S.  W.  905 ;  State 
V.  Hilsabeck.  132  Mo.  348,  34  S.  W. 
38. 

Mont.  Territory  v.  O'Brien,  7 
Mont.  38,  14  P.  631.^ 

N.  M.  Territory  v.  Watson,  78  P. 
504.  12  N.  M.  419. 

N.  C.  State  y.  Foster,  90  S.  E.  785. 
172  N.  C.  960. 

Okl.  Patterson  y.  State,  113  P. 
216,  4  Okl.  Cr.  542. 

Tex.  Gould  y.  State,  146  S.  W. 
172,  66  Tex.  Cr.  R.  122;  Id.,  146  S. 
W.  179  (first  and  second  cases),  65 
Tex.  Cr.  R.  662;  Id.,  140  S.  W.  179 
(third  case) ;  Martin  y.  State,  25  Tex. 
App.  557,  8  S.  W.  682;  Robinson  v. 
State,  24  Tex,  152. 

In  capital  cases,  an  exception  to 
the  text  rule  exists  in  Louisiana. 
State  y.  ^Yright,  28  So.  909,  104  La. 
44. 


§  509  INSTRUCTIONS   TO   JURIES  934 

on  the  failure  of  the  court  to  reduce  its  instructions  to  writing/^ 


18  N.  W.  209,  52  Mich.  214,  denying 
rehearing  17  N.  W.  815,  52  Mich.  214. 

Minn.  Skaggs  v.  Illinois  Cent.  R. 
Co.,  145  N.  W.  381,  121  Minn.  503; 
Semlnim  v.  Duluth  Iron  Range  R. 
Co.,  141  N.  W.  523.  121  Minn.  439; 
Block  V.  Great  Northern  Ry.  Co.,  118 
N.  W.  1019,  106  Minn.  285. 

Miss.  Georgia  Pac.  Ry.  Co.  v. 
West,  66  Miss.  310,  6  So.  207 ;  Haynie 
V.  State,  32  Miss.  400. 

Mo.  State  v.  Cantlin,  118  Mo.  100, 
23  S.  W.  1091;  Waller  v.  Hannibal 
&  St.  J.  R.  Co.,  83  Mo.  608;  Devlin 
V.  Clark,  31  Mo.  22;  Thompson  v. 
Russell,  30  Mo.  498;  Bradley  v. 
Creath,  27  Mo.  415 ;  Powers  v.  Allen, 
14  Mo.  367 ;  Bompart  v.  Boyer,  8  Mo. 
234;  Naughton  v.  Stagg,  4  Mo.  App. 
271. 

Neb.  Smith  v.  Kenuard,  74  N.  W. 
859,  54  Neb.  523 :  Glaze  v.  Parcel,  40 
Neb.  732,  59  N.  W.  382 :  Levi  v.  Fred, 
38  Neb.  564,  57  N.  W.  386 ;  Roach  v. 
Hawkinson.  34  Neb.  658,  52  N.  W. 
373 ;  Schroeder  v.  Rinehard,  25  Neb. 
75.  40  N.  W.  593 ;  Nyce  v.  Shatter,  20 
Neb.  507,  30  N.  W.  943;  Warrick  v. 
Rounds,  17  Neb.  411,  22  N.  W.  785; 
Black  V.  Wlnterstein,  6  Neb.  224. 

Nev.     Lobdell  v.  Hall,  3  Nev.  507. 

N.  H.  Nadeau  v.  Sawyer,  59  A. 
369,  73  N.  H.  70;  Pitman  v.  Mauran, 
40  A.  392,  69  N.  H.  230;  First  Nat. 
Bank  of  Gonic  v.  Ferguson,  58  N.  H. 
403. 

N.  C.  State  v.  Wiseman,  101  S.  E. 
629,  178  N.  C.  784,  rehearing  denied 
102  S.  E.  706. 

Okl.  St.  Louis  &  S.  F.  R.  Co.  v. 
Fling,  127  P.  473,  36  Okl.  25. 

Pa.  General  Roofing  Mfg.  Co.  v. 
Greensburg  Title  &  Trust  Co.,  71  Pa. 
Super.  Ct.  373. 

S.  C.  Parks  v.  Laurens  Cotton 
Mills,  56  S.  E.  234,  75  S.  C.  560; 
Hatchell  v.  Chandler,  40  S.  E.  777, 
62  S.  C.  380;  South  Carolina  R.  Co. 
V.  Wilmington,  C.  &  A.  R.  Co.  7  S. 
C.  410 ;  Fox  v.  Savannah  &  C.  R.  Co., 
4  S.  G.  543. 

Tex.  Colorado  &  S.  Ry.  Co.  v. 
Rowe  (Civ.  App.)  224  S.  W.  928; 
Thomas  v.  Corbett  (Civ.  App.)  211  S. 
W.  806:  Edwards  v.  State,  166  S. 
W.  517,   73  Tex.   Cr.  R.   380;    Texas 


Brewing  Co.  v.  W^alters  (Civ.  App.). 
43  S.  W.  548 :  Corn  v.  State,  41  Tex. 
301 :   Williams  v.  State,  4  Tex.  App.  5. 

Vt.     State  V.  Clark,  37  Vt.  471. 

Liimiting  time  after  delivery  of 
charge  for  formulating  objections 
thereto.  In  a  broker's  action  for 
commission,  where  the  court's  charge 
submitted  only  three  issues  and  the 
controlling  issues  were  exceedingly 
few  and  simple,  and  the  court  ad- 
journed from  11:45  a.  m.  until  2:30  p. 
m.,  requiring  that  all  si:)ecial  issues 
be  prepared  in  the  intem-al,  and  ap- 
pellant prepared  and  filed  objections 
to  the  court's  charge,  and  it  does  not 
appear  R'hat  further  objections  ap- 
pellant wanted  to  prepare,  the  as- 
signment that  the  court  erred  in  not 
granting  more  time  must  be  overruled. 
Yarn  v.  Moeller  (Tex.  Civ.  App.)  216 
S.  W.  234. 

Exception  to  refusal  of  request. 
Where  defendant's  counsel  seasonably 
presented  his  requests  for  rulings,  he 
was  not  required  to  except  to  their 
refusal  until  the  end  of  the  charge. 
INIaxwell  v.  Massachusetts  Title  Ins. 
Co.,  92  N.  E.  42,  206  Mass.  197. 

Inability  of  party  to  present  ob- 
jections before  retirement  of 
jury.  Where  a  case  was  submitted 
to  the  jury  two  hours  before  the  ex- 
piration of  the  term  by  limitation, 
and  the  court  refused  to  detain  the 
jury  to  give  a  party  time  to  reduce 
his  objections  to  the  instructions  to 
writing  and  present  the  same ;  but 
gave  him  permission  to  present  them 
within  a  reasonable  time  after  the 
jury  had  retired,  which  was  done,  the 
fact  that  the  objections  were  not  tak- 
en before  the  jury  retired  does  not 
deprive  such  party  of  the  benefit 
thereof.  Dalton  v.  Moore  (C.  C.  A. 
Alaska)  141  F.  311,  72  C.  0.  A.  459. 
An  exception  to  a  refusal  to  grant  a 
request  for  an  instruction,  made  im- 
mediately after  the  jury  had  retired, 
was  not  too  late  where  the  judge  had 
directed  the  jury  to  take  the  case  as 
soon  as  he  had  concluded  his  remarks 
about  said  request.  State  v.  Pirlot, 
38  A.  6.")6.  20  R.  I.  273. 

19  Ala.     Louisville  &  N.  R.  Co.  v. 


<)85 


OBJECTIONS  AND   EXCEPTIONS 


509 


on  its  failure  to  observe  the  statutory  requirement  that  the  charge 
i)e  written  in  consecutively  numbered  paragraphs,-"  on  its  failure  to 
read  the  charge  to  the  jury,^^  on  misstatements  by  the  court  of  the 
evidence, ^~  and  on  the  alteration  of  written  instructions  by  inter- 
lineation.~^ 

In  some  jurisdictions  objections  to  the  charge,  not  made  prior 
to  the  reading  of  it  to  the  jury,  cannot  be  considered.^*  Under 
this  rule  exceptions  taken  after  the  jury  have  retired,  and  when 
they  have  returned  to  ask  for  further  instructions,  are  too  late.~^ 
In  the  great  majorit}^  of  jurisdictions  objections  or  exceptions 
made  or  taken  after  verdict  to  the  action  of  the  court  with  respect 
to  charging  the  jury  are  too  late,~^  and  such  rule  cannot  be 
waived  by  the  parties  after  the  verdict.'' 


Hall.  91  Ala.  112,  S  So.  371.  24  Am. 
St  Rep.  S63. 

Ark.  E.  O.  Barnett  Bros.  v.  Por- 
ter, 203  S.  W.  842.  134  Ark.  208. 

Fla.  Hubbard  v.  State.  37  Fla.  156, 
20  So,  235;  Gibson  v.  State.  26  Fla. 
100,  7  So.  376;  Baker  v.  CUatfield, 
23  I'la.  540,  2  So.  822 ;  West  v.  Black- 
shear,  20  Fla.  457. 

Mich.  Garton  v.  Union  City  Nat. 
Bank,  34  Mich.  279. 

Mo.  State  v.  Dewitt,  53  S.  W.  429, 
152  Mo.  76. 

Tex.  Franklin  v.  State.  2  Tex. 
App.  8;  Browning  v.  State,  1  Tex. 
App.  96. 

Utah.  United  States  v.  Goiigh,  8 
T'tah,  428,  32  P.  095. 

2  0  Gibson  v.  Sullivan,  IS  Neb.  558, 
26  N.  W.  368. 

21  State  V.  Clark,  63  S.  E.  402,  64 
W.  Va.  625. 

2  2  Me.  Skene  v.  Graham,  100  A. 
938,  116  Me.  202;  State  v.  Fenlason. 
78  INIe.  495.  7  A.  385 ;  Jameson  v. 
Weld,  45  A.  299,  93  Me.  345 ;  Knight 
V.  Thomas.  7  A.  538. 

Mich.  Middlebrook  v.  Slocuni,  110 
N.  W.  422,  152  Mich.  286. 

N.  C.  State  v.  Wiseman,  101  S. 
E.  629,  178  N.  C.  784,  rehearing  denied 
102  S.  E.  700;  State  v.  Cavlor,  101 
S.  E.  027,  178  N.  C.  807;  Ball-Thrash 
Co.  V.  McConniek,  90  S.  E.  910,  172  N. 
C.  077. 

S.  C.     State  V.  Jones,  21  S.  C.  59G. 


23  Tracy  v.  State.  46  Neb.  361,  64 
N.  W.  1009. 

2iN.  M.  State  v.  Lucero,  171  P. 
785.  24  N.  M.  343. 

Tex.  Shumaker  v.  Byrd'(Civ.  App.) 
203  S.  W.  401;  Ochoa  v.  Edwards 
(Civ.  App.)  189  S.  W.  1022  ;  Arensman 
v.  State,  187  S.  W.  471,  79  Tex.  Cr.  R. 
546;  McPherson  v.  State,  182  S.  W. 
1114,  79  Tex.  Cr.  R.  93;  W\alker  v. 
State,  181  S.  W.  191,  78  Tex.  Cr.  R. 
237 ;  McLaughlin  v.  Terrell  Bros. 
(Civ.  App.)  179  S.  W.  932 ;  Consolidat- 
ed Kansas  City  Smelting  &  Refining 
Co.  V.  Schulte  (Civ.  App.)  176  S.  W. 
94:  Glasper  v.  State,  174  S.  W.  585, 
70  Tex.  Cr.  R.  310 ;  Missouri,  K.  &  T. 
Ky.  Co.  of  Texas  v.  Smith  (Civ. 
App.)  172  S.  W.  750;  Bodkins  v. 
State,  172  S,  W.  216,  75  Tex.  Cr.  R. 
'499;  Guiterrez  v.  State,  170  S.  W. 
717,  75  Tex.  Cr.  R.  119 ;  Eldridge  v. 
Citizens'  Ry.  Co.  (Civ.  App.)  109  S. 
W\  375 ;  Hawkins  v.  State,  108  S.  W. 
93,  74  Tex.  Cr.  R.  452. 

2  5  Hayes  v.  Solomon.  90  Ala.  520,  7 
So.  921 ;  Garoutte  v.  Williamson,  108 
Cal.  135,  41  P.  35,  413. 

2G  U.  S.  Illinois  Cent.  R.  Co.  v. 
Skaggs,  36  S.  Ct.  249,  240  U.  S.  66, 
60  L.  Ed.  528,  affirming  judgment 
Skaggs  V.  Illinois  Cent.  R.  Co.,  147  N. 
W.  1135.  125  Minn.  532;  Reagan  v. 
Aiken,  138  U.  S.  109,  11  Sup.  Ct.  2S3, 

2-  Farr  v.  Swigart,  13  Utah,  150,  44 
P.  711. 


§  510 


INSTRUCTIONS   TO   JURIES 


936 


§  510.     Rule  permitting  objections  after  retirement  of  jury  or  after 
verdict 

In  some  jurisdictions,  in  the  absence  of  any  rule  to  the  contrary 
or  under  statutory  provisions,  such  an  objection  or  exception  may 
be  taken  after  the  retirement  of  the  jury  and  before  the  return  of 
their  verdict,~^  and   in   a   few  jurisdictions  there   is  statutory  au- 


34  L.   Ed.  S92;    (D.  C.  Wash.)  Brent 
V.  Chas.  H.  Lilly  Co.,  202  F.  335. 

Ala.  Bvnum  v.  Southern  Pump  & 
Pipe  Co.,  63  Ala.  4G2. 

Colo.  Taylor  v.  Randall,  3  Colo. 
399. 

Dak.  Cheatham  v.  Wilber,  1  Dak. 
335.  46  N.  W.  580. 

Fla.  Weightuovel  v.  State,  35  So. 
856,  46  Fla.  1 ;  Easterliu  v.  State,  31 
So.  350,  43  Fla.  565 ;  Morrison  v. 
State.  28  So.  97,  42  Fla.  149. 

Idaho.  State  v.  Hurst,  39  P.  554, 
4  Idaho,  345. 

Ind.  Neff  v.  Masters,  89  N.  E.  846, 
173  Ind.  196;  Vaughn  v.  Ferrall,  57 
Ind.  182:  Wood  v.  McClure,  7  Ind. 
1.55;  Roberts  v.  Higgins,  5  Ind.  542; 
Jones  V.  Van  Patten,  3  Ind.  107. 

La.  State  v.  Mitchell,  53  So.  561, 
127  La.  270 ;  State  v.  Bush,  41  So.  793, 
117  La.  463 ;  Vaughan  v.  Vaughan, 
3  Mart.  (O.   S.)  215. 

Mass.  Nagle  v.  Laxton,  77  N.  B. 
719,  191  Mass.  402;  NLxon  v.  Ham- 
mond, 12  Cush.  285. 

Minn.  Turritin  v.  Chicago,  St,  P., 
M.  &  O.  Ry.  Co.,  104  N.  W.  225,  95 
Minn.  408 ;  Barker  v.  Todd,  37  Minn. 
370,  34  N.  W.  895. 

Miss.  Anderson  v.  Hill,  12  Smedes 
&  M.  679,  51  Am.  Dec.  130. 

Mo.  Houston  v.  Lane,  39  Mo.  495 ; 
Devlin  v.  Clark,  31  Mo.  22;  Mattingly 
V.  Moranville.  11  Mo.  604 ;  Randolph 
V.  Alsey,  8  Mo.  6.56. 

Neb.  Bradstreet  v.  Grand  Island 
Banking  Co.,  131  N.  W.  956,  89  Neb. 
590;  Wat.son  v.  Roode,  30  Neb.  264, 
46  N.  W.  491. 

N.  H.  Willard  v.  Stevens,  24  N.  H. 
271. 

N.  Y.  People  v.  Spohr.  100  N.  E. 
444.  206  N.  Y.  516 ;  Banker  v.  Fisher, 
55  Hun,  605,  7  N.  Y.  S.  732 ;  De  Leon 
V.  Echeverria,  45  N.  Y.  Super.  Ct.  240; 
Koster  v.  Noonan,  8  Daly,  231. 

N.  C.     Barefoot  v.   Lee,  S3   S.  E. 


247,  168  N.  C.  89 ;  Phifer  v.  Commis- 
sioners of  Cabarrus  County,  72  S.  E. 
852,  157  N.  C.  150;  State  v.  Hart, 
116  N.  C.  976,  20  S.  B.  1014 ;  State  v. 
Nicholson,  85  N.  C.  548;  State  v. 
Caveness,  78  N.  C.  484. 

R.  I.  Meyers  v.  Briggs,  11  R.  I. 
180;    Sarle  v.  Arnold,  7  Ri.  I.  582. 

S.  C.  Warren  v.  Lagrone,  12  S.  0. 
45. 

Tex.     Hall  v.  Stancell,  3  Tex.  400. 
Utah.     People  v.  Thiede,  11  Utah, 
241.  39  P.  837. 

Va.  Newport  News  &  O.  P.  Ry.  & 
Electric  Co.  v.  Bradford,  37  S.  E.  807, 
99  Va.  117;  Collins  v.  George,  46  S. 
E.  684,  102  Va.  509. 

W.  Va.  Carder  v.  Bank  of  West 
Virginia,  34  W.  Va.  38,  11  S.  E.  716 ; 
Wustland  v.  Porterfield,  9  W.  Va.  438. 
Wis.  Thrasher  v.  Postel,  79  Wis. 
503,  48  N.  W.  600 ;  Nicks  v.  Town  of 
Marshall,  24  Wis.   139. 

In  Massachusetts,  the  rule  for- 
merly was  that  exceptions  to  the  in- 
structions to  the  .iury  in  the  court  of 
common  pleas  might  be  first  alleged 
after  verdict  returned.  Inhabitants 
of  Buckland  v.  Inhabitants  of  Charle- 
mont,  3  Pick.  173.  But  see  Train  v. 
Collins,   2   Pick.    145. 

2  8  N.  Y.  Hunt  V.  Becker,  160  N.  Y. 
S.  45, 173  App.  Civ.  9  ;  Broadway  Trust 
Co.  V.  Fry,  83  N.  Y.  S.  103,  40  Misc. 
Rep.  680;  Polykranas  v.  Krausz,  77 
N.  Y.  S.  46,  73  App.  Div.  583 ;  Panama 
R.  Co.  V.  Johnson,  58  Hun,  557,  12  N. 
Y.  S.  499. 

Wash.  Radburn  v.  Fir  Tree  Lum- 
ber Co.,  145  P.  6.32,  83  Wash.  643; 
State  V.  Neis,  123  P.  1022,  68  Wash. 
599;  State  v.  Vance,  70  P.  34,  29 
Wash.  435. 

W.  Va.  Nadenbousch  v.  Sharer,  2 
W.  Va.  285. 

Wis.     Gehl  V.  Milwaukee  Produce 
Co.,  93  N.  W.  26,  116  Wis.  263. 
In  Michigan  the  rule  of  the  text 


031 


OBJECTIONS  AND   EXCEPTIONS 


510 


thority  for  the  taking  of  such  exceptions  after  verdict,"^  or  at  any- 
time before  the  entry  of  final  judgment,^"  and  in  one  jurisdiction 


obtained  under  R.  S.  1846.  p.  161,  § 
(12.      Doylp   V.   Stevens,  4  Mich.   87. 

Discretion  of  court.  The  court 
may,  in  the  exercise  of  its  discretion, 
a  How  exceptions  to  instructions  to 
tlie  jury,  although  they  were  not 
taken  until  after  the  jury  had  with- 
drawn to  consider  of  their  verdict. 
St.  .Tdhn  V.  Kidd,  26  Cal.  263. 

Requirement  that  exceptions  be 
taken,  if  practicable,  before  the 
return  of  the  verdict.  Rule  58  of 
the  Circuit  Court  for  the  District  of 
Montana,  which  permits  exceptions  to 
the  charge  of  the  court  or  to  the  re- 
fusal of  instructions  requested  to  be 
taken  after  tlie  jury  liave  retired,  but, 
if  practicable,  before  the  verdict  has 
been  returned,  was  intended  to  peiinit 
such  course  to  be  followed,  where  it 
would  be  in  the  interest  of  justice  by 
avoiding  the  confusion  of  the  jury  or 
where  further  instructions  were  given 
in  the  absence  of  counsel,  and  not  to 
permit  exceptions  generally  to  be  tak- 
en after  the  close  of  the  trial  contrary- 
to  the  settled  rule  of  the  federal 
courts :  and  where  the  judge,  after 
instructing  the  jury  but  before  send- 
ing thorn  out,  retired  to  his  room  with 
counsel  and  there  heard  and  allowed 
the  exceptions,  the  rule  does  not  re- 
(juire  him  to  afterward  entertain  or 
allow  further  exceptions.  Montana 
Min.  Co.  V.  St.  Louis  Min.  &  Mill. 
Co.,  147  F.  897,  78  C.  C.  A.  3.3,  judg- 
ment reversed  27  S.  Ct.  254,  204  U.  S. 
204.  51  L.  Ed.  444. 

Failure  to  reduce  to  -writing. 
Exceptions  to  instructions  because 
given  orally  must  be  taken  at  the  time 
notwithstanding  the  stattitory  provi- 
sion that  exceptions  to  instructions 
may  be  taken  at  any  time  before  the 
motion  for  a  new  trial.  Taylor  v. 
Kidd,  129  P.  406,  72  Wa.sh.  18. 

2  9  Iowa.  State  v.  Smith,  180  N.  W. 
4 ;  Patterson  v.  Chicago,  M.  &  St.  P. 
Ry.  Co.,  70  Iowa,  593,  33  N.  W.  228; 
Parker  v.  Middleton.  65  Iowa,  200,  21 
N.  W.  562 ;  Deere  v.  Needles,  65  Iowa, 
101,  21  N.  W.  203;  Bailey  v.  Ander- 
son, 61  Iowa,  749,  16  N.  W.  134. 

Pa.  Sikorski  v.  Philadelphia  &  R. 
Ry.  Co..  103  A.  618,  260  Pa.  243  ;   Com- 


monwealth v.  Shobert,  49  Pa.  Super. 
Ct.  371 ;  Same  v.  Debussey,  Id. ;  Com- 
monwealth V.  Lynch.  49  Pa.  Super. 
Ct.  370;  Commonwealth  v.  Sweeney, 
Id. ;  Commonwealth  v.  Duffv,  49  Pa. 
Super.  Ct.  344. 

Wash.  State  v.  Peeples,  129  P. 
lOS,  71  Wai5h.  451. 

In  Iowa,  section  3705a  of  the  1913 
Supplement  to  the  Code,  which  specif- 
ically required  that  all  objections 
or  exceptions  must  be  made  before 
the  reading  of  the  instructions  to 
the  jury,  and  on  which  section  the 
decisions  in  Freebv  v.  Town  of  Sib- 
ley, 167  N.  W.  770,  183  Iowa.  827, 
and  Seitsinger  v.  Iowa  Citv  Electric 
Ry.  Co..  165  N.  W.  205,  182  Iowa.  739, 
are  based,  was  repealed  by  Acts  37th 
Gen.  Assem.  c.  24.  Hamau  v.  Pres- 
ton, 173  N.  W.  894,  186  Iowa,  1292. 

In  North  Carolina  exceptions  for 
omission  to  charge  mti.st  be  before 
verdict,  though  for  error  in  the  charge 
they  may  be  taken  within  10  days 
after  adjournment.  State  v.  Harris, 
26  S.  E.  774.  120  N.  C.  577. 

In  Pennsylvania,  the  former  prac- 
tice required  that  the  attention  of  the 
court  should  be  called  to  errors  in  its 
charge  before  the  retirement  of  the 
jury.  McGinlev  v.  Philadelphia  &  R. 
Ry.  Co.,  101  A.  825,  257  Pa.  519;  First 
Nat.  Bank  of  Hanover  v.  Delone,  98 
A.  1042,  254  Pa.  409 ;  Tolson  v.  Phila- 
delphia Rapid  Transit  Co.,  93  A.  1017, 
248  Pa.  227;  Commonwealth  v.  Min- 
ney,  65  A.  31,  216  Pa.  149.  116  Am. 
St.  Rep.  763 ;  Commonwealth  v.  Has- 
kell, 2  Brewst.  491 ;  Commonwealth 
V.  Taylor,  65  Pa.  Super.  Ct.  113; 
Thompson  v.  W.  P.  Zartman  Lumber 
Co.,  55  Pa.  Super.  Ct.  302 ;  Harter  v. 
Whitebread,  38  Pa.  Super.  Ct.  10. 

Extension  of  time.  The  giving  of 
time  within  which  to  file  a  motion  for 
a  new  trial,  and  in  arrest  of  judg- 
ment, does  not  extend  the  time  for 
filing  exceptions  to  instructions. 
Leach  v.  Hill.  97  Iowa,  81,  66  N.  W. 
69  :  Henry  v.  Henry  (Iowa)  179  N.  W. 
856. 

30  Keck  V.  Bush  way,  90  N.  E.  196 
242  ill.  441;  Collins  Ice  Cream  Co.  v. 
Stephens,  59  N.   E.  524,  189  111.  200; 


§  511  INSTRUCTIONS   TO  JURIES  938 

an  error  upon  the  face  of  the  charge  may  be  availed  of  by  an  ex- 
ception entered  within  a  specified  time  after  adjournment  for  the 
term.^^ 

§  511.     Extension  of  time 

Trial  courts  should  give  reasonable  opportunity  to  counsel  to 
reserve  exceptions  to  any  instructions  which  they  deem  injurious 
to  the  rights  of  their  clients,^-  and  in  some  jurisdictions  the  court 
has  power,  on  good  cause  shown,  to  extend  the  time  within  which 
exceptions  to  a  charge  may  be  taken,  either  before  or  after  the 
time  limited  therefor  has  elapsed.^^  Such  a  power  should  not  be 
exercised  to  condone  an  unreasonable  delay  in  preparing  excep- 
tions,^* or,  under  some  of  the  statutes,  in  the  absence  of  a  show- 
ing of  excusable  neglect. ^^ 

C.     Mode;  of  Making  Objections  and  Manner  of  Taking  and 
Noting  Exceptions 

§  512.     Mode  of  making  objections  in  general 

A  party  complaining  of  an  instruction  should  first  state  his 
particular  objection  to  it  when  it  is  given,  and  if  such  objection  is 
overruled  an  exception  should  then  be  reserved.^®  An  exception 
once  properly  taken  to  an  instruction  is  not  waived  by  the  failure 
of  the  party  so  excepting  to  object  to  a  subsequent  instruction  em- 
bodying the  same  principle.^'  In  some  jurisdictions  a  request  by 
a  litigant  for  9,  special  charge  may  fulfill  the  function  of  an  excep- 
tion to  the  main  charge  because  of  its  failure  to  cover  the  subject 
of  the  special  request.^^     Indeed,  it  is  held  that  the  proper  remedt 

State  V.  Hofer,  164  N.  W.  79,  .39   S.  before  verdict,  when  the  mi.stake,  if 

D.  281 ;    Uhe  v.  Chicago,  M.  «&  St.  P.  any,    can    be    corrected.      Phillips    v. 

Ry.  Co..  4  S.  D.  505,  57  N.  W.  484.  Wilmington  &  W.  R.  Co.,  41  S.  E.  805. 

Application    of    rule.      In    South  130  N.  C.  582. 

Dakota,  under  the  statute  providing  32  Brewer  v.   State,  165  P.  6-34,   13 

that  "exceptions  to  the  giving  or  re-  Okl.  Cr.  514 ;    Fowler  v.  State,  126  P. 

fusing  any  instruction,  or  to  its  modi-  831,  8  Okl.  Cr.  130. 

fication  or  change,  may  be  taken  at  33  Lindblom  v.  Sonstelie,  86  N.  W. 

any    time   before   the   entry   of   final  357,  10  N.  D.  140. 

judgment,"  there  is  no  distinction  be-  34  state  v.  Lucker,  40  S.  C.  549.  IS 

'tween    instructions   given   at    the   re-  S.  E.  797. 

finest  of  counsel  and  those  given  by  35  state  v.  Brown,  165  N.  W.  987,  39 

the  court  of  its  'own  motion.     Uhe  v.  S.  D.  567. 

Chicago.  M.  &  St.  P.  Ry.  Co.,  4  S.  D.  se  Sheets  v.  Iowa  State  Ins.  Co..  126 

505,  57  N.  W.  484.  S.  W.  413,  226  Mo.  613 ;    Ross  v.  Sav- 

31  H.  G.  Williams  &  Co.  v.  Harris,  lor,  104  P.  804,  .39  Mont.  559. 

49  S.  E.  954,  137  N.  C.  460.  3  7  Baltimore  &  O.  R.  Co.  v.  Lee.  55 

Failure  to  reduce  to  writing.     An  S.   E.  1,  106  Va.  32. 

objection  to  a  failure  to  put  a  charge  3s  pt.  Worth  &  D.  C.  Ry.  Co.  v.  Al- 

in  writing  is  waived  by  not  excepting  corn  (Tex.  Civ.  App.)  178  S.  W.  833. 


939  OBJECTIONS   AND    EXCEPTIONS  §  513 

for  an  omission  in  an  instruction  is  not  an  exception  to  the  instruc- 
tion given,  but  a  request  to  the  court  to  give  one  supplying  or  cov- 
ering the  omission  and  the  saving  of  a  proper  exception  to  a  refusal 
of  such  request.^**  and  a  party  who  has  excepted  to  the  refusal  of  the 
court  to  grant  a  request  properly  declaring  a  rule  of  law  is  not  re- 
quired to  again  except  to  a  subsequent  instruction  of  the  court  de- 
claring the  law  to  be  otherwise  than  that  contained  in  the  request.'*'* 
Where,  however,  a  request  for  an  instruction  is  refused,  and  a 
modified  or  independent  proposition  is  given  instead,  the  party 
who  considers  himself  aggrieved  must  except  to  the  refusal  to 
charge  as  requested  and  also  take  an  independent  exception  to  the 
charge  as  given.'^i  A  party  objecting  to  an  instruction  which  has 
been  given  on  his  own  request  should  accompany  his  objection  by 
a  withdrawal  of  such  request.^'-^ 

§  513.  General  requirements  with  respect  to  manner  of  taking  and 
noting  exceptions 

At  some  time  exceptions  to  the  charge  of  the  court  must  be  re- 
duced to  writing,  together  with  so  much  of  the  charge  as  is  nec- 
essary to  explain  them.*^  If  exceptions  are  taken  orally  under  a 
statute  so  permitting,  they  must  be  noted  on  the  minutes  of  the 
court.** 

That  counsel  indicates  to  the  court  that  he  believes  it  is  about 
to  make  an  erroneous  ruling  on  instructions  does  not  constitute  a 
sufficient  exception  to  the  ruling  when  niade.*^  In  some  jurisdic- 
tions the  points  of  exceptions  to  instructions  should  be  designated 
while  the  jury  are  at  the  bar,  and  it  is  improper  practice  to  permit 
formal  exceptions  to  be  then  noted  and  the  specificatipn  of  the 
objection  to  be  supplied  in  the  record  later.^^ 

Exceptions  to  instructions  may  be  reserved  by  bill  of  exceptions,*' 
and  under  some  statutory  provisions  a  party  taking  an  exception 
to  an  instruction  must  preserve  it  by  a  bill  of  exceptions  signed  by 
the  trial  judge."** 

••!9  Tasjgart  v.  McKinsev,  85  Ind.  392.  ^s  Territory  v.  O'Brien.  7  Mont.  38, 

4  0  Long-Bell  Lumber  Co.  v.  Stump  1-1  ?•  631 ;    Monroe  v.  Elburt,  1  Neb. 

(C.  C.  A.  Ark.)  S6  F.  574.  30  C.  C.  A.  l'^-                              ,,     ,      ^  t>      ,     -,-,1 

260;    Evans  v.  Clark,  40  S.  W.  771,  't^o^J^'^'.^-x^T^'"^''-!^''"   '     ^ 

1  Ind   T   "^16  -^-  ^-  ^-^'  ^^  ^^^^-  '^PP-  ^^^' 

'     •  ~     •  45  Gerber   v.   .Etna  Indemnity  Co., 

41  Brozek   v.   Steinway  Ry.   Co.  of  -j^-j^o  p.  272.  61  Wash.  184. 

Long  Island  City,  55  N.  E.  .395,  161  Ic  Mountain     Copper    Co.    v.    Van 

N.  Y.  63,  affirming  judgment  48  N.  Y.  Buren  (C.  C.  A.  Cal.)  133  F.  1,  66  C.  C. 

S.  345-,  23  App.  Div.  623;   48  N.  Y.  S.  j^   151/ 

1101,  23  App.  Div.  626.  /  "47  Landers  v.  Beck,  92  Ind.  49. 

42  Texas  &  P.  Rv.  Co.  v.  Williams  ^s  Owens  v.  Missouri  Pac.  Ry.  Co., 
(Tex.  Civ.  App.)  196  S.  W.  2.30.  67  Tex.  679,  4  S.  W.  593. 


§  514  INSTRUCTIONS   TO   JURIES  940 

§  514.     Noting  exceptions  on  margin  of  instructions 

In  a  considerable  number  of  jurisdictions,  however,  an  excep- 
tion to  an  instruction  is  sufficiently  preserved  by  a  notation  by  the 
trial  court  on  the  margin  of  such  instruction  of  the  fact  of  such 
exception.^*  In  some  jurisdictions  there  are  statutory  provisions 
dispensing  with  the  filing  of  a  formal  bill  of  exceptions,  and  per- 
mitting a  party  to  preserve  his  exceptions  to  the  giving  or  refusal 
of  instructions  by  writing,  at  the  close  of  each  instruction,  "Given 
and  excepted  to"  or  "Refused  and  excepted  to."  ^ 

Such  a  provision  is  not  satisfied  by  an  omnibus  exception  to  a 
number  of  instructions,^^  and  such  a  memorandum  under  some  of 
these  provisions  is  required  to  be  signed  by  the  party  or  his  attor- 
ney, or  by  the  trial  judge,  and  dated.^~  In  one  jurisdiction  a  sign- 
ing of  such  notation  by  either  the  party  or  his  attorney,  or  the 
trial  judge,  is  sufficient,^^  and  it  has  been  held  that  the  failure  of 
the  trial  judge  to  sign  an  instruction  so  excepted  to  cannot  preju- 
dice the  rights  of  an  appellant.^  Where  such  a  memorandum  is 
signed  by  the  attorneys  of  a  party,  however,  the  court  should  be 
made  acquainted  with  what  has  been  done.^^ 

§  515.     Knowledge  of  court  or  opposing  party 

A  mere  statement  by  counsel  to  the  official  reporter  that  he  wish- 
es it  understood  that  he  saves  an  exception  to  the  cliarge  of  the 

4  9  Clement  v.  Drybread,  78  N.  W.  E.  305,  28  Ind.  App.  101;  Roose  v. 
235,  108  Iowa,  701 ;  Bennett  v.  Mc-  Eoose,  145  Ind.  102,  44  N.  E.  1 ;  Wade 
Donald,  72  N.  W.  268,  52  Neb.  278.  v.  Gnppinger,  60  Ind.  376;    Ledley  v. 

5  0  Muncie    &    P.    Traction    Co.    v.  State,  4  Ind.  580. 

Black,  89  N.  E.  845,  173  Ind.  142;  Indi-  Md.     Central  Ry.  Co.  of  Baltimore 

ana,  I.  &  I.  R.  Co.  v.  Bundy,  53  N.  E.  v.  Coleman,  80  Md.  328,  30  A.  918. 

175,  152  Ind.  590;    Lower  v.  Franks,  Ratification      of      memorandum 

115  Ind.  334,  17  N.  E.  630;    Wade  v.  witliout  actual  signature.     Where 

Guppinger,  60  Ind.  376.  counsel,  when  instructions  were  given, 

51  Inland  Steel  Co.  v.  Smith,  75  N.  indicated  in  open  court  their  desire  to 

E.  852,  39  Ind.  App.  636,  .judgment  af-  except  thereto,  and  afterwards  them- 

firmed   80  N.   E.   538,   168  Ind.   245;  selves    noted    their    exceptions    by    a 

Sherlock  v.  First  Nat.  Bank  of  Bloom-  memorandum  on   the  margin  of  the 

ington,  .53  Ind.  73 ;    Ludwig  v.  Black-  instructions,    it    was    held    that    the 

shere,  71  N.  W.  356,  102  Iowa.  366.  court,  in  overruling  a  motion  to  strike 

5  2  Ind.    Retseck  v.  Ilarbart,  96  N.  E.  from  the  record  such   memorandum, 

386.  176  Ind.  441 ;   Neff  v.  Masters,  89  ratified  the  notation,  and,  such  nota- 

N.  E.  846,  173  Ind.  196 ;    Muncie  &  P.  tion    being    in    accordance    with    the 

Traction  Co.  v.  Black,  89  N.  E.  845,  facts,  there  was  no  error  in  the  ruling. 

173  Ind.  142 ;    Grand  Rapids  &  I.  Ry.  Blumer  v.  Bennett,  44  Neb.  873,  63 

Co.   V.   King,   83   N.   E.   778,  41   Ind.  N.  W.  14. 

App.  701;    Inland  Steel  Co.  v.  Smith,  g3  Gwinn  v.  Hobbs  (Ind.  App.)  118  N. 

80  N,  E.  538,  168  Ind.  245,  affirming  E.  155. 

iudgment  75  N.  E.  852,  39  Ind.  App.  ^4  Qibbs  v.  Wall,  10  Colo,  153,  14  P. 

636;  Malott  v.  Hawkins,  63  N.  E.  308,  216, 

1.59  Ind.  127;   Ayres  v.  Blevins,  62  N.  ss  Hawley  v.  State,  69  Ind.  98. 


941  OBJECTIONS  AND   EXCEPTIONS  §  516 

court  does  not  amount  to  an  exception.^^  The  requirement  found 
in  some  statutes  that  exceptions  to  instructions  be  filed  is  proba- 
bly for  the  purpose  of  bringing  them  to  the  attention  of  the  court,^' 
and  under  a  statute  requiring  that  exceptions  to  instructions  be 
stated  to  the  court,  specifying  the  parts  of  the  charge  excepted 
to,  and  that  they  be,  by  him  or  by  the  clerk,  noted  in  the  minutes 
or  embodied  in  the  record,  exceptions  which  are  merely  filed,  and 
never  called  to  the  attention  of  the  court,  are  not  available  on 
appeal."* 

Exceptions  to  instructions  are  sufticient,  although  the  trial  judge 
does  not  hear  them,  if  they  are  dictated  by  the  attorneys  in  his 
presence  in  open  court  and  he  has  opportunity  to  hear  them.^^ 

In  some  jurisdictions  a  party  is  not  required  to  submit  to  the 
opposing  counsel  his  objections  to  the  charges  given,^"  but  in  other 
jurisdictions  it  has  been  held  that,  since  a  party  is  entitled  to  full 
notice  of  all  the  proceedings  in  the  case,  the  taking  of  exceptions 
to  instructions  outside  of  the  court  room  and  without  the  knowl- 
edge of  the  adverse  party,  even  if  done  by  the  consent  of  the 
court,  is  as  much  a  wrong  to  such  adverse  party  as  it  would  be 
to  the  court,  if  its  consent  had  not  been  previously  obtained. ^^ 

§  516.     Necessity  of  formal  exception 

A  formal  exception  to  rulings  on  instructions  may  be  unneces- 
sary, where  the  court  states,  on  making  such  rulings,  that  it  grants 
an  exception  to  the  party  complaining  thereof.®-  By  virtue  of  a 
custom  or  statutory  provision  the  rulings  of  the  court  in  giving 
or  refusing  instructions  may  be  deemed  excepted  to  although  no 
exceptions  w^ere  actually  taken,***  but  in  absence  of  such  a  custom 
or  statute  the  mere  agreement  of  counsel  cannot  have  such  an  ef- 
fect.®*   The  mere  handing  to  the  trial  judge  of  written  requests  for 

56  Coleman  v.  Gilmore.  49  Cal.  .340.        S.  W.  656,  148  Mo.  App.  216 ;   State  v. 

5  7  Territory  v.  O'Brien,  14  P.  631,  Reilly,  141  N.  W.  720,  25  N.  D.  339; 
7  Mont.  38.  Missouri  Pac.  Rv.  Co.  v.  Rabb,  3  Will- 

5s  Coffey  V.  Seattle  Electric  Co.,  109  son.  Civ.  Cas.  Ct.  App.  §  37. 

P.  202,  59  Wash.  686.  Effect  of  election  to  file  excep- 

■"'OOngaro  v.  Twohy,  94  P.  916,  49  tions.     In    North    Dakota,    a    party 

Wash.  93.  may,  if  he  sees  fit,  elect  to  file  excep- 

6  0  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  tions  with  the  clerk  of  court  to  the 
Smith  (Tex.  Civ.  App.)  190  S.  W.  761.  instructions  given  to  the  jury,  and  if 

'1^  Oher  V.  Schenck,  65  P.  1073,  23  he  does  so  elect  he  must  be  governed 

Utah,  614.  by  such  election  and  will  be  limited  to 

6  2  Mitchell  v.  Turner,  149  N.  Y.  39,  the    exceptions    which    he   has    filed. 

43  N.  E.  403.  State  v.  Campbell,  72  N.  W.  935,  7 

6  3  Watson  V.  Dickens,  12  Smedes  &  N.  D.  58. 

M.  (Miss.)  60S ;    Union  Loan,  Storage  6*  Herman  v.  Jeffries,  4  Mont.  513, 

&   Mercantile   Co.   v.   Farbstein,   127  1  P.  11. 


§  517  INSTRUCTIONS  TO  JURIES  942 

instructions  does  not  necessarily  imply  that  if  the  requests  are  not 
granted  an  exception  is  saved.^** 

"D.     Sufficiency  of  Objections  or  Exceptions  with  Respect  to 

Their  Substance 
§  517.     Oral  charges 

An  exception  to  a  charge  on  the  ground  that  it  is  oral  must  be 
taken  by  objecting  to  the  manner  in  which  it  is  given  and  not  to 
the  matter  thereof.^^  Where  oral  instructions  are  given  as  a  con- 
tinuous and  connected  charge,  it  is  not  proper  to  treat  each  para- 
graph thereof  as  a  separate  instruction  for  the  purpose  of  objec- 
tion.^' 

An  exception  to  an  oral  charge  is  sufficiently  saved,  where  it 
is  excepted  to  orally  and  the  exceptions  are  taken  by  the  stenogra- 
pher and  certified  in  the  case  made.^*  In  one  jurisdiction  it  is  held 
that  there  is  no  practice  allowing  an  exception  taken  by  descrip- 
tion of  a  subject  treated  by  the  court  in  an  oral  charge,  without 
precisely  designating  the  statement  of  the  court  objected  to.^^ 

§  518.     Joint  exceptions 

A  joint  exception  by  two  defendants  to  the  giving  of  certain 
instructions,  which  are  incorrect  as  to  only  one  of  the  defendants, 
constitutes  no  basis  for  a  reversal  of  a  judgment  rendered  against 
them.^® 


E.    Rule  That  Exceptions  to  Instructions  or  the  Refusal 
Thereof  Should  be  Specific 

§  519.     In  general 

While  in  some  jurisdictions  a  general  exception  to  the  charge 

of  the  court  is  authorized,'^^  and  is  sufficient  without  pointing  out 

6  5  Leyland    v.    Pingree,    134    Mass.  judgment  136  N.  Y.  S.  600,  152  App. 

367:    South  Carolina   R.   Co.  v.  Wil-  Div.  SSI. 

mingtou,  C.  &  A.  R.  Co.,  7  S.  C.  410.  7i  winiams   v.    Commonwealth,    80 

6G  Moses  V.  Loomis.  55  111.  App.  .342.  Ky.  313,  4  Ky.  Law  Rep.  3;    City  of 

67  Harmon  v.  Callahan,  187  111.  App.  Cincinnati  v.  Anderson,  19  Ohio  Cir. 

312.  Ct.  R.  603,  10  O.  C.  D.  522. 

6  8  Hurst  V.  Hill,  122  P.  513,  32  Okl.  Failure    to    require    specific   ob- 

532.  jection.     A  general  exception  is  snffir 

6  9  Birmingham  Ry.,  Light  &  Power  cient  when  the  charge  is  erroneous 
Co.  V.  Friedman,  65^  So.  939,  1S7  Ala.  and  the  party  Is  not  asked  to  more 
562.  specifically  state  his  exception.     Stra- 

7  0  Marshall  v.  Lewark,  117  Ind.  der  v.  Marietta  &  C.  Ry,  Co.,  13  Ohio 
377,  20  N.  E.  2.53 ;  Jones  v.  Gould,  103  Dee.  895.  2  Cin.  Super.  Ct.  Rep'r,  268. 
N.   E.   720,   209   X.   Y.  419,  reversing  In  Iowa,  the  rule  prior  to  the  Re- 


943 


OBJECTIONS   AND   EXCEPTIONS 


§  519 


in  detail  the  specific  instructions  challenged,"^  the  practice  of  tak- 
ing general  and  obscure  exceptions  to  the  charge  at  the  moment, 
in  order  to  cover  the  case  and  enable  counsel,  on  subsequent  criti- 
cal examination,  to  raise  points  which  have  never  been  suggested 
at  all  to  the  mind  of  the  trial  judge,  is  objectionable  on  many 
grounds,'"^  and  the  general  rule  in  most  jurisdictions  is  that  an  ex- 
ception to  the  instructions  as  an  entirety  is  not  tenable,'*  but 
that,  on  the  contrary,  exceptions  to  the  charge  of  the  court  must 
point  out  some  definite  or  specific  defect,"^  this  rule  requiring,  in 


vision  was  that  a  general  exception 
taken  to  the  wliole  of  the  judge's 
charge  entitled  the  excepting  party  to 
present  for  review  an  erroneous  posi- 
tion in  any  portion  of  the  charge,  and 
this  rule  governs  in  all  actions  begun 
before  the  Revision  took  effect.  Wil- 
helmi  v.  Leonard,  13  Iowa,  330. 

7  2  Ervin  v.  St.  Louis,  I.  M.  &  S.  Ry. 
Co.,  1.39  S.  W.  498,  158  Mo.  App.  1. 

Even,  in  this  jurisdiction,  it  is 
said  that  the  practice  so  much  indulg- 
ed in  of  using  a  general  objection  as 
a  cover  for  a  trap  to  be  sprung  in  the 
appellate  court  should  not  be  counte- 
nanced in  cases  where  the  trial  court 
has  endeavored  to  guard  against  er- 
ror by  calling  for  specific  objections. 
De  Ford  v.  Johnson,  133  S.  W.  393, 
152  Mo.  App.  209. 

7  3  Turner  v.  People,  33  Mich.  363. 

74  u.  S.  (C.  C.  A.  N.  C.)  Newman 
V.  Virginia,  T.  &  C.  Steel  &  Iron  Co., 
SO  F.  228,  25  C.  C.  A.  382 ;  (C.  O.  A. 
Ohio)  American  Issue  Pub.  Co.  v. 
Sloan,  248  F.  251,  160  C.  C.  A.  329. 

Cal.  Love  v.  Anchor  Raisin  Vine- 
yard Co.,  45  P.  1044,  114  Cal.  xvi. 

D.  C.  Ryan  v.  Washington  &  G.  R. 
Co..  8  App.  D.  C.  542. 

111.  St.  Louis  &  S.  F.  R.  Co.  v. 
Puterbaugh,  117  111.  App.  569;  Con- 
tinental Investment  &  Loan  Soc.  v. 
Schubnell,  63  111.  App.  379. 

Ind.  Kelly  v.  John,  13  Ind.  App. 
579,  41  N.  E.  1069. 

Mass.  Savage  v.  Marlborough  St. 
Ry.  Co.,  71  N.  E.  531,  186  Mass.  203. 

Neb.  Penn  v.  Trompen,  100  N.  W. 
312,  72  Neb.  273 ;  Barton  v.  Shull.  97 
N.  W.  292,  70  Neb.  324;  American 
Fire  Ins.  Co.  v.  Landfare,  76  N.  W. 
1068,  56  Neb.  482. 

N.  H.     Guertin  v.  Town  of  Hudson, 


53  A.  736,  71  N.  H.  505;  Harris  v. 
Smith.  52  A.  854,  71  N.  II.  3.30. 

N.  Y.  Ebenreiter  v.  Dahlmau,  42 
N.  Y.  S.  867.  19  Misc.  Rep.  9. 

N.  C.  Roberts  v.  Baldwin,  71  S.  E. 
319.  155  N.  C.  276;  State  v.  Melton,  26 
S.  E.  933,  120  N.  C.  591 ;  Burnett  v. 
Wilmington,  N.  &  N.  Ry.  Co.,  26  S.  E. 
819,  120  N.  C.  517 ;  Andrews  v.  Postal 
Tel.  Co.,  25  S.  E.  955,  119  N.  C.  403. 

S.  C.  Gable  v.  Rauch,  27  S.  E.,555, 
50  S.  C.  95. 

Vt.  Luce  V.  Hassam,  58  A.  725,  76 
Vt.  450 ;  Gregg  v.  Willis,  45  A.  229,  71 
Vt.  313. 

Wis.  Lee  V.  Hammond,  90  N.  W. 
1073.  114  Wis.  550. 

7  5  u.  S.  (D.  C.  Cal.)  United  States 
V.  Hammond,  226  F.  849 ;  (C.  C.  A.  N. 
Y.)  Gilson  V.  United  States,  258  F.  588, 
169  C.  C.  A.  528,  certiorari  denied  40 
S.  Ct.  119,  251  U.  S.  55.5,  64  L.  Ed.  412. 

Ark.  Missouri  Pac.  R.  Co.  v. 
Block,  218  S.  W.  682,  142  Ark.  127, 
certiorari  denied  40  S.  Ct.  586,  253  U. 
S.  493,  64  L.  Ed.  1029 :  Rogers  v.  Rob- 
ertson, 218  S.  W.  206,  142  Ark.  210; 
St.  Louis  Southwestern  Rv.  Co.  v. 
Wyman,  178  S.  W.  423,  119  Ark.  530; 
Bain  v.  Ft.  Smith  Light  &  Traction 
Co.,  172  S.  W.  843.  116  Ark.  125,  L.  R. 
A.  1915D,  1021;  Rittenhouse  v.  Bell. 
153  S.  W.  1111,  106  Ark.  315. 

Colo.  Meek  v.  Smith,  149  P.  627, 
59  Colo.  461 ;  Wlllard  v.  Williams,  50 
P.  207.  10  Colo.  App.  140. 

D.  C.  District  of  Columbia  v.  Dur- 
yee.  29  App.  D.  C.  327,  10  Ann.  Cas. 
675. 

Iowa.  King  v.  Chicago,  R.  I.  &  P, 
Ry.  Co.,  172  N.  W.  268,  185  Iowa,  1227. 

Mass.  Chestnut  v.  Sawyer,  126  N. 
E.  273,  235  Mass.  46 ;  Sullivan  v.  Shee- 
han.  173  Mass.  361,  53  N.  E.  902 ;   Mc- 


§  519 


INSTRUCTIONS   TO  JURIES 


944 


Kee  V.  Tourtc41otte,  167  Mass.  69.  44 
X.  E.  1071,  48  L.  R.  A.  542;  Hopcraft 
V.  Kittredge,  162  Mass.  1,  37  N.  E. 
76S. 

Mich.  Geary  v.  People,  22  Mich. 
220. 

Minn.  Finance  Co.  of  Penusyl- 
Tania  v.  Old  Pittsburgh  Coal  Co.,  65 
Minn.  442.  68  N.  W.  70. 

Nev.  Week  v.  Reno  Traction  Co., 
149  P.  65,  38  Xev.  285. 

N.  J.  Addis  V.  Rushmore,  65  A. 
1036,  74  N.  J.  Law,  649 ;  Smith  v.  At- 
lantic City  R.  Co.,  65  A.  1000,  74  N. 
J.  Law,  452. 

N.  M.  Probst  V.  Trustees  of  Board 
of  Domestic  ^Missions,  3  X.  M.  (Johns.) 
237,  5  P.  702. 

N.  Y.  Jones  v.  Gould,  103  X.  E. 
720,  209  X.  Y.  419,  reversing  judgment 
136  X.  Y.  S.  600.  152  App.  Div.  881; 
Ellis  V.  People,  21  How.  Prac.  356. 

N.  D.  Ifussell  V.  Olson,  133  X.  W. 
1030,  22  X.  D.  410.  37  L.  R.  A.  (X.  S.) 
1217.  Ann.  Cas.  1914B,  1069;  Pease  v. 
Ma  sill,  115  X.  W.  260,  17  X.  D.  166. 

dkl.  Hisgins  v.  Street,  92  P.  153, 
19  Okl.  45,  13  L.  R.  A.  (X.  S.)  398,  14 
Ann.  Cas.  1086. 

Pa.  Sgier  v.  Philadelphia  &  R.  Ry. 
Co.,  103  A.  730,  260  Pa.  343. 

R.  I.  Ralph  V.  Taylor,  82  A.  279, 
33  R.  I.  503,  reargument  denied  82  A. 
495. 

S.  C.  Township  Com'rs  of  St.  An- 
drews Parish  v.  Charleston  Min.  & 
]Mfg.  Co.,  57  S.  E.  201,  76  S.  C.  382; 
I'earson  v.  Spartanburg  County,  29 
S.  E.  193,  51  S.  C.  480. 

S.  D.  Wood  V.  Dodge,  120  X.  W. 
774,  23  S.  D.  95. 

Wis.  Robinson  v.  Dow,  145  X.  W. 
652,  155  Wis.  605. 

In  Pennsylvania,  it  is  held  that, 
while  the  statute  requires  the  reasons 
for  a  general  exception  to  a  charge  to 
be  given,  it  does  not  demand  minute 
particularization.  Sikorski  v.  Phila- 
delphia &  R.  Ry.  Co.,  103  A.  618,  260 
Pa.  243. 

Illustrations  of  objections  or 
exceptions  held  too  general  and 
indefinite  to  be  available  on  ap- 
peal. A  general  exception  to  one 
sentence  in  a  charge  of  ten  para- 
graphs to  a  jury.  Brooks  v.  Dutcher, 
24  Xeb.  300,  38  X.  W.  780.  An  excep- 
tion "to  so  much  of"  a  long  and  elab- 


orate charge  "as  requires  the  evidence 
should  show  there  was  an  intention  to 
deceive."  Phoenix  Assur.  Co.  v.  Luck- 
er  (C.  C.  A.  S.  C.)  77  F.  243,  23  C.  C. 
A.  139.  An  objection  to  instructions 
as  having  been  given  on  a  certain 
theory,  and  that  "some  of  them  fall 
far  short  of  stating  the  law,  even 
upon  that  theory,  fully  and  correctly." 
Baltimore  &  O.  S.  W.  Ry.  Co.  v. 
Spaulding,  52  X.  E.  410,  21  Ind.  App. 
323.  An  exception  "to  all  of  the 
charges  and  to  the  special  request 
asked  by  defendant  for  the  reason 
that  they  are  liable  to  mislead  the 
jury,  and  for  the  reason  that  the 
jury  in  its  verdict  would  pass  upon 
these  questions."  Alt  v.  Chicago  & 
X.  W.  Ry.  Co.,  5  S.  D.  20,  57  X.  W. 
1126.  An  objection  that  a  charge 
fails  to  submit  the  real  issue.  Thom- 
as V.  Parker,  69  Ga.  283.  An  excep- 
tion "to  the  definition  of  ordinary 
care,  and  also  in  regard  to  the  ad- 
missions," in  the  charge  of  the  court 
in  an  action  for  negligence.  Elmborg 
V.  St.  Paul  City  Ry.  Co.,  51  Minn.  70, 
52  X.  W.  969.  An  exception  that  the 
court  erred  in  not  confining  the  jur.y 
in  their  finding  to  the  special  matters 
of  negligence  set  out  and  relied  on 
by  plaintiff,  without  showing  how  the 
court  failed  in  that  regavd.  Central 
R.  R.  V.  Freeman,  75  Ga.  331.  A  gen- 
eral ol)jection  to  each  and  all  the  in- 
structions given,  on  a  trial,  that  they 
are  not  law,  or  were  misleading  to  the 
jury.  Gum  v.  Murray,  6  Mont.  10,  9 
P.  447.  An  exception  that  "the  charge 
of  the  court,  as  a  whole,  is  not  a  full 
and  fair  presentation  of  the  law  of 
the  case."  Chambers  v.  Walker,  SO 
Ga.  642,  6  S.  E.  165.  An  exception, 
"in  misdirecting  the  jury  as  to  what 
would  constitute  the  proximate  cause 
of  an  injury  in  any  given  case." 
Tucker  v.  Charleston  &  W.  C.  Ry.  Co., 

28  S.  E.  943,  51  S.  C.  306.  An  excep- 
tion that  the  court  erred  in  omitting 
to  coiTect  any  erroneous  impressions 
made  on  the  minds  of  the  jury  by  the 
charge  so  widely  at  variance  with  de- 
fendant's requests  as  to  be  impossible 
of  reconcilement  therewith.  Cross- 
well  V.  Connecticut  Indemnity  Ass'n, 

29  S.  E.  236,  51  S.  C.  469.  An  excep- 
tion, that  "his  honor  erred  in  com- 
menting upon  the  facts  in  connection 


945 


OBJECTIONS  AND  EXCKPTIONS 


519 


^Yith  the  case  in  his  charge."'    Hayes 
V.  Sease,  29  S.  E.  259,  51  S.  C.  534. 
An  exception  to  an  instruction  in  that 
it  charged,  as  the  law  applicable  to 
the  case,  principles  of  law  in  regard 
to  possession  and   boundaries  which 
are  correct  in  an  action  between  gran- 
tor and  grantee,  but  not  where  there 
is  no  dispute  between  them,  and  said 
issues  are  raised  by  a  stranger  who 
has  no  legal  title  to  any  of  the  land. 
Connor  v.  Johnson,  30  S.  E.  833,  53 
S.  C.  90.    Exceptions  alleging  error  in 
giving  or  refusing  certain  numbered 
requests  for  instructions,  or  "in  charg- 
ing on  the  facts"  or  in  not  setting  a 
verdict    aside.     Walters    v.    Laurens 
Cotton  Mills,  31  S.  E.  1,  53  S.  C.  155. 
An  objection  that  certain  instructions 
given  for  plaintiff  were  on  the  wrong 
theory,    and    tlint   defendants'    which 
were  refused  sliould  have  been  given. 
Ilgenfritz  v.  Missouri  Pac.  Ry.  Co., 
155  S.  W.  854,  169  Mo.  App.  652.    An 
exception  to  the  last  half  of  a  charge: 
"The  jury  will  determine  the  amount 
of  land  actually  taken  and  fenced  in, 
and    the    statements    made    by    the 
agents  of  the  railroad  company  in  the 
presence  of  the  plaintiff  are  compe- 
tent to  prove  what  is  actually  taken." 
Bigelow  V.  West  Wisconsin  Ry.  Co., 
27  Wis.  478.    Where,  in  an  action  for 
libel,  the  court  charged  that  several 
parts  of  the  publication  were  libelous 
per  se,  and  some  of  the  parts  so  point- 
ed out  were  confessedly  so,  an  excep- 
tion "to  the  portions  of  the  charge 
wherein  it  is  stated  that  certain  parts 
of  the  publication  are  libelous  per  se" 
is  too  broad,  and  therefore  bad.    Cun- 
ningham   V.    Underwood    (C.    C.    A. 
Tenn.)    116   F.   803,   53   C.   C.   A.  99. 
Where,  in  a  personal  injury  case,  an 
instruction  stated  three  distinct  phas- 
es of  the  case  relating  to  the  measure 
of  plaintiff's  recovery,   an  exception 
that   the   charge  "does  not  properly 
state  the  measure  of  plaintiff's  dam- 
ages  or  recovery,   under   the  allega- 
tions of  the  complaint,"  is  insufficient, 
for     indefiniteness.     McDonough     v. 
Great  Northern  Ry.  Co.,  46  P.  334,  15 
Wash.  244.     Where,  in  an  action  for 
personal  injuries,  the  court  instructs 
the  jury  that  plaintiff's  expenses  for 
medical  treatment  should  be  allowed, 
and  a  general  exception  is  taken  to 

Inst. TO  Juries— 60 


such  instruction  as  a  whole,  it  being 
claimed  on  appeal  that  there  was  no 
evidence  that  he  expended  anything 
for  such  treatment,  the  exception  M'ill 
not  be  sustained,  because  not  sufficient- 
ly specific  at  the  time  of  taking.  Hul- 
ehan  v.  Green  Bay,  W.  &  St.  P.  R. 
Co.,  68  Wis.  520,  32  N.  W.  529.  In  an 
action  for  malicious  prosecution  bas- 
ed on  the  institution  of  a  suit  for 
false  representations  as  to  the  exist- 
ence of  a  partnership  between  plain- 
tiffs, an  exception  to  an  instruction  as 
to  probable  cause  "that  if  the  defend- 
ant made  false  representations  to  his 
counsel,  then  he  would  not  be  pro- 
tected, if  counsel  advised  him  that  he 
had  a  good  suit,"  held  too  general, 
since  the  false  representations  must 
have  been  as  to  material  facts,  and 
must  have  been  considered  and  relied 
upon  by  counsel  in  giving  advice  as  to 
the  institution  of  tlie  suit.  Bonazzi  v. 
Fortney,  110  A.  439.  94  Vt.  263. 

Objections  to  instamction  ion 
maxim  of  "falsws  in  uno,"  etc. 
Where  the  court  charged  that,  if  the 
jury  found  that  any  witness  had 
sworn  falsely  on  any  material  fact  in 
the  case,  his  testimony  might  be  dis- 
regarded unless  corroborated  bj^  oth- 
er reliable  witnesses,  a  general  ex- 
ception is  not  sufficient  to  call  the 
attention  of  the  court  to  the  fact  that 
liefore  the  testimony  could  be  rejected 
the  jury  nnist  find  that  the  witness 
had  knowingly  or  willfully  sworn 
falsely.  Dallemand  v.  Janney,  51 
Minn.  514,  53  N.  W.  803. 

Exceptions  held  sufBLciently  spe- 
cific to  raise  particular  questions. 
An  exception  to  an  instruction,  on  the 
ground  that  it  assumes  facts  not  prov- 
ed in  the  case,  need  not  point  out  spe- 
cifically wherein  it  assumes  such  fact. 
Davis  v.  Strohm,  17  Iowa,  421.  In 
an  action  to  recover  for  the  death  of 
l)laintiff's  son,  an  exception  to  the 
l)ortions  of  the  general  charge  on  the 
measure  of  damages  as  contrary  to 
law  is  sufficiently  specific  to  raise  the 
question  of  the  correctness  of  the 
charge  on  one  element  of  damag- 
es, since  all  the  elements  together 
constitute  the  measure  of  damag- 
es, and,  if  one  element  was  wrong- 
ly stated,  the  measure  was  a  de- 
fective  one.     Wales  v.   Pacific  Elec- 


§  519 


INSTRUCTIONS   TO   JURIES 


946 


trie  Motor  Co.,  62  P.  932,  130  Cal. 
521.  In  an  action  for  damages  re- 
sulting from  defendant's  negligence, 
an  exception  to  so  mucli  of  the 
"charge  as  says  that  plaintiff  is  en- 
titled to  damages  for  the  loss  of  serv- 
ices of  his  wife  incurred  during  her 
sickness"  alleged  to  have  been  caus- 
ed by  negligence,  and  a  request  to 
charge  that  plaintiff  is  not  entitled  to 
recover  any  such  damages  on  the 
ground  that  he  has  failed  to  give  any 
evidence  shovv^ing  what  damages  were 
sustained  by  reason  of  the  loss  of 
such  services,  fairly  present  the  ques- 
tion of  the  sufficiency  of  plaintiff's 
evidence  to  entitle  him  to  recover 
for  the  loss  of  the  wife's  services. 
Munk  v.  City  of  Watertown,  67  Hun, 
261,  22  N.  Y.  S.  227.  In  an  action 
for  the  negligent  killing  of  a  boy  of 
tender  years,  an  exception  "to  the 
language  of  the  court  with  regard  to 
the  degree  of  care  imposed  on  the 
boy"  sufficiently  points  out  the  er- 
ror in  the  charge  stating  the  degree 
of  care  required  of  him.  McDonald 
V.  Metropolitan  St.  Ry.  Co.,  78  N.  1. 
S.  284,  75  App.  Div.  559,  rehearing 
denied  80  N.  Y.  S.  577,  80  App.  Div. 
233.  Where  a  trial  judge  erroneous- 
ly charged  that  a  husband,  in  an  ac- 
tion for  injuries  to  his  wife,  might 
recover  compensation  for  loss  of  his 
wife's  assistance  in  the  household 
duties,  and,  secondly,  recompense  for 
the  hire  of  a  woman  to  do  certain 
work  which  the  wife  had  done  before 
her  injury,  an  exception  in  the  words 
of  the  charge  is  sufficient  in  the  ab- 
sence of  a  requirement  by  the  trial 
court  that  the  ground  of  exception  be 
more  specifically  stated.  Janson  v. 
Goerke  Co.,  65  A.  856,  74  N.  J.  Law, 
270.  In  action  against  railroad  for 
damage  to  shipment,  paragraph  of 
wn-itten  objections  to  charge  which 
complained  that  in  submitting  issue 
of  rough  handling  language  placed 
higher  duty  on  defendant  than  law 
required  in  not  requiring  finding  of 
negligence  sufficiently  indicated  to 
trial  court  vice  in  charge.  Panhandle 
&  S.  F.  Rv.  Co.  v.  Wright  Herndon 
Co.  (Tex.  Civ.  App.)  195  S.  AV.  216. 
Where  a  trial  judge  erroneously  sub- 
mits to  the  jury  the  question  wheth- 
er  defendant's   negligent  agent   is   a 


vice  principal,  or  a  fellow  servant 
with  plaintiff,  an  exception  is  suffi- 
cient which  is  taken  to  that  para- 
graph of  the  charge  treating  most  ex- 
tensively of  this  subject,  "because 
said  instruction  does  not  properly 
state  the  rule  whereby  it  is  to  be  de- 
termined whether  an  employe  is  a 
coemploye  or  fellow  servant,  said  in- 
struction going  much  further,  as  to 
the  liability  of  an  employer  for  acts 
of  coemployes,  than  the  law  justi- 
fies," in-  connection  with  a  further 
exception  that,  at  the  time  of  the  al- 
leged injury,  plaintiff  was  a  coem- 
ploye with  the  man  whose  negligence 
caused  the  injury.  What  Cheer  Coal 
Co.  v.  Johnson  (C.  C.  A.  Iowa)  56 
Fed.  810,  6  O.  C.  A.  148.  Where  the 
court  charged  that  plaintiff's  evi- 
dence had  two  aspects:  First,  that 
the  switchman  had  left  the  switch 
properly  set,  bvit  that  in  some  way 
not  known  it  had  ))een  displaced ; 
and,  second,  that  there  was  a  defect 
in  the  switch  rail,  so  that  the  en- 
gine would  be  likely  to  take  and  did 
take  the  wrong  track,  and  the  court 
further  charged  that,  if  the  switch  by 
some  inadvertence  became  set  for  the 
wrong  track,  it  would  be  necessary 
to  consider  whether  the  absence  of 
a  switch  lock  was  negligence;  the 
plaintiff  claiming  that  if  it  had  been 
locked  the  accident  would  not  have 
happened,  and  the  defendant  except- 
ed, for  that  there  was  no  evidence 
from  which  the  jury  could  determine 
whether  the  switch  was  in  the  posi- 
tion it  was  by  intent,  inadvertence, 
or  the  intervention  of  trespassers, 
and  for  that  thex'e  was  no  evidence 
that  throiigh  some  misadventure  or 
the  trespass  of  some  one  the  switch, 
if  properly  set,  was  changed  to  the 
wrong  track,  it  was  held  that  the  ex- 
ception was  sufficiently  explicit,  if 
the  charge  was  bad  in  any  of  the  par- 
ticulars specified.  Place  v.  Grand 
Trunk  Ry.  Co.,  76  A.  1110,  83  Vt.  498. 
Objections  or  exceptions  held 
insufficient  to  raise  particular 
questions.  In  an  action  for  damages 
sustained  by  plaintiff  in  collision  be- 
tween his  horse  and  buggy  and  de- 
fendant's motor  truck,  general  objec- 
tion to  instruction  that,  if  the  driv- 
er of  the  truck  failed  to  exercise  or- 


947 


OBJECTIONS   AND   EXCEPTIONS 


51<> 


some  jurisdictions,  that  the  grounds  of  the  objection  be  stated,''® 


diuary  care,  defeudaut  was  guilty  of 
negligence,  was  not  sutlicieut  to  call 
trial  court's  attention  to  objection 
that  instruction  might  be  construed 
as  iutiuiatiug  that  there  was  negli- 
gence as  a  matter  of  law.  Bennett  v. 
JSnyder  (Ark.)  SJl  S.  W.  402.  On  an 
issue  as  to  defendant's  adverse  pos- 
session, an  instruction  that  adverse 
possession  is  to  be  taken  strictly,  and 
that  every  presumption  is  in  favor 
of  possession  subject  to  the  title  of 
the  true  owner,  was  not  obnoxious  to 
a  general  objection,  but  the  defect 
should  have  been  pointed  out  by  spe- 
cific objections.  Fox  v.  Spears,  93  S. 
W.  560,  78  Ark.  71.  The  instruction 
that  it  was  defendant's  duty,  in 
constructing  its  road,  to  use  ordinary 
care  to  provide  proper  openings  or 
culverts  for  escape  of  all  waters 
to  cause  the  water  to  overflow  the 
crossing  its  roadbed  by  means  of  nat- 
ural drains  and  depressions  so  as  not 
lands  of  upper  proprietors,  which  by 
such  care  could  have  been  guarded 
against ;  and  if  defendant  failed  to 
provide  such  openings,  and  by  reason 
thereof  plaintiff's  lands  were  over- 
flowed, and  his  crops  injured,  defend- 
ant was  negligent,  and  verdict  should 
be  for  plaintiff — considered  as  a 
whole,  shows  an  intent  to  charge 
that,  if  defendant  failed  to  use  ordi- 
nary care  to  provide  sufficient  open- 
ings for  escape  of  the  water,  and 
plaintiff's  lands  were  overflowed  and 
his  crop  injured,  he  could  recover,  so 
that  specifle  objection,  pointing  out  the 
failure  to  do  so  by  proper  words,  was 
necessary.  Ames  Shovel  &  Tool  Co. 
v.  Anderson,  118  S.  W.  1013,  90  Ark. 
231.  A  general  objection  to  an  in- 
struction, defining  the  measure  of 
damages,  in  an  action  for  personal  in- 
juries, does  not  reach  the  objection 
that  the  court  erred  in  including  as 
an  element  of  damage  pecuniary  loss, 
in  the  absence  of  evidence  of  such 
damage.  Ft.  Smith  Light  &  Traction 
Co.  V.  Carr,  93  S.  W.  990,  78  Ark.  279. 
A  general  objection  to  an  instruction, 
requiring  that  carriers  "must  be  ex- 
tremely careful"'  to  avoid  injuring 
passengers,  was  insufficient  to  call 
to  the  trial  court's  attention  the  con- 


tention that  the  words  quoted  were 
incorrect.  Midland  Valley  K.  Co.  v. 
Hamilton,  104  S.  W.  540,  84  Ark.  81. 
Where  in  slander  plaintiff  proved  the 
use  of  the  words  alleged  in  the  com- 
plaint, but  some  of  the  witnesses  tes- 
tified to  the  use  of  words  substantial- 
ly different,  though  amounting  to  the 
charge  complained  of,  a  general  ob- 
jection to  an  instruction,  authorizing 
a  verdict  for  plaintiff  if  defendant 
falsely  uttered  words  which  in  their 
common  acceptation  amounted  *to  the 
slander  complained  of,  was  not  suf- 
ficient, but  a  specific  objection  calling 
attention  to  the  failure  to  limit  the 
application  to  substantially  the  words 
of  the  complaint  was  necessary. 
Townsley  v.  Yentsch,  135  S.  W.  882, 
98  Ark.  312.  In  action  against  city 
for  injuries  from  fall  on  icy  crosswalk, 
where  court  in  the  same  instruction 
stated  city's  duty  with  relation  to 
walks  and  crosswalks,  an  objection 
that  the  instructions  did  not  com- 
pletely instruct  as  to  the  respective 
duties  of  the  city  and  the  pedestrians 
on  the  matter  of  street  crossings  held 
not  sufficiently  specific  to  advise  court 
that  the  city  was  contending  that 
there  is  a  difference  betweeuj  city's 
duty  with  respect  to  sidewalks  and 
its  duty  with  respect  to  street  cross- 
ings. Blackmore  v.  City  of  Council 
Blufl:s  (Iowa)  176  N.  W.  369. 

7  6  u.  S.  (C.  C.  A.  Wash.)  Pacific 
Telephone  &  Telegraph  Co.  v.  Hoff- 
man, 208  F.  221,  125  C.  C.  A.  421. 

Ind.  City  of  Aurora  v.  Cobb,  21 
Ind.  492. 

Iowa.  Ludwig  v.  Blackshere,  71 
N.  W.  356,  102  Iowa,  .360;  Brantz  v. 
Marcus,  73  Iowa,  64,  35  N.  W.  115; 
Patterson  v.  Chicago,  M.  &  St.  P.  Rv. 
Co.,  70  Iowa,  593.  33  N.  W.  228: 
Benson  v.  Lundy.  52  Iowa,  265,  3  N. 
W.  149;  Miller  v.  Gardner,  49  Iowa, 
234 ;  Eyser  v.  Weissgerber,  2  Iowa, 
463;  Millard  v.  Singer,  2  G.  Greene 
(Iowa)  144. 

Mass.  Emmons  v.  Alvord,  59  N. 
E.  120,  177  Mass.  466. 

N.  H.  Emerv  v.  Boston  &  M.  R. 
R.,  3©  A.  .367,  07  N.  H.  4.34. 

N.  Y.  Haas  v.  Brown,  47  N.  Y.  S. 
606,  21  Misc.  Rep.  434,  affirming  judg- 


519 


INSTRUCTIONS   TO  JURIES 


948 


and  ordinarily  the  particular  part  of  the  charge  of  which  complaint 
is  made  should  be  set  out  or  pointed  out,'^'  and  it  is  held  that  such 
rule,  being  mainly  established  for  the  protection  of  the  prevailing 


ment  (Civ.  Ct.  N.  Y.)  46  N.  Y.  S.  540. 
20  Misc.  Rep.  672 ;  Goldman  v.  Abra- 
hams, 9  Daly,  223. 

•  X.  C.  Joines  v.  Johnson,  45  S.  E. 
S28.  133  N.  C.  487 ;  Hampton  v.  Nor- 
folk &  W.  R.  Co.,  27  S.  E.  96,  120  N. 
C.  534,  35  L.  R.  A.  808. 

Ohio.  Belirens  v.  Behrens,  47 
Ohio  St.  323.  25  N.  E.  209,  21  Am.  St. 
Rep.  820;  Pittsburgh,  Ft.  W.  &  C. 
Ry.  V.  Probst.  30  Ohio  St.  104. 

S.  C.  Tiuslev  v.  Western  Union 
Telegraph  Co.,  51  S.  E.  913,  72  S.  C. 
350;  Carter  &  Co.  v.  Kaufman,  45  S. 
E.  1017,  67  S.  C.  456;  Gallmani  v. 
Union  Hardwood  Mfg.  Co.,  43  S.  E. 
524,  65  S.  C.  192. 

See,  also,  post,  §  526,  note  62. 

In  Iowa,  the  grounds  of  objection 
need  not  be  stated,  where  the  ex- 
ceptions are  taken  at  the  time  of 
giving  instructions.  H.  B.  Harijen- 
burg  &  Co.  V.  Roberts,  125  N.  W. 
818,  146  Iowa,  696. 

In,  New  York,  it  has  been  held 
that  an  exception  to  an  instruction 
which  points  out  the  language  com- 
plained of  by  repeating  the  identical 
words  is  sufficient  without  stating 
the  reason  why  the  charge  is  consid- 
ered erroneous.  Davenport  v.  Pren- 
tice, 110  N.  Y.  S.  1056,  126  App.  Div. 
451. 

In  Utali,  it  is  provided  by  statute 
that  no  reason  need  be  given  for  ex- 
ceptions taken  to  instj^ictions.  Ev- 
erts V.  Worrell,  197  P.  1043. 

7  7  U.  S.  (C.  C.  A.  Iowa)  Chicago 
Great  Western  Ry.  Co.  v.  McDon- 
ough,  161  F.  657,  88  C.  C.  A.  517 ;    (O. 

C.  A.  Ky.)  Hindman  v.  First  Nat. 
Bank,  112  F.  931,  50  C.  C.  A.  623,  57 
L.  R.  A.  108. 

Ala.  Bii-mingham  Ry.,  Light  & 
I'ower  Co.  v.  Cockrum,  60  So.  304, 
179  Ala.  372. 

Conn.  State  V.  Tripp,  81  A.  247, 
84  Conn.  640. 

D.  C.     Traver  v.  Smollk,  43  App. 

D.  C.  150. 

Ga.  Fordham  v.  State,  37  S.  E. 
391,  112  Ga.  228. 


Iowa.-  Willig  v.  Schertz,  175  N. 
W.  321,  188  Iowa,  712. 

Me.  Field  v.  Lang,  36  A.  984.  89 
Me.  454;  Atkins  v.  Field,  36  A.  375, 
89  Me.  281,  56  Am.  St.  Rep.  424. 

Minn.  Nelson  v.  Chicago,  M.  & 
St.  P.  Ry.  Co.,  165  N.  W.  866,  139 
Minn.  52. 

N.  J.  Smith  V.  Atlantic  City  R. 
Co.,  65  A.  1000,  74  N.  J.  Law,  452. 

N.  Y.  Rheinfeldt  v.  Dahlman,  43 
N.  Y.  S.  281,  19  Misc.  Rep.  162. 

Ohio.  Adams  v.  State,  29  Ohio 
St.  412. 

Or.  Reimers  v.  Pierson,  113  P.  436, 
58  Or.  86. 

Vt.  In  re  Healy's  Will,  109  A. 
19,  94  Vt.  128. 

Objections  to  oral  charge.  Ex- 
ception merely  describing  subject 
treated  by  court  in  an  oral  charge 
is  bad,  and  hence  exception  merely 
designating  beginning  parts  of  oral 
charge  excepted  to  is  insufficient.  Ex 
parte  Cowart,  77  So.  349,  201  Ala. 
55,  reversing  judgment  Cowart  v. 
State,  75  So.  711,  16i  Ala.  App.  119. 

An  exception  to  a  charge  is  suf- 
ficiently specific,  when  it  distinctly 
points  out  the  particular  parts  to 
which  it  is  directed.  Scott  v.  Astoria 
R.  Co.,  72  P.  594,  43  Or.  26,  62  L.  R. 
A.  543,  99  Am.  St.  Rep.  710. 

Illustrations  of  sufKcient  ex- 
ceptions. An  exception  "to  that  part 
of  your  honor's  charge  in  which  you 
submit  to  the  jury  whether  the  di- 
rection of  [the  foreman]  to  put  his 
ladder  upon  the  track  relieved  plain- 
titf  from  contributory  negligence"  is 
sufficiently  definite  to  cover  whatever 
the  court  said  in  submitting  the  ques- 
tion referred  to  to  the  jurv.  Date  v. 
New  York  Glucose  Co.,  93  N.  Y.  S. 
249,  104  App.  Div.  207.  An  exception 
to  instructions  between  certain  num- 
bers given,  and  to  each  of  them,  is 
sufficiently  specific,  when  the  objec- 
tion is  made  at  the  time  the  instruc- 
tions are  given.  Mann  v.  Sioux  City 
&  P.  R.  Co.,  46  Iowa,  637.  An  excep- 
tion   that    "the   plaintiff    moved    for 


^49 


OBJECTIONS  AND   EXCEPTIONS 


520 


party  and  being  in  furtherance  of  justice,  cannot  be  abrogated  by 
the  practice  of  any  trial  court.'* 

One  of  the  purposes  of  such  rule  being  to  give  the  court  an  op- 
portunity, if  convinced  of  error  in  its  charge,  to  correct  it,'^  the 
test  of  the  sufficiency  of  an  exception  is  whether  it  fairly  directs 
the  attention  of  the  court  to  the  claimed  error.*^  An  objection  to 
a  charge  should  be  as  definite  as  an  assignment  of  error  to  it  is 
required  to  be.*^ 

§  520.     Specific  applications  of  rule 

Under  this  rule  a  general  exception  to  an  entire  charge  and  to 
each  and  every  part  thereof  cannot  be  sustained,*^  unless  the  whole 


instructions  Nos.  1,  2,  and  3,  which 
were  given,  to  which  defendant  ex- 
cepted, and  still  excepts,"  is  sufficient. 
Poston  V.  Smith's  Ex'r,  8  Bush  (Kv.) 
589. 

78  Eldred  v.  Oconto  County,  3.3  Wis. 
133. 

7  9  Birmingham  Ry.,  Light  &  Power 
Co.  V.  Jackson,  73  So.  627,  198  Ala. 
378 :  Schneider  v.  Winkler,  70  A.  731, 
74  N.  J.  Law.  71. 

8  0  In  re  Chisholm's  Will.  108  A.  393, 
93  Vt.  453;  Jenks  v.  State,  17  Wis. 
665. 

81  Cleburne  St.  Rv.  Co.  v.  Barnes 
(Tex.  Civ.  App.)  168  S.  W.  991. 

82  U.  S.  Holder  v.  U.  S.,  150  U. 
S.  91,  14  S.  Ct.  10,  37  L.  Ed.  1010: 
Van  Stone  v.  Stillwell  &  Bierce  Mfg. 
Co.,  142  U.  S.  128,  12  S.  Ct.  181,  35 
L.  Ed.  961;  Block  v.  Darling,  140 
U.  S.  234,  11  S.  Ct.  832,  .35  L.  Ed. 
476;  Burton  v.  West  Jersev  Ferry 
Co.,  114  U.  S.  474,  5  S.  Ct.  960,  29  L. 
Ed.  215;  Washington  &  G.  R.  Co.  v. 
Varnell,  98  U.  S.  479,  25  L.  Ed.  233 ; 
Stimpson  v.  Westchester  R.  Co.,  4 
How.  380,  11  L.  Ed.  1020;  (C.  C.  A. 
111.)  Cleveland,  C,  C.  &  St.  L.  Ry. 
Co.  V.  Zider,  61  F.  908.  10  C.  C.  A. 
151;  (C.  C.  A.  N.  T.)  Park  Bros.  & 
Co.  y.  Bushnell,  60  F.  583,  9  C.  C. 
A.  1.38;  (C.  C.  A.  Va.)  Thorn  v.  Pit- 
tard,  62  F.  232,  10  C.  C.  A.  352. 

Ala.  Stevenson  v.  Moody,  83  Ala. 
418,  3  So.  695;  South  &  North  Ala- 
bama R.  Co.  V.  McLendon,  63  Ala. 
266. 

Ark.  Lambeth  v.  Ponder,  33  Ark. 
707. 

Cal.    Bernstein  v.  Downs,  112  Cal. 


197,  44  P.  557;  Cavallaro  v.  Texas 
&  R  R.  Co.,  110  Cal.  348.  42  P.  918, 
52  Am.  St.  Rep.  94 ;  Frost  v.  Grizzly 
Blufe  Creamery  Co.,  102  Cal.  525, 
.30  P.  929;  Moore  v.  Moore,  4  Cal. 
Unrep.  190,  .34  P.  90;  Gillaspie  v. 
Hagans,  90  Cal.  90,  27  P.  34;  Cock- 
rill  V.  Hall,  76  Cal.  192,  18  P.  318; 
Dixon  V.  Allen,  69  Cal.  527,  11  P. 
179 ;  Brown  v.  Kentfield.  50  Cal.  129 ; 
Sill  V.  Reese,  47  Cal.  294;  Shea  v. 
Petrero  &  B.  Y.  R.  Co.,  44  Cal.  414: 
Hicks  V.  Coleman,  25  Cal.  122,  85 
Am.  Dec.  103. 

Colo.  Holman  v.  Boston  Land  & 
Security  Co.,  8  Colo.  App.  282,  45 
P.  519;  Jacobs  v.  Mitchell,  2  Colo. 
App.  456,  31  P.  235;  Patrick  Red 
Sandstone  Co.  v.  Skoman,  1  Colo.  App. 
323,  29  P.  21;  Edwards  v.  Smith. 
16  Colo.  529,  27  P.  809;  Wrav  v. 
Carpenter,  16  Colo.  271,  27  P.  248, 
25  Am.  St.  Rep.  265;  Mc"Feters  v. 
Pierson,  15  Colo.  201,  24  P.  1076,  22 
Am.  St.  Rep.  388;  Keitli  v.  Wells, 
14  Colo.  321,  23  P.  991;  Wooton  v. 
Seigel,  5  Colo.  424;  Coon  v.  Rigden, 
4  Colo.  275. 

Dak.  McCoraiack  v.  Phillips,  4 
Dak.  506,  34  X.  W.  39;  Kennedy  v. 
Falde,  4  Dak.  319,  29  N.  W.  667. 

Ga.  Rogers  v.  Rogers,  74  Ga.  598 ; 
Rogers  v.  Tillman,  72  Ga.  479 ;  Sauls- 
bury  v.  Wimberly,  60  Ga.  78:  Harris 
v.  Harris,  53  Ga.  678;  Smith  v.  At- 
woof],  14  Ga.  402. 

Idaho.  Black  v.  City  of  Lewiston, 
2  Idaho  (Hash.)  276,  13  P.  80. 

111.  Razor  v.  Razor,  142  111.  375, 
31  N.  E.  678 ;  :Mather  Electric  Co.  v. 
Matthews,  47  111.  App.  557 ;    Cincin- 


§  520 


INSTRUCTIONS  TO  JURIES 


950 


charge  is  erroneous,  or  is  erroneous  in  its  general  scope  or  mean- 


nati,    L.    &   C.    R.    Co.    v.   Ducharme, 
4  111.  App.  178. 

Ind.  Baker  v.  McGinniss,  22  Incl. 
257 ;  City  "of  Aurora  v.  Cobb,  21  Ind. 
492;  Hawk  v.  Crago,  12  Ind.  369; 
Branham  v.  State,  11  Ind.  553 ;  State 
V.  Bartlett,  9  Ind.  569. 

Iowa.  Leach  v.  Hill,  97  Iowa.  SI, 
66  N.  W.  69;  Byford  v.  Girton.  90 
Iowa,  661,  57  N.  W.  588;  Reeves  v. 
Harrington,  85  Iowa,  741,  52  N.  W. 
517 ;  Patterson  v.  Chicago,  M.  &  St. 
P.  Ry.  Co.,  70  Iowa.  593.  33  N.  W. 
228 ;  Stevens  v.  Taylor,  58  Iowa.  664. 
12  N.  W.  625;  Benson  v.  Lundv.  52 
Iowa,  265,  3  N.  W.  149;  Pitman  v. 
Molsberry,  49  Iowa,  3.39:  King  v.  Ly- 
man, 46  Iowa,  703 :  Moore  v.  Gilbert, 
40  Iowa,  508 ;  Davenport  Gaslight  & 
Coke  Co.  V.  City  of  Davenport,  13 
Iowa,  229  ;  Abbott  v.  Striblen,  6  Iowa, 
191. 

Kan.  Fleming  v.  L.  D.  Latham  & 
Co.,  48  Kan.  773,  30  P.  166 ;  Ryan  v. 
Madden,  46  Kan.  245.  26  P.  679; 
Young  V.  Youngman,  45  Kan.  65.  25 
P.  209 ;  Haak  v.  Struve,  38  Kan.  326, 
16  P.  686:  State  v.  Wilgus,  32  Kan. 
126,  4  P.  218 ;  Fullenwider  v.  Ewing, 
25  Kan.  69  ;  City  of  Atchison  v.  King, 
9  Kan.  550. 

Me.     State  v.  Pike.  65  Me.  111. 

Mass.  Chenery  v.  Fitchburg  K. 
Co..  160  Mass.  211,  35  N.  E.  554,  22 
L.  R.  A.  575;  Hunting  v.  Downer.  151 
Mass.  275,  23  X.  E.  832 ;  Rock  v.  In- 
dian Orchard  Mills.  142  Mass.  522,  8 
N.  E.  401;  Curry  v.  Porter,  125  Mass. 
94. 

Mich.  McAllister  v.  Engle,  52 
Mich.  56,  17  N.  W.  694 ;  Pray  v.  Cad- 
well,  50  Mich.  222,  15  N.  W.  92 ;  Geary 
V.  People,  22  Mich.  220. 

Minn.  Steffenson  v.  Chicago,  M.  & 
St.  P.  Ry.  Co..  51  Minn.  531,  53  >:. 
W.  800 ;  Cole  v.  Curtis,  16  Minn.  182 
(Gil.  161) ;  Foster  v.  Berkey,  8  Minn. 
351  (Gil.  310). 

Mont.  McKinstry  v.  Clark,  4  Mont. 
370,  1  P.  759. 

Neb.  City  of  Omaha  v.  McGavock, 
47  Neb.  313,  66  N.  W.  415 ;  Hedrick 
V.  Strauss.  42  Xeb.  485,  00  N.  W.  928 ; 
First  Nat.  Bank  v.  Lowrey,  36  Neb. 
290,  54  N.  W.  568 ;  Walker  v.  Turner, 
27  Neb.  103,  42  N.  W.  918;  Brooks  v. 
Dutcher,  24  Neb.  .300,  .38  N.  W.  780; 


Hotel  Ass'n  of  Omaha  v.  Walters,  2ii 
Neb.  280.  36  N.  W.  561;  Brooks  v. 
Dutcher,  22  Neb.  644,  36  N.  W.  128. 

N.  H.  Reynolds  v.  Boston  &  M.  R. 
Co.,  43  N.  H.  580. 

N.  J.  Oliver  v.  Phelps,  21  N.  J. 
Law,  597;  Potts  v.  Clarke,  20  N.  J. 
Law,  536. 

N.  Y.  Mann  v.  City  of  Brooklyn, 
63  Hun.  627,  17  N.  Y.  S.  643 ;  People 
V.  McKenna,  58  Hun.  609,  12  N.  Y.  S. 
493;  Newlin  v.  Lyon,  49  N.  Y.  661; 
Requa  v.  City  of  Rochester.  45  N.  Y. 
129,  6  Am.  Rep.  52 ;  Oldfield  v.  New 
York  &  H.  R.  Co.,  14  N.  Y.  310;  Cald- 
well V.  Murphy,  11  N.  Y.  416;  Jones 
V.  Osgood,  6  N.  Y.  2.33;  Robinson  v. 
New  York  &  E.  R.  Co.,  27  Barb.  512 ; 
McBurney  v.  Cutler,  18  Barb.  203; 
Garland  v.  Day,  4  E.  D.  Smith,  251; 
Simpson  v.  Downing.  23  Wend.  316. 

N.  C.  Kendrick  v.  Dellinger,  117 
N.  C.  491,  23  S.  E.  438;  Antietam 
Paper  Co.  v.  Chronicle  Pub.  Co.,  11» 
N.  C.  147,  20  S.  E.  367;  Shober  v. 
Wheeler,  113  N.  C.  370,  18  S.  E.  328; 
Davis  V.  Duval.  112  N.  C.  833,  17  S. 
E.  528 :  Hemphill  v.  Morrison,  112  N. 
C.  756,  17  S.  E.  5.35;  Ward  v.  Albe- 
marle &  R.  K.  Co.,  112  N.  C.  168.  16 
S.  E.  921 :  Hinson  v.  Powell,  109  N. 
C.  534,  14  S.  E.  .301 ;  Bottoms  v.  Sea- 
board &  R.  R.  Co..  109  N.  C.  72,  13  S. 
E.  7.38:    Bost  V.  Bost,  87  N.  C.  477. 

Ohio.  Consolidated  Coal  &  Mining 
Co.  V.  Clay's  Adm'r,  51  Ohio  St.  542, 
38  N.  E.  610,  25  L.  R.  A.  848;  Behrens 
V.  Behrens,  47  Ohio  St.  323,  25  N.  E. 
209,  21  Am.  St.  Rep.  820 ;  Everett  v. 
Sumner,  32  Ohio  St.  562;  Western 
Ins.  Co.  V.  Tobin,  32  Ohio  St.  77; 
Pittsburg.  Ft.  W.  &  C.  Ry.  v.  Probst, 
30  Ohio  St.  104 :  Marietta  &  C.  R.  Co. 
V.  Strader.  29  Ohio  St.  448;  Butch- 
ers' Melting  As.s'n  v.  Commercial, 
Bank,  2  Disn.  46,  13  Ohio  Dec.  29; 
Weber  v.  Wiggins,  11  Ohio  Cir.  Ct.  R. 
18,  1  O.  C.  D.  84. 

S.  C.  Davis  v.  Elmore,  40  S.  C.  533, 
19  S.  E.  204:  Dobson  v.  Cothran.  34 
S.  C.  518,  13  S.  E.  679;  Norton  v. 
Livingston,  14  S.  C.  177. 

Vt.  Goodwin  v.  Perkins,  39  Vt. 
508. 

Wash.  Carroll  v.  Washington 
Water  Power  Co.,  lOo  P.  1026,  5G 
Wash.   467;    Cunningham   v.    Seattle 


951 


OBJECTIONS  AND  EXCEPTIONS 


§520 


ing,**^  and  a  general  exception  to  instructions,  several  in  number 
and  separate  and  distinct,  given  at  the  request  of  the  other  party, 
is  insufficient,^"'  and  each  instruction  should  be  objected  to  sep- 
arately by  number.*^ 

All  defects  of  form  must  be  met  by  a  specific  objection,^"  and 
a  general  oj^jection  to  an  instruction  is  not  sufficient  to  point  out 
an  ambiguity  therein,^'  nor  to  call  the  attention  of  the  court  to  its 
inconsistency  with  other  instructions  given  ***  nor  to  a  misstatement 
of  fact  therein,^'*  nor  to  the  fact  that  a  word  used  therein  should 
be  defined,^*  nor  to  the  point  that  an  instruction  is  confusing  or 
misleading,**^  nor  to  the  objection  that  an  instruction  erroneously 
assumed  as  a  fact  a  matter  in  dispute, **-  nor  to  the  fact  that  an  in- 


Electric  Ry.  &  Power  Co.,  3  Wasli. 
471,  28  P.  745. 

Wis.  Luedtke  v.  Jeffery,  89  Wis. 
136.  61  N.  W.  292;  Smitli  v.  Coleman, 
77  Wis.  343,  46  N.  W.  664;  Meno  v. 
Hoeffel,  46  Wis.  282,  1  N.  W.  31; 
Sabine  v.  Fisher,  37  Wis.  376 ;  Stracli- 
an  v;  Muxlow,  31  Wis.  207  ;  Tomlin- 
son  V.  Wallace,  16  Wis.  224. 

General  exception,  combined  writh 
special  exception.  An  exception  to 
the  charge,  and  to  each  and  every 
part  thereof,  and  to  the  whole  there- 
of, and  also  to  a  particular,  specified 
portion  of  such  charge,  is  inoperative 
except  as  to  the  part  specitically  de- 
scribed. Yates  V.  Bachley,  33  Wis. 
185. 

8  3  Hentig  v.  Kansas  Loan  &  Trust 
Co.,  28  Kan.  617;  Wheeler  v.  Joy,  15 
Kan.  389. 

84  Bard  v.  Elstou,  31  Kan.  274,  1 
P.  565.    ■ 

8  5  state  V.  Bartlett,  9  Ind.  569; 
Woods  V.  Berry,  7  Mont.  195,  14  P. 
758 ;  McKinstry  v.  Clark,  4  Mont. 
370,  1  P.  759. 

Oral  instructions.  Where  the  ju- 
ry is  instructed  orally  in  accordance 
with  the  statute,  the  various  portions 
of  the  charge  being  given  unnumbered, 
such  portions  must  be  particularized 
by  number  before  valid  exceptions 
may  be  taken  thereto.  Strong  v.  Ross, 
75  N.  E.  291,  36  Ind.  App.  174. 

8  6  Ark.  Dierks  Lumber  &  Coal  Co. 
v.  Coffman  Bros.,  132  S.  W.  654,  96 
Ark.  505;  Ft.  Smith  &  W.  Ry.  Co.  v. 
Messek.  131  S.  W.  686,  96  Ark.  243, 
rehearing  denied,  131  S.  W.  966,  96 
Ark.  243;  St.  Louis,  I.  M.  &  S.  Ry. 
€o.  V.  Walker,  125  S.  W.  135,  93  Ark. 


457 ;  Hamburg  Bank  v.  George  &  But- 
ler, 123  S.  W.  654,  92  Ark.  472 ;  Ar- 
kansas Midland  R.  Co.  v.  Rambo,  117 
S.  W.  784,  90  Ark.  108;  Sloan  v. 
Little  Rock  Ry.  &  Electric  Co.,  117 
S.  W.  551,  89  Ark.  574 ;  McElvaney  v. 
Smith,  88  S.  W.  9S1,  76  Ark.  468,  6 
Ann.  Cas.  45S-;  St.  Louis,  I.  M.  &  S. 
Rv.  Co.  V.  Norton,  73  S.  W.  1095,  71 
Ark.  314;  Williams  v.  State,  50  S. 
W.  517,  66  Ark.  264. 

N.  Y.  Saugerties  Bank  v.  Mack, 
54  N.  Y.  S.  950,  35  App.  Div.  398. 

8  7  Ark.  New  Coronado  Coal  Co.  v. 
Jasiier,  222  S.  W.  22,  144  Ark.  58; 
Huckaby  v.  St.  Louis,  I.  M.  &  S.  Ry. 
Co.,  177  S.  W.  923,  119  Ark.  179 ;  Gar- 
re  tson-Greeson  Luml)er  Co.  v.  Goza, 
172  S.  W.  825,  116  Ark.  277;  St. 
Louis,  I.  M.  &  S.  Ry.  Co.  v.  Prince, 
142  S.  W.  499.  101  Ark.  315;  St.  Louis, 
I.  M.  &  S.  Ry.  Co.  V.  Dunn  &  Stewart. 
127  S.  W.  464,  94  Ark.  407  ;  Aluminum 
Co.  of  North  America  v.  Ramsey,  117 
S.  W.  568,  89  Ark.  522. 

8  8  Matthews  v.  Clough,  49  A.  637, 
70  N.   H.  600. 

so  Walker  v.  Collins  (C.  C  A.  Kan.) . 
59  Fed.  70,  8  C.  C.  A.  1. 

9  0  Mt.  Nebo  Anthracite  Coal  Co.  v. 
Williamson,  84  S.  W.  779,  73  Ark. 
530;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v. 
Barnett,  45  S.  W.  550,  65  Ark.  255; 
Kirby  v.  Lower,  124  S.  W.  34,  139  Mo. 
App.  677. 

9  1  C.  C.  Emerson  &  Co.  v.  Stevens 
Grocer  Co.,  151  S.  W.  1003,  105  Ark. 
575;  Gilroy  v.  Loftus,  48  N.  Y.  S.  532, 
22  Misc.  Rep.  105. 

9  2  St.  Louis  S.  W.  Ry.  Co.  v.  Mc- 
Laughlin, 196  S.  W.  460,  129  Ark.  377. 


§  520 


INSTRUCTIONS  TO  JURIES 


952 


struction  correctly  stating  the  law  is  not  applicable  to  the  evi- 
dence,^^  nor  to  the  use  of  a  particular  word  or  phrase  not  inap- 
propriate to  express  the  idea  intended  to  be  conveyed,^*  nor  to  any 
particular  omission  not  amounting  to  a  misdirection,^^  and  an  objec- 
tion to  the  failure  to  number  instructions  must  be  taken  on  that 
specific  ground."® 

An  objection  merely  to  the  giving  of  an  instruction  only  goes 
to  the  substance  thereof,"'  and  is  not  sulhcient  to  raise  the  point 
on  appeal  that  it  was  not  reduced  to  writing,"*  or  that  it  was  given 
after  the  jury  had  partly  considered  the  case."" 

Objections  merely  that  a  charge  is  argumentative,^  or  not  suffi- 
ciently specific,^  or  that  a  charge  is  abstract,^  or  misleading,^  are 
too  general,  unless  there  is  reason  for  supposing  that  the  jury  has 
actually  and  prejudicially  been  misled,^  and  so  is  an  objection  to 
an  entire  charge  on  the  ground  that  it  contains  a  misstatement 
of  the  testimony,®  or  that  an  instruction  intimates  the  opinion  of 
the  court  upon  the  facts  in  the  case.' 


0  3  Quetermous  v.  Hatfleld,  54  Ark. 
16,  14  S.  W.  1096;  Graham  v.  State. 
53  S.  E.  816,  125  Ga.  48;  Central  of 
Georgia  Ry.  Co.  v.  Bond,  36  S.  E.  299, 
111  Ga.  13. 

9  4  Bocquin  v.  Theurer,  202  S.  W. 
845,  133  Ai-k.  448 ;  Commonwealth  v. 
Tolman,  149  Mass.  229.  21  N.  E.'  377, 
3  L.  R.  A.  747.  14  Am.  St.  Rep.  414; 
Evans  v.  St.  Paul  &  S.  C.  R.  Co.,  30 
Minn.  489,  16  N.  W.  271. 

9  5  Armour  v.  Pecker,  123  Mass.  143  : 
Castner  v.  The  Dr.  Franklin,  1  Minn. 
73  (Gil.  51). 

90  Herzog  v.  Campl>ell,  47  Neb.  370, 
66  N.  W.  424 ;  Smith  v.  State,  4  Neb. 
277. 

9  7  Omaha  &  F.  Land  &  Trust  Co.  v. 
Hansen,  32  Neb.  449,  49  N.  W.  456. 

9  8  Giddings  v.  McCumber,  51  111. 
App.  373 :  Gavnor  v.  Pease  Furnace 
Co.,  51  111.  App.  292. 

Exceptions  to  all  of  instructions 
and  to  eacli  of  them.  Where  the 
court  was  requested  by  defendant  to 
charge  the  jury  in  writing,  but.  disre- 
garding the  request,  gave  with  cer- 
tain written  instructions  verbal  ex- 
planations thereof  and  verbal  instruc- 
tions, and  no  objection  was  made  at 
the  time,  but  after  the  bailiff  had 
been  sworn  to  take  charge  of  the  jury, 
and  before  the  jury  retired,  defend- 


ant's attorney  stated  that  he  excepted 
to  the  instructions,  and,  when  asked 
to  specify  which  instructions  he  ex- 
cepted to  stated  that  he  excepted  to 
them  all,  and  that  all  included  each, 
it  was  held  that  the  exception  was 
sufficiently  specific  to  raise  the  ques- 
tion of  the  giving  of  the  verbal  in- 
structions in  disregard  of  defend- 
ant's request.  Sutherland  v.  Yenard, 
34  Tnd.  390. 

9  9  City  of  Topeka  v.  Heitman.  47 
Kan.  739.  28  P.   1096. 

1  Goldstein  v.  Smiley,  48  N.  E.  203. 
168  111.  438.  affirming  judgment  68  111. 
App.  49:  Owen  v.  Brown.  41  A.  1025, 
70  Vt.  521. 

2  Chinn  v.  Ferro-Concrete  Const. 
Co.,  132  N.   Y.   S.  850,  148  App.  Div. 

■  368. 

3  ITolman  v.  Herscher  (Tex.)  16  S. 
W.  984. 

4  Smith  V.  Birmingham  Ry.,  Light 
cV;  Power  Co.,  41  So.  307,  147  Ala.  702 ; 
Hunt  V.  Atlantic  Coast  Lumber  Cor- 
poration, 85  S.  E.  229,  101  S.  C.  64. 

5  Holm  V.  Sandberg,  32  Minn.  427, 
21  N.  W.  416. 

6  Keystone  Lumber  &  Salt  Mfg.  Co. 
V.  Dole,  43  Mich.  370,  5  N.  W.  412. 

7  Carpenter   v.   American  Ace.   Co., 
46  S.  C.  541,  24  S.  E.  500;    Greene  v.- 
Duncan,  37  S.  C.  239,  15  S.  B.  956. 


953 


OBJECTIONS  AND  EXCEPTIONS 


521 


§  521.     Application  of  rule  in  criminal  cases 

The  above  rule  with  respect  to  the  necessity  that  exceptions 
to  instructions  be  specific  and  definitely  point  out  the  error  com- 
plained of,  although  having  some  relaxation  in  criminal  cases,  where 
it  is  apparent  that  the  charge  given  is  not  applicable  and  tends  to 
mislead  the  jury,*  is  generally  observed  in  criminal  prosecutions." 


s  Dodf-e  V.  Teople,  4  Neb.  220. 

9  Ala.  Hardin  v.  State,  6'J  Ala.  38  : 
Jacobsou  V.  State,  55  Ala.  151;  Ii-viu 
V.  State,  50  Ala.  181 ;  Cohen  v.  State, 
50  Ala.  lOS. 

Ark.  Bursess  v.  State,  158  S.  W. 
774.  108  Ark.  508;  Jackson  v.  State, 
120  S.  W.  843.  94  Ark.  169;  Bell  v. 
State.  125  S.  W.  1020,  93  Ark.  600; 
Burnett  v.  State,  96  S.  W.  1007,  80 
Ark.  225. 

Fla.    Carter  v.  State,  20  Fla.  754. 

Ga.  Webb  v.  State,  69  S.  E.  601,  8 
Ga.  App.  430;  Wiley  v.  State,  59  S. 
E.  438.  3  Ga.  App.  120;  Wilson  v. 
State.  69  Ga.  224 ;  Wood  v.  State,  68 
Ga.  296. 

Mass.  Commonwealth  v.  Meserve, 
154  Mass.  64,  27  N.  E.  997. 

N.  C.  State  v.  Herren,  94  S.  E. 
698,  175  N.  C.  754;  State  v.  Downs, 
lis  N.  C.  1242,  24  S.  E.  531. 

Ohio.  Adams  v.  State,  25  Ohio  St. 
584. 

Tex.  Walker  v.  State,  151  S.  W. 
822.  68  Tex.  Cr.  R.  .S46 ;  Barrett  v. 
State  (Cr.  App.)  69  S.  W.  144 ;  Thomp- 
son V.  State,  32  Tex.  Cr.  R.  265,  22 
S.  W.  979  :  Goodson  v.  Same  (Cr.  App.) 
22  S.  W.  20  ;  Cordway  v.  Same.  25  Tex. 
App.  40.5,  8  S.  W.  670:  Williams  v. 
State,   22  Tex.  App.  497,  4  S.  W.  64. 

Utah.  People  v.  Hart,  10  Utah, 
204.  37  P.  3.30. 

Illustrations  of  exceptions  held 
too  general.  An  objection  that  a 
charge  "was  not  a  correct  statement 
of  the  law  in  reference  to  the  matters 
dealt  with."  Reed  v.  State,  168  S.  W. 
541,  74  Tex.  Cr.  R.  242.  An  ob.1ection 
to  the  charge  of  the  court  because  it 
is  insufficient.  Simons  v.  State  (Tex. 
Cr.  App.)  34  S.  W.  619.  An  exception 
to  the  entire  charge  of  the  court,  on 
the  ground  that  it  is  "on  some  mate- 
rial points  contrary  to  law,  and  failed 
to  charge  the  law  applicable  to  the 
facts,  and  was  calculated  to  mislead 
the  jury."  Wood  v.  State,  68  Ga.  296. 
A    general    exception    "to    all    those 


things  and  specifically  to  the  whole 
charge  on  the  ground  that  it  did  not 
fairly  present  the  facts  in  the  case." 
State  V.  Wagner  (R.  I.)  86  A.  147.  An 
exception  that  the  court  erred  in  de- 
fining "malice,"  without  pointing  out 
wherein  the  error  lies.  People  v. 
Thiede,  11  Utah,  241,  39  P.  837.  An 
exception  that  the  court  erred  in 
charging  as  it  did  on  the  issue  of  prov- 
ocation by  mere  words,  when  on  the 
testimony  there  was  no  such  issue  in 
the  case,  and  thereby  misleading  the 
jury.  State  v.  Crosby,  70  S.  E.  440. 
88  S.  C.  98.  An  exception  to  the  trial 
court's  definition  of  a  "  'reasonable 
doubt,'  setting  forth  that  it  failed  to 
define  what  constitutes  a  reasonable 
doubt  in  a  sufficiently  clear  and  dis- 
tinct manner."  State  v.  Davenport, 
38  S.  C.  348,  17  S.  E.  37.  An  excep- 
tion to  each  and  every  clause  of  the 
court's  charge,  because  it  is  upon  the 
weight  of  the  evidence,  without  speci- 
fying in  what  way  it  is  upon  the 
weight  of  the  evidence,  or  what  charge 
is  on  the  weight  of  the  evidence.  Mc- 
Dougal  V.  State  (Tex.  Cr.  App.)  103  S. 
W.  847.  Where  a  bill  of  exceptions  is 
reserved  to  a  charge  as  an  entirety, 
"because  it  did  not  instruct  the  jury 
fully  on  the  law  governing  his  case 
on  the  facts  proved,"  the  exception  is 
too  general  to  be  considered  by  this 
court.  Quintana  v.  State,  29  Tex. 
App.  401,  16  S.  W.  258,  25  Am.  St. 
Rep.  730.  Where  defendant  thinks  an 
instruction  liable  to  be  misconstrued, 
an  exception  by  his  counsel  that  it  is* 
"calculated  to  do  their  client  an  in- 
jury" is  too  general.  State  v.  Tibbs, 
48  La.  Ann.  1278,  20  So.  735.  Where 
a  charge  consists  of  several  sentences. 
a  general  exception  "to  the  latter  por- 
tion of  said  charge"  will  not  be  con- 
sidered on  appeal.  Stroud  v.  State, 
55  Ala.  77.  An  exception  "to  so  much 
of  the  charge  as  commences  with  the 
words  'if  the  jury  believe,'  on  the 
fourth   line  from  the  bottom  of  the 


521 


INSTRUCTIONS   TO  JURIES 


954 


Thus  an  exception  to  a  charge  "as  given,"  ^^  or  to  the  action  of  the 
court  in  giving  "said  instructions  and  each  of  them,"  is  too  gen- 
eral/^ So  an  exception  to  a  charge  involving  a  number  of  points 
that  it  is  contrary  to  law/~  or  an  exception  that  on  the  whole 
charge  the  court  presented  the  case  in  a  manner  to  prejudice  the 
defendant,  is  too  general, ^^  and  a  general  exception  to  the  charge 
is  insufficient  to  raise  the  point  that  a  part  of  the  charge  requires 
the  jury  to  consider  outside  matters  not  proven  at  the  trial. -^^ 


preceding  page."  Stroud  v.  State,  55 
Ala.  77.  A  general  objection  to  an  in- 
struction as  a  wbole  was  insufficient 
to  raise  an  objection  to  a  clause  that 
the  jury  was  not  at  liberty  to  "doubt 
as  jurors  if  they  believed  as  men." 
Thomas  v.  State,  86  S.  W.  404,  74 
Ark.  431.  An  exception  to  the  con- 
tents of  a  written  charge  is  insuffi- 
cient to  present  a  question  as  to  an 
oral  statement  made  in  connection 
with  the  charge.  Peelle  v.  State,  68 
N.  E.  682,  161  Ind.  378.  An  objection 
that  the  court's  charge  was  not  suffi- 
ciently clear  in  reference  to  the  weight 
to  be  given  dying  statements  does  not 
specify  plainly  the  alleged  error,  in 
that  it  fails  to  set  out  in  what  respect 
the  charge  was  not  clear  or  accurate. 
Boynton  v.  State,  41  S.  R  995.  115 
Ga.  587.  In  a  prosecution  for  homi- 
cide, an  objection  to  the  giving  of  cer- 
tain instructions,  made  solely  on  the 
ground  that  they  did  not  entirely 
cover  all  the  facts  of  the  case  under 
the  law,  and  as  not  being  complete 
and  sufficient  under  the  law,  was  in- 
STifficient,  where  on  such  objection  be- 
ing made,  the  trial  court  requested 
counsel  to  state  which  questions,  if 
any,  were  not  covered  by  the  instruc- 
tions given,  to  which  counsel  made  no 
reply.  State  v.  West,  100  S.  W.  478, 
202  Mo.  128.  The  charge  which  the 
court  gave  on  the  law  relating  to  good 
character  being  in  substance  correct, 
the  exception  to  the  same,  presenting 
the  objection  that  it  "was  general, 
and  not  specific  as  to  the  law  of  good 
character,  and  did  not  give  to  the 
jury  the  law  in  relation  thereto,"  was 
itself  defective,  in  that  it  failed  to 
point  out  in  what  respect  the  charge 
was  incomplete,  or  what  it  required 
to  render  it  sufficientlv  full  and  speci- 
fic. Barber  v.  State,  37  S.  E.  885,  112 
Ga.  584. 


Illustrations  of  exceptions  held 
sufficiently  specific.  An  exception, 
taken  at  the  time  of  the  delivery  of 
the  charge  of  the  court,  "to  all  the 
remarks  of  the  court  in  reference  to 
the  impeachment  of  a  witness  nam- 
ed, and  "to  that  part  of  the  charge  in 
regard  to  the  evidence  of"  .such  wit- 
ness. Brown  v.  United  States,  17  S. 
Ct.  33,  ,164  U.  S.  221,  41  L.  Ed.  410. 
An  exception  to  "that  part  of  the 
charge  in  stating  the  effect  of  good 
character,"  made  to  a  paragraph 
which  treats  only  of  the  proper  ef- 
fect of  evidence  of  good  character. 
Edgington  v.  United  States,  17  S.  Ct. 
72,  164  U.  S.  361,  41  L.  Ed.  467.  The 
following  objection:  "Comes  now  the 
defendants  and  object  to  all  of  the 
instructions  in  this  case  by  the  court 
and  except  to  the  same,  and  espe- 
cially except  to  the  court  in  not  in- 
structing on  all  the  law  in  the  case 
and  not  instructing  on  the  different 
degrees  of  larceny" — is  sufficient  to 
call  the  court's  attention  to  its  fail- 
ure to  embracel  in  the  instructions, 
in  the  event  the  jury  should  find  de- 
fendants not  guilty  of  burglary,  the 
subject  of  larceny  from  a  dwelling 
hou.se.  State  v.  Nicholas,  121  S.  W. 
12,  222  Mo.  425. 

10  State  V.  Moore,  26  S.  E.  697,  120 
N.  C.  570;  State  v.  Parker,  106  N. 
C.  711,  11  S.  E.  517;  State  v.  Frizell, 
111  N.  C.  722,  16  S.  E.  409. 

11  Gardner  v.  United  States  (C.  C. 
A.  Mo.)  230  F.  575,  144  C.  C.  A.  629. 

12  Smith  V.  State,  67  Ga.  769  :  State 
V.  Orfanakis,  159  P.  674,  22  N.  M.  107. 

13  State  V.  A^arner,  115  N.  C.  744, 
20  S.  E.  518. 

14  Shelp  V.  United  States  (C.  C.  A. 
Alaska)  81  F.  694,  26  C.  C.  A.  570. 


955 


OBJECTIONS   AND   EXCEPTIONS 


OTJ, 


§  522,     Exceptions  to  instructions  correct  in  part 

Unless  the  errors  of  the  court  in  charging  the  jury  are  mani- 
festly grave  or  of  a  fundamental  character/^  the  rule  is,  both  in 
civil  ^'^  and  in  criminal  cases/'^  that  a  general  exception  to  a  charge 


15  Walker  v.  Windsor  Nat.  Bank 
(C.  C.  A.  N.  H.)  56  F.  76,  5  C.  C.  A. 
421;  Robinson  v.  State  (Ark.)  231 
«.  W.  2. 

16  u.  S.  Norfolk  &  W.  R.  Co.  v. 
Earnest,  33  S.  Ct.  654,  229  U.  S.  114, 
57  L.  Ed.  1096,  Ann.  Cas.  1914C,  172 ; 
Newport  News  «&  M.  V.  Co.  v.  Pace, 
15S  U.  S.  30,  15  S.  Ct.  743,  39  L.  Ed. 
887 ;  Baltimore  &  P.  R.  Co.  v.  Mack- 
ey,  157  U.  S.  72,  15  S.  Ct.  491,  39  L. 
Ed.  624;  (C.  C.  A.  Alaska)  Lindblom 
V.  Failett,  145  F.  805,  76  C.  C.  A.  369 ; 
(C.  C.  A.  Ark.)  St.  Louis,  I.  M.  &  S. 
Ry.  Co.  V.  Spencer,  71  F.  93,  18  C.  C. 
A.  114 ;  (C.  C.  A.  Colo.)  New  Dunder- 
berg  Min.  Co.  v.  Old,  97  F.  150,  38  C. 
C.  A.  89;  Price  v.  Pankhur.st,  53 
Fed.  312,  3  C.  C.  A.  551;  (C.  C.  A. 
111.)  Vider  v.  O'Brien,  62  Fed.  326,  10 
C.  C.  A.  385 ;  Masonic  Ben.  Ass'n  of 
Central  Illinois  v.  Lvman,  60  F.  498, 
9  C.  C.  A.  104;  (C.  C.  A.  Ind.  T.) 
Gulf,  C.  &  S.  F.  Ry.  Co  v.  Johnson, 
54  F.  474,  4  C.  C.  A.  447 ;  McClellau 
V.  Pveatt,  50  Fed.  686,  1  C.  C.  A. 
613;  (C.  C.  A.  La.)  Kansas  City 
Southern  Ry.  Co.  v.  Prunty,  133  F. 
13,  66  C.  C.  A.  163;  (C.  C.  A.  Neb.) 
Union  Pac.  R.  Co.  v  Thomas,  152  F. 
365i  81  C.  C.  A.  491 :  Western  Assur. 
Co.  of  Toronto  v.  Polk,  104  F.  649,  44 
C.  C.  A.  104;  (C.  C.  A.  Ohio)  Penn- 
sylvania Co.  V.  Whitnev,  160  F.  572. 
95  C.  C.  A.  70;  (C.  C.  A.  Vt.)  Gid- 
dings  V.  Freedley,  128  F.  355.  63  C. 
C.  A.  85,  65  L.  R.  A.  327,  affirming 
judgment  Friedly  v.  Giddings  (C.  C.) 
119  F.  438. 

Ala.  Gilley  v.  Denman,  64  So. 
07,  185  Ala.  561;  Sheffield  Co.  v.  Har- 
ris, 61  So.  88,  183  Ala.  357;  Shirley 
V.  E'zell.  60  So.  905,  ISO  Ala.  352; 
Sulser  V.  Sayre,  58  So.  758,  4  Ala. 
App.  452  ;  Postal  Tel.  Cable  Co.  v.  Hul- 
sev.  31  So.  527,  132  Ala.  444;  Post- 
al Tel.  Cable  Co.  v.  Hulsey,  22  So. 
854,  115  Ala.  193 ;  Syndicate  Ins.  Co. 
V.  Catchings.  104  Ala.  176,  16  So.  46 ; 
Louisville  &  N.  R.  Co.  v.  Hurt.  101 
Ala.  34,  13  So.  130;  Mobile  &  O.  R. 
Co.  V.  George,  94  Ala.  199,  10  So.  145 ; 


Bell  V.  Kendall,  93  Ala.  489,  8  So.  492  ; 
Nelson  v.  Warren,  93  Ala.  408,  8  So. 
413 ;  Kirby  v.  State,  89  Ala.  63,  8  So. 
110;  Adams  v.  State,  87  Ala.  89,  6 
So.  270;  Kilpatrick  v.  Pickens  Coun- 
ty, 66  Ala.  422;  City  of  Birming- 
ham V.  Runisoy,  63  Ala.  352;  Chap- 
man V.  Holding,  60  Ala.  .522. 

Ark.  Kansas  City  Southern  Rv. 
Co.  V.  Belknap,  98  S.  W.  366,  80  Arlc. 
587 :  Walnut  Ridge  Mercantile  Co. 
V.  Cohn,  96  S.  W.  413,  79  Ark.  338; 
Young  V.  Stevenson,  86  S.  W.  1000,  75 
Ark.  181 ;  Dunnington  v.  Frick  Co., 
60  Ark.  250,  30  S.  W.  212;  Oxlev 
Stave  Co.  v.  Staggs,  59  Ark.  370,  27 
S.  W.  241 ;  Atkins  v.  Swope,  38  Ark. 
528 :  Murphy  v.  Lemay,  32  Ark.  223 ; 
Crisnian  v.  JNIcDonald,  28  Ark.  8. 

Colo.  Adams  Exp.  Co.  v.  Aldridge, 
77  P.  6,  20  Colo.  App._  74 ;  Schollav 
V.  Moffitt-West  Drug  Co.,  67  P.  182. 
17  Colo.  App.  126;  Kansas  Pac.  Rv. 
Co.  V.  Ward,  4  Colo.  30. 

D.  C.  Chapman  v.  Capital  Trac- 
tion Co.,  37  App.  D.  C.  479;  McDer- 
mott  V.  Severe,  25  App.  D.  C.  276, 
judgment  affirmed  26  S.  Ct.  709,  202 
U.  S.  600,  50  L.  Ed.  1162;  Birming- 
ham y.  Pettit,  21  D.  C.  209;  Mackey 
V.  Baltimore  &  P.  R.  Co.,  19  D.  C.  282. 

Fla.  Post  V.  Bird,  28  Fla.  1.  9 
So.  888;  Baker  v.  Chatfield,  23  Fla. 
540,  2  So.  822 ;  Jenkins  v.  Lykes,  19 
Fla.  148,  45  Am.  Rep.  19 ;  Burroughs 
V.  State,  17  Fla.  643;  John  D.  C. 
V.  State,  16  Fla.  554. 

Ga.  Higdon  v.  Williamson,  78  S. 
E.  767,  140  Ga.  187;  Boswell  v.  Gil- 
len,  62  S.  E.  187,  131  Ga.  310 ;  Foote 
V.  Kelley,  55  S.  E.  1045,  126  Ga.  799 ; 
Collins  V.  Spence,  84  Ga.  503.  11  S. 
E.  502;  Verderv  v.  Savannah,  F.  & 
W.  Ry.  Co.,  82  Ga.  675,  9  S.  E.  1133 ; 
Grace  v.  Martin,  83  Ga.  245,  9  S.  E. 
841;  Blackman  v.  State,  78  Ga.  .592, 
3  S.  E.  418;  Fisher  v.  State,  73  Ga. 
595;  Weaver  v.  Nixon,  69  Ga.  699: 
Hambric  v.  State,  68  Ga.  836 ;  Fuller 
V.  City  of  Atlanta,  66  Ga.  SO ;    Bruns- 

i'^  See  note  17  on  page  957. 


522 


INSTRUCTIONS   TO  JURIES 


956 


or  to  a  part  thereof  containing  niore  than  one  proposition  is  of  no 


wick  &  A.  R.  R.  V.  Toomer,  61  Ga. 
253;  Reedy  v.  Brunner,  60  Ga.  107; 
Thompson  v.  Feagiii,  60  Ga.  82. 

111.  Hayward  v.  Catton,  1  111.  App. 
577. 

Ind.  Cathcart  v.  Brewer  (App.) 
123  N.  E.  358 ;  Hablich  v.  University 
Park  Bldg.  Co.,  97  N.  E.  539,  177  Ind. 
193 :  Inland  Steel  Co.  v.  Smith,  80  N. 
E.  538,  168  Ind.  245,  affirming  judg- 
ment 75  N.  E.  852,  39  Ind.  App.  636 ; 
Jones  V.  Peters,  62  N.  E.  1019,  28  Ind. 
App.  383 ;  State  v.  Ray,  45  N.  E.  693, 
140  Ind.  500;  Moore  v.  OiT,  10  Ind. 
App.  89,  37  N.  E.  554;  Buchart  v. 
Ell,  9  Ind.  AiTp.  353,  36  N.  E.  762; 
State  V.  Gregory,  132  Ind.  387.  31  N. 
E.  952 ;  Elliott  v.  Woodward.  18  Ind. 
183;  Garrigus  v.  Burnett,  9  Ind. 
528;  Jolly  v.  Terre  Haute  Draw- 
Viridge  Co.,  9  Ind.  417. 

Iowa.  Rowen  v.  Sommers,  101 
Iowa,  734,  66  N.  W.  897;  Hallenbeck 
V.  Garst,  96  Iowa,  509,  65  N.  W.  417 ; 
Ruter  V.  Foy,  46  Iowa,  132 ;  Brown  v. 
Scott  County,  36  Iowa,  140 ;  Mershon 
V.  National  Ins.  Co.,  34  Iowa,  87; 
Mc-Caleb  v.  Smith,  24  Iowa,  591. 

Kan.  Standard  Life  &  Accident 
Ins.  Co.  V.  Davis,  53  P.  856,  59  Kan. 
521;  Carter  v.  Carter,  50  P.  948,  6 
Kan.  App.  923 ;  Crosby  v.  Wilson,  53 
Kan.  565,  36  P.  985;  Myer  v.  Moon, 
45  Kan.  580,  26  P.  40;  Sumner  v. 
Blair.  9  Kan.  521. 

Me.  State  v.  Flaherty.  5  A.  563; 
Webber  v.  Dunn,  71  Me.  331 ;  Crosby 
V.  Maine  Central  R.  Co.,  60  Me.  418; 
Harriman  v.  Sanger,  67  Me.  442; 
Macintosh  v.  Bartlett,  67  Me.  130. 

Mass.  Bartow  v.  Parsons  Pulp  & 
Paper  Co.,  94  N.  E.  312,  208  Mass. 
232. 

Mich.  Prescott  v.  Patterson,  49 
Mich.  622,  14  N.  W.  571 ;  Wheeler  & 
Wilson  Mfg.  Co.  v.  Walker,  41  Mich. 
239,  1  N.  W.  1035 ;  Tupper  v.  Kilduff, 
26  Mich.  .394;  Dauielson  v.  Dyck- 
mau,  26  Mich.  169. 

Minn.  Main  v.  Oien,  47  Minn.  89, 
49  N.  W.  523 ;  Russell  v.  St.  Paul,  M. 
&  M.  Ry.  Co.,  33  Minn.  210,  22  N.  W. 
379;  Rheiner  v.  Stillwater  St.  Ry. 
&  Transp.  Co.,  31  Minn.  193,  17  N. 
W.  279;    Ferson  v.  Wilcox,  19  Minn. 


449  (Gil.  388);  Castner  v.  The  Dr. 
Franklin,  1  Minn.  73  (Gil.  51). 

Mont.  Simonton  v.  Kelly,  1  Mont. 
3G3. 

Neb.  Mattern  v.  McCarty,  102  N. 
W.  468,  73  Neb.  228;  Runquist  v. 
Anderson,  90  N.  W.  760,  64  Neb.  755 ; 
Axthelm  v.  Chicago,  R.  I.  &  P.  R. 
Co.,  89  N.  W.  313,  2  Neb.  (Unof.)  444 ; 
Green  v.  Tierney,  87  N.  W.  331,  62 
Neb.  561 ;  Pease  Piano  Co.  v.  Camer- 
son,  76  N.  W.  1053,  56  Neb.  561; 
Bennett  v.  McDonald,  72  N.  W.  268, 
52  Neb.  278;  Adams-Smith  Co.  v. 
Hayward,  71  N.  W.  949,  .52  Neb.  79; 
Home  Fire  Ins.  Co.  v.  Phelphs,  71  N. 
W.  303,  51  Neb.  623 ;  Union  Pac.  Ry. 
Co.  V.  Montgomery,  68  N.  W.  619.  49 
Neb.  429;  Blue  Valley  Lumber  Co. 
v.  Smith,  48  Neb.  293,  67  N.  W.  159 ; 
Redman  v.  Voss,  46  Neb.  512,  64  N. 
W.  1094;  Omaha  Fire  Ins.  Co.  v. 
Dierks.  43  Neb.  473,  61  N.  W.  740. 

N.  J.  Thibodeau  v.  Hamley,  112 
A.  320. 

N.  M.  Hagin  v.  Collins,  110  P.  840, 
15  N.  M.  621. 

N.  Y.  Brozek  v.  Steinway  Ry.  Co. 
of  Long  Island  City.  55  N.  E.  395.  161 
N.  Y.  63.  affirming  judgment  48  N.  Y. 
S.  345,  23  App.  Div.  623.  and  48  N.  Y. 
S.  1101,  23  App.  Div.  626;  Wells  v. 
Hisains,  132  N.  Y.  459,  30  N.  E.  861, 
affirming  (Sup.  1889>  5  N.  Y.  S.  895.  53 
Hun,  629;  Burdick  v.  Freeman,  120 
N.  Y.  420,  24  N.  E.  949;  Ensign  v. 
Hooker,  6  App.  Div.  425,  39  N.  Y.  S. 
543 ;  Gundlin  v.  Hamburg-American 
Packet  Co.  (Com.  PI.  N.  Y.)  8  Misc. 
Rep.  291,  28  N.  Y.  S.  572 ;  Wallace  v. 
Williams,  59  Hun,  62S.  14  N.  Y.  S. 
ISO;  Abenheim  v.  Samuel,  49  Hun, 
607,  1  N.  Y.  S.  868;  Stone  v.  West- 
ern Transp.  Co.,  38  N.  Y.  240;  Hag- 
"gart  V.  Morgan,  5  N.  Y.  422,  55  Am. 
Dec.  350;  Barker  v.  Savage,  31  N. 
Y.  Super.  Ct.  288;  City  of  Detroit 
Water  Com'rs  v.  Burr,  35  N.  Y.  Super. 
Ct.  522. 

N.  C.  Buchanan  v.  Cranberry  Fur- 
nace Co.,  101  S.  E.  518,  178  N.  C.  643 ; 
Quelch  V.  Futch,  94  S.  E.  713,  175  N. 
C.  694. 

Ohio.  Citv  of  Toledo  v.  Radbone, 
23  Ohio  Cir.  Ct.  R.  268. 

Okl.      Denson    v.    Fowler,    155   P. 


957 


OBJECTIONS  AND  EXCEPTIONS 


522 


avail,  if  any  of  such  propositions  is  correct.     Under  this  rule  a 
o-eneral  exception  to  a  long  paragraph  of  a  charge  containing  nu- 


nS4,  ofi  Okl.  670:  Johnson  v.  John- 
son. 14:;  T'.  (iTO.  4n.  Okl.  riv;.'-  Ohiser 
V   Glaser   74  P.  944,  13  Okl.  389. 

'or.  Ilahu  V.  Mackay.  126  P.  991, 
63  Or.  100.  modifying  opinion  on  re- 
hearing 12©  P.  12,  63  Or.  100 ;  INIcAl- 
ister  V.  Long.  54  P.  194,  33  Or.  368; 
Langford  v.  Jone.s,  18  Or.  307,  22  P. 
1064. 

Utali.  Rampton  v.  Cole,  172  P. 
477  52  Utah,  36 :  Smith  v.  Columbus 
Buggy  Co.,  123  P.  580.  40  Utah,  580 ; 
Grow  V.  Utah  Light  &  Ry.  Co.,  106 
P.  514,  37  Utah,  41;  Ryan  v.  Curlew 
Irrigation  &  Reservoir  Co.,  104  P.  218, 
36  Utah  382 :  Pennington  v.  Redman 
Van  &  Storage  Co.,  97  P.  115.  34  Utah, 
223;  Farnsworth  v.  Union  Pac.  Coal 
Co..  89  P.  74,  32  Utah,  112 ;  Whipple 
V.  Preece.  67  P.  1072.  24  Utah,  364; 
Beaman  v.  :Martha  Washington  Min. 
Co..  63  P.  631.  23  T^tah.  1.39;  Wilson 
V.  Sioux  Consol.  Min.  Co.,  52  P.  626, 
16  Utah.  .392  ;  Lowe  v.  Salt  Lake  City, 
13  Utah,  91.  44  P.  10-50,  57  Am.  St. 
Rep.  708;  Nelson  v.  Brixen,  7  Utah, 
454,  27  P.  578. 

Vt.  Barnard  v.  Leonard,  100  A. 
876,  91  Vt.  369;  Usher  v.  Severance, 
80  A  741.  86  Vt.  523;  Needham  v. 
Boston  &  M.  R.  Co.,  74  A.  226.  82  Vt. 
518;  Cutler  v.  Skeels.  37  A.  228,  69 
Vt.  154;  Jones  v.  Ellis"  Estate,  35 
A  48S,  68  Vt.  544  :  Morrill  v.  Palmer, 
68  Vt.  1,  33  A.  829,  33  L.  R.  A.  411 ; 
Dickei-man  v.  Quincy  Mut.  Fire  Ins. 
Co..  67  Vt.  609.  .32  A.  489;  Rowell 
V.  Fuller's  Estate,  59  Vt.  688,  10  A. 
853. 

Wash.  Rush  v.  Spokane  Falls  & 
N.  Ry.  Co..  63  P.  500.  23  Wash.  501; 
Maling  v.  Crummey.  5  Wash.  222.  31 
P.  600;  Meeker  v.  Gardella,  1  Wash. 
1,39.  23  P.  837. 

Wis.  Elwell  V.  Bosshard.  138  N. 
W.  46,  151  Wis.  46 ;  Kersten  v.  Welch- 
man,  114  N.  W.  499.  135  Wis.  1; 
Richardson  v.  Babcock.  96  N.  W.  554, 
119  Wis.  141;  Tebo  v.  City  of  Au- 
gusta, 90  Wis.  405.  63  N.  W.  1045; 
Green  v.  Hanson.  89  Wis.  597.  62  N. 
W.  408 ;  Corcoran  v.  Harran,  55  Wis. 
120,  12  N.  W.  468;  Butler  v.  Cams, 
37  Wis.  61;  Hamlin  v.  Haight.  .32 
Wis.  237;    Wood  v.  Aldrich,  25  Wis. 


CO"  :  Ttirasher  v.  Tyack.  15  Wis.  256; 
^Milwaukee  &  C.  R.  Co.  v.  Hunter,  11 
Wis.  160,  78  Am.  Dec.  699. 

J::ixceptions  held  insufficient 
within  rule.  In  action  against  wa- 
lerw()]-lcs  comijany  for  wrongfully  cut- 
ting off  plaintiff's  water  service,  ex- 
ception to  instruction  entitling  plain- 
tiff" to  damages  for  "humiliation,  em- 
barrassment, annoyance,  and  incon- 
venience," even  though  bad  in  so  far 
as  instruction  applied  to  damages 
for  humiliation  or  embarrassment, 
will  not  be  sustained  where  not  re- 
stricted to  that  portion  of  instruction. 
Birmingham  Waterworks  Co.  v.-  Jus- 
tice, 86  So.  389,  204  Ala.  547.  Where, 
the  jury  having  been  instructed  that 
if  the  whole  of  defendant's  personal 
property  was  not  transferred  to  the 
trustee,  or  if  he  practiced  any  fraud 
upon  his  creditors  by  which  they  were 
induced  to  enter  into  the  agreement, 
then  such  agreement  was  void  from 
the  very  beginning,  an  exception  to 
the  whole  instruction  was  too  indefi- 
nite to  avail  defendant  on  appeal; 
the  second  part  of  such  instruction  be- 
ing correct.  Musgat  v.  Wybro,  33 
Wis.  515. 

Effect  of  statement  that  party 
excepts  to  each  instruction.  A 
general  exception  noted  at  the  end 
of  a  charge  containing  a  number  of 
instructions  which  embody  separate 
and  distinct  propositions,  though  it 
states  that  the  party  excepts  to  each 
instruction,  is  not  sufficiently  specific 
to  challenge  the  correctness  of  any 
particular  instruction,  and  raises  no 
question  for  review  where  any  of 
the  propositions  contained  in  the 
charge  are  correct.  HoUoway  v.  Dun- 
ham. IS  S.  Ct.  784,  170  U.  S.  615,  42  L. 
Ed  1165,  affirming  judgment  Dunham 
V.  Halloway.  41  P.  140,  3  Okl.  244. 

17  Ala.  Addington  v.  State,  74  So. 
846,  16  Ala.  App.  10;  Kirk  v.  State, 
65  So.  195,  10  Ala.  App.  216;  Kirk- 
wood  V.  State.  62  So.  1011,  8  Ala.  App. 
108,  certiorari  denied  63  So.  990,  184 
Ala.  9;  Dunn  v.  State,  62  So.  379. 
8  Ala.  App.  382;  Sanders  v.  State,  61 
So.  336,  181  Ala.  35;  McGhee  v. 
State,  59  So.  573,  178  Ala.  4 :    Powell 


522 


INSTRUCTIONS   TO  JURIES 


958 


merons  statements  of  fact  will  not  raise  the  point  that  a  particu- 


V.  State,  59  So.  328,  5  Ala.  App.  150 ; 
Maxwell  v.  State,  57  So.  505,  3  Ala. 
App.  169;  Johnson  v.  State,  57  So. 
389,  3  Ala.  App.  98;  Treadwell  v. 
State,  53  So.  290,  168  Ala.  96;  Sims 
V.  State,  41j  So.  413,  146  Ala.  109; 
Ragsdale  v.  State,  32  So.  674,  134 
Ala.  24 ;  Bonner  v.  State,  107  Ala.  97, 
18  So.  226 ;  Dick  v.  State,  87  Ala.  61, 
6  So.  395;  Woods  v.  State,  76  Ala. 
35,  52  Am.  Rep.  315 ;  Farley  v.  State, 
72  Ala.  170 ;  Dickey  v.  State,  68  Ala. 
508 ;  Gray  v.  State,  63  Ala.  60 ;  Mur- 
phy V.  State,  54  Ala.  178. 

Ark.  Martin  v.  State,  107  S.  W. 
380,  85  Ark.  130;  Johnson  v.  State, 
104  S:  W.  929,  84  Ark.  95 ;  Darden  v. 
State,  84  S.  W.  507,  73  Ark.  315,  dis- 
missed 26  S.  Ct.  758,  200  U.  S.  615, 
50  L.  Ed.  621. 

Colo.  Wilson  V.  People,  3  Colo. 
325. 

D.  C.  Sullivan  v.  District  of  Co- 
lumbia, 20  App.  D.  C.  29. 

Fla.  Gillyard  v.  State,  61  So.  641, 
65  Fla.  322 ;  Bass  v.  State.  50  So.  531, 
58  Fla.  1;  Thomas  v.  State,  36  So. 
161,  47  Fla.  99;  Wood  v.  State,  31 
Fla.  221,  12  So.  5.39 ;  Smith  v.  State, 
29  Fla.  408,  10  So.  894 ;  Pinson  v. 
State,  28  Fla.  735,  9  So.  706;  Heron  v. 
State,  22  Fla.  86;  Willingham  v. 
State,  21  Fla.  761. 

Ga.  Thomas  v.  State,  84  Ga.  613, 
10  S.  E.  1016;  Brassell  v.  State,  64 
Ga.  318. 

La.  State  v.  Anderson,  45  So.  267, 
120  La.  331. 

Neb.  Goff  V.  State,  131  N.  W.  213, 
89  Neb.  287. 

N.  J.  Engle  v.  State,  50  N.  J.  Law 
(21  Vroom)  272,  13  A.  604. 

N.  M.  Territory  v.  Alarid,  106  P. 
371,  15  N.  M.  165 ;  Beall  v.  Territory, 
1  N.  M.  507. 

N.  Y.  People  v.  Guidici,  100  N.  Y. 
503,  3  N.  E.  493. 

N.  C.  State  v.  Bowman,  67  S.  E. 
1058,  152  N.  C.  817 ;  State  v.  Hall,  44 
S.  E.  553,  132  N.  C.  1094. 

Okl.  Hufe  V.  Territory,  85  P.  241, 
15  Okl.  376. 

Utah.  State  v.  Riley,  126  P.  294, 
41  Utah.  225. 

Vt.     State  V.  Shaw,  94  A.  434,  89 


Vt.  121,  L.  R.  A.  1915F,  1087 ;  State  v. 
Ryder,  68  A.  652,  80  Vt.  422. 

Wis.  Hayes  v.  State.  87  N.  W. 
1076,  112  Wis.  304  ;  Jenks  v.  State,  17 
Wis.  665. 

Illustrations  of  exceptions  lield 
too  general.  Where,  at  the  conclu- 
sion of  the  charge,  accused  "severally 
and  separately  excepted  to  each  dis- 
tinct part  of  the  court's  general  oral 
charge,  and  especially  to  the  charge 
on  the  weight  of  the  evidence,  and  es- 
pecially to  the  charge  of  setting  forth 
the  punishment  of  manslaughter  in 
the  first  degree,"  it  was  held  that  such 
exception  was  a  mere  general  excep- 
tion to  the  charge  as  a  whole,  and 
was  vmavailing  unless  the  charge  was 
entirely  erroneous.  Untreiner  v. 
State,  41  So.  285,  146  Ala.  26.  Where, 
after  the  court  had  made  remarks  to 
the  jury  on  their  returning  into  court, 
including  the  statement  that  if  they 
could  not  reconcile  the  testimony  they 
must  adopt  the  most  plausible  theory 
of  the  evidence,  and  they  had  again  re- 
tired, defendant's  counsel  merely  call- 
ed attention  to  the  fact  that  the  court 
had  left  out  the  question  of  reasona- 
ble doubt,  whereupon  the  court  re- 
called the  jury  and  repeated  what  he 
had  said,  and  his  charge  in  full,  and 
added  that  the  state  must  satisfy 
them  beyond  a  reasonable  doultt,  de- 
fendant's general  exception  then  tak- 
en cannot  be  treated  as  made  to  the 
use  of  the  word  "plausible."  State  v. 
Dewey,  51  S.  E.  937,  139  N.  C.  .5.56. 

Instruction  on  reasonable  doubt. 
An  instruction  as  to  reasonable  doubt, 
which,  after  defining  such  doubt  as 
an  actual  doubt  which  a  juror  is  con- 
scious of  after  reviewing  in  his  mind 
the  entire  case,  giving  consideration 
to  all  the  testimony,  and  one  which  he 
believes  would  cause  a  reasonable 
man  In  any  matter  of  like  importance 
to  hesitate  to  act,  denies  the  notion 
that  any  mere  possibility  is  sufficient 
ground  for  such  a  doubt,  and  adds 
that,  in  the  performance  of  jury  serv- 
ice, jurors  should  decide  controversies 
as  they  would  any  important  question 
in  their  own  affairs,  is  good  as  against 
a  general  exception.  Holt  v.  United 
States,  31  ,S.  Ct.  2,  218  U.  S.  245,  54 


959  OBJECTIONS   AND   EXCEPTIONS  8  0-- 

lar  statement  is  erroneous/^  and  an  objection  to  a  long  excerpt 
ronf  the  charge  that  it  is  not  ^^^r  statement  o^  the  la^^^^^^^^ 
confu^in-  and  does  not  state  the  prmciples  of  law  applicable  to 
the  ose  so  that  the  jurv  can  understand  them,  is  msufficient  where 
some  of  he  parts  of  the  excerpt  are  not  subject  to  any  of  such 
obkction  -  So  a  general  exception  to  the  whole  of  a  portion  of 
a  ha  'e  a  part  of  which  is  not  open  to  objection  on  any  view 
of  he  case  cannot  be  sustained  on  the  theory  that  the  balance  of 
1  charge  is  not  within  the  issues  -  and  an  objection  that  an  m- 
luuctiolf  is  not  warranted  by  the  evidence  is  not  well  taken,  where 
it  is  oertinent  to  one  phase  of  the  evidence.  .     ,       ,.        • 

Where    however,  although  only  one  part  of  an  instruction  is 

improper    the  two  parts  are  so  inseparable  that  the  whole  charge 

i^render;]  bad  by  the  error  in  the  one  part,  a  general  exception 

o  such  instruction  will  be  sufficient,-  and  the  above  rule  is  not 

applkable    where  the  instruction  to  which  a  general  exception  is 

ta'kn  authorizes  the  wrong  application  of  that  portion  of  it  which 

s  correct-     So,  where  an  instruction,  covering  one  general  sub- 

iectTf  considered  as  a  whole,  fails  to  correctly  reflect  the  law 

Cl    able    o  the  case,"  an  exception  to  such  an  instruction  is  svif- 

fickn      although  there  may  be  phrases,  or  even  sentences    m    he 

\    wfnn  that  are  unobjectionable,^*  and  it  has  been  held  that, 

XrTthe^ns trucTons  ari  not  numbered  nor  divided  into  distinct 

Oppositions,  an  exception  to  any  part  of  them  which  is  erroneous 

may  be  reserved  by  excepting  to  all  collectively. 

L  Ed  1021.  20  Ann.  Cas.  1138.  affirm  Stokes  v.   State,  44  So.  759,   54  Fla. 

ing  judgment   (C^  C.   Wash.)    United  lOJ                 g.hneider  Brewing  Co.  v. 

States  V.  Holt,  168  F.  141.                   ^  American    Ice-Mach.    Co.    (C    C.    A. 

Instructions  held  not  to  contain  ^^^^  ^  ^^  p  .^3^  03  c.  C.  A.  89  ;   Morse 

two   distinct   propositions   watim  ^   Oilman,  18  Wis.  373. 

rule.     An  instruction  on  a  trial  for  ^9  jj^eves  v.  H.  C.  Allgood  &  Co..  bt 

murder,  that  murder  in  the  first  de-  g   ^   ^o,  133  Ga.  835. 

-ree  was  the  unlawful  killing  of  a  20  :*ietropolitan    Redwood    Lumber 

human  being  when  perpetrated  from  ^o.  v.  Davis  (C.  C.  A.  Cal.)  205  F.  486, 

a  premeditated  design  to  effect  the  103  C.  C.  A.  554.      • 

death  of  the  person  killed,  or  any  hu-  21  James  v.  Hamil,  (8  S.  E.  <-l,  14U 

man  being,  or  when  committed  in  the       Ga.  168.  on    v   1-   1-   a-? 

nerMtration  of  or  in  the  attempt  to  22  Fones  v.  Phillips,  39  Ark.  1.,  4.3 

SS  rate  any  arson  or  certain  other  Am.  Rep.  264:    Eddy  v,  Howard.  2.> 

^rWs     rimed-    that    premetlitation  Iowa.  175;    Haun  v.  Rio  Grande  T\ . 

Se^nt  in  eTt  before  the  act;  that  pre-  Ry.  Co.,  62  P.  908,  22  Utah,  346 

""ditated  design  to  kill  meant  intent  .3  Melcher  -^Bee  er^  110^ P   181.  48 

S  "^'^l^^^^^^^       '^i^^'^^l^'^t^  107  P. 

SySr  f  o;^^a^Sf^t^f;.S^  S       ''tfnersleb  v.  Moss,  28  Ind.  354. 


§  523  INSTRUCTIONS   TO   JURIES  960 

§  523.     Exception  to  each  and  every  part  of  a  charge 

•  The  rule  in  most  jurisdictions  is  that  an  exception  taken  indis- 
criminately to  every  paragraph  of  a  charge,  or  to  each  clause  sep- 
arately, will  be  treated  the  same  as  if  one  general  exception  had 
been  taken  to  the  whole  charge,  and  is  not  effective  unless  the 
whole  charge  is  bad,^^  and  an  exception  to  every  instruction  ad- 
verse to  the  exceptant  and  every  part  thereof,  and  the  instructions 
as  a  whole,  is  insufficient  to  bring  to  the  attention  of  the  court 
any  separate  paragraph,  and  will  not  avail  unless  the  whole  charge 
is  erroneous.^' 

In  some  jurisdictions,  however,  an  exception  to  "each  and  ev- 
ery" charge  of  the  court  is  held  to  entitle  the  party  so  excepting 
to  present  his  objections  to  any  one  of  the  charges."'*  In  one  ju- 
risdiction the  appellate  court  will  not  refuse  to  review  such  an  ex- 
ception at  the  close  of  a  written  charge  duly  paragraphed  and  num- 
bered, if  allowed  in  that  form  by  the  trial  court,^^  although  in  this 
jurisdiction,  as  elsewhere,  it  is  considered  the  better  practice  to 
minutely  specify  objections  at  the  trial,  and  where  the  instruc- 
tions are  oral  and  in  the  nature  of  a  general  charge,  such  an  excep- 
tion is  not  sufficient.^® 

§  524.     Exception  directed  against  several  instructions  designated 

by  certain  numbers 

In  some  jurisdictions  an  exception  to  the  giving  of  instructions 

designated  by  certain  numbers  "and  to  the  giving  of  each  of  said 

instructions"  is  held  to  be  a  separate  and  specific   exception   to 

26  Ala.     Savage  v.   Milum,  54   So.  v.  Chicago  &  N.  W.  Ry.  Co.,  4.3  Wis. 

ISO,  170  Ala.  115.  305. 

Mich.     Goodsell  v.  Seeley,  46  Mich.  In  Oklahoma,  in  an  early  case  the 

623,  10  N.  W.  44,  41  Am.  Rep.  183;  court  vigorously  condemned  such  an 

People  V.  Bristol,  23  Mich.  118.  exception  holding  it  to  amount  merely 

Okl.     Duroderigo    v.    Culwell,    152  to  a  general  exception,  although  feel- 

P.  605.  52  Okl.  6 :   Remund  v.  McCool,  ing  itself  bound  under  the  statute  to 

150  P.  1055,  50  Okl.  69 ;   Eisiminger  v.  consider  it.     Buck  v.  Territory,  98  P. 

Eeman,  124  P.  289,  32  Okl.  818.  1017,  1  Okl.  Cr.  517.     See  Dunham  v. 

Utah.     Scoville  v.  Salt  Lake  City,  Holloway,  3  Okl.  244,  41  P.  140. 

11  Utah,  60,  39  P.  481.  27  Isnard  v.  Edgar  Zinc  Co.,  106  P. 

Wis.     Nisbet  v.  Gill,  38  Wis.  657.  1003,  81  Kan.  765. 

Illustrations  of  exceptions  in-  ^s  Ellis  v.  Leonard,  78  N.  W.  246, 
sufficient  within  rule.  Where  an  107  Iowa,  487;  Eikenberry  v.  Ed- 
instruction  stated  the  rule  of  damages  wards,  67  Iowa,  14,  24  N.  W.  570; 
in  other  respects  correctly,  and  added  Hawes  v.  Burlington,  C.  R.  <&  N.  Ry. 
that  interest  might  be  allowed  from  Co.,  64  Iowa,  315,  20  N.  W.  717. 
the  date  of  the  injury,  an  exception  29  Ritchey  v.  People,  47  P.  272,  23 
"to  said  instruction,  and  to  each  and  Colo.  314,  Id.,  47  P.  384,  23  Colo.  314. 
every  part  thereof,"  is  not  sufficiently  See  Reals  v.  Cone,  62  P.  948,  27  Colo, 
specific  to  raise  the  question  whether  473,  83  Am.  St.  Rep.  92. 
the  time  for  which  interest  might  be  so  Miller  v.  People,  46  P.  Ill,  23 
allowed  was  correctly  stated.     Dean  Colo.  95. 


961 


OBJECTIONS  AND   EXCEPTIONS 


§525 


each  of  said  paragraphs  of  the  charge  and  to  be  sufficient,^^  and  in 
one  jurisdiction  an  exception  to  the  giving  of  instructions  request- 
ed by  a  party  and  designated  by  certain  numbers  is  held  to  be  a 
specific  exception  to  each  instruction.^- 

§  525.     Exceptions  to  refusals  to  instruct 

The  general  rule  that  exceptions  to  the  giving  of  instructions 
should  be  specific  applies  also  to  the  refusal  of  requests  to  charge,^^ 


31  Phoenix  Ins.  Co.  v.  Moog,  SI  Ala. 
335,  1  So.  108 ;  Geary  v.  Parker,  47  S. 
W.  238,  53  S.  W.  567,  65  Ark.  521; 
Rice  V.  Williams,  71  P.  433,  18  Colo. 
App.  330 ;  City  of  Omaha  v.  Richards, 
68  N.  W.  528,  49  Neb.  244,  overruling 
Brooks  V.  Dutcher.  36  N.  W.  128,  22 
Neb.  644,  and  Walker  v.  Turner,  42 
N.  W.  918,  27  Neb.  103. 

Exception  to  requests.  In  Min- 
nesota, it  has  been  held,  disapproving, 
so  far  as  inconsistent,  the  cases  of 
Steffenson  v.  Chicago,  M.  &  St.  P.  R. 
Co.,  53  N.  W.  800,  51  Minn.  531,  and 
Rosquist  V.  D.  M.  Gilmore  Furniture 
Co.,  52  N.  W.  385,  50  Minn.  192,  that 
where  several  separate  and  distinct 
"requests,"  each  containing  but  a  sin- 
gle proposition  of  law,  are  given,  an 
exception  "to  each  and  all  of  them"'  is 
sufficient.  Van  Doren  v.  Wright,  65 
Minn.  SO,  67  N.  W.  668,  68  N.  W.  22. 

3  2  Coley  V.  City  of  Statesville.  28 
S.  E.  482,  121  N.  C.  301;  Witsell  v. 
West  Asheville  &  S.  S.  Ry.  Co.,  27  S. 
E.  125,  120  N.  C.  557. 

3  3  u.  S.  Chateaugay  Ore  &  Iron 
Co.  V.  Blake,  144  U.  S.  476,  12  S,  Ct. 
731,  36  L.  Ed.  510;  Burton  v.  West 
Jersey  Ferry  Co.,  114  U.  S.  474,  5  S. 
Ct.  960,  29  L.  Ed.  215;  Connecticut 
Mut.  Life  Ins.  Co.  v.  Union  Trust  Co. 
of  New  York,  112  U.  S.  250,  5  S.  Ct. 
119,  28  L.  Ed.  708;  (C.  C.  A.  111.) 
Cleveland,  C,  C.  &  St.  L.  Ry.  Co.  v. 
Zider,  61  Fed.  908,  10  C.  C.  A.  1.51; 
(C.  C.  A.  Va.)  Anderson  v.  Avis,  62 
Fed.  227,  10  C.  C.  A.  347. 

111.  Razor  v.  Razor,  142  111.  375, 
31  N.  E.  678. 

Ind.  Baker  v.  McGinniss,  22  Ind. 
257;  State  v.  Bartlett,  9  Ind.  569; 
Jolly  V.  Terre  Haute  Drawbridge  Co., 
9  Ind.  417. 

Kan.  Fleming  v.  L.  D.  Latham  & 
Co.,  48  Kan.  773,  30  P.  166 ;  Bailey  v. 
Dodge,  28  Kan.  72. 

Inst. TO  Juries— 61 


Mass.  Murphy  v.  McNulty,  145 
Mass.  404,  14  N.  E.  532. 

Neb.  City  of  Omaha  v.  McGavock, 
47  Neb.  313,  66  N.  W.  415 ;  Hedrick  v. 
Strauss,  42  Neb.  485,  60  N.  W.  928. 

N.  Y.  People  v.  Katz,  103  N.  E. 
305,  209  N.  Y.  311,  Ann.  Cas.  1915A, 
501,  affirming  judgment  139  N.  Y.  S. 
137,  154  App.  Div.  44 ;  Tousey  v.  Rob- 
erts, 114  N.  Y.  312,  21  N.  E.  399,  11 
Am.  St.  Rep.  655 ;  Rehberg  v.  Citv  of 
New  York,  99  N.  Y.  652,  2  N.  B."^ll; 
Yale  V.  Curtiss,  71  Hun,  436,  24  N. 
Y.  S.  981. 

S.  C.  Jones  v.  Swearingen,  42  S.  C. 
58,  19  S.  E.  947. 

Vt.  Goodwin  v.  Perkins,  39  Vt. 
598. 

Illustrations  of  exceptions  to 
refusals  to  charge  held  too  gener- 
al. An  exception  to  refusals  to 
charge,  which  states  that  the  "coui-t 
refused  to  give  any  of  the  foregoing 
requests  and  the  counsel  for  defend- 
ant in  due  time  and  form  excepted  to 
each  refusal."  Potrnd  v.  Port  Huron 
&  S.  W.  Ry.  Co.,  19  N.  W.  570,  54 
Mich.  13.  The  objection  to  refusal  of 
a  request  to  instruct  the  jury  to  re- 
turn a  verdict  for  defendant,  because 
plaintiff's  evidence  is  insufficient  to 
sustain  a  verdict,  is  too  general,  if  it 
does  not  point  out  wherein  the  evi- 
dence is  insufficient.  Cleburne  St. 
Ry.  Co.  V.  Barnes  (Tex.  Civ.  App.)  168 
S.  W.  991.  Where  defendant  made 
four  requests  to  charge,  three  of 
which  the  court  modified  and  gave, 
and  the  fourth  refused,  to  which  de- 
fendant excepted  in  these  words: 
"Defendant  now  excepts  to  each  and 
every  part  of  the  charge,  and  aLso  to 
the  refusal  of  the  court  to  give  the 
requests  of  defendant,  as  requested," 
it  was  held  that  the  exception  failed 
to  point  out  wliich  of  the  charges  giv- 
en was  claimed  to  be  erroneous,  and 


525 


INSTRUCTIONS   TO   JURIES 


962 


and  the  court  may  properly  disallow  an  exception  to  its  refusal 
to  give  a  large  number  of  instructions  as  requested,  and  require 
every  error  in  omitting  to  cover  requested  instructions  to  be  spe- 
cifically pointed  out.^^  Where,  of  a  number  of  requests  to  charge, 
some  are  given  and  others  are  refused  or  modified,  a  general  excep- 
tion to  the  refusal  of  instructions  asked,  not  calling  the  attention 
of  the  court  to  the  particular  omission  or  modification  complained 
of,^^  or  an  exception  to  the  refusals  to  charge  as  requested  in  so 
far  as  the  court  did  refuse,  and  to  each  of  the  refusals  to  charge,^*^ 


was  therefore  bad.  Shull  v.  Raj-mond, 
23  Minn.  66.  Where,  in  the  charge  to 
the  jury,  the  court  gave  almost  verba- 
tim four  out  of  plaintiff's  nine  requests 
to  charge,  and  all  of  defendant's  sev- 
en, and  the  exception  taken  was  that 
plaintiff  "excepts  to  the  refusal  of  the 
court  to  give  plaintiff's  fourth,  sixth, 
seventh,  eighth,  and  ninth  requests, 
and  to  the  modification  of  the  first 
and  second  of  plaintiff's  requests  as 
given.  Plaintiff  also  excepts  to  the  giv- 
ing of  each  of  defendant's  requests," 
the  exception  was  held  not  sufficiently 
specific.  Rosquist  v.  D.  M.  Gilmore 
Furniture  Co.,  50  Minn.  192,  52  N.  W. 
385.  An  exception  at  the  close  of  the 
charge  to  the  court's  "refusal  to 
charge  in  the  language  stated,"  and  to 
his  "modification  of  the  respective  re- 
quests as  stated,"  is  too  general  to  be 
considered.  Heath  v.  Glens  Falls.  S. 
H.  &  Ft.  E.  St.  R.  Co.,  90  Hun,  560, 
36  N.  Y.  S.  22.  A  mere  general  ex- 
ception to  the  failure  of  the  court  to 
give  nine  separate  propositions,  re- 
quested before  the  argument  and 
charge,  and  not  afterwards  called  to 
the  attention  of  the  court,  is  too  vague 
to  requii'e  any  action  by  an  appellate 
court.  Pittsburgh  &  W.  Ry.  Co.  v. 
Thompson  (C.  C.  A.  Ohio)  82  F.  720, 
27  C.  C.  A.  333. 

Exceptions  held  sufficiently'  spe- 
cific. Where  a  bill  of  exceptions  re- 
cited that  the  defendants  asked  the 
trial  court  to  give  "each"  of  several 
charges  set  out,  but  that  the  court  re- 
fused to  give  "either  of  said  charges," 
and  that  to  such  refusal  the  defend- 
ants excepted,  it  was  held  that  the 
exception  brought  up  for  revision 
each  of  the  charges  named.  Lehman 
V.  Bibb,  55  Ala.  411.  Where,  follow- 
ing certain  instructions  given  by  the 


court  to  the  jury  contained  in  a  bill 
of  exceptions  are  other  instructions 
signed  by  counsel  immediately  preced- 
ed by  a  statement  that  they  were  ask- 
ed by  defendant  and  refused  by  the 
court,  and  containing  after  the  in- 
structions refused  the  statement,  "to 
the  giving  of  each  of  which  instruc- 
tions and  the  refusal  to  give  those 
asked  defendant  at  the  time  objected 
and  excepted,"  such  exception  is  prop- 
erly taken,  and  is  neither  too  general 
nor  indefinite.  Robb  v.  State,  52  Ind. 
218.  Where  five  distinct  requests  to 
charge,  separately  numbered,  were 
submitted  to  the  court,  who  ruled  up- 
on— denying  or  modifying — each  sep- 
arately, and  counsel  "excepted  to  said 
refusals  and  modifications  of  said  in- 
structions, as  given,"  it  was  held  that 
such  exception  was  sufficiently  spe- 
cific, and  would  be  understood  as  ap- 
plying to  the  ruling  on  each  proposi- 
tion. Schurmeier  v.  Johnson,  10 
Minn.  319  (Gil.  250). 

34  Herrick  v.  Waitt,  113  N.  E.  205, 
224  Mass.  415;  Randall  v.  Peerless 
Motor  Car  Co.,  99  N.  E.  221,  212  Mass. 
352;  Luce  v.  Hassam,  58  A.  725,  76 
Vt.  450. 

S3  Mich.  Edgell  v.  Francis,  86 
Mich.  232,  48  N.  W.  1095. 

Minn.  Delude  v.  St.  Paul  City  Ry. 
Co.,  55  Minn.  63,  56  N.  W.  461 ;  Car- 
roll V.  Williston,  44  Minn.  287,  46  N. 
W.  352. 

N.  Y.  Newall  v.  Bartlett,  114  N. 
Y.  399,  21  N.  E.  990 ;  Roe  v.  City  of 
New  York,  56  N.  Y.  Super.  Ct.  (24 
Jones  &  S.)  298,  4  N.  Y.  S.  447 ;  Smedis 
v.  Brooklyn  &  R.  B.  R.  Co.,  88  N.  Y. 
13. 

3G  Read  V.  Nicholas,  118  N.  Y.  224, 
23  N.  E.  468,  7  L.  R.  A.  130. 


963  OBJECTIONS   AND    EXCEPTIONS  §  525 

is  unavailing  to  present  any  question  for  review,  and  a  general  ex- 
ception to  a  refusal  to  give  a  number  of  requests,  except  so  far  as 
they  are  included  in  the  main  charge  to  the  jury,^'  or  an  excep- 
tion to  such  parts  of  the  charge  of  the  court  as  are  variant  from  the 
requests  of  the  exceptant,^*  the  variances  not  being  pointed  out, 
is  too  general.  So,  where  a  party  requests  numerous  instructions, 
and  the  court  gives  a  general  charge  purporting  to  cover  the  in- 
tructions  asked,  an  objection  to  the  refusal  of  the  court  to  give  the 
instructions,  on  the  ground  that  they  were  proper  and  that  they 
were  not  covered  by  the  charge,  is  too  general. ^^  So  an  exception 
to  the  modification  by  the  court  in  its  general  charge  of  a  particu- 
lar proposition  submitted  by  one  of  the  parties,  without  stating 
specifically  the  modification  to  which  objection  is  made,  is  too  in- 
definite,'*® and  an  exception  taken  to  the  ruling  of  the  court  in  re- 
fusing to  give  an  instruction  asked  will  not  embrace  a  ruling  modi- 
fying the  instruction,^^  and  a  general  exception  to  the  refusal  to 
charge  as  requested,  and  "severally  to  each  refusal  to  charge  and 
to  the  charge,"  presents  nothing  for  review.*^ 

Where  the  court  refuses  to  give  a  certain  number  of  instruc- 
tions, an  exception  to  the  failure  to  give  a  certain  less  number,  not 
specifying  which  requests  of  the  larger  number  are  objected  to,  is 
not  good,*^  and  a  general  exception  to  the  refusal  of  a  number  of 
requests  to  charge  presents  no  question  on  appeal,  if  any  one  of 
such  requests  is  improper.**    An  exception,  however,  to  the  refusal 

3  7  Walker   v.   Windsor   Nat.    Bank  4  3  Columbia    Mill    Co.    v.    National 

(C.  C.  A.  N.  H.)  56  F.  76,  5  C.  C.  A.  Bank  of  Commerce,  52  Minn.  224,  53 

421 ;    Lane  v.  Minnesota  State  Agri-  N.  W.  1061. 

cultural  Soc,  69  N.  W.  463,  67  Minn.  **  U.  S.     Union  Pac.  Ry.  Co.  v.  Cal- 

65 ;   Ayrault  v.  Pacific  Bank.  47  N.  Y.  laghan,  161  U.  S.  91,  16  S.  Ct.  493,  40 

570,    7   Am.    Rep.    4S9;     Welcome   v.  L.    Ed.  628:    Thiede  v.  Territory  of 

Mitchell,  81  Wis.  566,  51  N.  W.  lOSO,  Utah,  159  U.  S.  510,  16  S.  Ct.  62,  40 

29  Am.  St.  Rep.  913.  L.  Ed.  237 ;    Newport  News  &  M.  Y. 

3s  Beaver  v.  Taylor,  93  U.  S.  46,  23  Co.  v.  Pace.  158  U.  S.  36.  15  S.  Ct.  743, 

L.  Ed.  797;   Chamberlain  v.  Pratt,  33  39  L.  Ed.  887;    Bogk  v.  Gassert,  149 

N.  T.  47.  U.  S.  17,  13  S.  Ct.  738,  37  L.  Ed.  631; 

3  9  Boyd  V.  Oddous,  97  Cal.  510,  32  Union  Ins.  Co.  v.  Smith.  124  I'.  S.  405, 
P.  569.  8  S.  Ct.  534,  31  L.  Ed.  497;   Moulor  v. 

40  Connecticut  Mut.  Life  Ins.  Co.  v.  American  Life  Ins.  Co.,  Ill  U.  S. 
Union  Trust  Co.,  112  U.  S.  250,  5  S.  335,  4  S.  Ct.  466,  28  L.  Ed.  447 ;  Beav- 
Ct.  119,  28  L.  Ed.  70S;  Washington  er  v.  Taylor,  93  U.  S.  46,  23  L.  Ed. 
Ry.  &  Electric  Co.  v.  Washington  Ter-  797 ;  (C.  C.  A.  Colo.)  Morgan  v.  Unit- 
minal  Co.,  44  App.  D.  C.  470;  Thomp-  ed  States,  169  F.  242.  94  C.  C.  A.  518; 
son  V.  Security  Trust  &  Life  Ins.  Co.,  (C.  C.  A.  111.)  Illinois  Car  &  Equip- 
41  S.  E.  464,  63  S.  C.  290.  ment  Co.  v.  Linstroth  Wagon  Co.,  112 

41  Chicago  City  Ry.  Co.  v.  Mumford,  F.  737.  50  C.  C.  A.  504;  Linehan  Ry. 
97  111.  560;  State  v.  Robinson,  12  Transfer  Co.  v.  Morris,  87  F.  127,  30 
Wash.  491,  41  P.  884.  C.  C.  A.  575 :    (C.  C.  A.  Ind.  T.)  Wa- 

4  2  Dodge  V.  Alger,  53  N.  Y.  Super.  ples-Platter  Co.  v.  Turner,  83  F  64, 
Ct.  (21  Jones  &  S.)  107.  27   C.    C.    A.   439 ;     (C.    C.    A.    Mich.) 


525 


INSTRUCTIONS   TO  JURIES 


964 


to  give  a  number  of  instructions  having  certain  designated  num- 
bers, has  been  held  to  be  sufficient,*^  and  it  has  been  held  that  the 


Bean-Chamberlain  Mfg.  Co.  v.  Stand- 
ard Spoke  &  Nipple  Co.,  131  F.  215,  65 
C.  C.  A.  201;  (C.  C.  A.  N.  Y.)  Erie  R. 
Co.  V.  Littell,  12S  F.  546,  63  C.  C.  A. 
44;  (C.  C.  A.  Or.)  Otis  Elevator  Co.  v. 
Luck,  202  F.  452,  120  C.  C.  A.  558; 
(C.  C.  A.  S.  D.)  New  England  Furni- 
ture &  Carpet  Co.  v.  Catholicon  Co., 
79  P.  294,  24  C.  C.  A.  595. 

Ala.  Tombigbee  Valley  R.  Co.  v. 
Morris,  65  So.  207,  10  Ala.  App.  322; 
Johnson  v.  State,  37  So.  456,  141  Ala. 
37 ;  Pearson  v.  Adams,  29  So.  977,  129 
Ala.  157 ;  Milliken  v.  Maund,  110  Ala. 
3.32,  20  So.  310;  Alston  v.  State,  109 
Ala.  51,  20  So.  81 ;  Nelson  v.  Warren, 
93  Ala.  408,  8  So.  413;  Goley  v.  State, 
87  Ala.  57,  6  So.  287;  Adams  v.  State, 
87  Ala.  89,  6  So.  270 ;  Black  v.  Pratt 
Coal  &  Coke  Co.,  85  Ala.  504,  5  So. 
89 ;  Bedwell  v.  Bedwell,  77  Ala.  587 ; 
Stovall  V.  Fowler,  72  Ala.  77;  Wil- 
liams V.  State,  68  Ala.  551 ;  Kilpa trick 
V.  Pickens  County,  66  Ala.  422;  Mc- 
Gehee  v.  State,  52  Ala.  224. 

Fla.  Lee  v.  State,  67  So.  883.  69 
Fla.  255,  Ann.  Cas.  1917D,  236;  Tel- 
fair V.  State,  50  So.  573,  58  Fla.  110; 
Ewert  V.  State,  37  So.  .334,  48  Fla.  36; 
Griffin  v.  State,  37  So.  209,  48  Fla. 
42 ;  King  v.  State,  31  So.  254,  43  Fla. 
211. 

Ind.  Cotner  v.  State,  89  N.  E.  847, 
173  Ind.  168;  Rastetter  v.  Reynolds, 
66  N.  E.  612,  160  Ind.  133 ;  Kluse  v. 
Sparks,  10  Ind.  App.  444.  37  N.  E. 
1047  ;   Garrigus  v.  Burnett,  9  Ind.  528. 

Ind.  T.  Hall  v.  Needles,  38  S.  W. 
671,  1  Ind.  T.  146. 

Kan.  ^Murray  v.  Board  of  Com'rs 
of  Woodson  County,  48  P.  554,  58 
Kan.  1 ;  Hayes  v.  Farwell,  45  P.  910, 
4  Kan.  App.  387;  Sumner  v.  Blair,  9 
Kan.  521. 

Minn.  McNamara  v.  Pengillv,  64 
Minn.  543,  ©7  N.  W.  661;  Webb  v. 
Fisher,  57  Minn.  441,  59  N.  W.  537; 
Ferson  v.  Wilcox,  19  Minn.  449  (Gil. 
388). 

Neb.  City  of  South  Omaha  v.  Pow^ 
ell,  70  N.  W.  391,  50  Neb.  798. 

N.  J.  Gardner  v.  State,  55  N.  J. 
Law  (26  Vroom)  17,  26  A.  30. 

N.  Y.  Barker  v.  Cunard  S.  S.  Co., 
51  N.  E.  1089,  157  N.  Y.  693,  affirming 


judgment  36  N.  Y.  S.  256,  91  Hun, 
495 ;  Patton  v.  Royal  Baking  Powder 
Co.,  114  N.  Y.  1,  20  N.  E.  621 ;  Bar- 
ker V.  Cunard  S.  S.  Co.,  91  Hun,  495, 
36  N.  Y.  S.  256 ;  Willetts  v.  Sun  Mut. 
Ins.  Co.,  45  N.  Y.  45,  6  Am.  Rep.  31 ; 
Magee  v.  Badger,  34  N.  Y.  247,  90 
Am.  Dec.  691 ;  affirming  30  Barb. 
246;  Myers  v.  Dixon,  45  How.  Prac. 
48.  35  N.  Y.  Super.  Ct.  (3  Jones  &  S.) 
390. 

Ohio.  Hills  V.  Ludwig,  46  Ohio  St. 
373,  24  N.  E.  596;  Shaffer  v.  Cincin- 
nati, H.  &  D.  R.  R.  Co..  14  Ohio  Cir. 
Ct.  R.  488,  8  O.  C.  D.  60;  Voelckel 
V.  Banner  Brewing  Co.,  9  Ohio  Cir. 
Ct.  R.  318. 

Or.  Salomon  v.  Cress,  22  Or.  177, 
29  P.  439;  Murray  v.  Murray,  6  Or. 
17. 

Utah.  Marks  v.  Tomkins,  7  Utah, 
421,  27  P.  6. 

Vt.  White  V.  Lumiere  North  Amer- 
ican Co.,  64  A.  1121,  79  Vt.  206,  6  L. 
R.  A.  (N.  S.)  807. 

W.  Va.  Ocheltree  v.  McClung,  7 
W.  Va.  232. 

Wis.  Elwell  V.  Bosshard,  138  N. 
W.  46,  151  Wis.  46 ;  Haueter  v.  Mar- 
ty, 137  N.  W.  761,  150  Wis.  490 ;  Ra- 
cine Basket  Mfg.  Co.  v.  Konst,  51  Wis. 
156,  7  N.  W.  254 ;  Harrison  v.  Crock- 
er, 39  Wis.  68 ;  Hamlin  v.  Haight,  32 
Wis.  237. 

Illustrations  of  insufficient  ex- 
ceptions ■within  rule.  Where  the 
bill  of  exceptions  recites  that  the  de- 
fendant asked  the  court  to  give  "the 
following  charges,"  which  the  court 
refused  to  do,  and  that  the  defend- 
ant separately  and  severally  excepted 
to  the  refusal  of  the  court  to  give 
each  of  said  Charges,  and  then  sets 
out  a  number  of  charges,  it  will  be 
assumed  that  the  charges  were  re- 
quested as  a  whole,  and  hence  refusal 
to  give  them  is  not  error,  if  any  one 
of  them  is  erroneous.  Town  of  Ver- 
non V.  Edgeworth,  42  So.  749,  148 
Ala.  490. 

45  Bell  V.  Washington  Cedar  Shin- 
gle Co.,  8  Wash.  27,  35  P.  405. 

Contra,  Holman  v.  Herscher  (Tex.) 
16  S.  W.  984. 


955  •  OBJECTIONS   AND   EXCEPTIONS  8  526 

rulings  of  the  court  on  prayers  for  instructions  presented  at  the 
same  time  and  forming  a  series  of  consecutive  propositions  is  a 
sino-le  act    and  that  one  exception  will  embrace  the  whole. 

In  some  jurisdictions  it  is  not  necessary  to  take  an  exception  to 
the  reason  given  by  the  court  for  refusing  an  instruction.  ^  An 
exception  to  the  refusal  to  give  a  requested  instruction  is  suthcient 
to  raise  the  question  of  the  propriety  of  that  portion  of  the  gen- 
eral charge  which  affirms  the  contrary  of  such  request.  Where 
instructions  are  asked  as  an  entirety,  but  the  refusals  to  give  them 
are  several,  and  the  exceptions  are  also  several,  consideration  there- 
of will  not  be  refused  on  appeal  because  of  the  absence  of  an  ex- 
ception to  the  refusal  to  give  them  as  an  entirety .*» 

§  526.     Limitations  of  rule 

A  general  exception  to  the  whole  charge  will  raise  the  question 
whether  as  an  entirety  it  is  not  manifestly  wrong  and  injurious 
to  the  exceptant,^"  and  such  an  exception  may  be  sufficient,  where 
the  charge  consists  of  a  single  proposition,  or  where  the  whole 
scope  of  the  charge  asserts  and  explains  a  single  question  or  pnn- 
ciple,^!  or  where  the  whole  charge  proceeds  on  a  false  theory 
and  there  is  no  reason  to  suppose  that  the  error  is  inadvertent." 
Thus  an  exception  "to  the  court's  measure  of  damages"  as  stated  in 
the  charge  is  sufficiently  specific,  where  the  error,  if  any,  is  funda- 
mental in  giving  a  rule  of  damages  inapplicable  to  the  case,  and 
which  affects  the  entire  charge  relating  to  that  subject.^^  As  stat- 
ed in  one  jurisdiction,  the  rule  is  that  to  challenge  the  correct- 
ness of  a  charge  because  of  its  inapplicability  to  the  facts,  or  be- 
cause it  does  not  state  the  law  with  sufficient  fullness,  the  respects 
in  which  it  is  deficient  must  be  specified,^*  but  that  in  order  to 
challenge  the  correctness  of  a  legal  proposition  involved  in  a  charge 
it  is  sufficient  to  point  out  the  particular  part  objected  to,  and  to 
say  that  it  is  not  a  legal  charge.^^     a  general  objection  to  an  in- 

4c  McCosker  v.  Banks,  35  A.  935,  84  -'i  Nickum  v.  Gaston,  24  Or.  3S0.  33 

j^j^j    290  P.  671,  35  P.  31.    See  Robinson  v.  ^ew 

4*7  Maxwell  v.   Massachusetts  Title  York  &  E.  R.  Co.,  27  Barb.   (N.  Y.) 

Ins.  Co.,  92  N.  E.  42,  206  Mass.  197;  512. 

Chessman  v.  Hale.  79  P.  254,  31  Mont.  b2  Snvder  v.  Viola  Mining  &  Smelt- 

577,  68  L.  R.  A.  410,  3  Ann.  Cas.  1038.  ing  Co.,  3  Idaho  (Hasb.)  28,  26  P.  127. 

4  8  Connecticut    Mut.    Life   Ins.    Co.  53  Hindman  v.  First  Nat.  Bank  (C. 

V.  nnimon,  28  S.  Ct.  294,  188  U.S.  ^  j^   j^^  ^  ^-^2  F.  931,  50  C.  C.  A.  623, 

208,  47  L.  Ed.  446t,  reversing  judgment  5.-  j^   j>-  ^    -^08 ;    Denver  &  R.  G.  R. 

(C.  C.  A.  Kan.)  107  F.  834,  46  C.  C.  ^.^    ^.    Young,  70  P.  6SS,  30  Colo.  349. 

^-  ^^^'  T       •     nr,        frhnnah    144  ^*  State  V.  Weston,  31  So.  383,  107 

49  Pennsylvania  Co.  v.  Ebaugn,  144       tj,    45 

'"^0  Sel'castnofv.^Se  Dr.  Franklin,  «'^  State  v.  Weston,  31  So.  3S3,  107 

1  Minn.  73  (Gil.  51).  La.  45. 


§526 


IXSTRUCTIOXS   TO   JURIES 


96G 


struction  is  sufficient  to  raise  the  point  that  it  invades  the  prov- 
ince of  the  jury,^^  and  it  has  been  held  that  a  more  liberal  rule 
with  respect  to  giving  effect  to  a  general  exception  will  be  applied 
in  the  case  of  an  oral  charge  than  where  the  instructions  are  writ- 
ten.^' The  rule  that  exceptions  to  instructions  should  be  precise 
and  pointed,  so  as  not  to  require  the  court  to  search  for  errors 
through  long  passages  does  not  apply,  when  it  is  necessary  or  use- 
ful to  cite  an  entire  passage  in  order  to  form  a  just  view  of  the 
error  complained  of,^*  and  an  exception  to  a  court's  charge  which 
is  merely  a  quotation  therefrom  is  not  fatally  defective  for  that 
reason,  if  it  sets  forth  a  distinct  proposition  and  is  definite  and 
specific  as  to  the  error  therein.^^ 

Exceptions  to  a  charge  are  sufficiently  explicit  if  they  fairly  di- 
rect the  attention  of  the  court  to  that  part  of  the  charge  consid- 
ered objectionable.®"  Where  instructions  in  writing  are  separately 
paragraphed  and  numbered,  an  exception  to  the  giving  of  one  of 
such  instructions  designated  by  its  number  is  sufficient.®^    In  some 


5  6  Union  Seed  &  Fertilizer  Co.  v. 
St.  Louis,  I.  M.  &  S.  Rj-.  Co.,  181  S. 
W.  898,  121  Ark.  585. 

5  7Liclity  V.  Tannatt,  11  Wash.  ,37, 
39  P.  260. 

5  8  Hicks  V.  United  States,  150  U. 
S.  442,  14  S.  Ct.  144,  37  L.  Ed.  1137. 

5  9  Norris  v.  Clinkscales,  37  S.  E. 
821,  59  S.  C.  232. 

6  0  Rogers  T.  Malioney.  62  Cal.  611. 
Exceptions    lield    sufficient.      An 

exception  "to  so  much  of  the  charge 
as  relates  to  smooth,  level,  and  slip- 
pery ice  not  being  a  defect  under  the 
conditions  named"  sufficiently  indi- 
cates the  statement  of  legal  proposi- 
tions to  which  objection  is  made. 
Adams  v.  Town  of  Chicopee,  147  Mass. 
440.  IS  N.  E.  231. 

Illustrations  of  insufficient  ex- 
ceptions. An  exception  to  the 
charge  "commencing  with  the  words, 
*  *  *  and  from  there  to  the  end," 
is  bad,  where  such  portion  of  the 
charge  contains  distinct  propositions. 
Calkins  v.  Seaburv-Calkins  Consol. 
Min.  Co.,  5  S.  D.  299,  58  N.  W.  797. 
On  trial  for  malicious  trespass,  where 
the  court  in  its  charge  has  defined 
"malicious  trespass"  as  the  entering 
on  another's  property  with  a  mali- 
cious intent  to  do  injury,  an  excep- 
tion to  "that  part  of  the  charge  de- 


fining trespass  as  the  entering  on 
land  of  another  with  malicious  in- 
tent" is  not  sufficiently  definite  and 
specific  to  entitle  defendant  to  a  re- 
view of  the  charge.  People  v.  Upton. 
55  Hun,  612,  9  N.  Y.  S.  684.  An  ex- 
ception to  the  charges  as  given  on 
the  request  of  plaintiff,  and  particu- 
larly his  requests  numbered  1,  2,  3, 
5,  6,  7,  and  "to  the  refusal  to  charge 
as  requested  by  the  defendant  and 
each  and  every  one  of  the  same,  and 
particularly  his  requests  numbered  2. 
3,  5,  etc.,"  where  several  of  the  plain- 
tiff's  requests  referred  to  were  in 
fact  modified  essentially,  if  not  even 
favorable  to  defendant,  and  one  at 
least  of  defendant's  requests  refer- 
red to  was  in  fact  given  in  substance 
in  his  general  charge,  will  not  be  con- 
sidered. Such  an  exception,  in  ix)int- 
ing  at  everything,  specifies  nothing, 
and  is  about  equivalent  to  a  gen- 
eral objection  to  the  judge's  charging 
at  all.  Danielson  v.  Dyckman,  26 
INIich.  169.  An  exception  to  the 
charge  "so  far  as  it  is  inconsistent 
with  the  rulings  requested"  was  too 
indefinite.  Letchworth  v.  Boston  & 
M.  R.  R.,  108  N.  E.  500,  220  Mass. 
560. 

61  Big  Hatchet  Consol.  Min.  Co.  v. 
Colvin,>5  P.  605,  19  Colo.  App.  405; 


9G7 


OBJECTIONS   AXD   EXCEPTIONS 


§527 


jurisdictions  a  party  excepting  to  a  particular  instruction  need  not 
state  the  reasons  why  it  is  bad,^~  and  in  some  jurisdictions  a  gen- 
eral exception,  although  insufficient  as  to  instructions  given  by  the 
court  of  its  own  motion,  is  sufficient  as  to  instructions  given  at 
the  request  of  the  other  party .^^  That  an  exception  is  ambiguous 
as  to  which  portion  of  the  charge  it  refers  furnishes  no  ground  for 
reversal.*'* 

F.  Effect  of  Failure;  to  Object  or  Except 

§  527.     General  rule 

The  general  rule  is  that  errors  in  instructions,  other  than  those 
of  a  fundamental  character,®"  are  waived  by  the  failure  to  object 
to  them  at  the  trial  of  the  cause ;  ^^  such  instructions  becoming, 


McClellan  v.  Ilein,  77  N.  W.  120,  56 
Neb.  600. 

Oral  charge.  Where  an  instruc- 
tion is  given  orally,  and  the  division 
thereof  into  paragraphs  in  the  ab- 
stract was  subsequently  and  arbitrari- 
ly made  by  counsel,  a  general  objec- 
tion to  a  paragraph  of  the  instruction, 
referring  to  it  as  "Instruction  No.  7," 
is  insufficient.  Edwards  v.  People,  59 
P.  56,  26  Colo.  539. 

62  Denver  &  R.  G.  R.  Co.  v.  Young, 
70  P.  688,  30  Colo.  349 ;  Bradbury  v. 
Alden,  57  P.  490,  13  Colo.  App.  208; 
Farnsworth  v.  Union  Pac.  Coal  Co., 
89  P.  74,  32  Utah,  112;  Sexton  v. 
School  Dist.  No.  34  of  Spokane  Coun- 
ty, 9  Wash.  5,  36  P.  1052.  See,  also, 
ante,  §  519,  note  76. 

In  Iowa,  the  grounds  for  excep- 
tions to  instructions  need  not  be  stat- 
ed, where  the  exceptions  are  taken  at 
the  time  the  instructions  are  given. 
Johnson  v.  Chicago,  R.  I.  »&  P.  R.  Co., 
51  Iowa,  25,  50  N.  W.  543 ;  Williams 
V.  Barrett,  52  Iowa,  637,  3  N.  W.  690 ; 
Hawes  v.  Burlington,  C.  R.  &  N.  Ry. 
Co.,  64  Iowa,  315,  20  N.  W.  717. 

63  Waldteufel  v.  Pacific  Vinevard 
Co.,  92  P.  747,  6'  Cal.  App.  624  ;  Miller 
V.  Fireman's  Fund  Ins.  Co.  of  San 
Francisco,  92  P.  332,  6  Cal.  App.  395 : 
Williams  v.  Casebeer,  58  P.  380,  T2C> 
Cal.  77 ;  Robinson  v.  Western  Pac. 
R.  Co.,  48  Cal.  409. 

64  McGinley  v.  United  States  Life 
Ins.  Co.,  77  N.  Y.  495;  Schmalz  v. 
Hauseman,  7  N.  Y.  Civ.  Proc.  R.  414. 


6  5  Jeffries'  Ex'r  v.  Ferree,  193  S. 
W.  646,  175  Ky.  IS ;  Gowdey  v.  Rob- 
bins,  3  App.  Div.  353,  38  N.  Y.  S. 
280;  Cooper  &  Jones  v.  Hall  (Tex. 
Civ.  App.)  168  S.  W.  465;  Beazley  v. 
Denson,  40  Tex.  416 ;  Stude  v.  Saun- 
ders. 2  Posey,  Unrep.  Cas.  (Tex.)  122. 

6  6  u.  S.  Reagan  v.  Aiken,  138  U. 
S.  109,  11  Sup.  Ct.  283,  34  L.  Ed. 
892;  (C.  C.  A.  Mich.)  Standard  Oil 
Co.  V.  Sutherland,  247  F.  309,  159  C. 
C.  A.  403;  (C.  C.  N.  Y.)  Emerson 
V.  Hogg,  Fed.  Cas.  No.  4,440,  2 
Blatchf.  1,  1  Fish.  Pat.  Rep.  77;  (C. 
C.  A.  Pa.)  Barnes  &  Tucker  Coal  Co. 
V.  Vozar,  227  F.  25,  141  C.  C.  A.  579. 

Ark.  Evins  v.  St.  Louis  &  S.  F. 
R.  Co.,  147  S.  W.  452,  104  Ark.  79; 
St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Lamb, 
128  S.  W.  1030,  95  Ark.  209. 

Cal.  Los  Angeles  County  v.  Reyes, 
32  P.  233,  3  Cal.  Unrep.  Cas.  77 ;  Wil- 
kinson v.  Parrott,  32  Cal.  102. 

Colo.  Brewster  v.  Crossland,  2 
Colo.  App.  446,  31  P.  236. 

Imd.  Parker  v.  Clayton,  51  Ind. 
126. 

Iowa.  Joyner  v.  Interurban  Rv. 
Co.,  154  N.  W.  936,  172  Iowa,  727; 
Eldridge  v.  Stewart,  97  Iowa,  689,  66 
N.  W.  891 :  Hall  v.  Town  of  Manson, 
90  Iowa,  585,  58  N.  W.  881;  Fritz 
v.  Kansas  City,  C.  B.  &  St.  J.  Rv. 
Co.,  61  Iowa,  323.  16  N.  W.  144 ;  Kirk 
v.  Woodbury  County,  55  Iowa,  190,  7 
N.  W.  498;  Talty  v.  Lusk,  4  Iowa, 
469. 

Kan.     Kansas   Farmers'   Fire   Ins. 


§527 


INSTRUCTIONS   TO   JURIES 


968 


in  the  absence  of  any  objection  or  exception  taken  to  them,  and 
in  the  absence  of  any  request  for  contrary  instructions,  the  law  of 
the  case,*''''  and  in  many  cases  the  failure  of  a  party  to  ask  an  in- 


Co.  V.  Hawley,  46  Kan.  T46,  27  P.  176 ; 
State  V.  Probasco,  46  Kan.  310,  26  P. 
749;  City  of  Wyandotte  v.  Xoble,  8 
Kan.  444. 

Minn.  Berk  v.  Keller  Mfg.  Co., 
148  N.  W.  113,  126  Minn.  203 ;  Town 
of  Wells  V.  Sullivan,  147  N.  W.  244, 
125   Minn.   353. 

Mo.  Carlton  v.  Monroe,  115  S.  W. 
1057,  135  Mo.  App.  172. 

Neb.  HoUoway  v.  Schooley,  27 
Neb.  553,  43  N.  W.  346 :  Chicago,  B.  & 
Q.  R.  Co.  V.  Starner,  26  Neb.  6.30,  42 
N.  W.  706;  Schroeder  v.  Rinehard, 
25  Neb.  75,  40  N.  W.  .593. 

N.  Y.  Schaff  V.  Miles  (Com.  PL) 
10  Misc.  Rep.  395,  31  N.  Y.  S.  134. 

N.  C.     White  v.  Clark,  82  N.  C.  6. 

Okl.  Carter  v.  Missouri  Mining  & 
T^umber  Co.,  41  P.  356,  6  Okl.  11. 

Or.  Hurst  v.  Burnside,  12  Or.  520, 
8  P.  888. 

Wash.  State  v.  Bringgold,  82  P. 
132,  40  Wash.  12,  5  Ann.  Cas.  716i; 
Johnson  v.  Tacoma  Cedar  Lumber 
Co.,  3  Wash.  722,  29  P.  451. 

Wis.  Thomas  v.  Paul,  87  Wis.  607, 
58  N.  W.  1031;  Firmeis  v.  State,  61 
Wis.  140,  20  N.  W.  663;  Corcoran 
V.  Harran,  55  Wis.  120,  12  N.  W.  468. 

Illustrations  of  waivers  by  rea- 
son of  failure  to  object  or  except. 
Where,  at  the  close  of  the  charge, 
plaintiff's  counsel  only  requested  a 
modification  of  the  instructions  on  the 
burden  of  proof,  and  on  this  being  al- 
lowed defendant's  counsel  asked  if  he 
was  through,  whereupon  plaintiff's 
counsel  said  "I  have  nothing  more  to 
say,"  he  thereby  waived  any  objection 
to  an  instruction  on  the  degree  of 
care  required  of  defendant.  Cucciar- 
re  V.  New  York  Cent.  &  H.  R.  R.  Co. 
(C.  O.  A.  111.)  163  F.  38,  90  C.  C.  A. 
220.  Where,  on  the  trial  in  an  ac- 
tion by  a  shipper  against  a  carrier 
for  the  burning  of  the  goods  in  trans- 
it, both  parties  proceeded  on  the 
theory  that  if  the  fire  originated  from 
the  act  of  the  shipper's  agent  in  han- 
dling a  lantern  such  act  was  negli- 
gence, and  no  objection  was  made  to 
the  use  of  the  word  "negligence"  in 


the  instructions,  given  at  plaintiff's 
request,  that  defendant  was  liable  if 
it  had  not  proved  the  loss  was  by  rea- 
son of  the  alleged  neglect  of  the  plain- 
tiff, and  that  it  had  the  burden  of 
proving  its  defense  that  the  fire  was 
caused  by  the  negligence  of  plaintiff's 
agent,  objection  on  that  account  was 
waived.  St.  Louis,  I.  M.  &  S.  R.  Co. 
v.  Pape,  140  S.  W.  265,  100  Ark.  269. 
If  the  charge  states  a  certain  con- 
dition of  affairs  as  being  contended 
for  by  a  party,  when  there  is  no  evi- 
dence to  support  the  contention,  it  is 
the  duty  of  counsel  to  call  the  court's 
attention  thereto.  Jeft'ress  v.  Nor- 
folk-Southern R.  Co.,  73  S.  E.  1013, 
158  N.  C.  215.  In  an  action  against 
connecting  carriers  for  injury  to  cat- 
tle the  failure  of  defendants  to  ex- 
cept to  the  refusal  to  give  a  request 
to  apportion  the  damages  was  a  waiv- 
er of  an  objection  to  the  general 
charge  on  the  same  point.  Quanah. 
A.  &  P.  Ry.  Co.  V.  Galloway  (Tex.  Civ. 
App.)  165  S.  W.  546.  A  party  who 
presents  requests  for  rulings,  saying 
that  he  proposes  to  except  if  they  are 
not  given,  and  then  agrees  that  the 
judge  may  charge  the  jury,  reserving 
the  right  to  except  if  the  requests 
are  not  covered  by  the  charge,  waives 
the  right  to  except  if,  after  the  charge 
is  given,  he  makes  no  objection  to 
the  omission  to  cover  the  rulings 
requested.  Boutelle  v.  Dean,  148 
Mass.  89,  18  N.  E.  681.  When,  during 
the  argument  of  the  last  counsel  for 
the  defendant,  the  judge  announced 
that  he  intended  to  submit  to  the  jury 
issues  different  from  those  originally 
agreed  upon  by  counsel,  and  the  new 
issues  were  examined  and  comment- 
ed on  to  the  jury  by  defendant's  coun- 
sel, and  no  exceptions  were  taken, 
any  objection  to  such  change  must  be 
considered  to  have  been  waived. 
Phifer  v.  Alexander,  97  N.  C.  335,  2 
S.  E.  530. 

6  7  Iowa.  Almon  v.  Chicago  &  N. 
W.  Ry.  Co.,  144  N.  W.  997,  163  Iowa, 
449. 

N.  Y.     Smith  v.  Appleton,  140  N. 


969  OBJECTIONS   AND   EXCEPTIONS  §   529 

struction  on  a  particular  subject,  or  to  except  to  the  refusal  of  the 
court  to  give  such  instruction,  operates  as  a  waiver  of  any  objec- 
tion to  the  omission  to  give  it.*"* 

§  528.     Limitations  of  rule 

The  mere  failure  to  object  to  a  general  charge  does  not  amount 
to  an  approval  of  it,  so  as  to  estop  a  party  from  requesting  instruc- 
tions and  excepting  to  their  refusal,^"  and  w^here  the  charge  of  the 
court  is  susceptible  of  a  construction  unfavorable  to  a  party,  but 
it  is  so  ambiguous  as  to  mislead  him  into  omitting  to  except  there- 
to, supposing  that  no  such  construction  was  intended,  his  failure) 
to  except  will  not  operate  against  him  on  appeal.'" 

§  529.     Specific  applications  of  rule 

The  above  rule  applies  to  the  giving  of  contradictory  instruc- 
tions,'^ to  a  misstatement  of  the  *  contentions  of  counsel,'^  to 
misstatements  of  the  evidence,'^  to  the  giving  of  abstract  instruc- 
tions,''* to  a  charge  on  the  weight  of  the  evidence,'^  to  the  as- 
sumption of  disputed  facts,'^  to  the  modification  of  an  instruction 
or  of  a  request  to  charge,"  or  to  the  failure  to  indorse  a  charge 
asked  as  "given."'*  The  objection  that  the  charge  of  the  court 
was  given  orally,  instead  of  in  writing,  will  not  be  considered  by 
the   appellate  court,  where   it  was  not  made  in  the  trial   court.'" 

Y.  S.  565,  155  App.  Div.  520;    Grimm  7.5  Martin  v.  State,  83  S.  W.  390.  47 

V.     Wandell,     140     N.     Y.     S.     391 ;  Tex.  Cr.  R.  29,  affirmed  26  S.  Ct.  338, 

Schweinburg  v.  Altman,  130  N.  Y.  S.  200  U.  S.  816,  50  L.  Ed.  497. 

37.    145    App.    Div.    377;     Gillan    v.  7  6  Ryan  v.  Conroy,  85  Hun,  544.  33 

O'Larry,  108  N.  Y.  S.  1024,  124  App.  n.  Y.  S.  330. 

I^i'^-  498.  77  Torkelson  v.  Minneapolis  &  St  L. 

S.  D.     Lallier  v.   Pacific  Elevator  r    co.,  134  N.  W.  307,  117  Minn.  73 ; 

Co.,  127  N.  W.  558.  25  S.  D.  572.  Greene  v.   Duncan,  37   S.   C.   239,  15 

68  Marks   V.    Jacobs,    76    ImL    216;  g.   e.  956:    State  v.  Huffman,  73   S. 

Davis  V.  Keen,  55  S.  E.  359,  142  N.  O.  e,  292.  69  W.  Va.  770. 


7  8Tyree  v.  Parham's  Ex'r,  66  Ala. 


496. 

fi9  Rabinowitz   v.    Smith   Co.    (Tex.  494 

Civ.  App.)  190  S.  W.  197.  .l  „     _        /r-     n      a      r^^  ,  ^    t^^^- 

70Gougar  v.   Morse   (C.   C.   Mass.)  \\^'  f  J^-  ^\t  S^'H  Yj^A^'^f 

66  F   70'^  '^-  ^  "ited  States,  158  F.  30,  88  C.  C. 

71  Williams    V.    Southern    Pac.    R.  A.  296.  reversing  87  P.  047,  17  Okl.  28. 

Oc,  110  Cal.  457,  42  P.  974.  Colo.     Doyle  v.  Nesting,  88  P.  862, 

7  2  State  V.  Blackwell.  78  S.  E.  316,  ^7  Colo.  522. 

162  K  C.  672.  ria.     West  v.  Blackshear,  20  Fla. 

7  3  Corcoran  v.  Lehigh   &   Franklin  457. 

Coal   Co.,  37   111.  App.   577,   reversed  I»d.     Heaston  v.  Cincinnati  &  Ft. 

138  111.  390,  28  N.  E.  759 ;  Nauniann  v.  W.  R.  Co.,  16  Ind.  275,  79  Am.  Dec. 

Brewers'  Ice  Co.,  53  N.  Y.  Super.  Ct.  430 ;    Taber  v.  Hutson,  5  Ind.  322,  61 

121 ;    Krepps  v.  Carlisle,  157  Pa.  358,  Am.  Dec.  96. 

27  A.  741,  33  Wkly.  Notes  Cas.  192.  Neb.     Gibson  v.   Sullivan,  IS  Xeb. 

•      7  4  Stoner  v.  Devilbiss,  70  Md.  144,  558,  26  N.  W.  368. 

16  A.  440.  N.  D.     Boss  v.  Northern  Pac.   R. 


529 


INSTRUCTIONS   TO   JURIES 


970 


Where  instructions  are  presented  to  the  court  at  the  close  of  the 
evidence,  and  either  party  waives  objections  to  any  request  of 
the  opposite  party,  which  the  court  thereupon  gives,  the  party  so 
waiving  objection  may  not  afterwards  reserve  an  exception  to  the 
giving  of  such  request  without  leave  of  court  first  obtained.*"  By 
confining  an  objection  to  an  instruction  to  a  particular  part  there- 
of, or  to  a  specific  ground,  a  party  waives  all  other  objections,*'- 
and  if  an  exception  to  a  part  of  an  instruction  is  stated  to  be  upon 
a  ground  which  cannot  be  sustained,  it  will  not  be  extended,  so 
as  to  serve  as  an  exception  upon  a  different  ground,  which  might 
have  been  sustained.*^ 


Co.,  2  N.  D.  128,  49  N.  W.  655,  33 
Am.  St.  Eep.  756. 

S.  D.  Frve  v.  Ferguson,  6  S.  p. 
392,  61  N.  W.  161. 

Wasli.  Collins  v.  Terminal  Trans- 
fer Co.,  168  P.  174,  98  Wash.  .597: 
Taylor  v.  Kidd,  129  P.  406,  72  Wash. 
18." 

Waiver  of  request  for  ivritten 
instructions.  Where  a  judge,  in- 
stead of  giving  his  instructions  in 
writing,  as  requested,  directed  his 
oral  instructions  to  be  taken  do\Yn  by 
a  stenographer,  it  was  that  failure  to 
object  to  this  mode  of  preserving  the 


evidence  of  the  charge  was  no  waiver 
of  the  request.  Shafer  v.  Stinson,  76 
Ind.  374. 

so  Oddie  V.  Mendenhall,  86  N.  W. 
881,  84  Minn.  58. 

81  Stein  V.  Ashby,  30  Ala.  363;  St. 
Louis,  I.  M.  &  S.  Ry.  Co.  v.  Richard- 
son, 112  S.  W.  212,  87  Ark.  101; 
Price  V.  Burlington,  C.  R.  &  M.  R. 
Co.,  42  Iowa,  16;  Coddiiigton  v. 
Brooklyn  Crosstown  R.  Co.,  102  N.  Y. 
66,  5  N.  E.  797 ;  Edmunds  v.  Black,  15 
Wash.  7.3,  45  P.  639. 

S2  Corcoran  v.  Harran,  55  Wis.  120, 
12  N.  W.  468. 


971  CONSTRUCTION   AND   OPERATION  §  530 

CHAPTER  XXXVIII 
CONSTRUCTION  AND  OPERATION 

A.     Geneiral  Rules  of  Construction 

§  530.     In  general. 

531.  Construction  with  reference  to  pleadings  and  evidence. 

532.  Construction  against  party  asking  instruction. 

B.     Construction  and  Effect  of  Charge  as  a  Whole 

533.  General  rule. 

534.  Furtlier   discussion   of  rule — Cure   of   deficiencies   and   objectionable 

matters,  not  amounting  to  a  positive  misstatement  of  the  law,  by 
other  instructions. 

535.  Specific  instances  of  defects,  omissions,  or  objectionble  matters  cured 

by  other  instructions. 

536.  Objection  that  instructions  invade  province  of  jury. 

C.     Conflicting  Instructions  and  Cure  of  Positive  Error  in  Instructions 
BY  Giving  Other  Instructions 
.537.     General  rule. 

538.  Limitations  of  rule. 

539.  Cure  of  erroneous  instruction  by  its  withdrawal. 

A.  Gene:rai.  Rules  oi^  Construction 

§  530.     In  general 

In  interpreting  an  instruction  which  may  be  susceptible  of  more 
than  one  construction,  a  hypercritical  one  should  not  be  given  to 
it,^  but  it  must  be  given  a  reasonable  construction,^  and  that  mean- 

1  Baltimore  &  P.  R.  Co.  v.  Mackey,  If  you  have  a  reasonable  doubt  of 
157  U.  S.  72.  15  S.  rt.  491.  39  L.  Ed.  defendant's  guilt,  you  must  acquit 
624;  Addington  v.  State,  74  So.  846,  him," — the  use  of  tlie  words  "of  the 
16  Ala.  App.  10;  Galpin  v.  Wilson,  40  offense  charged"  does  not  limit  the  re- 
Iowa,  90;  St.  Louis  &  S.  F.  R.  Co.  v.  quirement  of  proof  of  guilt  beyond  a 
Ault,'58  So.  102,  101  Miss.  341.  reasonable    doubt    to   murder   in    the 

2  Coffman  v.  State.  165  S.  W.  9.39,  first  degree,  but  applies  to  all  offens- 
73  Tex.  Cr.  R.  295 ;  Graham  v.  State,  es  of  which  defendant  could  be  con- 
163  S  W  726.  73  Tex.  Cr.  R.  28 ;  victed  under  such  indictment.  State 
Christian  v.  State,  161  S.  W.  101,  71  v.  Smith,  65  S.  W.  270,  164  Mo.  .567. 
Tex.  Cr.  R.  506.  An  instruction  "that,  if  certain  testi- 

Instructions        on        reasonable  mony  be  true,  defendant  "is  not  guil- 

doubt.     Where,  on  trial  under  an  m-  ty,  and  you  should  say  so;    or,  if  you 

dictment  for  murder  in  the  first  de-  have  a  reasonable  doubt  about  it,  you 

gree, 'the   court  charged   that:     "De-  should    say    so," — is   equivalent   to   a 

fendant  is  presumed  to  be  innocent  statement   that,   if   the  jury   have  a 

of  the  offense  charged.     Before  you  reasonable  doubt,  they  should  acquit, 

can  convict  him,  the  state  must  over-  People  v.  Pichette,  69  N.  W.  739,  111 

come    that    presximption    by    proving  Mich.   461.     An   instruction   that   the 

him  guilty  beyond  a  reasonable  doubt.  jury    cannot    convict    unless-  all   the. 


§  530 


INSTRUCTIONS  TO  JURIES 


972 


ing  should  be  adopted  which  the  trial  court  and  the  jury,  in  the 
exercise  of  common  sense,  evidently  intended  it  to  have.^  Words 
employed  in  an  instruction  must  be  taken  in  the  ordinary  and 
popular  acceptation,*  and  in  the  sense  in  which  they  would  be  un- 
derstood by  men  of  ordinary  intelligence,^  and  it  will  be  presumed 
that  an  instruction  was  understood  by  the  jury  in  the  way  it  would 
naturally  impress  the  mind.® 

Particular  instructions,  or  particular  sentences  used  in  instruc- 
tions, must  be  considered,  in  determining  their  correctness,  in  con- 
nection with  the  other  instructions  or  with  the  context.'  The 
subsequent  language  of  an  instruction  controls  that  previously 
used.* 

It  is  error  in  a  criminal  case  to  tell  the  jury  that  they  are  not 
bound  by  any  particular  instruction  or  part  of  an  instruction  giv- 


material  averments  of  the  informa- 
tion are  established  beyond  a  reason- 
able doubt,  does  not  by  implication 
authorize  a  conviction  without  pre- 
sumption or  proof  of  defendant's  san- 
itv.  Schwartz  v.  State,  91  N.  W.  190, 
6.5   Neb.    196. 

"Ought  not  to  convict."  An  in- 
struction using  the  words,  "ought  not 
to  convict,"  has  the  same  meaning 
and  effect  as  if  the  jury  had  been 
told  "not  to  convict."  State  v.  Nelson, 
52  P.  868,  59  Kan.  776. 

Effect  of  attempt  to  escape.  An 
instruction  in  a  homicide  case  that  an 
attempt  by  defendant  to  escape  is  a 
circumstance  which  may  be  consid- 
ered, in  connection  with  all  other  evi- 
dence, as  bearing  on  his  guilt,  but  is 
insufficient  itself  to  determine  his 
guilt,  is  not  subject  to  the  objection 
that  it  is  an  instruction  that  the 
slightest  evidence  in  addition  to  the 
attempt  to  escape  will  authorize  a 
conviction.  State  v.  Haworth,  68  P. 
155,  24  Utah,  398. 

Effect  of  instruction  referring 
to  certain  enumerated  facts.  An 
instruction,  "If  you  find"  certain  enu- 
merated facts,  "then  you  might  find 
him  guilty,"  does  not  limit  the  jury 
to  the  facts  stated  therein,  but  states 
facts  which  they  must  find  in  order 
to  convict,  and  these  facts,  if  found, 
are  to  be  considered  in  connection 
with   other  facts  which   were  either 


admitted  or  not  disputed.  Common- 
wealth V.  Light,  45  A.  933,  195  Pa. 
220. 

3  Green  v.  Lewis,  13  111.  642 ;  Or- 
ange Lumber  Co.  v.  Ellis,  150  S.  W. 
582,  105  Tex.  363:  Bank  of  Hunting- 
ton V.  Napier,  41  W.  Va.  481,  23  S.  E. 
800. 

4  Yazoo  &  M.  V.  R.  Co.  v.  Williams. 
.39  So.  489.  87  Miss.  344;  Mitchell  v. 
Zimmerman,  4  Tex.  75,  51  Am.  Dec. 
717. 

,  5  Kingan  &  Co.  v.  King.  100  N.  E. 
1044.  179  Tnd.  285;  Harris  v.  Harris. 
100  S.  E.  125,  178  N.  C.  7. 

Instruction  tiat  jury  must  be 
governed  solely  by  the  evidence. 
The  charge  of  the  court  must  be  con- 
strued with  reference  to  the  evidence 
before  the  jury,  and  to  the  presump- 
tion that  the  jurors  are  possessed  of 
ordinary  intelligence,  and  will  so  un- 
derstand and  apply  it.  where  they  are 
charged  that  they  must  be  governed 
solely  by  the  evidence  in  determining 
all  questions  submitted  to  them. 
Southern  Pac.  Co.  v.  Hall  (C.  C.  A. 
Cal.)  100  F.  760.  41  C.  C.  A.  50. 

6  Massachusetts  Mut.  Life  Ins.  Co. 
V.  Robinson.  98  111.  324. 

7  Citv  of  Wyandotte  v.  White.  13 
Kan.  191;  Welch  v.  Ware.  32  Mich. 
77 :  Kahn  v.  Minthom,  144  N.  W.  859, 
178  Mich.  312;  Commonwealth  v. 
Washington,  51  A.  759,  202  Pa.  148. 

«  Freedman  v.  Metropolitan  St.  Ry. 
Co.,  85  N.  Y.  S.  986,  89  App.  Div.  486. 


973 


CONSTRUCTION   AND   OPERATION 


531 


en;  the  jury  being  absolutely  bound  by  the  instruction  on  reason- 
able doubt.** 

§  531.     Construction  with  reference  to  pleadings  and  evidence 

In  determining  whether  instructions  are  misleading  or  errone- 
ous, their  language  must  be  construed  with  reference  to  the  plead- 
ings ^^  and   the   evidence/^  and   in  the  light  of  the   issues   raised 


9  Hobbs  V.  State,  132  P.  822,  9  Okl. 
Cr.  59S. 

10  Windham  v.  Hydrick,  72  So.  403, 
197  Ala.  125 ;  Smith  v.  Carr,  16  Conn. 
450 ;  Wintield  v.  Truitt,  70  So.  775,  71 
Fla.  38;  City  of  Chicago  v.  McDon- 
ough,  112  111.  85,  1  N.  E.  337;  M.  E. 
Smith  &  Co.  V.  Kimble,  162  N.  W.  162, 
38  S.  D.  511. 

Effect  of  \iritlidrav7al  of  count  of 
declaration.  Where  one  count  of 
the  declaration  was  withdrawn  in  the 
presence  of  the  jury,  and  no  evidence 
was  introduced  relating  thereto,  all 
references  in  the  instructions  to  the 
pleadings  are  to  be  understood  as  re- 
ferring to  the  pleadings  as  they  were 
at  the  time  of  the  trial.  Judgment, 
101  111.  App.  527,  affirmed.  Slack  v. 
Harris,  65  N.  E.  669,  200  111.  96. 

Request  not  referring  to  plead- 
ings. The  correctness  of  a  prayer, 
which  does  not  refer  to  the  pleadings, 
and  is  not  affected  by  any  other  pray- 
er referring  to  the  pleadings,  must  be 
determined  with  reference  to  the  evi- 
dence without  consideration  of  the 
pleadings.  Richardson  v.  Anderson, 
72  A.  485.  109  Md.  641,  25  L.  R.  A. 
(N.  S.)  393,  130  Am.  St.  Rep.  543. 

11  U.  S.  (C.  C.  A.  Alaska)  Hall  v. 
McKinnon,  193  P.  572,  113  C.  C.  A. 
440 ;  (C.  C.  Mass.)  Willis  v.  Carpenter, 
Fed.  Cas.  No.  17,770. 

Ala.  Higdon  v.  Fields,  60  So.  594, 
6  Ala.  App.  281;  Central  of  Georgia 
Ry.  Co.  V.  Chicago  Varnish  Co.,  53  So. 
832,  169  Ala.  287;  Meighan  v.  Bir- 
mingham Terminal  Co.,  51  So.  775, 
165  Ala.  591:  Miller  v.  Jones'  Adm'r. 
29  Ala.  174:  Kirkland  v.  Gates,  25 
Ala.  465 ;  Waters  v.  Spencer,  22  Ala. 
460;    Berry  v.  Hardman,  12  Ala.  604. 

Ga.  Adams  v.  Governor,  22  Ga. 
417;    King  v.  State,  21  Ga.  220. 

Ind.  Thompson  v.  Thompson,  9 
Ind.  323,  68  Am.  Dec.  638. 

Iowa.  Yeager  v.  Chicago,  R.  I.  & 
P.  Ry.  Co.,  123  N.  W.  974,  148  Iowa, 


231 ;  Wisecarver  &  Stone  v.  Chicago, 
R.  I.  &  P.  Ry.  Co.,  119  N.  W.  532,  141 
Iowa,  121. 

Me.  Casco  Bank  v.  Keene,  53  Me. 
103 ;  Lyman  v.  Redman,  23  Me.  289 ; 
Blake  v.  Irish,  21  Me.  450. 

Micli.  Sword  v.  Keith,  31  Mich. 
247;     People  v.  Scott,  6  Mich.  287. 

Mo.  Esstman  v.  United  Rys.  Co. 
of  St.  Louis,  216  S.  W.  526. 

Mont.  Surman  v.  Cruse,  187  P. 
890,  57  Mont.  253. 

N.  H.  Hooksett  v.  Amoskeag  Mfg. 
Co.,  44  N.  H.  105;  Gerrish  v.  New 
Market  Mfg.  Co.,  30  N.  H.  478. 

N.  C.  Penn  v.  Standard  Life  Ins. 
Co.,  76  S.  E.  262,  160  N.  C.  399,  42  L. 
R.  A.  (N.  S.)  597,  disrnissing  petition 
for  rehearing  Same  v.  Standard  Life 
&  Accidental  Ins.  Co.,  73  S.  E.  99,  158 
N.  C.  29,  42  L.  R.  A.  (N.  S.)  593. 

Ohio.  Maumee  Valley  Rys.  & 
Light  Co.  V.  Hanaway,  7  Ohio  App. 
99. 

Okl.  Missouri,  K.  &  T.  Ry.  Co.  v. 
Taylor,  170  P.  1148. 

Tenn.  Hale  v.  Darter,  10  Humph. 
92. 

Tex.  Thompson  v.  Shannon,  9  Tex. 
530:  Davis  v.  Loftin,  6  Tex.  489; 
Peck  V.  State,  9  Tex.  App.  70. 

Va.  Williams  Printing  Co.  v.  Saun- 
ders, 73  S.  E.  472,  113  Va.  156,  Ann. 
Cas.  1913E,  693. 

"Wash.     Wlieeler  v.  Hotel  Stevens 
Co.,  127  P.  840,  71   Wash.   142.   Ann.. 
Cas.  imiC,  576:    Harkins  v.  Seattle 
Electric  Co.,  101  P.  836,  53  Wash.  184. 

Instructions  incorrect  as  a1>- 
stract  propositions.  Instructions, 
which,  standing  alone,  would  seem  to 
assert  that  a  promise  to  pay  for  im- 
provements made  on  a  farm  of  an- 
other by  one  in  possession,  for  his 
own  benefit,  would  be  valid,  though 
the  improvements  should  be  of  no 
value  or  benefit  to  the  owner,  are  not 
erroneous,  though  incorrect  as  ab- 
stract propositions,  in  a  case  where 


532 


INSTRUCTIONS  TO  JURIES 


974 


thereby .^^  Thus,  an  expression  used  in  an  instruction,  or  a  special 
issue  submitted,  although  in  itself  susceptible  of  two  meanings,  is 
not  misleading  when,  as  applied  to  the  evidence,  only  one  mean- 
ing can  be  given  to  it.-^^ 

§  532.     Construction  against  party  asking  instruction 

When  a  charge  given  on  request  is  ambiguous,  that  construction 
will  be  adopted  which  is  least  favorable  to  the  party  making  the 
request.-^* 

B.     Construction  and  Effe;ct  of  Charge  as  a  wholS 

§  533.     General  rule 

In  determining  the  sufficiency  of  a  particular  instruction,  or  part 
of  a  charge,  it  is  not  to  be  considered  apart  from  its  context,  or 
the  rest'  of  the  charge. ^^     Both  in  civil  ^^  and  in  criminal  cases  ^' 


the  improvements  referred  to  are 
shown  by  the  evidence  to  be  of  a  per- 
manent character,  wliich  would  add 
to  the  value  of  the  premises,  and  did 
actually  increase  their  price  on  a  sub- 
sequent sale,  and  where  the  promise 
referred  to  would  naturally  be  under- 
stood to  mean  a  promise  made  at  or 
l)efore  the  time  the  improvements 
were  made.  Sword  v.  Keith,  31  Mich. 
247.  Instructions  are  to  be  interpret- 
ed in  the  light  of  the  evidence,  and 
an  instruction  that  a  .iury  might  con- 
sider other  fires  caused  by  the  engines 
of  a  railroad  company,  as  bearing  on 
the  question  of  negligence  in  causing 
tlie  one  complained  of,  without  limit- 
ing the  Inquiry  as  to  time,  is  not  er- 
roneous when  the  evidence  before  the 
jury  is  within  the  proper  limits.  New 
York,  P.  &  N.  R.  Co.  v.  Thomas,  92 
Va.  606,  24  S.  E.  264. 

12  Ala.  Empire  Life  Ins.  Co.  v. 
Gee.  55  So.  166,  171  Ala.  435. 

Iowa.  Hart  v.  Cedar  Rapids  &  M. 
C.  Ry.  Co.,  SO  N.  W.  662,  109  Iowa, 
631. 

Micli.  Botsford  v.  Kleinhans.  29 
Mich.  332. 

Tex.  East  Line  &  R.  R.  Ry.  Co.  v. 
Smith,  65  Tex.  167 : .  Mitchell  v.  Zim- 
merman, 4  Tex.  75,  51  Am.  Dec.  717. 

Va.  Richmond  Granite  Co.  v.  Bai- 
ley. 24  S.  E.  232.  92  Ya.  554. 

"Wis.  Neumann  v.  City  of  La 
Crosse,  68  N.  W.  654,  94  Wis.  103. 


13  National  Bank  of  Asheville  v. 
Fidelity  &  Casualty  Co.  of  New  York 
(C.  C.  A.  N.  C.)  89  F.  819,  32  C.  C.  A. 
355. 

14  Carter  v.  Chambers,  79  Ala.  223. 

15  U.  S.  (C.  C.  A.  Iowa)  Chicago 
Great  Western  Rv.  Co.  v.  McDonough, 
161  F.  657.  88  C.  C.  A.  517. 

Cal.  De  Witt  v.  Floriston  Pulp  & 
Pa;per  Co.,  96  P.  397,  7  Cal.  App.  774. 

Colo.  In  re  Hayes'  Estate,  135  P. 
449,  55  Colo.  340,  Ann.  Cas.  1914C, 
531 ;  Bailey  v.  Carlton,  95  P.  542,  43 
Colo.  4. 

Conn.  Appeal  of  Wheeler,  100  A. 
13,  91  Conn.  388. 

Fla.  Florala  Sawmill  Co.  v.  Smith, 
46  So.  332,  55  Fla.  447;  Stearns  & 
Culver  Lumber  Co.  v.  Adams,  46  So. 
156.  55  Fla.  394. 

Idaho.  Barrow  v.  B.  Ri  Lewis 
Lumber  Co.,  95  P.  682,  14  Idaho,  698. 

111.  Klofski  V.  Railroad  Supply 
Co.,  85  N.  E.  274,  235  111.  146,  affirm- 
ing judgment  Railroad  Supply  Co.  v. 
Klofski,  1.38  111.  App.  468:  Helbig  v. 
Citizens'  Ins.  Co.,  84  N.  E.  897,  234 
111.  251,  affirming  judgment  Citizens' 
Ins.  Co.  V.  Helbig,  138  111.  App.  115; 
Atchison  v.  McKinnie,  84  N.  E.  208, 
233  111.  106;  Brew  v.  Seymour,  133 
111.  App.  225;  Varney  v.  Taylor,  133 
111.  App.  154 ;  East  St.  Louis  &  S.  Ry. 
Co.  V.  Zink,  133  111.  App.  127,  judg- 

16  See  note  16  on  page  975. 
1'^  See  note  17  on  page  979. 


975 


CONSTRUCTION  AND  OPERATION 


533 


the  instructions  of  the  court  must  be  read  together  as  one  con- 


ment  affirmed  82  N.  E.  283,  229  111. 
180;  Chicago  Cousol.  Tractiou  Co.  v. 
Mahoney,  131  111.  App.  591,  judguieut 
affirmed  82  N.  E.  8(58,  230  111.  562; 
Cilieago,  R.  I.  &  P.  Ry.  Co.  v.  Turck, 
131  111.  App.   128. 

Imd.  I'ittsburgh,  C.  C.  &  St.  L.  Ry. 
Co.  V.  Wood,  84  N.  E.  1009,  45  Ind. 
App.  1. 

Kam.  Chicago,  R.  I.  &  P.  Ry.  Co.  v. 
Brandon,  95  P.  573,  77  Kan.  612. 

Mass.  Plummer  v.  Boston  Elevat- 
ed Rv.  Co.,  84  X.  E.  849,  198  Mass. 
499;  Whitney  v.  Wellesley  &  B.  St. 
Ry.  Co.,  84  X.  E.  95,  197  Mass.  495. 

Mich.  Anderson  Carriage  Co.  v. 
Pungs,  117  N.  W.  162,  1-53  Mich.  580 ; 
Croze  V.  St.  Mary's  Canal  Mineral 
Land  Co.,  117  N.  W.  81,  153  Mich. 
363. 

Minn.  McCusky  v.  Kuhlman,  179 
N.  AY.  1000. 

Miss.  Hitt  V.  Terry,  46  So.  829,  92 
Miss.  671. 

Mo.  Young  V.  Lanzuar,  112  S.  W. 
17,  133  Mo.  App.  130;  Batten  v. 
Modern  Woodmen  of  America,  111  S. 
W.  513,  131  Mo.  App.  381. 

Neb.  Sheibley  v.  Fales,  116  N.  W. 
1035,  81  Neb.  795 ;  Morrow  v.  Barnes. 
116  N.  W.  657,  81  Neb.  688;  Maxson 
V.  J.  I.  Case  Thre.shing  Mach.  Co.,  116 
N.  W.  281,  81  Neb.  546,  16  L.  R.  A. 
(N.  S.)  963. 

N.  D.  Buchanan  v.  Minneapolis 
Threshing  Mach.  Co.,  116  N.  W.  335, 
17  N.  D.  343. 

S.  C.  Columbia,  N.  &  L.  R.  Co.  v. 
Laurens  Cotton  Mills,  61  S.  E.  1089, 
82  S.  C.  24,  rehearing  denied  62  S.  E. 
1119,  82  S.  C.  24 ;  Cannon  v.  Dean,  61 
S.  E.  1012,  SO  S.  C.  557. 

Tex.  Galveston,  H.  &  N.  Ry.  Co.  v. 
Cochran  (Civ.  App.)  109  S.  W.  261. 

"Wash.  Jensen  v.  Schlenz,  154  P. 
159,  89  Wash.  268;  Davis  v.  City  of 
Wenatchee,  149  P.  337,  86  Wash.  13. 

16  U.  S.  Seaboard  Air  Line  Ry.  v. 
Padgett,  35  S.  Ct.  481,  236  U.  S.  668, 
59  L.  Ed.  777,  affirming  judgment 
Padgett  v.  Seaboard  Air  Line  Ry.,  83 
S.  E.  633,  99  S.  C.  364 ;  (C.  C.  A.  Ark.) 
Kansas  Citv  Southern  Ry.  Co.  v.  Clin- 
ton, 224  F.  896  140  C.  C.  A.  .340;  Tru- 
lock  V.  Willey,  187  F.  956,  112  C.  C. 
A.  1;  (C.  C.  A.  Cal.)  Southern  Pac. 
Co.  V.  Ward,  208  F.  385,  125  C.  C.  A. 


601:  (C.  C.  A.  Colo.)  City  of  Denver 
V.  Porter,  126  F.  288,  61  C.  C.  A.  168 ; 
(C.  C.  A.  Pa.)  Pittsburgh  Rys.  Co.  v. 
Givens,  211  F.  885,  128  C.  C.  A.  263; 
Pressed  Steel  Car  Co.  v.  Nist,  176  F. 
919,  100  C.  C.  A.  273 ;  (C.  C.  A.  Tenn.) 
Memphis  St.  Ry.  Co.  v.  Pierce,  257  F. 
659,  168  C.  C.  A.  609 ;  (C.  C.  A.  Tex.) 
Texas  &  P.  Ry.  Co.  v.  Wiueland,  102 
F.  673,  42  C.  C.  A.  588. 

Ala.  Anders  v.  Wallace,  82  So. 
644,  17  Ala.  App.  154;  Thrasher  v. 
Neely,  72  So.  115,  196  Ala.  576;  Sea- 
board Air  Line  Ry.  Co.  v.  Mobley,  69 
So.  614,  194  Ala.  211 ;  Western  Union 
Telegraph  Co.  v.  Holland,  66  So.  926, 
11  Ala.  App.  510;  Fowlkes  v.  Lewis, 
65  So.  724.  10  Ala.  App.  543 ;  Birming- 
ham Ry.,  Light  &  Power  Co.  v.  Mayo, 
61  So.  289  181  Ala.  525;  Louisville 
&  N.  R.  Co.  V.  Bogue,  58  So.  392,  177 
Ala.  349 ;  Central  of  Georgia  Ry.  Co. 
V.  Knight,  57  So.  253,  3  Ala.  App.  436 
Alabama  Consol.  Coal  &  Iron  Co.  v 
Cowden,  56  So.  984,  175  Ala.  108 
Birmingham  Southern  Ry.  Co.  v 
Craig,  55  So.  950,  1  Ala.  App.  329 
Alabama  Consol.  Coal  &  Iron  Co.  v 
Heald,  53  So.  162,  168  Ala.  626 ;  Bir 
mingham  Ry.,  Light  &  Power  Co.  v. 
King,  42  So.  612,  149  Ala.  504 ;  Reiter- 
Conley  Mfg.  Co.  v.  Hamlin,  40  So.  280, 
144  Ala.  192. 

Ariz.  Phoenix  Ry.  Co.  of  Arizona 
v.  Beals,  181  P.  379,  20  Ariz.  386. 

Ark.  St.  Louis  Southwestern  Ry. 
Co.  v.  Wyman,  178  S.  W.  423,  119  Ark. 
5.30 ;  Dunman  v.  Raney,  176  S.  W. 
3.39.  118  Ark.  337;  St.  Louis,  I.  M.  & 
S.  Ry.  Co.  v.  Brown,  140  S.  W.  279, 
100  Ark.  107;  Arkansas  Lumber  Co. 
V.  Wallace,  139  S.  W.  5.34,  99  Ark. 
537;  Western  Union  Telegraph  Co. 
v.  Gillis,  133  S.  W.  833,  97  Ark.  226 ; 
St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Lamb, 
128  S.  W.  1030.  95  Ark.  209;  Lowe  v. 
Hart,  125  S.  W.  1030,  93  Ark.  548; 
Southern  Anthracite  Coal  Co.  v.  Bo- 
wen,  124  S.  W.  1048,  93  Ark.  140; 
Rock  Island  Plow  Co.  v.  Rankin  Bros. 
&  Winn.  115  S.  W.  943,  89  Ark.  24; 
St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Puck- 
ett,  114  S.  W.  224,  88  Ark.  204 ;  Tay- 
lor V.  McClintock,  112  S.  W.  405.  87 
Ark.  243. 

Cal.  Freiburg  v.  Israel  (App.)  187 
P.  130;   Baillargeon  v.  Myers,  182  P. 


533 


INSTRUCTIONS  TO  JURIES 


976 


nected  whole,  to  ascertain  whether  they  correctly  declare  the  law. 


37  ;  Tavlor  v.  Pacific  Electric  Ry.  Co., 
158  P.  il9,  172  Cal.  638 ;  Fountain  v. 
Connecticut  Fire  Ins.  Co.  of  Hartford 
(App.)  117  P.  630;  Peters  v.  Southern 
Pac.  Co.,  116  P.  400,  160  Cal.  48; 
Parkin  v.  Grayson-Owen  Co.,  106  P. 
210.  157  Cal.  41. 

Colo.  National  Fuel  Co.  v.  Maccla, 
139  P.  22.  25  Colo.  App.  441;  In  re 
Burnham's  Will,  134  P.  254,  24  Colo. 
App.  131;  First  National  Bank  of 
Ouray  v.  Shank,  128  P.  56,  53  Colo. 
446;  Starrett  v.  Ruth,  119  P.  690,  51 
Colo.  583 ;  Denver  City  Tramway  Co. 
V.  Brumley,  116  P.  1051,  51  Colo.  251 ; 
Keefer  v.  Amicone,  100  P.  594,  45 
Colo.  110 ;  Denver  City  Tramway  Co. 
V.  Martin,  98  P.  836,  44  Colo.  324; 
Blackman  v.  Edsall,  68  P.  790,  17 
Colo.  App.  429. 

Conn.  Anthony  v.  Connecticut  Co., 
92  A.  672.  88  Conn.  700;  Bernier  v. 
Woodstock  Agr.  Society,  92  A.  160.  88 
Conn.  558 ;  Brodie  v.  Connecticut  Co., 
87  A.  798.  87  Conn.  363. 

Del.  Spahn  v.  People's  Ry.  Co.,  92 
A.  727,  3  Boyce,  302. 

Fla.  Key  v.  Moore.  82  So.  810.  78 
Fla.  205;  Gracy  v.  Atlantic  Coast 
Line  R.  Co.,  42  So.  903,  53  Fla.  350; 
Seaboard  Air  Line  Ry.  v.  Scarborough, 
42  So.  706,  52  Fla.  425 ;  Jacksonville 
Electric  Co.  v.  Sloan,  42  So.  516,  52 
Fla.   257. 

Ga.  Brooks  v.  Goodin,  99  S.  E. 
540  23  Ga.  App.  800 ;  City  of  Atlanta 
v.  Williams,  84  S.  E.  139,  15  Ga.  App. 
654;  Lyon  v.  Cedartown  Lumber  Co., 
79  S.  E.  236,  13  Ga.  App.  450. 

Idaho.  Lyons  v.  Lambrix,  190  P. 
3.56:  Cady  v.  Keller,  154  P.  629,  28 
Idaho,  368. 

111.  McFarlane  v.  Chicago  City 
Rv.  Co.,  123  N.  E.  638,  288  111.  476, 
affirming  judgment  212  111.  App.  664 ; 
Zeman  v.  North  American  Union.  105 
N.  E.  22.  263  111.  304,  affirming  judg- 
ment 181  111.  App.  551 :  Wilkinson  v. 
Service.  94  N.  E.  50,  249  111.  146.  Ann. 
Cas.  1912A,  41;  Dady  v.  Condit.  70 
N.  E.  10S8,  209  111.  488,  affirming 
judgment  104  111.  App.  507;  Baker  v. 
Baker,  67  N.  E.  410,  202  111.  595 ;  Mc- 
Cormick  v.  Decker.  204  111.  App.  554; 
Gillette  v.  Chicago,  M.  &  St.  P.  Ry. 
Co.,  193  111.  App.  304 ;  Olcese  v.  Val 
Blatz  Brewing  Co.,  144  111.  App.  597; 


Chicago  City  Ry.  Co.  v.  Hyndshaw, 
116  111.  App.  367;  Illinois  Cent.  R. 
Co.  v.  Andrews,  116  111.  App.  8;  Mo- 
bile &  O.  R.  Co.  v.  Vallowe,  115  111.  App. 
621,  judgment  affirmed  73  N.  E.  416, 
214  111.  124;  United  States  Brewing 
Co.  v.  Stoltenberg,  113  111.  App.  435, 
judgment  affirmed  71  N.  E.  1081,  211 
111.  531:  Grayville  Waterworks  v. 
Burdick,  109  111.  App.  520;  Thompson 
V.  Koperlski,  109  111.  App.  466 ;  Witte 
Hardware  Co.  v.  Air  Line  Transfer 
Co.,  109  111.  App.  42S ;  Chicago  Screw 
Co.  V.  Weiss,  107  III.  App.  39,  judg- 
ment affirmed  68  N.  E.  54,  203  111. 
536. 

Ind.  Laws  v.  Hammon,  W.  &  E. 
C.  Ry.  Co.  (App.)  128  N.  E.  52:  In- 
dianapolis Traction  &  Terminal  Co. 
V.  Thornburg  (App.)  125  N.  E.  57 ;  Na- 
pai'ala  v.  Chicago,  S.  B.  &  N.  I.  Ry. 
Co.,  115  N.  E.  694,  64  Ind.  App.  169; 
American  Maize  Products  Co.  v.  Widi- 
ger,  114  N.  E.  457,  186  Ind.  227;  Mer- 
chants' Nat.  Bank  of  Massillon,  Ohio, 
V.  Nees,  110  N.  E.  73,  62  Ind.  App. 
290:  rehearing  denied  112  N.  E.  904, 
62  Ind.  App.  290;  Terre  Haute,  I.  & 
E.  Traction  Co.  v.  Frischman,  107  N. 
E.  296,  57  Ind.  App.  452;  Chicago  & 
E.  R.  Co.  V.  Dinius,  103  N.  E.  652,  180 
Ind.  596;  Southern  Ry.  Co.  v.  Fried- 
ley,  100  N.  E.  481,  52  Ind.  App.  192; 
Terre  Haute,  I.  &  E.  Traction  Co.  v. 
Maberry,  100  N.  E.  401,  52  Ind.  App. 
114 ;  Reddick  v.  Young.  98  N.  E.  813. 
177  Ind.  632 ;  Steele  v.  Spanhurst,  98 
N.  E.  733.  50  Ind.  App.  564;  Cleve- 
land, C,  C.  &  St.  L.  Ry.  Co.  v.  Clark, 
97  N.  E.  822,  51  Ind.  App.  392;  I.  F. 
Force  Handle  Co.  v.  Hisey,  96  N.  E. 
643,  52  Ind.  App.  235;  Metropolitan 
Life  Ins.  Co.  v.  Johnson,  94  N.  E. 
785,  49  Ind.  App.  233 ;  Snow  v.  In- 
dianapolis &  E.  Ry.  Co.,  93  N.  E.  1089, 
47  Ind.  App.  189 :  Indiana  Union 
Traction  Co.  v.  Myers,  93  N.  E.  888, 
47  Ind.  App.  646;  Citv  of  Logansport 
v.  Smith,  93  N.  E.  883,  47  Ind.  App. 
64 :  Indiana  Union  Traction  Co.  v. 
Schwinge,  93  N.  E.  35,  46  Ind.  App. 
525 :  Bicknese  v.  Brandl,  91  N.  E.  41, 
46  Ind.  App.  269 ;  Cleveland.  C,  C.  & 
St.  L.  Ry.  Co.  V.  Heineman.  90  N.  E. 
899.  46  Ind.  App.  388;  Indiana  Nat- 
ural Gas  &  Oil  Co.  V.  Wihelm,  86  N. 
E.  86,  44  Ind.  App.  100;    Sterling  v. 


977 


CONSTRUCTION  AND   OPERATION 


533 


The  omissions  or  inaccuracies  of  one  instruction  may  be  cured  by 


Frick,  86  N.  E.  65,  171  Incl.  710,  judg- 
ment affirmed  on  rehearing  87  N.  E. 
237,  171  Ind.  710 ;  Allyn  v.  Burns,  76 
N.  E.  636,  37  Ind.  App.  223;  Robin- 
son V.  Shanks.  20  N.  E.  713,  118  Ind. 
125;  Union  Mut.  Life  Ins.  Co.  v. 
Buchanan,  100  Ind.  63 ;  Fischer  v. 
Bell,  91  Ind.  243 ;  Babb  v.  Babb,  89 
Ind.  281 ;  Branstetter  v.  Dorrough, 
81  Ind.  527. 

Ind.  T.  Swofford  Bros.  Dry  Goods 
Co.  V.  Smith-McCord  Dry  Goods  Co., 
37  S.  W.  103,  1  Ind.  T.  314. 

Iowa.  Fletcher  v.  Ketcham,  176 
N.  W.  245,  188  Iowa,  340;  Fuller  v. 
Illinois  Cent.  R.  Co.,  173  N.  W.  137, 
186  Iowa,  686;  In  re  Workman's  Es- 
tate, 156  N.  W.  438,  174  Iowa,  222; 
Crawford  v.  McElhinney,  154  N.  W. 
310,  171  Iowa,  606,  Ann.  Cas.  1917E, 
221;  Doran  v.  Waterloo,  C.  F.  &  N. 
Ry.  Co.,  147  N.  W.  1100;  Stotts  v. 
Fairfield,  145  N.  W.  61,  163  Iowa,  726 ; 
Moore  v.  Pearson,  141  N.  W.  1048,  160 
Iowa,  449;  Mitchell  v.  Des  Moines 
City  Ry.  Co.,  141  N,  W.  43,  161  Iowa, 
100;  Lauer  v.  Banning,  131  N.  W. 
783,  152  Iowa,  99;  McDivitt  v.  Des 
Moines  City  Ry.  Co.,  118  N.  W.  459, 
141  Iowa,  689;  Brusseau  v.  Lower 
Brick  Co.,  110  N.  W.  577,  133  Iowa, 
245. 

Kan.  Zuspann  v.  Roy,  170  P.  387, 
102  Kan.  188;  Murphy  v.  Ludowici 
Gas  &  Oil  Co.,  150  P.  581,  96  Kan. 
321 ;  John  V.  Farwell  Co.  v.  Thomas, 
56  P.  151,  8  Kan.  App.  614. 

Ky.  Borderland  Coal  Co.  v.  Miller, 
201  S.  W.  299,  179  Ky.  769;  Wilt- 
shire's Adm'x  V.  Kister,  160  S.  W.  743, 
156  Ky.  168 ;  White  v.  Jouett,  144  S. 
W.  55,  147  Ky.  197 ;  Paducah  Commis- 
sion Co.  V.  Boswell,  83  S.  W.  144,  26 
Ky.  Law  Rep.  1062;  Kentucky  Nat. 
Bank  v.  O'Neal,  11  Ky.  Law  Rep.  (ab- 
stract) 763. 

Me.  Nielson  v.  International  Text- 
hook  Co.,  75  A.  330,  106  Me.  104,  20 
Ann.  Cas.  591. 

Md.  Gosman  Ginger  Ale  Co.  of 
Baltimore  City  v.  Keystone  Bottle 
Mfg.  Co.,  106  A.  747,  134  Md.  .360; 
Hochschild  v.  Cecil,  101  A.  700,  131 
Md.  70. 

Mass.  Savageau  v.  Boston  &  M.  R. 
R.,  96  N.  E.  67,  210  Mass.  164;  Lock- 
Inst.to  Juries— 62 


wood  V.  Boston  Elevated  Rv.  Co.,  86 
N.  E.  934,  200  Mass.  537,  22  L.  R.  A. 
(N.  S.)  488. 

Micli.  Interstate  Const.  Co.  v. 
United  States  Fidelity  «&  Guaranty 
Co.,  174  N.  W.  173,  207  Mich.  265; 
Jacobs  V.  Hagenback-Wallace  Shows, 
164  N.  W.  548,  198  Mich.  73,  L.  R.  A. 
1918A,  504;  In  re  Rockett's  Estate, 
158  N.  W.  12,  191  Mich.  499 ;  Weguer 
V.  Herkimer,  133  N.  W.  623,  167  Mich. 
587;  Custard  v.  Hodges,  119  N.  W. 
583,  155  Mich.  361;  Smalley  v.  De- 
troit &  M.  Ry.  Co.,  91  N.  W.  1027,  131 
Mich.  560;  Manistee  Nat.  Bank  v. 
Seymour,  31  N.  W.  140,  64  Mich.  59; 
Kuney  v.  Dutcher,  22  N.  W.  866,  56 
Mich.  308;  Souvais  v.  Leavitt,  15  N. 
W.  37,  50  Mich.  108:  Russell  v.  Phelps, 
4  N.  W.  1,  42  Mich.  377 ;  Wheeler  & 
Wilson  Mfg.  Co.  v.  Walker,  1  N.  W. 
10.35,  41  Mich.  239;  Lake  Superior 
Iron  Co.  V.  Erickson,  39  Mich.  492,  33 
Am.  Rep.  423;  Eggleston  v.  Board- 
man,  37  Mich.  14 ;  Greenlee  v.  Low- 
ing, 35  Mich.  63. 

Miss.  Cumberland  ■  Telephone  & 
Telegraph  Co.  v.  Jackson,  48  So.  614, 
95  Miss.  79. 

Mo.  Hulse  V.  St.  Joseph  Ry.  Co., 
214  S.  W.  150 ;  Rappaport  v.  Roberts 
(App.)  203  S.  W.  676 ;  Wiley  v.  Wiley 
(App.)  182  S.  W.  107;  Barrett  v.  De- 
lano, 174  S.  W.  181,  187  Mo.  App.  501; 
Tawney  v.  United  Rys.  Co.  of  St. 
Louis,  172  S.  W.  8,  262  Mo.  602 ;  An- 
drew V.  Linebaugh,  169  S.  W,  135,  260 
Mo.  623 ;  Pendegrass  v.  St.  Louis  &  S. 
F.  R.  Co.,  162  S.  W.  712,  179  Mo.  App. 
517;  Patterson  v.  Evans,  162  S.  W. 
179,  254  Mo.  293;  Wilson  v.  United 
Rys.  Co.  of  St.  Louis,  1.52  S.  W.  426, 
169  Mo.  App.  405 ;  Dutcher  v.  Wabash 
R.  Co.,  145  S.  W.  63,  241  Mo.  137; 
Michael  v.  Kansas  City  Western  Rv. 
Co.,  143  S.  W.  67,  161  Mo.  App.  53; 
Vanderbeck  v.  Wabash  Rv.  Co.,  133  S. 
W.  1178,  154  Mo.  App.  321;  Hales  v. 
Raines,  1.30  S.  W.  425,  146  Mo.  App. 
2.32;  Turner  v.  Snyder,  123  S.  W. 
1050.  139  Mo.  App.  650 ;  McKinstrv  v. 
St.  Louis  Transit  Co.,  82  S.  W.  1108, 
108  Mo.  App.  12  ;  Copeland  v.  Wabash 
R.  Co.,  175  Mo.  6.50.  75  S.  W.  106; 
Feary  v.  O'Neill,  149  Mo.  467.  50  S. 
W.  918,  73  Am.  St.  Rep.  440 ;   Kitchen 


533 


INSTRUCTIONS   TO  JURIES 


978 


V.  Cape  Girardeau  &  S.  L.  R.  Co.,  59 
Mo.  514;  Ritchey  v.  Huntley,  73  Mo. 
App.  258;  Roos  v.  Clark,  14  Mo.  App. 
594,  memorandum. 

Mont.  Surman  v.  Cruse,  187  P. 
S90,  57  Mont.  253;  Pure  Oil  Co.  v. 
Chicago,  M.  &  St.  P.  Ry.  Co.,  185  P. 
150,  56  Mont.  266 ;  Brockway  v.  Blair, 
165  P.  455,  53  Mont.  531;  Micbalsky 
V.  Centennial  Brewing  Co.,  134  P.  307, 
48  Mont.  1 ;  Frederick  v.  Hale,  112  P. 
70,  42  Mont.  153. 

Neb.  Travis  v.  Omaha  &  Council 
Bluffs  St.  Ry.  Co.,  152  N.  W.  395,  98 
Neb.  200 ;  Dore  v.  Omaha  &  C.  B.  St. 
R.  Co.,  149  N.  W.  792,  97  Neb.  250; 
Hans  V.  American  Transfer  Co.,  134 
N.  W.  943,  90  Neb.  834;  Bailey  v. 
Kling,  130  N.  W.  439,  88  Neb.  699, 
Christensen  v.  Tate,  128  N.  W.  622,  87 
Neb.  848;  Smith  v.  Lorang,  127  N.  W. 
873,  87  Neb.  537;  Sheridan  Coal  Co. 
V.  C.  W.  Hull  Co.,  127  N.  W.  218,  87 
Neb.  117,  138  Am.  St.  Rep.  435 ;  Mor- 
ris V.  Miller,  119  N.  W.  458,  83  Neb. 
218,  20  L.  R.  A.  (N.  S.)  907,  131  Am. 
St.  Rep.  636,  17  Ann.  Cas.  1047;  Ze- 
lenka  v.  Union  Stockyards  Co.,  118  N. 
W.  103,  82  Neb.,  511 ;  Sloan  v.  Fist,  89 
N.  W.  760,  2  Neb.  (Unof.)  664 ;  Chica- 
go, B.  &  Q.  R.  Co.  V.  Oyster,  78  N.  W. 
359,  58  Neb.  1. 

N.  J.  Shoeffler  v.  Phillipsburg 
Horse  Car  R.  Co.,  100  A.  199,  90  N. 
J.  Law,  235 ;  Veader  v.  Yeader,  99  A. 
309,  89  N.  J.  Law,  727;  Kargman  v. 
Carlo,  90  A.  292,  85  N.  J.  Law,  632. 

N.  M.  Victor  American  Fuel  Co.  v. 
Melkusch,  173  P.  198,  24  N.  M.  47. 

N.  Y.  Dunn  v.  Ruppert,  151  N.  Y. 
S  662,  166  App.  Div.  390;  Booth  v. 
Litchfield,  114  N.  T.  S.  1009,  62  Misc. 
Rep.  279 ;  Scutt  v.  Woolsey,  47  N.  Y. 
S.  320,  20  App.  Div.  541. 

N.  C.  Woody  V.  Carolina  Spruce 
Co.,  101  S.  E.  258,  178  N.  C.  591; 
Harris  v.  Harris,  100  S.  E.  125,  178  N. 
C.  7;  McCurry  v.  Purgason,  87  S.  E. 
244,  170  N.  C.  463,  Ann.  Cas.  1918A, 
907  ;  Montgomery  v.  Carolina  &  N.  W. 
Ry.  Co.,  85  S.  E.  139,  169  N.  C.  249 ; 
Padgett  V.  McKoy,  83  S.  E.  756,  167 
N.  C.  504,  508;  Reynolds  v.  Palmer, 
83  S.  E.  755,  167  N.  C.  454;  Bain  v. 
Lamb,  83  S.  E.  466,  167  N.  C.  304; 
Wheeler  v.  Cole,  80  S.  E.  241,  164  N. 
C.  378;  Penn  v.  Standard  Life  Ins. 
Co.,  76  S.  E.  262,  160  N.  C.  399,  42  L. 


R,  A.  (N.  S.)  597,  dismissing  petition 
for  rehearing  Penn  v.  Standard  Life 
&  Accidental  Ins.  Co.,  73  S.  E.  99,  158 
N.  C.  29,  42  L.  R.  A.  (N.  S.)  593 ;  Jef- 
fress  v.  Norfolk-Southern  R.  Co.,  73 
S,  B.  1013,  158  N.  C.  215;  Kornegay 
V.  Atlantic  Coast  Line  R.  Co.,  70  S.  E. 
731,  154  N.  C.  389;  Haines  v.  Smith, 
62  S.  E.  1081,  149  N.  C.  279 ;  Everett 
V.  Spencer,  30  S.  E.  334,  122  N.  C. 
1010. 

N.  D.  Buchanan  v.  Occident  Ele- 
vator Co.,  157  N.  W.  122,  33  N.  D.  346 ; 
McGregor  v.  Great  Northern  Ry.  Co., 
1.54  N.  W.  261,  31  N.  D.  471,  Ann.  Cas. 
1917E,  141. 

Ohio.  Western  Ohio  Ry.  Co.  v. 
Fairburn,  124  N.  E.  131,  99  Ohio  St. 
141. 

Okl.  Allison  v.  Bryan,  151  P.  610, 
50  Okl.  677;  Missouri,  O.  &  G.  Ry.  Co. 
V.  Collins,  150  P.  142,  47  Okl.  761. 

Or.  Michellod  v.  Oregon- Washing- 
ton R.  &  Nav.  Co.,  168  P.  620,  86  Or. 
329;  Hudson  v.  Brown  Lumber  Co., 
154  P.  533,  80  Or.  506 ;  Macchi  v.  Port- 
land Ry.,  Light  &  Power  Co.,  148  P. 
72,  76  Or.  215;  Powder  Valley  State 
Bank  v.  Hudelson,  144  P.  494,  74  Or. 
191 ;  Astoria  Southern  Ry.  Co.  v.  Pa- 
cific Surety  Co.,  137  P.  857,  68  Or. 
569 ;  Wadhams  &  Co.  v.  Inman,  Poul- 
sen  &  Co.,  63  P.  11,  38  Or.  143. 

Pa.  McDyer  v.  Eastern  Pennsyl- 
vania Rys.  Co.,  76  A.  841.  227  Pa.  641 ; 
Stokes  V.  Ralpho  Tp.,  40  A.  958,  187 
Pa.  333 ;  Menhennet  v.  Davis,  71  Pa. 
Super.  Ct.  260;  Renn  v.  Tallman,  25 
Pa.  Super.  Ct.  503;  Brown  v.  Mont- 
gomery, 21  Pa.  Super.  Ct.  262 ;  Schon- 
dorf  V.  Griffith,  13  Pa.  Super.  Ct.  580. 

S.  C.  Hair  v.  Winnsboro  Bank,  88 
S.  E.  26,  103  S.  C.  343 ;  Black  v.  State 
Co.,  83  S.  E.  1088,  99  S.  C.  432 ;  Single- 
tarv  v.  Seaboard  Air  Line  Ry.  Receiv- 
ers, 71  S.  E.  57,  88  S.  C.  565;  Wil- 
loughby  V.  North  Eastern  R.  Co.,  29  S. 
E.  629,  52  S.  C.  166. 

S.  D.  Duprel  v.  Collins,  146  N.  W. 
593,  33  S.  D.  365. 

Tex.  Shipley  v.  Missouri,  K.  &  T. 
Ry.  Co.  of  Texas  (Civ.  App.)  199  S. 
W.  661 ;  Magnolia  Motor  Sales  Corp. 
V.  Chaffee  (Civ.  App.)  192  S.  W.  562 ; 
Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Stev- 
ens (Civ.  App.)  192  S.  W.  304;  Texas 
Co.  V.  Earles  (Civ.  App.)  164  S. 
W.  28;    St.  Louis.  B.  &  M.  Ry.  Co.  v. 


979 


CONSTRUCTION   AND   OPERATION 


§  533 


Jenkins  (Civ.  App.)  163  S.  W.  621; 
Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Taylor 
(Civ.  App.)  162  S.  W.  967;  Atchison, 
T.  &  S.  F.  Ry.  Co.  v.  Bryant  (Civ. 
App.)  162  S.  W.  400 ;  Vickrey  v.  Dock- 
rav  (Civ.  App.)  15S  S.  W.  1160 ;  Carl 
V.  Wolcott  (Civ.  App.)  156  S.  W.  334 ; 
(Jalveston,  H.  &  H.  R.  Co.  v.  Hodnett 
(Civ.  App.)  155  S.  W.  678;  Freeman 
V.  Kennerly  (Civ.  App.)  151  S.  AV.  580; 
Nussbaum  &  Scharff  v.  Trinity  & 
Brazos  Valley  Ry.  Co.  (Civ.  App.)  149 
S.  W.  1083;  Raywood  Rice  Canal  & 
Milling  Co.  v.  Erp,  146  S.  W.  155,  105 
Tex.  161,  reversing  judgment  (Civ. 
App.)  Erp  V.  Raywood  Canal  &  Mill- 
ing Co.,  130  S.  W.  897 ;  Marrett  v.  Her- 
rington  (Civ.  App.)  145  S.  W.  254 ;  Con- 
cho, S.  S.  &  L.  V.  Ry.  Co.  v.  Sanders 
(Civ.  App.)  144  S.  W.  693  ;  Stark  v.  Coe 
(Civ.  App.)  134  S.  W.  373 ;  El  Paso  & 
S.  W.  R.  Co.  V.  Eichel  &  Weikel  (Civ. 
App.)  130  S.  W.  922 ;  Gulf,  C.  &  S.  F. 
Ry.  Co.  V.  Shults,  129  S.  W.  845,  61 
Tex.  Civ.  App.  93  ;  Houston  &  T.  C.  R. 
Co.  V.  Maxwell,  128  S.  W.  160,  61  Tex. 
Civ.  App.  80;  Feigelson  v.  Brown  (Civ. 
App.)  126  S.  W.  17;  Posener  v.  Har- 
vey (Civ.  App.)  125  S.  W.  356 ;  Hous- 
ton &  T.  C.  R.  Co.  V.  Haherlin,  125  S. 
W.  107,  58  Tex.  Civ.  App.  375;  San 
Antonio  Traction  Co.  v.  Higdon,  123 
S.  W.  732,  58  Tex.  Civ.  App.  S3 ;  St. 
Louis  Southwestern  Ry.  Co.  of  Texas 
V.  Taylor,  123  S.  W.  714,  58  Tex.  Civ. 
App.  139 ;  Franks  v.  Harkness  (Civ. 
App.)  117  S.  W.  913  :  International  & 
G.  N.  Ry.  Co.  v.  Alleman,  115  S.  W. 
73,  52  Tex.  Civ.  App.  565 ;  Galveston, 
H.  &  N.  Ry.  Co.  V.  Olds  (Civ.  App.) 
112  S.  W.  787;  Texas  &  P.  Ry.  Co.  v. 
Cotts  (Civ.  App.)  95  S.  AV.  602;  Texas 
Cent.  Ry.  Co.  v.  Miller  (Civ.  App.)  88 
S.  W.  499 ;  Missouri,  K.  &  T.  Ry.  Co. 
of  Texas  v.  Criswell  (Civ.  App.)  88  S. 
W.  373. 

Utah.  Hunt  v.  P.  J.  Moran,  Inc., 
150  P.  953,  46  Utah,  388 ;  Utah  Ass'n 
of  Creditmen  v.  Boyle  Furniture  Co., 
136  P.  572,  43  Utah,  523. 

Vt.  Reed  v.  Wilmington  Savings 
Bank,  93  A.  265,  89  Vt.  6. 

Va.  Southern  Ry.  Co.  v.  Grubbs, 
SO  S.  E.  749,  115  Va.  876 ;  Peek  v.  City 
of  Hampton,  SO  S.  E.  593,  115  Va.  855 ; 
Virginia  Portland  Cement  Co.  v. 
Luck's  Adm'r,  49  S.  E.  577,  103  Va. 
427. 


Wash.  Travis  v.  Schnebley,  156  P. 
400,  90  Wash.  463 ;  Howard  v.  Wash- 
ington Water  Power  Co.,  134  P.  927, 
75  Wash.  255,  52  L.  R.  A.  (N.  S.)  57S ; 
Independent  Asphalt  Paving  Co.  v. 
Hein,  131  P.  471,  73  Wash.  127;  Mcll- 
waine  v.  Tacoma  Ry.  &  Power  Co., 
129  P.  1093,  72  Wash.  184;  Morran  v. 
Chicago,  M.  &  P.  S.  Ry.  Co.,  126  P. 
73,  70  Wash.  114 ;  Myhra  v.  Chicago, 
M.  &  P.  S.  Ry.  Co.,  112  P.  939,  62 
Wash.  1 ;  Gray  v.  Washington  Water 
Power  Co.,  71  P.  206,  30  Wash.  665; 
Bell  V.  City  of  Spokane,  71  P.  31,  30 
AVash.  508. 

W.  Va.  Howes  v.  Baltimore  &  O. 
R.  Co.,  87  S.  E.  456,  77  W.  Va.  362. 

Wyo.  Wood  V.  Wood.  164  P.  844, 
25  Wyo.  26. 

17  U.  S.  (C.  C.  A.  La.)  Le  More  v. 
United  States,  253  F.  887,  165  C.  C.  A. 
367,  certiorari  denied  39  S.  Ct.  184, 
248  U.  S.  586,  63  L.  Ed.  434. 

Fla.  Gadsden  v.  State,  82  So.  50, 
77  Fla.  627. 

111.  People  V.  Laures,  124  N.  E. 
585,  289  111.  490 ;  People  v.  Foster,  123 
N.  E.  534,  288  111.  371. 

Mich.  People  v.  Sharac,  176  N.  W. 
431,  209  Mich.  249. 

Mo.  State  v.  Repplev,  213  S.  W. 
477,  278  Mo.  333. 

Mont.  State  v.  Smith,  190  P.  107, 
57  Mont.  563 ;  Same  v.  Dunn,  190  P. 
121,  57  Mont.  591. 

Neb.  Francis  v.  State,  175  N.  W. 
G75,  104  Neb.  5 ;  Parker  v.  State,  175 
N.  W.  677,  104  Neb.  12;  Mauzv  v. 
State,  174  N.  W.  325,  103  Neb.  775; 
Kirk  V.  State,  172  N.  W.  527,  103  Neb. 
484. 

N.  J.  .State  V.  Tachin,  108  A.  318,. 
93  N.  J.  Law,  485,  affirming  .iudgment 
106  A.  145,  92  N.  J.  Law,  269. 

Okl.  Gunter  v.  State.  184  P.  797, 
16  Okl.  Cr.  476;  Mathews  v.  State, 
184  P.  468.  16  Okl.  Cr.  466;  Wilson 
V.  State  (Cr.  App.)  183  P.  613:  Davis 
V.  State,  182  P.  909.  16  Okl.  Cr.  377; 
Januarv  v.  State,  181  P.  514,  16  Okl. 
Cr.  166. 

Or.  State  V.  Butler,  186  P.  55,  96 
Or.  219. 

S.  C.  Sandel  v.  State,  104  S.  E. 
567.  13  A.  L.  R.  1268. 

Tex.  Anderson  v.  State,  217  S.  W. 
390,  S6  Tex.  Cr.  R.  207:  Johnson  v. 
State,  216  S.  W.  192,  86  Tex.  Cr.  R. 


533 


INSTRUCTIONS   TO   JURIES 


980 


the  contents  of  the  other  instructions,  or  some  of  them/*  and  if, 


276;  Zimmei-man  v.  State,  215  S.  W. 
101,  85  Tex.  Cr.  R.  630. 

Wash.  State  v.  Sowders,  1S6  P. 
260,  109  Wash.  10. 

Wyo.  Loy  v.  State,  185  P.  796,  26 
Wyo.  381. 

Illustrations  of  instructions 
held  proper  ivhen  considered  as  a 
whole.  lu  a  prosecution  for  murder, 
resulting  in  conviction  of  manslaugh- 
ter, instruction  that  in  case  of  doubt 
as  to  whether  defendant  was  guilty 
of  murder  or  manslaughter,  the  jury 
should  give  him  the  benefit  of  the 
doubt,  and  find  him  guilty  of  some- 
thing they  were  certain  he  was  guilty 
of  beyond  a  reasonable  doubt,  was  not 
erroneous  as  requiring  the  jury  to 
find  guilt  of  some  crime,  murder,  or 
manslaughter,  in  view  of  the  follow- 
ing instruction  that,  if  the  state  fail- 
ed to  convince  of  guilt  beyond  a  rea- 
sonable doubt  of  any  offense  charged, 
the  jury  should  acquit.  State  v. 
Brown,  101  S.  E.  847,  113  S.  C.  513. 
In  trial  for  grand  larceny,  instruc- 
tion that  it  was  not  necessary  for 
state  to  prove  that  all  ot  property 
was  taken,  or  that  it  was  taken  by 
defendant,  which,  taken  with  other 
parts  of  charge,  was  to  be  construed 
as  meaning  that  it  was  not  neces- 
sary to  prove  that  defendant  took 
property  with  his  own  hands,  and 
that  to  convict  it  was  only  necessary 
to  show  that  all  or  any  part  of  prop- 
erty was  taken,  was  not  erroneous. 
State  V.  Dodds.  160  N.  W.  578,  41  N. 
D.  326.  In  prosecution  for  receiving 
stolen  goods,  instruction  failing  to 
embody  in  the  definition  of  the  crime 
the  element  of  knowledge,  at  the  time 
of  i-eceiving  the  goods,  that  they  were 
stolen  goods,  but  not  informing  the 
jury  that,  if  they  found  the  enumerat- 
ed elements  to  exist,  they  could  con- 
vict, was  not  error,  where  another  in- 
struction clearly  indicated  that  such 
knowledge  was  an  essential  element; 
and  if  accused  desired  a  more  specific 
instruction  on  the  subject,  he  should 
have  tendered  it  and  requested  the 
court  to  give  it.  Partlow  v.  State 
(Ind.)  128  N.  E.  436. 

18  Ark.  Russ  v.  Strickland,  220  S. 
W.    451,    144    Ark.    642;     St.    Louis 


Southwestern  Ry.  Co.  v.  Graham,  102 
S.  W.  700,  83  Ark.  61,  119  Am.  St. 
Rep.  112. 

Cal.  Hamlin  v.  Pacific  Electric 
Ry.  Co.,  89  P.  1109,  150  Cal.  776. 

Fla.  Jackson  v.  Citizens'  Bank  & 
Trust  Co.,  44  So.  516,  53  Fla.  265; 
Atlantic  Coast  Line  R.  Co.  v.  Crosby, 
43  So.  318,  53  Fla.  400. 

Ga.     Bishop  v.  Georgia  Nat.  Bank, 

78  S.  E.  947,  13  Ga.  App.  38;  City 
of  Macon  v.  Daley,  58  S.  E.  540,  2 
Ga.  App.  355;  Speuce  v.  Morrow,  58 
S.  E.  356,  128  Ga.  722. 

Idaho.  Whitnev  v.  Cleveland,  91 
P.  176,  13  Idaho,  558. 

111.  Peoria  &  P.  Terminal  Ry.  v. 
Schantz,  80  N.  E.  1041,  226  111.  506, 
affirming  judgment  130  111.  App.  141 ; 
American  Car  «&  Foundry  Co.  v.  Hill, 
80  N.  E.  784,  226  111.  227,  affirming 
judgment  128  111.  App.  176;  McCon- 
nell  V.  Chicago  Rys.  Co.,  199  111.  App. 
490 ;  Illinois  Steel  Co.  v.  Ziemkowski, 
123  111.  App.  285,  judgment  affirmed 
77  N.  E.  190,  220  111.  324,  4  L.  R.  A. 
(N.  S.)  116U ;  City  of  Gibson  v.  Mur- 
ray, 120  111.  App.  296,  judgment  af- 
firmed 75  N.  E.  319,  216  111.  589. 

Ind.  Lake)  Erie  &  W.  R.  Co.  v. 
Howarth  (App.)  124  N.  E.  687,  rehear- 
ing denied  127  N.  E.  804;  City  of 
Bloomington  v.  Woodworth,  81  N.  E. 
611,  40  Ind.  App.  373. 

Iowa.  Breiner  v.  Nugent,  111  N. 
W.  446,  136  Iowa,  322. 

Mass.  Doe  v.  Boston  &  W.  St. 
Ry.  Co.,  SO  N.  E.  814,  195  Mass.  168. 

Mo.  McKinney  v.  Martin-Holloran- 
Klaus  Laundry  Co.,  200  S.  W.  114,  198 
Mo.  App.  386;  Bell  v.  Central  Elec- 
tric Ry.  Co.,  103  S.  W.  144,  125  Mo. 
App.  660;  Sipple  v.  Laclede  Gaslight 
Co.,  102  S.  W.  60S,  125  Mo.  App.  81; 
St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Stew- 
art, 100  S.  W.  583,  201  Mo.  491. 

Neb.  Coffey  v.  Omaha  &  C.  B.  St. 
Ry.  Co.,  112  N.  W.  589,  79  Neb.  286 ; 
Vanderveer  v.  Moran,  112  N.  W.  581, 

79  Neb.  431;  Lincoln  Traction  Co.  v. 
Brookover,  111  N.  W.  357,  77  Neb, 
221,  reversing  judgment  on  rehear- 
ing 109  N.  W.  168,  77  Neb.  217. 

N.  Y.  Butler  v.  Gazette  Co.,  104 
N.  Y.  S.  637,  119  App.  Div.  767. 


981 


CONSTRUCTION  AND   OPERATION 


§  533 


when  the  instructions  of  the  court  are  considered  as  a  whole,  the> 
correctly  state  the  law  and  are  not  inconsistent  or  misleading,  the 
fact  that  a  particular  instruction  or  isolated  paragraph  may  be  ob- 
jectionable/as inaccurate  or  misleading,  will  not  constitute  ground 
for  reversal.^® 


Okl.  Hawkins  v.  State,  186  P.  490, 
16  Okl.  Cr.  382.  .       ^       ,      qi 

Or.  Ridings  V.  Marion  County,  yi 
P.  22,  50  Or/30. 

S  C  Keys  v.  Winnsboro  Granite 
Co.,*56's.  E.  949,  76  S.  C.  284. 

Tex.  Thayer  v.  Clark,  104  S.  W. 
196.  47  Tex.  Civ.  App.  61. 

Utah.  Rogers  v.  Rio  Grande  West- 
ern Rv.  Co.,  90  P.  1075,  32  Utah,  367, 
125  Am.  St.  Rep.  876.  . 

Va.  Virginia-Carolina  Chemical 
Co.  V.  Knight,  56  S.  E.  725,  106  Va. 
674. 

Wash.     Buckley  v.  Massachusetts 

Bonding  &  Insurance  Co.,  192  P.  924. 

Wis,     Pelton  v.  Spider  Lake  baw-- 

mill  &  Lumber  Co.,  112  N.  W.  29,  132 

Wis.  219,  122  Am.  St.  Rep.  963. 

Charges   on   contributory  negli- 
gence.     Where    the    court    correctly 
charged    on    contributory    negligence 
and  declared  that  all  the  instructions 
must  be  taken  as  a  whole,  an  instruc- 
tion omitting  all  reference  to  contrib- 
utory  negligence   was  not  erroneous 
on  that  ground.     Coors  v.  Brock,  125 
P.  599,  22  Colo.  App.  470.     In  pass- 
ing on  the   question  whether  an   in- 
struction, in  an  action  for  injuries  to 
a  street  car  passenger,  was  erroneous 
for  failing  to  charge  on  contributory 
negligence,  it  was  proper  to  consider 
other  instructions  in  reference  to  her 
negligence,    and    which    covered    the 
law  on  the  subject.     Louisville  &  S. 
I    Traction  Co.  v.  Worrell,  86  N.  E. 
78,  44  Ind.  App.  480.     W^here,  in  an 
action   for   injuries   to   a   pedestrian 
on  a  bridge  over  a  street,  caused  by 
a  cinder  thrown  into  his  eye  by  an 
engine  on  the  street,  the  court  charged 
.that  pedestrians  had  a  right  to  cross 
on   the  bridge,   but   that   in   crossing 
they  must  act  as  a  person  of  ordinary 
prudence,  with  knowledge  and  experi- 
ence  of   such    pedestrians,    a    charge 
that   a   pedestrian    must    not   blindly 
and  heedlessly  rush  in  a  place  where 
danger   is   likely   to  be  apprehended. 


and  that  if  plaintiff  met  this  require- 
ment, he  was  not  guilty  of  contribu- 
torv  negligence,  but  if  he  fell  short 
thereof,  he  was  guilty  of  negligence, 
was  not  erroneous  on  the  issue  of 
contributory  negligence,  for  the  eu- 
tire  charge,  when  taken  together,  re- 
quired the  pedestrian  to  exercise  rea- 
sonable care.  Coffer  v.  Erickson,  112 
P.  643,  61  Wash.  559. 

Error  in  using  phrase  "approxi- 
mate cause."  Error  in  usiug^  the 
expression  "approximate  cause"  in 
instruction  that  if  kindling  of  fire 
by  defendant  on  its  premises  was  the 
approximate  cause  M  communicating 
sparks  of  fire  resulting  in  the  destruc- 
tion of  insured's  property  to  find  for 
plaintiffs  was  cured  by  general  in-, 
structiou.  stating,  among  other  things, 
that  "proximate  cause"  is  the  prin- 
cipal cause  and  is  an  important  mat- 
ter in  cases  of  this  kind.  Northwest 
Door  Co.  V.  Lewis  Inv.  Co.,  180  P.  495, 
92  Or.  186. 

10  U.  S.  Northern  Pac.  R.  Co.  v. 
Lvnch,  19  S.  Ct.  878,  173  U.  S.  701,  43 
l'  Ed.  1185.  affirming  judgment  (C. 
C.  A.  Mont.)  79  F.  268,  24  O.  C.  A. 
570;  Chicago  &  N.  W.  Ry.  Co.  v. 
Whitton,  80  U.  S.  (13  W^all.)  270,  20 
L.  Ed.  571;  (C.  C.  A.  Ark.)  Guild  v. 
Andrews,  137  F.  369,  70  C.  C.  A.  49 ; 
(C  C  A.  Neb.)  Kerr-Murray  Mfg.  Co. 
V.  Hess,  98  F.  56,  38  C.  C.  A.  647; 
(C  C  A  N.  J.)  North  Jersey  St.  Ry. 
Co.  V.  Purdv,  142  F.  955,  74  C.  C.  A. 
125 ;  Camden  &  S.  Ry.  Co.  v.  Burr,  91 
F  351,  33  C.  C.  A.  557;  (C.  C.  A. 
Tex )  Texas  &  P.  Ry-  Co.  v.  Holliday, 
S3  F  45^^  27  C.  O.  A.  558.  writ  of 
error'  dismissed  IS  S.  Ct.  947,  42  L. 
Ed.  1217. 

Ala.  Ballenger  v.  Shumate,  65  So. 
416  10  Ala.  App.  329;  Sheffield  Co.  v. 
Harris,  61  So.  88,  183  Ala.  357 ;  W^est- 
orn  Union  Telegraph  Co.  v.  Snell,  56 
So.  854,  3  Ala.  App.  263;  Decatur 
Car  W^heel  &  Mfg.  Co.  v.  Mehaffey, 
09   So.  646,   128  Ala.  242;     Southern 


§  533 


liSSTKDCTIONS   TO  JURIES 


982^ 


R}^  Co.  V.  Lynu,  29  So.  573,  128  Ala. 
297;  Alabama  G.  S.  R.  Co.  v.  Hill, 
93  Ala.  514,  9  So.  722,  30  Am.  St. 
Rep.  65;  Montgomery  &  E.  Rj.  Co. 
V.  Stewart,  91  Ala.  421,  8  So.  708. 

Ark.  Kansas  City  Southern  Ry. 
Co.  V.  Sparks,  222  S.  W.  724,  144  Ark. 
227;  Redman  v.  Hudson,  186  S.  W. 
312,  124  Ark.  26;  St.  Louis,  I.  M.  & 
S.  Rv.  Co.  V.  Hydrick,  160  S.  W.  196, 
109  Ark.  231;  St.  Louis,  I.  M.  &  S. 
Ry.  Co.  V.  Plott,  157  S.  W.  885,  108 
Ark.  292 ;  Standard  Life  &  Accident 
Ins.  Co.  V.  Schmaltz,  53  S.  W.  49, 
66  Ark.  588,  74  Am.  St.  Rep.  112; 
Burton  v.  Merrick,  21  Ark.  357. 

Cal.  Lawrence  v.  Goodwill  (App.) 
186  P.  781;  Darrell  v.  Mutual  Ben. 
Life  Ins.  Co.  (App.)  186  P.  620 ;  Ran- 
dolph V.  Hunt,  183  P.  358,  41  Cal.  App. 
739;  Froeming  v.  Stockton  Electric 
R.  Co.,  153  P.  712,  171  Cal.  401,  Ann. 
Cas.  1918B,  408 ;  Polkinghorn  v.  Riv- 
erside Portland  Cement  Co.,  142  P. 
140,  24  Cal.  App.  615;  Ingalls  v. 
Monte  Cristo  Oil  &  Development  Co., 
139  P.  97.  23  Cal.  App.  652 ;  Moseley 
V.  Los  Angeles  Packing  Co.,  134  P. 
994,  166  Cal.  59 ;  Rialto  Const.  Co.  v. 
Reed,  118  P.  473,  17  Cal.  App.  29; 
De  Witt  v.  Floriston  Pulp  &  Paper 
Co.,  96  P.  397,  7  Cal.  App.  774;  Hay- 
den  v.  Consolidated  Mining  &  Dredg- 
ing Co.,  84  P.  422,  3  Cal.  App.  136; 
In  re  Keithley's  Estate,  66  P.  5,  134 
Cal.  9;  Thomas  v.  Gates,  58  P.  315, 
126  Cal.  1;  Gray  v.  Eschen,;  57  P. 
664,  125  Cal.  1;  Brittan  v.  Oakland 
Bank  of  Savings,  57  P.  84,  124  Cal. 
282,  71  Am.  St.  Rep.  58,  affirming  or- 
der 44  P.  339,  112  Cal.  1 ;  Sandell  v. 
Sherman,  107  Cal.  .391.  40  P.  493 ;  Peo- 
ple V.  McDowell,  64  Cal.  467,  3  P.  124. 

Colo.  Idaho  Gold  Coin  Miu.  & 
Mill.  Co.  V.  Colorado  Iron  Works  Co., 
Ill  P.  553,  49  Colo.  66;  Grimes  v. 
Greenblatt,  107  P.  1111,  47  Colo.  495, 
19  Ann.  Cas.  608;  Stratton  Cripple 
Creek  Mining  &  Development  Co.  v. 
Ellison,  94  P.  .303,  42  Colo.  498 :  Inse- 
marson  v.  Coffey,  92  P.  908,  41  Colo. 
407 :  Citv  of  Colorado  Springs  v.  May, 
77  P.  1093,  20  Colo.  App.  204;  Den- 
ver Dry-Goods  Co.  v.  Martine,  .55  P. 
743,  12  Colo.  App.  299 :  Curr  v.  Hun- 
dley, 3  Colo.  App.  54.  31  P.  939 ;  Hurd 
v.  Atkins,  1  Colo.  App.  449,  29  P. 
'528 :    Simonton  v.  Rohm,  14  Colo.  51, 


23  P.  86 ;  Dozenback  v.  Raymer,  13 
Colo.  451,  22  P.  787 ;  Finerty  v.  Fritz, 
6  Colo.  136. 

Conn.  Adams  v.  Pierce,  110  A.  50, 
94  Conn.  613 ;  Appeal  of  Wheeler,  100 
A.  13,  91  Conn.  388 ;  Reed  v.  Heyman, 
6S  A.  322,  SO  Conn.  311;  Benedict 
V.  Everard,  46  A.  870,  73  Conn.  157. 

D.  C.  Turner  v.  American  Securi- 
ty &  Trust  Co.,  29  App.  D.  C.  460 ; 
Georgetown  &  T.  Ry.  Co.  v.  Smith,  25 
App.  D.  C.  259,  5  L.  R.  A.  (N.  S.)  274. 

Fla.  Burnett  v.  Soule,  83  So.  461, 
78  Fla.  507;  Bibb  v.  United  Grocery 
Co.,  74  So.  880,  73  Fla.  589 ;  Florida 
East  Coast  Ry.  Co.  v.  Knowles,  67 
So.  122,  68  Fla.  400;  Hartford  Fire 
Ins.  Co.  V.  Brown,  53  So.  838,  60  Fla. 
83 ;  Pensacola  Electric  Co.  v.  Bissett, 
52  So.  367,  59  Fla.  360 ;  Cross  v.  Aby, 
45  So.  820,  55  Fla.  311;  Atlantic 
Coast  Line  R.  Co.  v.  Beazley,  45  So. 
761,  54  Fla.  311;  Smith  v.  Bagwell, 
19  Fla.  117,  45  Am.  Rep.  12. 

Ga.  Bishop  v.  Calhoun  Nat.  Bank, 
91  S.  E.  1055,  19  Ga.  App.  713 ;  Rog- 
ers, Cassels  &  Fleming  v.  Bennett,  91 
S.  E.  917,  19  Ga.  App.  520;  Cordray  v. 
James,  91  S.  E.  239,  19  Ga.  App.  156 ; 
Nessmith  Lumber  Co.  v.  Berrien 
County  Bank,  90  S.  E.  1039,  18  Ga. 
App.  788;  Southern  Ry.  Co.  v.  Chit- 
wood,  82  S.  E.  135,  141  Ga.  769 ;  Clark 
v.  Clark,  81  S.  E.  129,  141  Ga.  437; 
Kerr  Glass  Mfg.  Co.  v.  Americus  Gro- 
cery Co.,  79  S.  E.  381,  13  Ga.  App. 
512 ;  Murdock  v.  Adamson,  77  S. 
E.  181,  12  Ga.  App.  275;  Atlantic 
Coast  Line  R.  Co.  v.  Jones,  63  S.  E. 
8.34,  132  Ga.  189;  Bush  v.  Fourcher, 
59  S.  E.  4.59,  3  Ga.  App.  43 ;  Western 
&  A.  R.  Co.  V.  Tate,  59  S.  E.  266,  129 
Ga.  526 ;  Teasley  v.  Bradley,  47  S. 
E.  925.  120  Ga.  373;  Russell  v. 
Brunswick  Grocery  Co.,  47  S.  E.  .528, 
120  Ga.  38;  Farmers'  &  Merchants' 
Bank  v.  Riddle,  41  S.  E.  580,  115  Ga. 
400 ;  City  Council  of  Augusta  v. 
Tharpe,  38  S.  E.  .389,  113  Ga.  152: 
Webb  V.  Wight  &  Weslosky  Co.,  37  S. 
E.  710,  112  Ga.  432. 

Idaho.  Kelly  v.  Lemhi  Irrigation 
&  Orchard  Co.,  168  P.  1076,  .30  Idaho. 
778;  Taylor  v.  Lytle,  160  P.  942,  29 
Idaho,  546:  Quirk  v.  Sunderlin,  130 
P.  374,  23  Idaho,  368;  Just  v.  Idaho 
Canal  &  Improvement  Co.,  102  P. 
381,  16  Idaho.  639,  133  Am.  St.  Rep. 


983 


CONSTRUCTION  AND  OPERATION 


533 


140;  Tarr  v.  Oresoii  vSliort  Line  R. 
Co.,  93  P.  957,  14  Idaho,  1!)2,  125  Am. 
St.  Rep.  151. 

111.  Judy  V.  Judy,  104  N.  E.  256, 
201  111.  470  ;  Greenbiirj?  v.  S.  D.  Childs 
&  Co.,-89  N.  E.  (J79,  242  111.  110;  Van 
Cleef  V.  City  of  Chicago,  88  N.  E. 
S15,  240  111.  318,  23  L.  K.  A.  (N.  S.) 
<):'.6,  130  Am.  St.  Rep.  275;  Chicago 
Citv  Ry.  Co.  V.  Ilagenback,  81  N.  E. 
1014,  2*28  111.  290;  Chicaso  City  Ry. 
Co.  V.  Shrove,  80  N.  E.  1049,  226  111. 
5.30,  affirniing  .iudgnient  128  111.  App. 
462;  Fitzgerald  v.  Benuer,  76  N.  E. 
709,  219  ill.  485,  affirming  judgment 
120  111.  Api).  447;  West  Chicago  St. 
R.  Co.  V.  Schulz,  75  N.  E.  49-5,  217 
111.  322;  Dueber  Watch  Case  Mfg. 
Co.  V.  Young,  155  111.  226,  40  N.  E. 
582;  Dacey  v.  People,  116  111.  555,  6 
N.  E.  165;  Riggin  v.  Keck,  203  111. 
App.  87;  Smiley  v.  Banies,  196  111. 
App.  530;  Hitz  v.  Illinois  Cent.  R. 
Co.,  183  111.  App.  558;  Swancutt  v. 
W.  M.  Trout  Auto  Livery  Co.,  176  111. 
App.  606;  McMaster  v.  Spencer,  129 
111.  App.  131 ;  Thomas  v.  Mosher.  128 
111.  App.  479 ;  Chicago  City  Ry.  Co.  v. 
Shreve.  128  111.  App.  462,  .iudgment 
affirmed  80  N.  E.  1049,  226  111.  5.30; 
Eldorado  Coal  &  Coke  Co.  v.  Swan, 
128  111.  App.  237,  .Iudgment  affirmed  81 
N.  E.  691,  227  111.  586;  People  v. 
Cook  County.  127  111.  App.  401 ;  Chi- 
cago, P.  &  St.  L.  Ry.  Co.  V.  Renter, 
119  111.  App.  232,  affirmed  79  N.  E, 
166,  223  111.  387 ;  Kessel  v.  Mayer,  118 
111.  App.  267;  Chicago  &  E.  I.  R.  Co. 
V.  Grose,  113  111.  App.  547;  Illinois 
Life  Ins.  Co.  v.  Lindley,  110  111.  App. 
161 ;  Grand  Lodge,  Brotherhood  of 
Locomotive  Firemen,  v.  Orrell,  109  111. 
App.  422 ;  Junction  Miu.  Co.  v.  Good- 
win. 109  111.  App.  144 ;  City  of  Macon 
v.  Holcomb,  109  111.  App.  135;  Pungs 
v.  American  Brake  Beam  Co.,  102  111. 
App.  76,  judgment  affirmed  65  N.  E. 
645,  200  111.  306 ;  Chicago  &  W.  I.  R. 
Co.  v.  Doan,  93  111.  App.  247,  af- 
firmed 62  N.  E.  826,  195  111.  168; 
Johnston  v.  Hirschberg,  85  111.  App. 
47,  affirmed  57  N.  E.  26,  185  111.  445 ; 
Gernand  v.  Heinly,  84  111.  App.  321. 

Ind.  Olds  v.  Lochner,  57  Ind.  App. 
269,  106  N.  E.  889;  Evansville  &  T. 
II.  R.  Co.  v.  Hoffman,  105  N.  E.  788, 
56  Ind.  App.  530;    Walley  v.  Wiley, 


104  N.  E.  318,  50  Ind.  App.  171; 
Joseph  E.  Lay  Co.  v.  Mendenhall,  102 
X.  E.  974,  54  Ind.  App.  342;  Cohen 
V.  Reichmau,  102  N.  E.  284,  .55  Ind. 
Ap]).  164 ;  Indianapolis  &  M.  Rapid 
Transit  Co.  v.  Reeder,  100  N.  E.  101, 
51  Ind.  App.  533;  Ft.  Wayne  Iron  & 
Steel  Co.  V.  Parsell,  94  N.  E.  770.  49 
Ind.  App.  565;  Snow  v.  Indianapolis 
&  E.  Ry.  Co.,  93  N.  E.  1089.  47  Ind. 
App.  189 ;  American  Sheet  &  Tin 
Plate  Co.  V.  Bucy,  87  N.  E.  1051,  43 
Ind.  App.  501 ;  Brinkman  v.  Pacholke. 
84  N.  E.  762,  41  Ind.  App.  662 ;  Abney 
V.  Indiana  Union  Traction  Co.,  83  N. 
E.  387,  41  Ind.  App.  53 ;  Indianapolis 
Traction  &  Terminal  Co.  v.  Miller, 
82  N.  E.  113,  40  Ind.  App.  403 ;  South- 
em  Indiana  Ry.  Co.  v.  Baker,  77  N. 
E.  64,  37  Ind.  App.  405 ;  Indianapolis 
St.  Ry.  Co.  V.  James,  74  N.  E.  536, 
35  Ind.  App.  .543;  Nickey  v.  Dou- 
gan.  73  N.  E.  288,  34  Ind.  App.  601 : 
Conrad  v.  Cleveland,  C,  C.  &  St.  L. 
Ry.  Co.,  72  N.  E.  489,  34  Ind.  App. 
133;  Cleveland,  C,  C.  &  St.  L.  Ry. 
Co.  V.  C.  &  A.  Potts  &  Co.,  71  N.  E. 
685,  .33  Ind.  App.  564 ;  Pittsburgh.  C, 
O.  &  St.  L.  Rv.  Co.  V.  Collins,  71  N. 
E.  661.  163  Ind.  569 ;  Citv  of  Linton 
V.  Smith,  eS  N.  E.  617,  31  Ind.  App. 
546 ;  Southern  Indiana  Rv.  Co.  v. 
Harrell  (App.)  66  N.  E.  1016,  judg- 
ment reversed  68  N.  E.  262,  161  Ind. 
689.  63  L.  R.  A.  460;  Archibald  v. 
Harvey,  54  N.  E.  813,  23  Ind.  App. 
30;    White  v.  Beem,  80  Ind.  239. 

Iowa.  Adami  v.  Fowler  &  Wilson 
Coal  Co.,  179  N.  W.  422;  Spillett  v. 
Clear  Lake  Boating  &  Amusement 
Co.,  155  N.  W.  822;  Rose  v.  City 
of  Ft.  Dodge,  155  N.  W.  170,  180  Iowa, 
331 ;  Finnane  v.  City  of  Perrv.  145 
N.  W.  494,  164  Iowa,  171;  Reed  v. 
Rex  Fuel  Co.,  141  N.  W.  1056,  160 
Iowa,  510 ;  Cooper  v.  City  of  Oelweiu, 
123  N.  W.  955,  145  Iowa,  181 ;  Clark 
V.  Johnson  County  Telephone  Co.,  123 
N.  W.  327,  146  Iowa,  428 ;  Hawkins  v. 
Young,  114  N.  W.  1041.  137  Iowa, 
281 ;.  Montrose  Sav.  Bank  v.  Claus- 
sen,  114  N.  W.  547,  137  Iowa,  73; 
Heath  v.  Hagan,  113  N.  W.  342,  135 
Iowa,  495;  Templin  v.  Incoi*porated 
City  of  Boone,  102  N.  W.  789,  127 
Iowa,  91 ;  Hart  v.  Cedar  Rapids  &  M. 
C.  Ry.  Co.,  SO  N.  W.  662,  109  Iowa, 


533 


INSTRUCTIONS   TO   JURIES 


984 


631;  Zimmerman  v.  Brannon,  72  N. 
W.  439,  103  Iowa,  144. 

Kan.  Rapier  v.  Stockgi'owers' 
State  Bank  of  Maple  Hill,  1S5  P.  8SS, 
105  Kan.  606 ;  Madey  v.  Swift  &  Co., 
16S  P.  1105,  101  Kan.  771;  Welliver 
V.  Clark,  155  P.  4,  97  Kan.  246 ;  Root 
V.  Cudahy  Packing  Co.,  147  P.  69,  94 
Kan.  339;  Grimes  v.  Emery,  146  P. 
1135,  94  Kan.  701,  affirming  judg- 
ment 141  P.  1002,  92  Kan.  911 ;  Meyer 
V.  City  of  Rcsedale,  113  P.  1043,  84 
Kan.  302;  City  of  Kansas  City  v. 
Smith,  54  P.  329,  8  Kan.  App.  82; 
Gilmore  v.  Gilmore,  50  P.  97,  6  Kan. 
App.  453 ;  Sweeney  v.  Merrill,  16  P. 
454,  38  Kan.  216,  5  Am.  St.  Rep.  734. 

Ky.  W.  M.  Ritter  Lumber  Co.  v. 
Jordan,  128  S.  W.  596',  138  Ky.  522; 
Chesapeake  &  O.  Ry.  Co.  v.  Perkins, 
105  S.  W.  148,  127  Ky.  110,  31  Ky. 
Law  Rep.  1350;  City  of  Louisville 
V.  McGill,  52  S.  W.  1053,  21  Ky.  Law 
Rep.  718 ;  Johnson  v.  Peak,  50  S.  W. 
682,  20  Ky.  Law  Rep.  1937;  Louis- 
ville &  N.  R.  Co.  V.  Williams,  15 
Ky.  Law  Rep.  (abstract)  31;  Kel- 
lar  V.  Edmondson,  14  Ky.  Law  Rep. 
(abstract)  894 ;  Kentucky  &  I.  Bridge 
Co.  V.  Cecil,  14  Ky.  Law  Rep.  (ab- 
stract) 477;  Lancaster  v.  Turpin,  8 
Ky.  Law  Rep.  (abstract)  430. 

Md.  Bishop  V.  Frantz,  93  A.  412, 
125  Md.  183. 

Mass.  Moulton  v.  Boston  Elevat- 
ed Ry.  Co.,  127  N.  E.  886,  236  Mass. 
234;  Cronin  v.  Boston  Elevated  Ry. 
Co.,  123  Nj  E.  686,  233  Mass.  243; 
McLellan  v.  Fuller,  115  N.  B.  481, 
226  Mass.  374 ;  Dewey  v.  Boston  Ele- 
vated Ry.,  105  N.  E.  366,  217  Mass. 
599;  Maloy  v.  Boston  Elevated  Ry. 
Co.,  104  N.  E.  459,i  217  Mass.  108; 
Lambeth  Rope  Co.  v.  Brigham,  49 
N.  E.  1022,  170  Mass.  518. 

Mich.  Jordan  v.  Wixson,  155  N. 
W.  387,  189  Mich.  288;  Kaaro  v.  Ah- 
raeek  Mining  Co.,  146  N.  W.  149,  178 
Mich.  661;  Folks  v.  Burletson,  142 
N.  W.  1120.  177  Mich.  6;  Keenan  v. 
City  of  Mt.  Pleasant,  142  N.  W.  1114. 
176  Mich.  620;  Frohlich  v.  Independ- 
ent Glass  Co.,  139  N.  W.  5,  173  Mich. 
428 ;  Chapin  v.  Ann  Arbor  R.  Co., 
133  N.  W.  512,  167  Mich.  648;  Beat- 
tie  v.  City  of  Detroit,  100  N.  W.  574, 
137  Mich.  319.;  Bav  Citv  Iron  Co.  v. 
Emery,  87  N.  W.  652,  128  Mich.  506; 


Kunst  V.  Ringold,  74  N.  W.  292,  116 
Mich.  88;  Provost  v.  Brueck,  67  N. 
W.  1114,  110  Mich.  136 ;  Pray  v.  Cad- 
well,  15  N.  W.  92,  50  Mich.  222; 
Grand  Rapids  &  I.  R.  Co.  v.  Camer- 
on, 8  N.  W.  99,  45  Mich.  451;  Coots 
V.  Chamberlain,  39  Mich.  565 ;  Bui*- 
dick  V.  Michael,  32  Mich.  246;  Dan- 
iels V.  Clegg,  28  Mich.  32;  McGinnis 
V.  Kempsey,  27  Mich.  363. 

Minn.  De  Vriendt  v.  Chicago  G. 
W.  Ry.  Co.,  175  N.  W.  99,  144  Minn. 
467 ;  Jelos  v.  Oliver  Iron  Mining 
Co.,  141  N.  W.  843,  121  Minn.  473; 
Korby  v.  Chesser,  108  N.  W.  520,  98 
Minn.  509. 

Miss.  Mississippi  Cent.  R.  Co.  v. 
Hardy,  41  So.  505,  88  Miss.  732  ;  War- 
ren County  V.  Rand,  40  So.  481,  88 
Miss.  395;  Yazoo  &  M.  V.  R.  Co.  v. 
Williams,  39  So.  489,  87  Miss.  344. 

Mo.  '  Criswell  v.  Selecman  (App.) 
185  S.  W.  1145 ;  Richardson  v.  Touch- 
stone (App.)  180  S.  W.  1010;  Stoltze 
V.  United  Rys.  Co.  of  St.  Louis,  166 
S.  W.  1102,  183  Mo.  App.  304 ;  John- 
son V.  Springfield  Traction  Co.,  161 
S.  W.  1193,  176  Mo.  App.  174 ;  Gabriel 
V.  Metropolitan  St.  Ry.  Co.,  148  S.  W. 
168,  164  Mo.  App.  56;  Heinzle  v. 
Metropolitan  St.  Ry.  Co.,  Ill  S.  W. 
536,  213  Mo.  102 ;  Smith  v.  Wabash  R. 
Co.,  107  S.  W.  22,  129  Mo.  App.  413; 
Lange  v.  Missouri  Pac.  Ry.  Co.,  106 
S.  W.  660,  208  Mo.  458;  Flaherty  v. 
St.  Louis  Transit  Co.,  106  S.  W.  15, 
207  Mo.  318;  Evers  v.  Wiggins  Fer- 
ry Co.,  105  S.  W.  306,  127  Mo.  App. 
236;  'Christianson  v.  McDennott's 
Estate.  100  S.  W.  63,  123  Mo.  App. 
448;  Abbitt  v.  St.  Louis  Transit  Co., 
81  S.  W.  484,  106  Mo.  App.  640; 
Hunt  V.  Desloge  Consol.  Lead  Co.,  104 
Mo.  App.  377,  79  S.  W.  710;  Heagy 
V.  Irondale  Lead  Co.,  101  Mo.  App. 
361,  73  S.  W.  1006;  Chambers  v 
Chester,  172  Mo.  461,  72  S.  W.  904; 
Liese  v.  Meyer,  45  S.  W,  282,  143  Mo, 
547 ;  Hughes  v.  Chicago  &  A.  R.  Co., 
127  Mo.  447.  30  S.  W.  127;  Fugate 
V.  Millar,  109  Mo.  281,  19  S.  W.  71; 
Shnrtel  v.  City  of  St.  Joseph,  104 
Mo.  114,  16  S.  W.  397,  24  Am.  St 
Rep.  317;  Prewitt  v.  Martin,  59  Mo. 
325 ;  Henschen  v.  O'Bannon,  56  Mo. 
289 ;  Harrison  v.  W^ashington  Ma- 
rine Ins.  Co..  43  Mo.  590;  Bowring 
V.  Wabash  Ry.  Co.,  90  Mo.  App.  324 ; 


985 


CONSTRUCTION  AND  OPERATION 


533 


nscher  v.  Heitzeberg  Packing  &  Pro- 
Sf  CO.,  77  MO.  APP.  108;  Keen  v 
Schweigler,  70  Mo.  App.  409;  ^oegeU 
V  Pickel  Marble  &  Granite  Co.,  o6 
Mo.  App.  678;  Heitzig  v.  Brunei  lo 
Mo.  App.  580,  memorandum ;  i^nig  r 
&  Talcott  Stone  Co.  v  Sinclair,  10 
Mo.  App.  593,  memorandum 

Mont.  Harrington  v-  l;"ttc,  A  &- 
P  Rv  Co  ,  93  P.  640,  36  Mont.  478 , 
Stephens  v'.  Elliott,  92  P.  45,  36  Mont. 

^'Neb.     Kocar  v.  Whelan,  167  N.  W. 
77-,     102     Neb.    503;      Mornssey    v. 
wiarton,  153  N.  W.  564  OS  Neb^54^; 
Henry  v.  City  of  Lincoln,  lol  N.  W. 
933     97    Neb.    865;     Cunningham   J 
Modern  Brotherhood  of  America,  148 
N    W.  918.  96  Neb.  §27 ;    Whitney  v. 
Sroeder,  143  N.  W.  228,  94  Neb^oOo, 
Blake'^lee  v.   Van   Der    Slice,  142  _N. 
W  799  94  Neb.  153;  Whelan  .^  Union 
Pac    R    Co.,  136  N.  W.  20,  91  .^eo. 
oi^'    Armstrong  v.  City  of  Auburn. 
Joo  X    W    43,  84  Neb.  842;    Ault  v. 
Nebraska  Telephone   Co ,   ^^  ^'-  W- 
73,    82   Neb.   434,    130  Am.    St.   R^- 
ft«;ft  •    Neelev  v.  Trautwem,  113  N.  vv . 
S'7qNeb    751;    Spelts  &  Kloster- 
maAv^^rd    9^N.'w.56,  2Neb 
Sn?f   177;    Pledger  v.  Chicago,  B& 
Q  R   Co.,  95  N.  W.  1057,  69  Neb^^456; 
Williams   V.    Shepherdson.  9o   N^  W. 
807    4  Neb.  Unof.  60S;    Tunmcliffe  v. 
FOX,  94  N.  W.  1032,  68  Neb.  811 ;    Cr^y 
of  South  Omaha  v.  Meyers  92  N.  \\. 
?43    3  Neb.  Unof.  699 ;    Maynard  v. 
Sigman,  91  N.  W.  576,  65  ^eb_  |90 
Martin  V.   Connell,   91  N.  W.  516,  3 
Neb.  Unof.  240;    Hoffine  v.  E.vmg,  84 
N.  W.  93,  60  Neb.  729;    CHicago   R.  I. 
&  P    ILy.  Co.  V.  Zernecke,  82  N.  W. 
9fi    ^Cf  TVeb    689,  55  L.  R.  A.  610,  af- 
frmed  22   S.  Ct.  229.  183  U.   S    582 
46  L   Ed.  339;    Smith  v.  Meyers.  71 
N  w  1006  52  Neb.  70;   St.  Paul  Fire 
AMarlrTins.  Co.  v.  Gotthelf,  35  Neb. 
351    53  N.  W.  137. 

Nev.  Cutler  v.  Pittsburg  Silver 
Peak  Gold  Alining  Co..  116  P;  41?-  ^'4 
Nev  45;  Christensen  v.  Floriston 
Pulp  &  Paper  Co.,  92  P.  210,  29  Nev. 

552. 

N.  H.  Town  of  Monroe  v.  Con- 
necticut River  Lumber  Co.,  39  A.  1019, 
68  N.  H.  89.  .         „       . 

N  M.  Hubert  v.  American  Surety 
Co   of  New  York,  192  P.  487. 


N  Y.  People  V.  Abraitis,  17$  N.  Y. 
S  255,  189  App.  Div.  312;  Green  v. 
Horn,  151  N.  Y.  S.  215,  165  App  Div. 
743;  Lawson  v.  Wells,  Fargo  &  Co., 
113  N.  Y.  S.  647;  McAfee  v.  Dis,  91 
N  Y.  S.  464,  101  App.  Div.  69;  Al- 
lison v.  Long  Clove  Trap  Rock  Co., 
86  N.  Y.  S.  833,  92  App.  D^L  611 , 
Zimmer  v.  Third  Ave.  R.  Co.,  5o  N.  Y. 
S.  308,  36  App.  Div.  265 ;  Rosenheunei 
V.  Standard  Gaslight  Co.,  55  N.  Y.  S- 
192,   36  App.  Div.   1.  .  ,,«  n 

N  C.  Kirkpatrick  v.  Crutchfield. 
100  S.  E.  602,  178  N.  C^348 ;  McNeill 
V  Atlantic  Coast  Line  R.  Co^  ^o  b.  r- 
704  167  N.C.  390;  Bird  ^  Bell  Lum- 
her  Co  79  S.  E.  448,  163  N.  C.  162  , 
rn  re  Big  Cold  Water^  Creek  Di-ain- 
flffe  Dist.  78  S.  E.  14,  162  N.  C.  1-i  , 
MadSon  County  Ry.  Co.  v.  Gahagan, 
76  SE  696  161  N.  C.  190;  Aman  v^ 
Rowland  Lumber  Co.,  75  S.  E.  931,  160 

ooO-    Crenshaw  v.  Johnson,  2b  fe.  i^- 
810,' 120  N.  C.  270. 

N  D.  Wvldes  v.  Patterson,  lo3  N. 
w  a'iCi  <i1  N  D  282;  Carpenter  v. 
^ina1^'f^Tckey,l43'NW.964^6 

?o?6n.8in2V.-D'.V'7 
OHio      Smith  V.  State,  34  Ohio  Cir. 

'''oSl'' Chase  V.  Cable  Co.,  170  P 
1172;  Ponca  City  Ice  Co.  v.  Robert- 
Qmi  ifif)  P  nil;  Missouri.  O.  «  ^- 
r"'  CO  V  smith!  155  P.  233,  55  OM^ 
lo.  weller  v.  Dusky,  151  P.  606,  51 
o"kl  77;  Chickasha  St.  Ry-  Co-  v 
Marshall,  141  P.  1172,  43  Okl.  192j 
CurUs  &  Gartside  Co.  v.  Pigg,  134 
P  1125,  39  Okl.  31;  First  Nat.  Bank 
V  Ingle  132  P.  895,  37  Okl.  27b ;  Gulf. 
O.  &  S.  F.  Ry.  Co.  V.  Taylor,  loOR 
574  37  Okl.  99;  Nutt  v.  State,  128 
P.  165,  8  Okl.  Cr.  266. 

Or.  Hinkson  v.  Kansas  C  ty  Life 
Ins.  Co.,  183  P.  24  93  Or.  4'3:  Fos- 
ter v  University  Lumber  &  Shmgie 
Co..  131  P.  736,  65  Or    46. 

Pa  McCormick  v.  Bickerton,  9b  A. 
109'^  251  Pa.  466;  Swauger  v.  Peo- 
ple's Natural  Gas  Co.,  96  A.  712,  2ol 
Pa  287 ;  Watson  v.  Monongahela  Ln - 
tr  Con?ol.  Coal  &  Coke  Co.,  93  A.  625 
247   Pa.    469:     Powell    v.    S.   Morgan 


533 


INSTRUCTIONS   TO   JURIES 


98t> 


Smith  Co.,  85  A.  416,  237  Pa.  272; 
Greenwich  Coal  &  Coke  Co.  v.  Learn, 
83  A.  74,  234  Pa.  180 ;  Karl  v.  Juniata 
County,  56  A.  78,  206  Pa.  633 ;  Sharer 
T.  Dobbins,  45  A.  660,  195  Pa.  82; 
Krause  v.  Plumb,  45  A.  648,  195  Pa. 
65 ;  Spring  Citv  Brick  Co.  v.  Henry 
Martin  Brick  Mach.  Mfg.  Co.,  39  Pa. 
Super.  Ct.  7;  Thomas  v.  Butler,  24 
Pa.  Super.  Ct.  305 :  Haydenville  Min. 
&  Mfg.  Co.  V.  Steffler,  17  Pa.  Super. 
Ct.  609 :  H.  B.  Claflin  Co.  v.  Querns, 
15  Pa.  Super.  Ct.  464;  Winans  v. 
Bunnell,  13  Pa.  Super.  Ct.  445. 

S.  C.  Bennett  v.  Southern  Ry.- 
Caroliua  Division,  79  S.  E.  710,  98  S. 
C.  42  ;  Tucker  v.  Clinton  Cotton  Mills, 
78  S.  E.  890,-  95  S.  C.  302 ;  McCor- 
mick  V.  Columbia  Electric  St.  Ry., 
Light  &  Po^Yer  Co.,  67  S.  E.  562,  85 
S.  C.  455,  21  Ann.  Cas.  144;  Stono 
Mines,  V.  Southern  "States  Phosphate 
&  Fertilizer  Co.,  65  S.  E.  6,  83  S.  C. 
119 ;  Horn  v.  Southern  Ry.,  58  S.  E. 
963,  78  S.  C.  67;  McGhee  v.  Wells, 
35  S.  E.  529,  57  S.  C.  280,  76  Am. 
St.  Rep.  567;  AYelch  v.  Clifton  Mfg. 
Co.,  33  S.  E.  7.39,  55  S.  C.  568 ;  Pick- 
ens V.  South  Carolina  &  G-.  R.  Co., 
32  S.  E.  567,  54  S.  C.  498. 

Tenn.  East  Tennessee,  V.  &  G.  R. 
Co.  V.  Humphreys,  12  Lea.  200;  Ma- 
lone  V.  Searight,  8  Lea,  91. 

Tex.  Hermann  v,  Bailey  (Civ. 
App.)  174  S.  W.  865;  Missouri,  K.  & 
T.  Ry.  Co.  of  Texas  v.  Graham  (Civ. 
App.)  168  S.  W.  55 ;  Glover  v.  Hous- 
ton Belt  &  Terminal  Ry.  Co.  (Civ. 
App.)  163  S.  W.  1063  ;  Missouri,  K.  & 
T.  Rv.  Co.  of  Texas  v.  State  (Civ. 
App.)"^  163  S.  W.  338 ;  El  Paso  Elec- 
tric Rv.  Co.  V.  Mebus  (Civ.  App.)  157 
S.  W.  955;  Gulf.  C.  &  S.  F.  Ry.  Co. 
V.  Mens  (Civ.  App.)  157  S.  W.  173; 
Texas  Midland  R.  R.  v.  Simmons  (Civ. 
App.)  1.52  S.  W.  1106 :  Texas  Cent.  R. 
Co.  V.  Perry  (Civ.  App.)  147  S.  W.  305 ; 
Texas  Telegraph  &  Telephone  Co.  v. 
Scott,  127  S.  W.  587.  60  Tex.  Civ.  App. 
.39 ;  Atchison.  T.  &  S.  F.  Ry.  v.  Seeger. 
126  S.  W.  1170,  59  Tex.  Civ.  App.  525 ; 
Missouri,  K.  &  T.  Ry.  Co.  of  Texas 
V.  Snow,  115  S.  W.  631,  53  Tex.  Civ. 
App.  184 ;  El  Paso  Electric  Ry.  Co.  v. 
Kelly  (Civ.  App.)  109  S.  W.  415 ;  Gal- 
veston, H.  &  N.  Ry.  Co.  V.  Cochran, 
109  S.  W.  261,  49  Tex.  Civ.  App.  591 ; 
St.    Ixiuis    Southwestern    Ry.    Co.    of 


Texas  v.  Hawkins,  108  S.  W.  736,  49 
Tex.  Civ.  App.  545 ;  Houston  &  T.  C. 
R.  Co.  v.  Finn  (Civ.  App.)  107  S.  W. 
94,  judgment  affirmed  109  S.  W.  918, 
101  Tex.  511 ;  Thompson  v.  Planters' 
Compress  Co.,  106  S.  W.  470,  48  Tex. 
Civ.  App.  235 ;  Southern  Pac.  Co.  v. 
Allen,  106  S.  W.  441,  48  Tex.  Civ. 
App.  66 ;  Industrial  Lumber  Co.  v. 
Bivens.  105  S.  W.  831,  47  Tex.  Cr.  R. 
396;  Chicago,  R.  I.  &  P.  Ry.  Co.  v. 
Burns  (Civ.  App.)  104  S.  W.  1081, 
judgment  affirmed  107  S.  W.  49,  101 
Tex.  329;  Missouri,  K.  &  T.  Ry.  Co. 
of  Texas  v.  Carter,  104  S.  W.  910,  47 
Tex.  Civ.  App.  309 :  City  of  Austin  v. 
Forbis  (Civ.  App.)  99  S.  W.  132 ;  Kir- 
by  Lumber  Co.  v.  Dickerson,  94  S.  W. 
153,  42  Tex.  Civ.  App.  504  ;  Galveston, 
H.  &  S.  A.  Ry.  Co.  v.  McAdams,  84 
S.  W.  1076,  37  Tex.  Civ.  App.  575; 
El  Paso  &  N.  W.  Ry.  Co.  v.  Mc- 
Comas,  81  S.  W.  760,  36  Tex.  Civ. 
App.  170;  International  &  G.  N.  R. 
Co.  V.  Hawes  (Civ.  App.)  54  S.  W. 
325;  Citv  Railway  Co.  v.  Wiggins 
(Civ.  App.)  52  S.  W.  577 ;  Houston,  E. 
&  W.  T.  Ry.  Co.  V.  Runnels  (Civ. 
App.)  46  S.  W.  394,  reversed  47  S.  W. 
971,  92  Tex.  305. 

Utah.  Rvan  v.  Curlew  Irrigation 
&  Reservoir  Co.,  104  P.  218.  36  Utah, 
382:  Smith  v.  San  Pedro,  L.  A.  &  S. 
L.  R.  Co.,  100  P.  673,  35  Utah,  390; 
Rogers  v.  Rio  Grande  Western  Ry. 
Co.,  90  P.  1075,  32  Utah.  367,  125  Am. 
St.  Rep.  876;  Loofborrow  v.  Utah 
Light  &  Ry.  Co.,  88  P.  19,  31  Utah, 
355 :  Morgan  v.  Mammoth  Min.  Co., 
72  P.  688,  26  Utah.  174 ;  Anderson  v. 
Dalv  Min.  Co..  50  P.  815,  16  Utah.  28. 

Vt.  Bonazzi  v.  Fortney,  110  A. 
4.39.  94  Vt.  263. 

Va.  Pocahontas  Consol.  Collieries 
Co.  V.  Hairston.  SS  S.  E.  1041.  117  Va. 
118;  Chesapeake  &  O.  Ry.  Co.  v.  Mc- 
Carthy. 76  S.  E.  319,  114  Va.  181; 
Adamson's  Adm'r  v.  Norfolk  &  P. 
Traction  Co.,  69  S.  E.  1055,  111  Va. 
5.56:  Truckers'  Mfg.  &  Supply  Co.  v. 
White,  60  S.  E.  6.30,  108  Va.  147;  Vir- 
ginia Portland  Cement  Co.  v.  Lucks*^ 
Adm'r,  49  S.  E.  577,  103  Va.  427 ;  Nor- 
folk &  W.  R.  Co.  V.  Clieatwood's 
Adm'r,  49  S.  E.  489,  103  Va.  3.56; 
Southern  Ry.  Co.  v.  Oliver,  47  S.  E. 
862,  102  Va.  710:  Miller  &  Meyers  v. 
City  of  Newport  News,  44  S.  E.  712, 


•987 


CONSTRUCTION   AND   OPERATION 


533 


101  Va.  432;  Dingee  v.  Unrue's  Adm'x, 
35  S.  E.  794,  OS  V:i.  247:  Richmond 
Traction  Co.  v.  Hildebrand,  34  S.  E. 
888,  98  Va.  22,  99  Va.  48;  Kimball  v. 
Borden.  34  S.  E.  45,  97  Va.  477. 

Wash.  Pioroe  v.  General  Fire  As- 
sur.  Co.,  182  P.  588.  107  Wash.  700; 
Pierce  v.  Security  Ins.  Co.,  182  P. 
588,  107  Wash.  G99;  Pierce  v.  Globe 
&  Kutgers  Fire  Ins.  Co.,  182  P.  586, 
107  Wash.  501 ;  State  v.  Emonds,  182 
P.  584,  107  Wash.  688 ;  McDorman  v, 
Dunn,  172  P.  244,  101  Wash.  120; 
Munson  v.  Johnson,  142  P.  IS,  80 
Wash.  628;  Gosky  v.  Seattle  Taxicab 
&  Transfer  Co.,  140  P.  342,  79  Wash. 
425 ;  Alaska  S.  S.  Co.  v.  Pacific  Coast 
Gypsum  Co.,  138  P.  875,  78  Wash. 
247;  Murphy  v.  Chicago,  M.  &  St.  P. 
Ry.  Co.,  120  P.  525,  66  Wash.  663; 
Sudden  &  Christenson  v.  Morse.  104 
P.  645,  55  Wash.  372  ;  St.  John  v.  Cas- 
cade Lumber  &  Shingle  Co.,  101  P. 
833,  53  Wash.  193;  Hoseth  v.  Pres- 
ton Mill  Co.,  96  P.  423,  49  Wash.  682 ; 
Portland  &  S.  Ry.  Co.  v.  Clarke  Coun- 
ty, 93  P.  1083,  48  Wash.  509;  Barclay 
V.  Puget  Sound  Lumber  Co.,  93  P.  430, 
48  Wash.  241,  16  L.  R.  A.  (N.  S.)  140; 
Wikstrom  v.  Preston  Mill  Co.,  93  P. 
213,  48  Wash.  164;  Starr  v.  ^tna 
Life  Ins.  Co.,  87  P.  1119.  45  Wash. 
128 ;  Burns  v.  Woolery,  45"  P.  894,  15 
Wash.  134. 

"W.  Va.  Karr  v.  Baltimore  &  O.  R. 
Co.,  86  S.  E.  43,  76  W.  Va.  526 ;  Rob- 
erts V.  Baltimore  &  O.  R.  Co.,  78  S.  E. 
357,  72  W.  Va.  370 ;  Lay  v.  Elk  Ridge 
Coal  &  Coke  Co.,  61  S.  E.  156,  64  W. 
Va.  288;  Styles  v.  Chesapeake  &  O. 
Ry.  Co.,  59  S.  E.  609,  62  W.  Va.  650 ; 
Huffman  v.  Alderson's  Adm'r,  9  W. 
Va.  616. 

Wis.  Gussart  v.  Greenleaf  Stone 
Co.;  114  N.  W.  799.  134  Wis.  418;  Mor- 
rison V.  Superior  Water,  Light  &  Pow- 
er Co.,  114  N.  W.  434,  134  Wis.  167; 
Kohl  V.  Bradley,  Clark  &  Co..  110  N. 
W.  265.  1.30  Wis.  .301 ;  Kiekhoefer  v. 
Hider.shide,  89  N.  W.  189.  113  Wis. 
280;  Kenvon  v.  City  of  JNFondovi,  73 
N.  W.  314,  98  Wis.  50;  Hinkley  v. 
Town  of  Rosendale,  70  N.  W.  158,  95 
Wis.  271. 

Illustrations  of  instructions 
lield  unobjectionable  when  con- 
sidered as  a  whole.  Where  the 
charge    as    a    whole   instructed    that 


plaintiff  must  make  out  his  case  by 
the  greater  weight  of  the  evidence, 
the  fact  that  the  charge  in  some  plac- 
es also  required  that  he  prove  his  case 
by  a  clear  preponderance  of  the  evi- 
dence did  not  render  it  erroneous,  as 
requiring  too  high  a  degree  of  proof. 
Mullaly  V.  Smyth,  79  S.  E.  G34,  96 
S.  C.  14.  In  an  action  on  a  note,  in- 
structions that,  if  the  preponderance 
of  the  evidence  showed  that  the  note 
had  not  been  paid,  plaintiff  could  re- 
cover, and  that,  if  it  appeared  in  the 
same  way  that  payment  had  been 
made,  the  verdict  .should  be  for  de- 
fendant, were  not  improper  as  plac- 
ing the  burden  on  plaintiff  to  show 
nonpayment,  and  for  failing  to  in- 
struct what  the  jury  should  do  if  the 
evidence  were  evenly  balanced,  where 
other  instructions  stated  that  the  bur- 
den was  on  defendant,  and  that  plain- 
tiff's possession  of  the  note  was  prima 
facie  evidence  of  nonpayment.  Mc- 
Cauley  v.  Darrow,  91  P.  1059,  36 
Mont.  13.  Where  the  court  in  its 
charge  fully  defines  to  the  jury  the 
meaning  of  the  contract,  and  fully 
and  fairly  explains  to  them  the  con- 
tentions of  both  parties,  as  embodied 
in  their  respective  understanding  of 
its  contents,  the  omission  to  further 
instruct  the  jury  specially  that  they 
must  determine  what  the  contract 
was,  its  exact  terms,  the  considera- 
tion, and  the  respective  obligations, 
liability,  and  undertakings  of  each 
of  the  parties  thereunder,  was  imma- 
terial. Schofield  V.  Little,  58  S.  E. 
666,  2  Ga.  App.  286.  In  an  action  to 
set  aside  a  contract  and  a  transfer  of 
property  thereunder  alleged  to  have 
been  obtained  from  M.,  a  person  of 
unsound  mind,  by  the  undue  influence 
of  his  nie,ce,  a  charge  that,  if  the  do- 
nation was  unjust  or  unreasonable, 
that  fact  was  evidence  to  be  consider- 
ed on  the  issues  of  sanity  and  undue 
influence,  but  that  it  was  not  of  it- 
self a  cause  for  revising  what  had 
been  done,  unless  it  was  of  such  an 
extent  as  to  convince  the  jury  of  the 
existence  of  undue  influence  or  of  un- 
sound mind,  was  not  objectionable  as 
allowing  the  jury,  if  they  thought  the 
transaction  unjust  or  unreasonal)le, 
to  find  from  that  fact  alone,  unsound- 
ness of  mind,  or  undue  influence,  or 


533 


INSTRUCTIONS   TO  JURIES 


9SS- 


"both,  where  the  jury  were  told  in  the 
same  charge  that  one  in  disposing  of 
his  property  had  a  right  to  disregard 
all  natural  ties  and  all  moral  obliga- 
tions and  that  the  right  of  disposal 
did  not  depend  upon  the  condition 
that  the  gift  be  reasonable,  and  that 
the  transaction  in  question  was  one 
that  M.  could  lawfully  enter  into  if 
he  saw  fit,  etc.,  and  that  the  sole 
question  was  whether  the  gift  was 
really  his.  Curtice  v.  Dixon,  63  A. 
587,  74  N.  H.  386.  An  instruction  in 
a  personal  injury  action  that  plaintiff 
could  recover  reasonable  compensa- 
tion for  his  fright,  shock,  sufferhig, 
anxiety,  nervous  prostration,  sickness 
caused  by  the  accident,  mental  strain 
and  mortification  through  being  re- 
quired to  use  crutches  or  other  incon- 
veniences ;  and,  if  plaintiff  was  per- 
manently injured,  such  further  com- 
pensation for  pain,  etc.,  as  he  might 
he  required  to  endure  thereafter,  and 
compensation  for  his  loss  of  capacity 
and  prospects  of  life,  was  not  improp- 
er as  authorizing  recovery  for  loss  of 
time  or  for  diminished  earning  capac- 
ity, where  the  court  instructed  that 
there  being  no  evidence  of  the  value 
of  plaintiff's  loss  of  time,  nor  as  to 
how  much  he  could  earn  before  the 
injury,  he  could  not  recover  for  time 
lost  nor  for  diminished  earning  capac- 
ity ;  it  appearing  from  the  smallness 
of  the  verdict  that  the  jury  was  not 
misled.  Buxton  v.  Ainsworth,  116  N. 
W.  1094,  153  Mich.  315.  An  instruc- 
tion on  exemplary  damages  for  as- 
sault, that  the  jury  "should"  consider 
defendant's  wealth,  and  that  the  dam- 
ages "should"  be  proportionate  to  his 
ability  to  respond,  is  harmless  error, 
where  the  jury  were  further  instruct- 
ed that  they  could  not  award  exem- 
plary damages,  unless  the  acts  in 
question  were  done  maliciously,  and 
that  even  then  the  matter  of  exempla- 
ry damages  was  in  their  discretion, 
and  were  told  the  reason  for  consid- 
ering defendant's  wealth.  Thomas  v. 
Williams,  121  N.  W.  148,  139  Wis.  467. 
The  giving  of  an  instruction  that  the 
presumption  that  deceased  was  exer- 
cising due  care  exists  in  the  absence 
of  evidence  to  the  contrary,  and,  until 
it  is  overthrown  by  a  preponderance 
of  the  evidence,  is  harmless,  where 


from  the  entire  charge  the  jury  might 
have  understood  that  the  presumption 
may  counterbalance  evidence  of  con- 
tributory negligence.  Sorensen  v. 
Selden-Breck  Const.  Co.,  154  N.  W. 
222,  98  Neb.  689.  An  instruction  that 
a  husband  might  recover  of  his  wife's 
estate  for  work  done  on  her  property, 
if  it  was  done  under  an  implied  con- 
tract, is  cured  hy  a  statement  that  by 
this  was  meant,  if  the  work  was  done 
under  an  understanding  between 
them,  that  he  should  be  paid  therefor, 
though  the  exact  terms  of  their  agree- 
ment could  not  be  proved.  Westra  v. 
Westra's  Estate,  101  Mich.  526,  60  N. 
W.  55.  In  an  action  by  a  wife  for 
alienation  of  her  husband's  affections, 
where  an  instruction  stated  that  de- 
fendant had  no  right  to  interfere,  and 
by  any  chance  cut  off  the  possibility 
of  future  affection  between  plaintiff 
and  her  husband,  the  use  of  the  ex- 
pression "by  any  chance  cut  off,"  in- 
stead of  the  expression  "cut  off  any 
chance,"  was  cured  by  the  rest  of  the 
instruction,  which  clearly  indicated 
its  meaning.  Claxton  v.  Pool,  167  S. 
W.  623,  182  Mo.  App.  13.  An  instruc- 
tion, under  a  lease  of  agricultural 
lands  which  required  the  lessor  to 
maintain  the  drainage  of  the  lands, 
that  the  drainage  should  be  maintain- 
ed so  that  the  lands  would  be  in  the 
ordinary  condition  of  uplands  or  flat 
lands  not  needing  drainage,  was  not 
erroi',  whei'e  the  court  also  instructed 
as  to  the  lessee's  duty  to  maintain 
ditches  on  the  land  and  to  cultivate 
his  crops  properly,  and  denied  recov- 
ery if  the  jury  found  negligence  by 
the  lessee.  Columbia  Agricultural 
Co.  v.  Seid  Pak  Sing  (C.  C.  A.  Or.) 
267  F.  1.  Though  an  instruction  in  a 
libel  case  charging  the  jury  as  to  the 
effect  of  the  libelous  publication  did 
not  clearly  show  that  it  was  a  jury 
question,  whether  the  article  com- 
plained of  was  false,  the  error  was 
cured  by  another  instruction  express- 
ly stating  that  truth  was  a  defense. 
Arizona  Pub.  Co.  v.  Harris,  181  P. 
373,  20  Ariz.  446.  In  an  action 
against  a  livery  stable  keeper  for  in- 
juries to  one  who  had  hired  a  team 
from  him,  due  to  the  insufllciency  of 
the  harness,  an  instruction  that  "a 
livery  stable  keeper  is  freed  from  lia- 


989 


CONSTRUCTION  AND   OPERATION 


533 


bility  for  an  accident  by  showing  that 
he  exercised  the  usuiil  skill,  care,  and 
diligence  ordinarily  exercised  by  Uv- 
erv   stable   keepers,"   though  not   en- 
tirely accurate,  the  care  required  of 
livery  stable  keepers  being  that  "usu- 
ally exercised  by  persons  of  ordinary 
prudence  in  the  conduct  of  such  livery 
stable  business."  was  not  ground  for 
granting  plaintiff  a  new  trial,  wh^re 
the  court  both  before  and  after  giving 
such  instruction  charged  as  requested 
by  plaintiff  that  it  was  defendant's 
duty  to  use  reasonable  care  in  the  se- 
lection of  a  safe  harness  for  plaintiff's 
use,  and  that  reasonable  care  meant 
that  degree  of  care  exercised  by  an 
ordinarily  careful  and  prudent  person 
acting  in  similar  relations,  and  where 
the  instruction  complained  of  began 
with   the   words    "on    the   contrary," 
showing  that  the  judge  was  merely 
pointing  out  that  defendant  was  not 
a  public  but  a  private  carrier.    Dem- 
ing  V.  Johnson,  69  A.  347,  80  Conn. 
553.    In  an  action  for  damages  for  the 
willful  burning  of  a  house,  an  instruc- 
tion that  the  jury  must  be  satisfied  by 
the  greater  weight  of  the  evidence  is 
not    erroneous    for    using    the    word 
"satisfied."  if  the  whole  charge  places 
on  the  plaintiff  only  the  burden  of  a 
showing  by  a  preponderance  of  the  ev- 
idence.   Champion  v.  Daniel,  87  S.  E. 
214.    170    N.    C.    331.      In    an    action 
against  a  railroad  for  injuries  to  an 
emplove  through  a  defective  car  step, 
an    instruction    that    if     defendant, 
through  its  inspectors  and  repairers, 
exercised   ordinary    care  to  see   that 
the  equipment  of  the  car  was  in  rea- 
sonably safe  condition,  "and  were  not 
guilty  of  negligence,"  the  verdict  must 
be  for  defendant,  was  not  misleading 
as  adding,  by  the  use  of  the  words 
"and  were  not  guilty  of  negligence," 
something  to  defendant's  duty  beyond 
the   exercise   of  ordinary   care;     the 
court  having  clearly   defined   "negli- 
gence" as  the  failure  to  use  ordinary 
care.     El   Paso   &   S.   W.    R.   Co.   v. 
O'Keefe,  110  S.  W.  1002,  50  Tex.  Civ. 
App.  579.    In  an  action  for  injuries  to 
a  servant,  defendant  cannot  complain 
of  an  instruction  defining  contributo- 
ry negligence  as  "the  want  of  ordina- 
ry care  on  the  part  of  the  person  in- 
jured—that is   to   say,   the  want  of 


such  care  as   an  ordinarily  prudent 
person   would   have  exercised    under 
the  same  or  similar  circumstances — 
which,  concurring  with  the  negligence 
of    defendant,    if    any,    proximately 
caused  the  injuries,"  where  the  court, 
in  another  part  of  the  charge,  direct- 
ed the  jury  to  find  for  defendant  if 
they  believed  from  the  evidence  that 
plaintiff    was    guilty    of    negligence 
which  caused  or  contributed  to  his  in- 
juries.     Galveston,    H.    &    S.   A.   Ry. 
Co.  v.  Worth,  116  S.  W.  365,  53  Tex. 
Cr.  R.  351.    An  instruction  using  the 
term  "due  care"  in  connection  with 
the  exercise  thereof  by  the  person  in- 
jured was  not  erroneous  because  it 
did  not  define  the  term,  or  state  what 
measure  of  care  the  law  required  of 
the  person  injured,  or  that  the  care 
required  of  him  must  be  continually 
exercised  up  to  the  time  of  his  injury, 
where   by   taking   the  instruction   in 
connection    with    other    instructions 
given  which  fully  defined  negligence 
and  contributory  negligence  and  the 
character  of  the  care  required  of  the 
person    injured    the    jury    could    not 
have  been  misled  by  the  instruction 
complained  of.     Brinkman  v.  Pachol- 
ke,  84  N.   E.  762,  41  Ind.  App.  662. 
Where     the     court     had     previously 
charged  that  a  person  would  not  be 
liable  unless  his  negligence  was  the 
proximate  cause  of  the  injury,  an  in- 
struction that,  if  negligence  of  defend- 
ant's  agent    caused    the   injury,   the 
principal  would  be  liable,  was  not  er- 
roneous   for   failure   to   charge   that 
such  liability  would  occur  only  for  in- 
juries which  were  proximately  cau.sed 
by  .the  agent's  negligence.    Rochester 
V.  Bull,  58  S.  E.  766,  78   S.  C.  249. 
Where,  in  an  action  for  repairs  to  an 
automobile,   the   question   of  defend- 
ant's ratification  of  the  work  was  oth- 
erwise fully  explained,  an  instruction, 
that  if  the  charge  was  reasonable  and 
authority -for  the  repairs  was  given, 
or  if  authority  was  not  given  that  the 
work  was  ratified  by  defendant,  that 
he,  after  knowing  it,  agreed  to  it  and 
accepted  the  property,  then  he  would 
be   liable,    was   not    error.      Bush    v. 
Fourcher,  59  S.  E.  459,  3  Ga.  App.  43. 
Where,  in  an  action  for  the  death  of 
a    traveler   struck   by   a   train   at   a 
crossing,    the   evidence   showed    that 


§  534 


INSTRUCTIONS  TO  JURIES 


990 


§  534.     Further  discussion  of  rule — Cure  of  deficiencies   and  ob- 
jectionable matters,  not  amounting  to  a  positive  mis- 
statement of  the  law,  by  other  instructions 
Where  an  instruction  states  the  law  correctly  so  far  as  it  goes, 

and  is  merely  insufficient,  ambiguous  or  uncertain,  the  defect  may 


the  engineer  could  not  see  on  account 
of  the  obstruction  of  the  boiler,  an  in- 
struction that  if  those  in  charge  of 
the  engine  "negligently"  failed  to 
keep  a  lookout,  etc.,  a  recovery  was 
authorized,  was  not  erroneous  be- 
cause of  the  use  of  the  word  "negli- 
gently," when  considered  in  connec- 
tion with  another  instruction  that 
those  in  charge  of  the  train  must  use 
ordinary  care  in  discovering  whether 
decedent  was  ignorant  of  the  ap- 
proach of  the  train  and  was  about  to 
go  on  the  track.  Hummer's  Ex'x  v. 
Louisville  &  N.  R.  Co.,  108  S.  W.  885, 
128  Ky.  486.  32  Ky.  Law  Rep.  1315. 
An  instruction,  in  an  action  against  a 
railroad  company  for  the  death  of 
plaintiff's  daughter,  that,  notwith- 
standing the  parent  may  have  been 
negligent,  such  fact  did  not  relieve 
the  company  from  using  ordinary 
care  to  avoid  injuring  the  child,  and 
that  the  company  was  bound  to  use 
such  care,  and  that  if  the  child  was 
in  a  position  of  danger  it  must  be  the 
greatest  care,  and  that  a  failure  to 
exercise  such  care,  where  it  might 
reasonably  be  inferred  that  an  injury 
would  follow  as  a  result  of  such  fail- 
ure, amounted  to  wanton  and  reckless 
conduct,  though  in  somewhat  stronger 
language  than  generally  used  in  such 
connection,  was  not  erroneous  when 
construed  in  connection  with  instruc- 
tions that  precaution  was  a  duty  only 
so  far  as  there  was  reason  for  appre- 
hension, and  that  the  exercise  of  ordi- 
nary care  to  prevent  injury  arose  on- 
ly after  the  company  became  aware 
of  the  child's  danger.  Anderson  v. 
Great  Northern  Ry.  Co.,  99  P.  91,  15 
Idaho,  513.  Where  the  court  charged 
that  use  of  a  highway  by  the  public 
must  have  been  adverse,  continuous, 
uninterrupted,  and  under  a  claim  of 
right  for  the  necessary  period  in  or- 
der to  make  it  a  public  highway,  an- 
other instruction  that  20  years'  user 
of  a  road  by  the  public  as  a  highway 


under  claim  of  right  creates  a  high- 
way by  prescription  was  not  objec- 
tionable for  failure  to  require  that 
the  use  must  have  been  continuous 
and  uninterrupted.  Road  Dist.  No,  1 
v.  Beebe,  83  N.  E.  131,  231  111.  147. 
Instructions,  in  an  action  for  injuries 
to  a  bicyclist  in  a  collision  with  an 
automobile,  that  if  defendant  was  on 
the  left-hand  side  of  the  street  when 
the  collision  occurred,  he  failed  to 
perform  a  duty  which  he  owed  by 
statute  to  plaintiff,  and  should  be 
found  negligent,  unless  he  was  coming 
from  an  intersecting  street,  and  had 
not  had  time  to  get  to  the  right-hand 
side,  and  that  when  a  collision  occurs, 
the  fact  that  a  person  is  on  the  wrong 
side  is  prima  facie  evidence  of  negli- 
gence, are  not  open  to  the  criticism 
that  they  stated  that  one  may  not 
lawfully  drive  upon  the  left-hand  side 
of  the  road,  where  the  court  had  pre- 
viously instructed  that  the  law  did 
not  require  a  person  to  drive  on  his 
right  side,  but  did  require  him  to  turn 
to  his  right  when  meeting  another, 
and  since  such  instructions  were  ex- 
pressly confined  to  the  position  of  de- 
fendant at  the  time  of  the  collision. 
Irwin  V.  Judge,  71  A.  572,  81  Conn. 
492.  Where,  in  an  action  for  injuries 
to  a  traveler  by  an  automobile,  the 
court  instructed  as  to  the  rights  of 
the  parties  on  the  highway,  and  as 
to  the  degree  of  care  required  of  de- 
fendant in  running  his  automobile, 
and  charged  that  defendant  had  the 
right  to  operate  his  automobile,  and 
was  hound  only  to  use  ordinary  care 
to  prevent  injury  to  others,  an  in- 
struction that  the  running  of  the  au- 
tomobile on  the  highway  was  not  of 
itself  negligence,  but  that  defendant 
was  bound  to  use  reasonable  care  so 
as  not  to  injure  plaintiff,  was  not  ob- 
jectionable as  singling  plaintiff  out  as 
an  object  of  special  care,  but  applied 
the  rule  previously  announced  to  the 
facts.  Erks  v.  Ewers  (Iowa)  119  N. 
W.  603. 


991 


CONSTRUCTION   AND   OPERATION 


534 


be  cured  by  other  instructions  upon  the  same  subject  embraced 
in  the  charge,-^  and  it  is  further  true'  that,  as  a  general  rule,  errors 


iiuAla.  Langston  v.  State,  75  So. 
715,  16  Ala.  x\pp.  123. 

Ariz.  Southern  Pac.  Co.  v.  Hogan, 
108  P.  240,  13  Ariz.  34,  29  L.  K.  A. 
(N.  S.)  813. 

Ark.  Paxtou  v.  State,  157  S.  W. 
39G,  108  Ark.  316. 

Cal.  People  v.  Griesheimer,  167  P. 
521,  176  Cal.  44;  People  v.  Wong 
Hing,  151  P.  1159,  28  Cal.  App.  230; 
People  V.  Dunlop,  150  P.  389,  27  Cal. 
App.  460 ;  People  v.  Senegram,  149  P. 
7S6,  27  Cal.  App.  301 ;  People  v.  Har- 
ris, 145  P.  520,  169  Cal.  53;  People 
V.  Bowman,  142  P.  495.  24  Cal.  App. 
781 ;  People  v.  Lillard,  123  P.  221,  18 
Cal.  App,  343 ;  People  v.  Richardson, 
120  P.  20,  161  Cal.  552;  Big  Three 
Min.  &  Mill.  Co.  v.  Hamilton,  107  P. 
301,  157  Cal.  130,  137  Am.  St.  Rep. 
118;  People  v.  Del  Cerro,  100  P.  887, 
9  Cal.  App.  764. 

Colo.  Pouppirt  V.  Greenwood,  110 
P.  195,  48  Colo.  405:  Gill  v.  Schneider, 
110  P.  62,  48  Colo.  382 ;  Stratton  Crip- 
ple Creek  Mining  &  Development  Co. 
V.  Ellison,  94  P.  303,  42  Colo.  498. 

Conn.  Wordeu  v.  Gore-Meehan 
Co.,  78  A.  422,  83  Conn.  642 ;  Bogud- 
sky  V.  Backes,  76  A.  540,  83  Conn. 
208 :  State  v.  Campbell,  74  A.  927,  82 
Conn.  671,  135  Am.  St.  Rep.  293,  18 
Ann.  Cas.  236. 

D.  C.  Robinson  v.  United  States, 
42  App.  D.  C.  186 ;  Woodward  v.  Unit- 
ed States,  38  App.  D.  C.  323. 

Ga.  Thomas  v.  State,  91  S.  E.  109, 
146  Ga.  346 ;  Clouts  v.  State,  90  S.  E. 
373,  18  Ga.  App.  707 ;  Green  v.  State, 
90  S.  E.  284,  18  Ga.  App.  677;  Tift  v. 
State,  88  S.  E.  41,  17  Ga.  App.  663; 
Williams  v.  State,  85  S.  E.  973,  16 
Ga.  App.  697 ;  Nunn  v.  State,  85  S.  E. 
.346,  143  Ga.  451 ;  Short  v.  State,  80  S. 
E.  8,  140  Ga.  780 ;  McGoverh  v.  State, 
74  S.  E.  1101,  11  Ga.  App.  267 ;  Leon- 
ard V.  State,  66  S.  E.  251,  133  Ga. 
485;  Atlantic  Coast  Line  R.  Co.  v. 
Jones,  63  S.  E.  834,  132  Ga.  189; 
Whole.sale  Mercantile  Co.  v.  Jackson, 
59  S.  E.  106,  2  Ga.  App.  776. 

111.  East  St.  Louis  &  S.  Ry.  Co.  v. 
Zink,  82  N.  E.  283,  229  111.  180;  Hoge 
V.  People,  117  111.  35,  6  N.  E.  796; 
Guminski  v.  Armour  &  Co.,  156  111. 


App.  503;  Etuyre  v.  Artz,  153  111. 
App.  490;  Gorey  v.  Illinois  Cent.  R. 
Co.,  153  111.  App.  17;  Colono  v.  Con- 
solidated Coal  Co.,  147  111.  App.  327 ; 
Gardner  v.  Ben  Steele  Weigher  ISIfg. 
Co.,  142  111.  App.  348. 

Ind.  Flatter  v.  State,  107  N.  E.  9, 
182  Ind.  514;  Cleveland,  C,  C.  &  St. 
L.  Ry.  Co.  V.  Lynn,  95  N.  E.  577,  177 
Ind.  311 ;  Smurr  v.  State,  88  Ind.  504. 
Iowa.  McSpadden  v,  Axmear,  181 
N.  W.  4;  State  v.  Harrison,  149  N. 
W.  452,  167  Iowa,  3.34;  State  v,  Pier- 
not,  149  N.  W.  446,  167  Iowa,  353; 
State  V.  Butler,  138  N.  W.  383,  157 
Iowa,  163 ;  State  v.  Dean,  126  N.  W. 
692,  148  Iowa,  566 ;  Marcus  v.  Omaha 
&  C.  B.  Ry.  &  Bridge  Co.,  120  N.  W. 
469,  142  Iowa,  84;  McDivitt  v.  Des 
Moines  City  Ry.  Co.,  118  N.  W.  459, 
141  Iowa,  689. 

Kan.     Every  v.  Rains,  115  P.  114, 
84  Kan.  560,  50  L.  R.  A.  (N.  S.)  889. 
Ky.     McGehee    v.    Commonwealth, 
205  S.  W.  577,  181  Ky.  422. 

Md.  Bannon  v.  Warfield,  42  Md. 
22. 

Mich.  People  v.  Schelske,  153  N. 
W.  781,  187  Mich.  497 ;  People  v.  Ro- 
gulski,  148  N.  W.  189,  181  Mich.  481 ; 
Borkowski  v.  American  Radiator  Co., 
130  N.  W.  640,  165  Mich.  266;  Kryszke 
V.  Kamin,  128  N.  W.  190,  163  Mich. 
290;  Smith  v.  Hubbell,  114  N.  W.  865, 
151  Mich.  59. 

Minn.  Johnson  v.  McLeod,  127  N. 
W.  497,  111  Minn.  479,  rehearing  de- 
nied 127  N.  W.  1120,  111  Minn.  479; 
Christiansen  v.  Chicago,  M.  &  St.  P. 
Ry.  Co.,  120  N.  W.  300,  107  Minn.  341. 
Miss.  Cumberland  Telephone  & 
Telegraph  Co.  v.  Jackson,  48  So.  614, 
95  Miss.  79;  Mississippi  Cent.  R.  Co. 
V.  Magee,  46  So.  716,  93  Miss.  196. 

Mo.  State  v.  Walls,  170  S.  W. 
1112,  262  Mo.  105;  State  v.  Smith, 
157  S.  W.  319.  2.50  Mo.  350:  Over- 
street  V.  Street.  136  S.  W.  727,  154 
Mo.  App.  546;  Tewksbury  v.  Metro- 
politan St.  Ry.  Co.,  134  S.  W.  682,  153 
Mo.  App.  500 ;  Leach  v.  St.  Louis  & 
S.  F.  R.  Co.,  118  S.  W.  510,  137  Mo. 
App.  300:  State  v.  Gregory,  30  Mo. 
App.  582. 
Mont.     Surman   v.   Cruse,   1S7   P. 


534 


INSTRUCTIONS  TO  JURIES 


992 


in  instructions,  not  amounti^;ig  to   positive  misstatements  of  the 


890,  57  Mont.  253;  Leonard  v.  City  of 
Butte,  65  P.  425,  25  Mont.  410. 

Neb.  Parker  v.  State,  175  N.  W. 
677,  104  Neb.  12;  Francis  v.  State, 
175  N.  W.  675.  104  Neb.  5 ;  Bailey  v. 
Kling,  130  N.  W.  439,  88  Neb.  699. 

Nev.  Cutler  v.  Pittsburg  Silver 
Peak  Gold  Mining  Co.,  116  P.  418,  34 
Nev.  45. 

N.  J.  State  V.  Venzio,  87  A.  126,  84 
N.  J.  Law,  418 ;  Corkran  v.  Taylor,  71 
A.  124.  77  N.  J.  Law.  195. 

N.  M.  State  v.  Ellison,  144  P.  10, 
19  N.  M.  428. 

N.  Y.  People  v.  Smith,  114  N.  E. 
50,  219  N.  Y.  222,  affirming  judgment 
159  N.  Y.  S.  1073,  172  App.  Div.  826 ; 
People  V.  Brown,  96  N.  E.  367,  203  N. 
Y.  44,  Ann.  Cas.  1913A,  732 ;  Kelleher 
V.  Interurban  St.  By.  Co.  (Sup.)  102 
N:  Y.  S.  466. 

N.  D.  Zilke  v.  Johnson,  132  N.  W. 
640,  22  N.  D.  75,  Ann.  Cas.  1913E, 
1005 ;  Boos  v.  ^tna  Ins.  Co.,  132  N. 
W.  222,  22  N.  D,  11;  State  v.  Winney, 
128  N.  W.  680,  21  N.  D.  72. 

Ohio.  Cincinnati  Gas  &  Electric 
Co.  V.  Coffelder,  31  Ohio  Cir.  Ct.  R. 
26 ;  New  York,  C.  &  St.  L.  By.  Co.  v. 
Roe,  25  Ohio  Cir.  Ct.  R.  628. 

Okl.  Chicago,  R.  I.  &  P.  Ry.  Co. 
V.  Owens,  186  P.  1092,  78  Okl.  50,  cer- 
tiorari denied  40  S.  Ct.  485,  253  U.  S. 
489,  64  L.  Ed.  1027 ;  Chicago,  R.  I.  & 
P.  Rv.  Co,  V.  Johnson,  107  P.  662, 
25  Okl.  760,  27  L.  R.  A.  (N.  S.)  879. 

Or.  Blue  V.  Portland  Ry.,  Light  & 
Power  Co.,  117  P.  1094,  60  Or.  122. 

Pa.  Trainer  v.  McGarrity,  40  Pa. 
Super.  Ct.  57. 

R.  I.  CardaffeUi  v.  Providence 
Journal  Co.,  80  A.  583,  33  R.  I.  268. 

S.  C.  State  V.  Martin,  98  S.  E.  127, 
111  S.  C.  352;  State  v.  Milam,  70  S. 
E.  447,  88  S.  C.  127 ;  Martin  v.  Colum- 
bia Electric  St.  Ry.,  Light  &  Power 
Co.,  66  S.  E.  993,  84  S.  C.  568 ;  Lyles 
V.  Western  Union  Telegraph  Co.,  65  S. 
E.  832,  84  S.  C.  1,  137  Am.  St.  Rep. 
829. 

Tenn.  Fisher  v.  Travelers'  Ins. 
Co.,  138  S.  W.  316,  124  Tenn.  450,  Ann. 
Cas.  1912D,  1246. 

Tex.  Alexander  v.  State,  204  S.  W. 
644,  84  Tex.  Cr.  K.  75 ;  Wood  v.  State, 
189  S.  W.  474,  80  Tex.   Cr.  R.  398; 


Coker  v.  State,  160  S.  W.  366,  71  Tex. 
Cr.  R.  504;  Kirksey  v.  State,  135  S. 
W.  577,  61  Tex.  Cr.  R.  641;  Jordan  v. 
State,  131  S.  W.  539,  60  Tex.  Cr.  R. 
178;  Missouri,  K.  &  T.  Ry.  Co.  of 
Texas  v.  Stone,  125  S.  W.  587,  58 
Tex.  Civ.  App.  480 ;  St.  Louis  &  S.  F. 
R.  Co.  V.  Franklin,  123  S.  W.  1150,  58 
Tex.  Civ.  App.  41 ;  James  v.  State, 
123  S.  W.  145,  57  Tex.  Cr.  R.  342; 
Montgomery  v.  State,  116  S.  W.  1160, 
55  Tex.  Cr.  R.  502  ;  San  Antonio  Light 
Pub.  Co.  V.  Lewy,  113  S.  W.  574,  52 
Tex.  Civ.  App.  22;  Texas  &  P.  Ry. 
Co.  V.  Boleman  (Civ.  App.)  112  S.  W. 
805;  Consolidated  Kansas  City  Smelt- 
ing &  Refining  Co.  v.  Binkley,  99  S. 
W.  181,  45  Tex.  Civ.  App.  100;  Gal- 
veston, H.  &  S.  A.  Ry.  Co.  v.  Cherry, 
98  S.  W.  898,  44  Tex.  Civ.  App.  344; 
Brewin  v.  State.  92  S.  W.  420,  49 
Tex.  Cr.  R.  296 ;  Monticue  v.  State,  51 
S.  W.  236,  40  Tex.  Cr.  R.  528. 

Utah.  O'Neill  v.  San  Pedro,  L.  A. 
&  S.  L.  R.  Co.,  114  P.  127,  38  Utah, 
475;  Grow  v.  Utah  Light  &  Rv.  Co., 
106  P.  514,  37  Utah,  41;  Gimnich 
Furniture  Mfg.  Co.  v.  Sorensen,  96 
P.  121,  34  Utah,  109. 

Va.  Saunders  v.  Bank  of  Mecklen- 
burg, 71  S.  E.  714,  112  Va.  443,  Ann. 
Cas.  1913B,  982:  Norfolk  &  W.  Ry. 
Co.  V.  Thomas,  66  S.  E.  817,  110  Va. 
622. 

Wash.  James  v.  Pearson,  116  P. 
852,  64  Wash.  263  ;  Myhra  v,  Chicago, 
M.  &  P.  S.  Ry.  Co.,  112  P.  939,  62 
Wash.  1;  Averbuch  v.  Great  Northern 
Ry.  Co.,  104  P.  1103,  55  Wash.  633; 
Behling  v.  Seattle  Electric  Co.,  96  P. 
954.  50  Wash.  150. 

W.  Va.  Connolly  v.  Bollinger,  67 
S.  E.  71,  67  W.  Va.  30,  20  Ann.  Cas. 
1350. 

Illustrations  of  defects  in  in- 
strnctions  cured  by  other  instruc- 
tions. In  an  action  against  A.  and 
B.,  two  of  several  owners  of  a  steam- 
er, for  expenses  incurred  and  serv- 
ices rendered  in  the  superintendence 
of  the  building  of  the  steamer,  an  in- 
struction to  the  jury  "that  if  the 
plaintiff  rendered  the  services  and 
incurred  the  expenses  in  question  at 
tlie  request  of  A.,  acting  in  his  own 
behalf  and  representing  the  defendant 


993 


CONSTRUCTION  AND  OPERATION 


§  534 


B.,  and  if  the  plaintiff  rendered  said 
services  expecting  to  be  paid  for 
tlieni,  tie  would  be  entitled  to  recover 
the  value  of  his  services  and  the  ex- 
penses incurred  by  him,"  not  .g;iven 
as  the  whole  law  of  the  case,  but  to 
be  considered  in  connection  with  the 
other  instructions,  which  required  the 
jury  to  determine  tlie  relation  of  the 
plaintiff  to  the  transaction  and  to  the 
defendant  at  the  time  of  bringing  the 
suit  is  correct.  Nickerson  v.  Spindell, 
164  Mass.  25,  41  N.  E.  105.  Where,  in 
an  action  for  injuries  to  a  passenger, 
the  defense  was  a  release,  and  the 
court  in  a  previous  instruction  had 
fully  charged  on  the  issue  of  plain- 
tiff's capacity  when  she  signed  the  set- 
tlement, an  instruction  that,  if  plain- 
tiff' knowingly  signed  the  agreement, 
but  at  the  time  she  signed  it  she  gave 
little  attention  to  its  contents,  or  did 
not  read  it,  or  ask  that  it  be  read  to 
her,  then  she  was  bound  thereby, 
while  an  insufficient  presentation  of 
the  question  itself,  was  not  misleading 
or  erroneous  when  considered  with 
reference  to  the  entire  charge.  Whit- 
tlesey V.  Burlington,  C.  R.  &  N.  Ry. 
Co.,  90  N.  W.  516,  121  Iowa,  597,  re- 
versed 97  N.  W.  66,  121  Iowa,  597. 
In  an  action  by  passenger  for  inju- 
ries, an  instruction  that  the  burden 
of  proving  the  carrier's  affirmative 
defense  that  the  injuries  were  caused 
by  the  negligence  of  another  was  on 
carrier  was  not  erroneous  as  requir- 
ing carrier  to  prove  such  negligence 
by  a  preponderance  of  the  evidence, 
where  the  court  also  instructed  the 
juiy  that  throughout  plaintiff  must 
prove  his  case  by  preponderance  of 
the  evidence,  and  that  defendant  was 
not  liable  unless  its  negligence  was 
either  the  sole  or  contributing  cause 
to  the  accident.  Learned  v.  Peninsula 
Rapid  Transit  Co,  (Cal.  App.)  193  P. 
591.  Where,  in  an  action  for  inju- 
ries to  a  passenger  bound  for  G.  in 
consequence  of  his  alighting  at  the 
intermediate  point  R.,  believing  that 
he  had  reached  G.,  it  was  undisputed 
that  he  alighted  at  R.,  and  the  court 
charged  that  if  he  was  negligent  in 
not  reboarding  the  train  before  it 
started  from  R.,  and  such  negligence 
contributed  to  the  injuries,  there 
could  be  no  recovery,  the  error  in  an 
Inst.  TO  Jxteies— 63 


instruction  that  if  an  ordinarily  pru- 
dent person  would  have  discovered 
that  he  "was  at  G."  before  alighting, 
and  the  passenger  attempted  to  re- 
board  the  train  under  circumstances 
constituting  contributorj'  negligence, 
there  could  be  no  recovery,  etc.,  aiis- 
ing  from  the  omission  of  the  word 
"not"  before  "at"  in  the  quoted 
phrase,  was  not  prejudicial.  Mis- 
souri, K.  &  T.  Ry.  Co.  of  Texas  v. 
Redus,  118  S.  W.  208,  55  Tex.  Civ. 
App.  205.  In  an  action  for  injuries 
to  a  passenger  by  the  sudden  starting 
of  the  car  as  she  was  alighting,  where 
the  court  instructed  that  it  was  the 
duty  of  the  carrier  to  exercise  the 
highest  care  consistent  with  its  duties 
of  conveying  passengers  to  avoid  in- 
juring them,  and,  on  their  failure  to 
do  so,  they  would  be  liable  it  was  not 
error  to  insti'uct  that  the  carrier  was 
required  to  stop  its  cars  a  sufficient 
time  to  allow  passengers  to  alight, 
and  to  see  that  they  had  actually 
done  so.  Best  v.  .Columbia  Electric 
St.  Ry.,  Light  &  Power  Co.,  67  S.  E. 
1,  85  S.  C.  422.  In  a  death  action, 
tried  throughout  on  the  theory  that 
the  damages,  if  any,  were  such  as 
were  suffered  by  decedent's  estate, 
where  there  was  no  testimony  as  to 
the  existence  of  any  one  dependent 
upon  decedent,  nor  that  any  one  had 
suffered  pecuniary  injury  from  his 
death,  and  the  jury  were  plainly 
charged  that  the  damages  to  be 
awarded  were  those  suffered  by  the 
estate,  a  charge  that  it  was  not  nec- 
essary for  plaintiff  to  show  the  pre- 
cise money  value  of  decedent's  life, 
or  the  exact  damages  suffered  by  the 
beneficiaries,  to  sustain  a  recovery  of 
substantial  damages,  was  not  mis- 
leading through  the  use  of  the  word 
"beneficiaries,"  though  inappropriate, 
as  allowing  a  recovery  by  those  de- 
pendent upon  decedent  who  had  suf- 
fered. Phoenix  Ry.  Co.  v.  Landis,  108 
P.  247,  13  Ariz.  SO.  An  exception  to 
the  court's  charge  on  manslaughter 
as  allowing  the  jury  to  consider  only 
the  provocation  arising  at  the  time 
cannot  be  sustained,  where  the  court 
further  charged  that,  in  determining 
the  adequacy  of  the  provocation,  the 
jury  should  consider  all  the  evidence 
in  determining  the  condition  of  the 


534 


INSTRUCTIONS   TO   JURIES 


994 


defendant's  mind.  Jacobs  v.  State, 
213  S.  W.  628,  85  Tex.  Cr.  505.  In 
suit  for  false  imprisonment  against  a 
constable  and  his  sureties,  any  ambi- 
guity in  instructing  that,  if  he  unlaw- 
fully violated  plaintiff's  personal  lib- 
erty, the  jury  must  find  for  plaintiff, 
because  not  restricting  the  sureties' 
liability  for  wrongs  committed  by  the 
constable  in  his  official  capacity,  was 
removed  by  a  subsequent  instruction 
that  his  sureties  would  only  be  liable 
if  he  wrongfully  restrained  plaintiff 
while  acting  in  his  official  capacity. 
Gomez  v.  Scanlan,  102  P.  12,  155  Cal. 
528.  An  instruction  that  the  jury,  in 
making  up  its  special  findings  as  to 
the  fraud  charged  to  defendants, 
might  "take  into  consideration  the  al- 
legation made  in  the  complaint  that 
there  was  an  agreement"  between  de- 
fendants to  defraud  plaintiff,  is  not 
open  to  objection,  where  it  was  evi- 
dent from  tlie  whole  instruction  that 
the  meaning  was  that  the  jury  might 
consider  the  allegations  of  the  com- 
plaint in  determining  in  what  manner 
it  was  charged  that  such  an  agree- 
ment had  been  made,  and  not  that 
they  tended  in  any  manner  to  estab- 
lish the  fact  of  an  agreement.  Limit- 
ed Inv.  Ass'n  v.  Glendale  Inv.  Ass'n, 
74  N.  W.  63.3,  99  Wis.  54.  In  an  ac- 
tion for  injury  to  an  employe  a  state- 
ment in  a  preamble  to  the  submission 
of  the  issues  that  w^hen  one  becomes 
a  railway  employ^  he  can  assume  that 
the  company  will  exercise  ordinary 
care  to  furnish  a  reasonably  safe 
place  to  work  was  not  prejudicial  er- 
ror, where  the  statement  appeared  in 
the  paragraph  containing  explanatory 
abstract  principles  applicable  to  mas- 
ter and  servant,  and  the  court  charg- 
ed that  plaintiff  could  not  recover 
unless-  injured  through  defendant's 
negligence  in  furnishing  a  defective 
engine,  and  where  no  issue  as  to  de- 
fendant's duty  to  furnish  a  safe  place 
to  work  was  presented  by  the  charge. 
Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Mills, 
116  S.  W.  852,  53  Tex.  Civ.  App.  359. 
Where,  in  an  action  for  the  death  of 
a  servant,  the  court  charged  that  the 
way  to  determine  whether  a  person 
has  been  negligent  is  to  compare  what 
he  had  done  or  left  undone  with  what 
would  have  been  done  or  left  undone 


by  a  man  acting  with  ordinary  pru- 
dence, and  that  if  a  man  fails  to  act 
as  an  ordinarily  prudent  man  would 
imder  the  same  circumstances  and 
conditions  there  is  negligence,  there 
was  no  re^'ersible  error  in  the  court's 
misuse  of  the  word  "could"  for 
"would"  in  certain  other  of  the  in- 
structions relating  to  the  acts  of  a 
reasonably  prudent  man,  etc.  Cox  v. 
Wilkeson  Coal  &  Coke  Co.,  112  P. 
231.  61  Wash.  343.  Where  an  in- 
struction related  only  to  one  kind  of 
assumed  risk,  the  ordinary  hazards 
of  the  service,  contention  that  it  ig- 
nored the  question  of  assumption  of 
risk,  based  on  patent  dangers  known 
to  plaintiff  brakeman,  submitted  in 
another  instruction  given  at  defend- 
ant's request,  cannot  be  sustained ; 
the  instructions  not  being  conflicting, 
but  to  be  considered  in  harmony  with 
each  other.  A.  L.  Clark  Lumber  Co. 
V.  Edwards,  216  S.  W.  18,  144  Ark. 
641.  In  an  action  for  injuries  to 
plaintiff  by  the  fall  of  the  roof, 
where  it  was  claimed  that  the  master 
had  promised  to  remedy  the  defect 
in  the  roof  which  caused  the  Injury, 
a  charge  that  if  such  promise  was 
made,  and  if  the  danger  was  not 
great  and  constant,  and  that  if  a  rea- 
sonably prudent  person  would  have 
remained  in  the  employ  and  continued 
to  pass  under  the  roof,  such  promise 
could  be  deemed  to  have  relieved 
plaintiff  from  the  charge  of  having  asr 
sumed  the  risk  of  employment,  was 
not  prejudicial  because  failing  to  state 
the  test  of  negligence  to  be  what  a 
prudent  person  would  have  done  un- 
der the  same  or  similar  circumstances; 
there  being  nothing  in  the  charge  neg- 
ativing that  idea,  and  the  matter  be- 
ing correctly  expressed  in  other  in- 
structions, one  of  which  referred  di- 
rectly to  plaintiff's  contributory  neg- 
ligence. Cotton  V.  Center  Coal  Min- 
ing Co..  123  N.  W.  381,  147  Iowa,  427. 
In  an  action  for  injuries  to  a  servant 
from  the  falling  of  sills  of  a  car,  be- 
ing repaired  while  the  servant  was 
repairing  the  floor  thereunder  by  di- 
rections, where  the  undisputed  evi- 
dence showed  that  the  servant  was 
under  the  general  direction  of  the 
foreman,  a  charge  that  the  work  of 
taking  apart  and  repairing  cars  was 


995 


CONSTRUCTIOX   AND   OPERATION 


534 


done  by  sundrj'  skilled  mechanics 
and  workmen  in  the  master's  employ, 
that  all  the  work  was  done  under  the 
immediate  direction  of  the  master  or 
its  servants,  and  that  if  the  master 
or  his  servants  knew,  or  in  the  ex- 
ercise of  ordinary  care  ought  to  have 
known,  that  the  injured  servant  was 
in  a  dangerous  place,  notice  should 
have  been  given  him,  was  not  eiTone- 
ous  as  placing  the  duty  on  every 
servant  to  exercise  ordinary  care  in 
keeping  a  lookout  for  him,  where  the 
court  specifically  charged  that,  if  the 
injury  was  caused  solely  or  proxi- 
mately by  the  negligence  of  fellow 
servants,  there  could  be  no  recovery. 
Wickham  v.  Chicago,  St.  P.,  M.  &  O. 
Ry.  Co.,  124  N.  W.  639,  110  Minn.  74, 
rehearing  denied  124  N.  W.  994.  110 
^rinn.  74.  In  an  action  for  damages 
from  an  alleged  nuisance,  a  charge 
that,  if  defendant  burned  shavings  or 
sawdust  from  its  planing  mill  in  a 
place  where  the  smoke,  cinders,  soot, 
or  ashes  were  blown  onto  plaintiff's 
house,  so  as  to  reasonably  annoy  him 
and  his  faniilj'  and  disturb  them  in 
the  peaceful  use  of  the  house,  plain- 
tiff could  recover,  if  objectionable  for 
uncertainty  as  using  the  words  "rea- 
sonably annoy,"  instead  of  the  expres- 
sion "necessarily  and  materially  an- 
noy," was  cured  by  a  charge  that  if 
the  acts  complained  of  were  such  as 
"to  occasion  no  unnecessary  damage 
to  plaintiff,"  defendant  %vould  not  be 
liable.  Junction  Citv  Lumber  Co.  v. 
Sharp,  123  S.  W.  370,  92  Ark.  538. 
If  an  instruction,  to  the  effect  that 
persons  who  desire  to  cross  a  rail- 
road track  at  a  point  where  a  highway 
crosses  the  same  have  a  right  to  do 
so  and  are  only  required  to  use  ordi- 
nary care  in  so  doing,  was  too  broad 
in  that  it  failed  to  state  that  a  rail- 
road had  priority  where  it  had  given 
notice  of  its  intention  to  iise  a  cross- 
ing even  over  a  traveler  who  has  used 
ordinary  care,  it  was  harmless,  where 
the  jury  in  a  prior  instruction  had 
been  fully  informed  as  to  the  rail- 
road's rights.  Lake  Erie  &  W.  R.  Co. 
V.  Howarth  (Ind.  App.)  124  N.  E. 
687,  rehearing  denied  127  N.  E.  804. 
Where  the  defense  in  an  action  for 
the  price  on  a  contract  of  sale  of  min- 


ing claims  is  that  there  were  fraud- 
ulent representations,  and  the  court 
at  the  outset  of  the  general  charge 
states  that  the  burden  of  proving  the 
fraudulent  representations  is  with  de- 
fendant, and  defines  what  will  con- 
stitute such  a  fraud  and  deceit  as 
will  relieve  defendant  of  his  obliga- 
tion, instructions  making  no  refer- 
ence to  fraud  must  be  read  in  con- 
nection with  the  general  charge. 
La  Grande  Inv.  Co.  v.  Shaw,  72  P. 
795,  44  Or.  416,  reversed  74  P.  919, 
44  Or.  416.  In  an  automobile  colli- 
sion case,  an  instruction  to  find  for 
defendant  if  plaintiff  ap]n-oached  an 
intersecting  highway  above  a  certain 
speed  did  not  erroneously  preclude 
the  jury  from  considering  the  sur- 
rounding circumstances,  or  whether 
the  last  clear  doctrine  applied,  or 
whether  plaintiff's  negligence  proxi- 
mately caused  the  collision,  where 
such  matters  were  covered  in  other 
portions  of  the  charge.  Lawrence  v. 
Goodwill  (Cal.  App.)  186  P.  781.  In 
an  action  for  destruction  of  a  fish 
trap  by  a  tug,  an  instruction  as  to  de- 
fendant's negligence  that  "it  is  charg- 
ed" "that  the  boat  was  being  operated 
outside  of  and  beyond  the  channel  or 
course  in  which  vessel  should  be  op- 
erated." while  insufficient,  when 
standing  alone,  for  omission  to  allege 
"negligently  operated."  the  error  was 
cured  by  another  instruction  covering 
negligent  operation.  Anderson  v. 
Columbia  Contract  Co.,  184  P.  240,  94 
Or.  171.  7  A.  L.  R.  653,  rehearing  de- 
nied 1S5  P.  231.  94  Or.  171,  7  A.  L. 
R.  653.  Where  a  natural  or  artificial 
"stone  row"  had  existed  in  the  bed  of 
the  stream  on  land  of  defendant  for 
many  years,  forming,  as  alleged,  a 
dam  which  flooded  plaintiff's  laud,  it 
was  error  to  insti'uct  the  jury  that 
the  "stone  row"  was  not  such  an  ob- 
strnction  as  would  create  a  right  in 
lapse  of  time;  but  where,  in  direct 
connection  therewith,  the  court  charg- 
ed that,  if  the  stone  row  did  form  a 
dam  and  raise  the  water,  the  question 
was  whether  the  dam  did  not  swell 
back  the  water  still  further  upon 
plaintiff's  land,  the  error  was  imma- 
terial.     Brown    v.    Bush,    45   Pa.    61. 


INSTRUCTIONS   TO  JURIES 


998 


§  534 

ment  essential  to  sustain  the  cause  of  action  or  the  prosecution,^^ 
and  the  fact  that  a  charge  states,  independently  of  each  other,  rules 
which  must  be  considered  together  in  applying  them,  is  not  error, 
if  the  jury  are  not  misled  thereby.^*  The  court  may  convey  one 
element  of  a  rule  of  law  in  one  portion  of  its  charge,  disassociated 
from  other  portions,  if  the  other  elements  are  in  fact  presented  to 
the  jury  as  necessary  to  be  found  by  them.^s  ^^^5  it  is  not  neces- 
sary that  all  exceptions  to,  or  modifications  of,  a  general  rule  should 
be  stated  in  conjiection  with  such  general  rule.~^     It  is  sufficient  if 


314,  affirming  judgment  91  N.  W.  562, 
3  Neb.  (Unof.)  309. 

N.  C.  Crampton  v.  Ivie,  32  S.  E. 
968,  124  N.  C.  591. 

Ohio.  Ohio  &  Indiana  Torpedo 
Co.  V.  Fisliburn,  56  N.  E.  457,  61  Ohio 
St.  608,  76  Am.  St.  Rep.  437;  Price 
V.  Coblitz.  21  Ohio  Cir.  Ct.  R.  732,  12 
O.  0.  D.  34. 

Okl.  Grant  v.  Milam,  95  P.  424,  20 
Old.  672. 

S.  C.  Humphries  v.  Union  &  Glenn 
Springs  R.  Co.,  65  S.  E.  1051,  84  S.  C. 
202 :  Lowrimore  v.  Palmer  Mfg.  Co., 
38  S.  E.  430,  60  S.  C.  153. 

S.  D.  Davis  v.  Holy  Terror  Min. 
Co  107  N.  W.  374.  20  S.  D.  399  ;  Hed- 
lun'  V.  Holv  Terror  Min.  Co.,  92  N.  W. 
31.  16  S.  D.  261. 

Tex.  Texas  Cent.  R.  Co.  v.  Pow- 
ell 86  S.  W.  21,  38  Tex.  Civ.  App.  157 ; 
Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Renz. 
59  S  W.  280,  24  Tex.  Civ.  App.  335; 
Bomar  v.  Powers  (Civ.  App.)  50  S.  W. 

142. 

Utah.  Cromeenes  v.  San  Pedro,  L. 
A  &  S.  L.  R.  Co..  109  P.  10,  37  Utah, 
475,  Ann.  Cas.  1912C.  307;  McCor- 
nick  V.  Queen  of  Sheba  Gold  Min.  & 
Mill.  Co.,  63  P.  820,  23  Utah.  71. 

Va.  City  of  Richmond  v.  Wood,  63 
S.  E.  449,  109  Va.  75. 

Wis.  Lathers  v.  Wyman,  76  Wis. 
616,  45  N.  W.  669. 

Wyo.  Wallace  v.  Skinner,  88  P. 
221,  15  Wyo.  233. 

2  3  Judy  V.  Sterrett,  38  N.  E.  633,  153 
111.  94;  Thrawley  v.  State,  55  N.  E. 
95,  153  Ind.  375. 

24  Conn.  Stevens  v.  Kelley,  66 
Conn.  570,  34  A.   502. 

Ga.     McCall  v.  State.  99  S.  E.  471, 

23  Ga.  App.  770 ;    Nail  v.  State,  54  S. 


E.  145,  125  Ga.  234 ;  Beacham  v.  Ken- 
nedv,  53  S.  E.  589,  125  Ga.  113 ;  How- 
ell V.  State,  52  S.  E.  649,  124  Ga. 
698;  Rawlins  v.  State,  52  S.  E.  1, 
124  Ga.  31,  judgment  affirmed  26  S. 
Ct.  560,  201  TT.  S.  638,  50  L.  Ed.  899, 
5  Ann.  Cas.  783;  Tucker  v.  Central 
of  Georgia  Ry.  Co.,  50  S.  E.  128,  122 
Ga.  .387;    Jenkins  v.  National  Union, 

45  S.  E.  449,  118  Ga.  587;  Ander.son 
V.  State,  43  S.  E.  835,  117  Ga.  255; 
Hayes  v.  State.  40  S.  E.  13,  114  Ga. 
25 ;  Tucker  v.  State,  39  S.  E.  926,  114 
Ga.  61 ;  Lucas  v.  State,  36  S.  E.  87. 
110  Ga.  756. 

111.  Gustafson  v.  Petei-son,  203  111. 
App.  242. 

Ind.  Harrod  v.  Bisson,  93  N.  E, 
1093,  48  Ind.  App.  549. 

Iowa.  Deere  v.  Wolf,  77  Iowa, 
115,  41  N.  W.  588. 

Mo.  Norton  v.  Kramer,  79  S.  W. 
699,  180  Mo.  536. 

Neb.  Stull  V.  Stull,  96  N.  W.  196,  1 
Neb.  (Unof.)  380,  389. 

2  5  Buchman  v.  Jeffery,  115  N.  W. 
372,  135  Wis.  448. 

2  6  Stratton  v.  Central  City  Horse 
Ry.  Co.,  95  111.  25;  Kelley  v.  School 
Dist.  No.  71  of  King  County,  173  P. 
3.33,  102  Wash.  343 ;    State  v.  Dodds, 

46  S.  E.  228,  54  W.  Va.  289. 
Contra,  Culbertson  v.  McCullom,  1 

Ky.  Law  Rep.   (abstract)  267. 

Stating  only  general  rule.  An 
instruction  may  state  the  general  rule 
applicable  to  the  case,  leaving  the 
opposite  party  to  ask  for  a  statement 
of  any  exceptions,  limitations,  or 
qualificatious  that  maybe  deemed  rel- 
evant in  view  of  the  proof.  Terre 
Haute  &  I.  Ry.  Co.  v.  Williams,  69 
111.  App.  392,  affirmed  50  N.  E.  116, 
172  111.  379,  64  Am.  St.  Rep.  44. 


999 


CONSTRUCTION'  AND  OPERATION 


534 


such  exceptions  or  qualifications  are  contained  in  the  charge,  and 
there  is  nothing  in  the  charge  so  obscure,  absurd,  or  contradictory 
as  to  mislead  or  confuse  the  jury."" 

Where  an  instruction  as  far  as  it  goes  states  a  correct  proposi- 
tion of  law,  but  is  defective  in  failing  to  qualify  or  explain  the  prop- 
osition it  lays  down  in  consonance  with  the  facts  of  the  case,  such 
defect  is  cured  by  subsequent  instructions  containing  the  required 
qualifications  or  exceptions,-*  and  where  one  instruction  is  aimed 
to  be  explanatory  of  another,  the  two  should  be  read  and  consid- 
ered together.-^ 

Ordinarily  the  omission  in  an  instruction,  which  does  not  direct 
a  verdict,   of  some   element   it   should   contain,  may  be   supplied 


27  U.  S.  (C.  C.  A.  Ark.)  Western 
Coal  &  Minin?  Co.  v.  Ingraliam,  70 
F.  219,  IT  C.  C.  A.  71. 

Cal.  People  v.  Welch,  49  Cal.  174. 
111.  Schneider  v.  Manning,  121  111. 
376,  12  N.  E.  267 :  Lodge  v.  Gatz.  76 
111.  272 ;  Durham  v.  Goodwin.  54  111. 
469 :  Van  Buskirk  v.  Day,  32  111.  260. 
Ind.  Brown  v.  Anderson,  90  Ind. 
93. 

Md.  Lurssen  v.  Lloyd,  76  Md.  360, 
25  A.  294. 

Minn.  Simpson  v.  Krumdick.  28 
Minn.  352,  10  N.  W.  18:  Gates  v.  Man- 
ny, 14  Minn.  21  (Gil.  13). 

Miss.  Gordon  v.  Sizer,  39  Miss. 
805. 

Mo.  Underwood  v.  Metropolitan 
St.  Ry.  Co.,  102  S.  W.  1045.  125  Mo. 
App.  490 ;  Gamache  v.  Piquignot,  17 
Mo.  310 ;  Ostner  v.  Lynn,  57  Mo.  App. 
187. 

N.  Y.  Hickenbottom  v.  Delaware, 
L.  &  W.  R.  Co.,  122  N.  Y.  91,  25  N. 
E.  279. 

Pa.  Chambers  v.  Bedell,  2  Watts  & 
S.  225,  37  Am.  Dec.  508. 

S.  C.  Lynn  v.  Tliomson,  17  S.  C. 
129. 

Wash.  Hammock  v.  Citv  of  Taco- 
ma,  87  P.  924.  44  Wash.  62.3. 

2SU.  S.  (C.  C.  A.  Ark.)  Choctaw, 
O.  &  G.  R.  Co.  V.  Tennessee,  116  F. 
23,  53  C.  C.  A.  497,  affirmed  24  S.  Ct. 
99,  191  U.  S.  326,  48  L.  Ed.  201 ;  (C. 
C.  A.  Mo.)  Chicago,  R.  I.  &  P.  Rv.  Co. 
V.  Linnev,  59  F.  45,  7  C.  C.  A.  656: 
(C.  C.  A.  Ohio)  Toledo,  St.  L.  &  W.  R. 
Co.  V.  Kountz,  16S  F.  832,  94  C.  C.  A. 
244. 


Cal.  Boin  v.  Spreckels  Sugar  Co., 
102  P.  937.  155  Cal.  612. 

Fla.  Pensacola  Electric  Co.  v.  Bis- 
sett,  52  So.  367,  59  Fla.  360 ;  Atlantic 
Coast  Line  R.  Co.  v.  Dees,  48  So.  28, 
56  Fla.  127;  Atlantic  Coast  Line  R. 
Co.  V.  Crosby,  43  So.  318,  53  Fla.  400. 
Ga.  Bagwell  v.  Milam,  71  S.  E. 
684,  9  Ga.  App.  315. 

111.  Van  Cleef  v.  City  of  Chicago, 
88  N.  E.  815,  240  111.  318,  23  L.  R.  A. 
(X.  S.)  636,  1.30  Am.  St.  Rep.  275: 
Cleveland,  C.  C.  &  St.  L.  Ry.  Co.  v. 
Baddeley,  150  111.  328,  36  N.  E.  965; 
Lake  Erie  »&  W.  R.  Co.  v.  Morain.  140 
111.  117,  29  N.  E.  869,  affirming  36  111. 
App.  632;  Chicago,  M.  &  St.  P.  Ry. 
Co.  V.  Halsey,  31  111.  App.  601 ;  Tomle 
V.  Hampton,  28  111.  App.  142,  affirmed 
129  111.  379.  21  N.  E.  800. 

Iowa.  Roney  v.  City  of  Des  Moines. 
1.30  N.  W.  396,  150  Iowa.  447;  Knott 
V.  pubnque  &  S.  C.  Ry.  Co.,  84  Iowa, 
462.  51  X.  W.  57. 

Mich.  Brogetski  v.  Detroit  United 
Ry..  131  N.  W.  810,  166  Mich.  91. 

Miss.  Yazoo  &  IM.  V.  R.  Co.  v.  Kel- 
ly. 53  So.  779,  98  Miss.  367. 

Mo.  Xeale  v.  McKinstry,  7  Mo. 
12S. 

S.  C.  Dover  v.  Lockhart  Mills,  68 
S.  E.  525.  86  S.  C.  229:  Lamb  v.  South- 
ern  Ry.  Co.,  67  S.  E.  958,  86  S.  C.  106, 
138  Am.  St.  Rep.  1030. 

Wash.  Caldwell  v.  X'^oilhern  Pac. 
Ry.  Co..  113  P.  1099,  62  Wash.  420: 
Edwards  v.  Seattle.  R.  &  S.  Ry.  Co.. 
113   P.    563.   62   Wash.    77. 

2  9  Lake  Erie  &  W.  R.  Co.  v.  Douglas 
(Ind.  App.)  125  N.  E.  474. 


534 


INSTRUCTIONS   TO  JURIES 


1000 


by  other  instructions  which  fully  cover  the  omitted  element.^®  The 
omission  of  certain  matters,  however,  when  taken  in  connection 
with  emphasis  placed  upon  other  matters  may  be  of  such  a  char- 
acter as  to  be  likely  to  mislead  the  jury,  although  such  omission 
is  supplied  by  other  instructions,  and  in  such  a  case  it  will  consti- 
tute ground  for  reversal.^^ 

Special  charges  given  at  the  request  of  either  party  are  to  be 
construed  with  the  rest  of  the  charge  under  the  above  rule,^'  and 
it  is  not  error  to  give  an  instruction  at  the  request  of  a  party  sub- 
mitting his  theory  of  the  case  only,  if  the  instructions  given  on 
behalf  of  his  adversary  cover  every  aspect  of  his  case,^^  and  the 


30  Ark.  A,  L.  Clark  Lumber  Co.  v. 
Johns,  135  S.  W.  892,  9S  Ark.  211. 

Cal.  Stein  v.  United  Railroads  of 
San  Francisco,  113  P.  663,  159  Cal. 
36S;  Winslow  v.  Glendale  Light  & 
Power  Co.,  107  P.  1020,  12  Cal.  App. 
530. 

Ga.  Southern  Ry.  Co.  v.  Dean,  57 
S.  E.  702,  128  Ga.  366. 

111.  Moore  v.  Aurora,  E.  &  C.  R. 
Co..  92  N.  E.  573,  246  111.  56;  Suehr 
V.  Sanitary  Dist.  of  Chicago,  90  N.  B. 
197,  242  111.  496 ;  East  St.  Louis  &  S. 
Ry.  Co.  V.  Zink,  82  N.  E.  283,  229  111. 
ISO ;  Illinois  Cent.  R.  Co.  v.  Hopkins, 
65  N.  E.  656,  200  111.  122.  affirming 
judgment  100  111.  App.  594;  Donk 
Bros.  Coal  &  Coke  Co.  v.  Peton,  61  N. 
E.  330,  192  111.  41,  affirming  judgment 
95  111.  App.  193;  Chicago  &  A.  R.  Co. 
V.  Johnson,  116  111.  206,  4  N.  E.  381 ; 
Hackett  v.  Harmon,  155  111.  App.  55; 
Dukeman  v.  Cleveland,  C,  C.  &  St.  L. 
Ry.  Co.,  142  111.  App.  622,  judgment 
affirmed  86  N.  B.  712,  237  111.  104; 
Southern  Ry.  Co.  v.  Cullen,  122  111. 
App.  293,  judgment  affirmed  77  N.  E. 
470.  221  111.  392;  City  of  Highland 
Park  V.  Gerkin,  122  111.  App.  149; 
Elgin,  A.  &  S.  Traction  Co.  v.  Wil- 
son, 120  111.  App.  371,  judgment  af- 
firmed 75  N.  E.  436,  217  111.  47. 

Ind.  Chicago  &  E.  R.  Co.  v.  Kira- 
cofe,  95  N.  E.  1117,  48  Ind.  App.  407; 
New  V.  Jackson,  95  N.  E.  328,  50  Ind. 
App.  120;  South  Bend  Brick  Co.  v. 
Goller,  03  N.  E.  37,  46  Ind.  App.  531 ; 
Pittsburgh,  C,  C.  &  St.  L.  Ry.  Co.  v. 
Wood,  84  N.  E.  1009,  45  Ind.  App.  1. 
Ind.  T.  Waples-Painter  Co.  v.  Bank 
of  Commerce,  97  S.  W.  1025,  6  Ind.  T. 
326. 


Kan.  Lillard  v.  Chicago,  R.  I.  & 
P.  Ry.  Co.,  98  P.  213,  79  Kan.  25. 

Mich.  Joslin  v.  Le  Baron,  6  N.  W. 
214.  44  Mich.  160. 

Mo.  Asbill  V.  City  of  Joplin,  124 
S.  W.  22,  140  Mo.  App.  259;  Gibler  v. 
Terminal  R.  Ass'n  of  St.  Louis,  101  S. 
W.  37,  203  Mo.  208,  11  Ann.  Cas.  1194 ; 
Deschner  v.  St.  Louis  &  M.  R.  R.  Co., 
98  S.  W.  737,  200  Mo.  310. 

Neb.  Cornelius  v.  City  Water  Co., 
120  N.  W.  944,  84  Neb.  130;  In  re 
Wilson's  Estate,  111  N.  W.  788,  78 
Neb.   758. 

S.  C.  Dempsey  v.  Western  Union 
Telegraph  Co.,  58  S.  E.  9,  77  S.  C.  399. 
.  Tex.  Houston  &  T.  C.  R.  Co.  v. 
Mayfleld,  124  S.  W.  141,  58  Tex.  Civ. 
App.  52;  Texas  &  N.  O.  R.  Co.  v. 
Plummer,  122  S.  W.  942,  57  Tex.  Civ. 
App.  563;  St.  Louis  Southwestern 
Ry.  Co.  of  Texas  v.  Hawkins,  108  S. 
W.  736,  49  Tex.  Civ.  App.  545 ;  Chica- 
go, R.  I.  &  P.  Ry.  Co.  V.  Bums  (Civ. 
App.)  104  S.  W.  1081,  affirmed  107  S. 
W.  49,  101  Tex.  329. 

Va.  Marbury  v.  Jones,  71  S.  E. 
1124,  112  Va.  389. 

31  Washington,  B.  &  A.  R.  Co.  v. 
State,  111  A,  164,  136  Md.  103. 

3  2  Galveston,  H.  &  S.  A.  Ry.  Co.  v. 
Berry  (Tex.  Civ.  App.)  105  S.  W.  1019. 

An  improper  qualification  by  the 
court  of  a  requested  charge  is  no 
ground  of  reversal,  if  the  benefit  of 
the  rule  of  law  claimed  in  such  re- 
quest is  secured  to  the  party  making 
it  by  another  instruction.  INIetcalf  v. 
Little  Rock  St.  Ry.  Co.  (Ark.)  13  S. 
W.  729;  Lamar  v.  Williams,  39  Miss. 
342. 

S3  Meadows  v.  Pacific  Mut.  Life  Ins. 


1001 


CONSTRtrCTION  AND   OPERATION 


§  535 


iury  are  told  that  the  instructions  given  are  those  of  the  court 
and  must  all  be  read  together.'* 

§  535.  Specific  instances  of  defects,  omissions,  or  objectionable 
matters  cured  by  other  instructions 

In  many  jurisdictions  the  fact  that  an  instruction  authorizing  a 
recovery  for  negligence  omits  to  require  the  jury  to  find  that  the 
injured  person  was  not  guilt}^  of  contributory  negligence  is  not 
error,  if  the  latter  question  is  properly  submitted  in  other  instruc- 
tions.^ So  error  in  instructions  in  negligence  cases  in  failing  to 
limit  the  liability  of  the  defendant  to  the  duty  to  use  ordinan.-  or 
reasonable  care,'®  or  in  omitting  the  element  of  proximate  cause." 
mav  disappear  when  the  other  instructions  are  considered. 

The  above  rule  has  been  applied  to  objections  to  instructions 
upon  contributory  negligence,'*  to  instructions  bearing  on  the  cred- 


Co.  of  California.  129  Mo.  76.  31  S.  W. 
57S.  .50  Am.  St.  Rep.  427:  State  ex 
rel.  Robertson  v.  Hope.  102  Mo.  410, 
14  S.  W.  9S5. 

34  Cltv  of  Danville  v.  Thornton.  66 
S.  E.  839.  110  Ta.  541. 

35  Cal.  Stephenson  v.  Southern 
Pac.  Co..  102  Cal.  143.  36  P.  407.  af- 
firminff  102  Cal.  143.  34  P.  61S. 

Ind.  Morgan  town  Mfir.  Co.  v. 
Hicks.  92  N.  E.  199.  46  Ind.  App.  623. 

Iowa.  Larkin  v.  Burlinston.  C.  R. 
(S:  N.  Rv.  Co..  So  Iowa.  492.  52  N.  W. 
4S0. 

Minn.  Holm  v.  Tillage  of  Carver. 
55  Minn.  199.  56  N.  W.  S26. 

Mo.  Johnston  v.  St.  Louis  &  S.  F. 
R.  Co..  130  S.  W.  413.  150  Mo.  App. 
304:  Shnnahan  v.  St.  Louis  Transit 
Co..  S3  S.  W.  7S3.  109  Mo.  App.  22S: 
Husrhes  v.  Chicaso  &  A.  R.  Co..  127 
Mo.  447.  30  S.  W.  127 :  Dougherty  v. 
Missouri  R.  Co..  97  Mo.  647,  S  S.  W, 
900.  11  S.  W.  251. 

Neb.  Sioux  Citv  &  P.  R.  Co.  v. 
Finlayson.  16  Xeb.  57S.  20  N.  W.  S60, 
49  Am.  Rep.  724. 

Tex.  Galveston.  H.  &  S.  A.  Ry.  Co. 
V.  Grant.  124  S.  W.  145.  5sJ  Tex.  Civ. 
App.  181 :  Shippers'  Compress  &  Ware- 
house Co.  V.  Davidson.  SO  S.  W.  1032, 
35  Tex.  Civ.  App.  55S:  Galveston.  H, 
&  S.  A.  Ry.  Co.  V.  Matula,  79  Tex. 
577.  15  S.  W.  573. 

TJtali.  Olson  v.  Oregon  Short  Line 
R.  Co..  6S  P.  14S.  24  Utah.  460. 

'Wash.  Morrison  v.  Seattle  Elec- 
tric Co..  115  P.  1076,  63  Wash.  531. 


36  U.  S.  (C.  C.  A.  Mo.)  Chi.-a<ro.  R. 
I.  &  P.  Rv.  Co.  V.  Lkmey,  59  F.  45, 
7  C.   C.  A.  656. 

Cal.  Sappenfield  v.  Main  St.  &  A. 
P.  R.  Co..  91  Cal.  48.  27  P.  590. 

Ga.  East  Tennessee.  V.  &  G.  Ry. 
Co.  v.  Daniel.  91  Ga.  768,  IS  S.  E. 
22 

lU.  City  of  Roodhouse  v.  Christian, 
15S  111.  137.  41  N.  E.  748. 

Ind.  Pennsvlvania  Co.  v.  Eliaush, 
144  Ind.  687.  43  X.  E.  936 :  Wabash  & 
W.  Rv.  Co.  V.  Morgan,  132  Ind.  430, 
32  X.  E.  85.  affirming  132  Ind.  430, 
31  X.  E.  661. 

Iowa.  Brooke  v.  Chicago.  R.  I.  & 
P.  Ry.  Co..  81  Iowa.  504.  47  X.  W.  74 

Tex.  Texas  &  P.  Ry.  Co.  v.  Xix 
rCiv.  Apn.1  23  S.  W.  32S :  Galveston. 
H.  &  S.  A.  Rv.  Co.  V.  Davis.  4  Tex. 
Civ.  App.  468.  23  S.  W.  301. 

s-  Cleveland.  C.  C.  &  St.  L.  Ry.  Co. 
V.  Monachan.  140  111.  474.  30  X.  E. 
869.  affirmed  41  111.  App.  498:  Spick- 
elmeir  v.  Harrman  (Ind.  App.>  12i{ 
X.  E.  232:  Jones  v.  Chicago  &  A.  R. 
Co..  28  Mo.  App.  28:  Holt.  v.  School 
Dist.  Xo.  71  of  King  County.  173  P. 
335.  101  Wasli.  442. 

3s  Boa  V.  San  Francisco-Oakland 
Terminal  R.vs..  187  P.  2.  182  Cal.  93: 
Williams  v.  Mt.  Vernon  Car  Mfg.  Co.. 
211  111.  App.  68:  Rasten  v.  Calder- 
wood.  175  X.  W.  1007.  145  Minn.  493 : 
Hulse  V.  St.  Joseph  Ry.  Co.  (Mo.  App.) 
214  S.  W.  150:  Bullock  v.  Yakima 
Valley  Trausp.  Co..  184  P.  641.  lOS 
Wash.  413. 


535 


INSTRUCTIONS  TO  JURIES 


1002 


ibility  of  wltnesses,^^  to  instructions  on  the  burden  of  proof  or 
amount  of  evidence  required  to  find  a  fact  in  issue,^®  to  instruc- 
tions upon  the  measure  of  damages  or  the  amount  of  recovery,*^ 


3  9  Griffin  v.  State,  216  S.  W.  34,  141 
Ark.  43;  St.  Louis  Southwestern  Ry. 
Co.  V.  Jolinsou,  59  Ark.  122,  26  S.  W. 
593 ;  Morehouse  v.  Remson,  59  Conn. 
392,  22  A.  427 :  Roberts  v.  Morrison, 
75  Iowa,  321,  39  N.  W.  519 ;  State  v. 
Keys,  53  Kan.  674,  37  P.  167. 

Illustrations  of  errors  not  cured 
by  other  instructions.  Error  in  in- 
structing that  where  two  witnesses 
directly  contradict  each  other  the  evi- 
dence is  balanced  unless  one  is  cor- 
roborated, was  not  rendered  harmless 
by  a  subsequent  instruction  that  two 
witnesses  did  not  necessarily  out- 
weigh one,  and  that  the  jury  should 
consider  all  the  circumstances  sui'- 
rounding  each  witness  in  determining 
his  credibility.  Sickle  v.  Wolf.  91 
Wis.  396,  64  N.  W.  1028.  An  instruc- 
tion that  the  jury  should  consider 
"the  character  of  the  witness,  so  far 
as  you  know  it,  as  bearing  upon  the 
question  whether  a  witness  would  be 
truthful  and  reliable,  or  not.  My  ob- 
servation is  that  pretty  good  persons 
sometimes  lie,  and  that  pretty  bad 
persons  sometimes  tell  the  truth" — is 
erroneous,  and  is  not  cured  by  an- 
other instruction  that  nothing  is  to  be 
found  "by  conjecture,"  but  that  the 
verdict  "must  be  based  upon  evi- 
dence," and  facts  inferable  from  the 
proofs.  Johnson  v.  Superior  Rapid 
Transit  Ry.  Co.,  91  Wis.  233,  64  N.  W. 
753. 

4  0  u.  S.  ^tna  Life  Ins.  Co.  v. 
Ward,  140  U.  S.  76,  11  S.  Ct.  720,  35 
L.  Ed.  371. 

Ala.  Montgomery  v.  Crossthwait, 
90  Ala.  553  8  So.  498,  12  L.  R.  A.  140, 
24  Am.  St.  Rep.  832. 

Cal.  Foley  v.  Hornung,  169  P.  705, 
35  Cal.  App.  304 ;  Beckman  v.  McKay, 
14  Cal.  250. 

Conn.  Appeal  of  City  Bank  of  New 
Haven,  54  Conn.  269,  7  A.  548. 

Ga.  Postal  Telegraph  Cable  Co.  v. 
Douglass,  96  Ga.  816,  22  S.  E.  930. 

111.  Holliday  v.  O'Gara  Coal  Co., 
203  111.  App.  89;  Smilev  v.  Barnes, 
196  111.  App.  5.30;  Hinchliff  v.  Robin- 
son. 118  111.  App.  450. 

Neb.     Nye-Schueider-Fowler  Co.  v. 


Chicago  &  N.  W.  Ry.  Co.,  179  N.  W. 
503. 

Illustrations  of  objections  cured. 

A  charge  that,  to  sustain  a  plea  of 
truth  in  justification  of  slanderous 
language,  defendant  must  prove  the 
plaintiff  "actually"  guilty,  while 
standing  alone,  was  objectionable  in 
that  the  word  "actually"  placed  too 
heavy  a  burden  on  defendant,  yet 
when  taken  in  connection  with  other 
charges,  that  it  was  only  necessary  to 
sustain  the  plea  by  a  preponderance 
of  the  evidence,  was  not  error.  Gil- 
strap  V.  Leith,  102  S.  E.  169,  24  Ga. 
App.  720.  In  an  action  for  death  in 
an  accident  to  which  there  were  no 
eyewitnesses,  an  instruction  that  the 
law  "presumes"  that  deceased  was  ex- 
ercising due  care  was  not  objection- 
able as  shifting  on  defendant  the  bur- 
den of  proof  as  to  contributory  negli- 
gence, where  the  court  subsequently 
and  repeatedly  charged  that  the  bur- 
den was  at  all  times  on  plaintiff  to 
prove  that  decedent  exercised  ordi- 
nary care,  in  view  of  the  fact  that 
the  word  "presumption"  is  frequently 
used  as  the  equivalent  and  synonym 
of  the  word  "inference."  Anderson  v. 
Chicago,  R.  I.  &  P.  Ry.  Co.  (Iowa)  175 
N.  W.  583. 

41  U.  S.  Louisville,  E.  &  St.  L.  R. 
Co.  V.  Clarke,  152  U.  S.  230,  14  S.  Ct. 
579,  38  L.  Ed.  422. 

Ga.  City  of  Atlanta  v.  Whitley, 
101  S.  E.  2,  24  Ga.  App.  411. 

ni.  McFarlane  v.  Chicago  City  Ry. 
Co..  123  N.  E.  638,  288  111.  476,  af- 
firming judgment  212  111.  App.  664; 
Malott  v.  Crow,  90  111.  App.  628. 

Ind.  Otter  Creek  Coal  Co.  v.  Arch- 
er, 115  N.  E.  952,  64  Ind.  App.  381. 

Iowa.  Flanagan  v.  Baltimore  &  O. 
R.  Co.,  83  Iowa,  639.  50  N.  W.  60; 
Davis  v.  Walter,  70  Iowa,  465,  30  N. 
W.  804. 

Mich.  Neely  v.  Detroit  Sugar  Co., 
101  N.  W.  604,  138  Mich.  469. 

Mo.  Woiciechowski  v.  Coiyell 
(App.)  217  S.  W.  638  ;  Buck  v.  People'.« 
St.  Ry.  &  Electric  Light  &  Power  Co., 
108  Mo.  179.  IS  S.  W.  1090;  Hulett 
V.  INlissouri,  K.  &  T.  Ry.  Co.,  80  Mo. 


1003 


CONSTRUCTION   AND   OPERATION 


§  535 


that  an  instruction  does  not  confine  the  jury  to  the  evidence    n  as 
sessine  the  damages/'^  to  instructions  given  in  connection  with  the 
sXiil  on  of  special  interrogatories  -  to  objections  that  instruc- 
on"   ^^i"n  are  not  applical)le  to  the  facts,"  that_  the  court  mis- 
tated^t   e  evidence  or  the  testimony  of  ^-^,^--' 7^^  .^^^^J^^' 
was  made  in  chiving  a  date,-'^  to  the  use  of  the  word    plaintiff,     in- 
tend of  ''dfendaift,"  or  vice  versa,-  that  instructions  are  argu- 
mentative «  that  thev  devolve  upon  the  jury  the  duty  of  de  ermin- 
^r what  tl-  i--s-in  the  case  are,  or  of  deciding  what  the  ma- 
ena7    legations  of  the  pleadings  are,-  that  ^l-Y  -f er  the  jury  to 
the  nlcadi^ics  to  determine  their  contents  or  the  issue.  «  that  the> 
use   h^ppropriate  phrases  or  contain   improper  definitions  or  fail 


App.   87;     Price  v.   Barnard,   70  Mo. 

APP.      175.  „  n  .  X'„4- 

Or.  Farmers'  &  Traders  >sat. 
Bank  V.  Wooden,  61  P.  837,  38  Or. 
004    affirmed  65  P.  520,  38  Or.  294. 

Use  of  words  suggesting  Bare 
possibility  instead  of  reasonable 
certainty.  In  an  action  for  malprac- 
tice an  instruction  on  the  question  ot 
reasonable  certainty  of  future  opera- 
tions and  suffering,  while  the  use  ot 
the  word  "may"  might  give  the  jury 
the  meaning  of  "bare  possibility,  in- 
stead of  "reasonable  certainty,  yet 
where  the  instruction  refers  to  such 
suffering  as  the  jury  "believes  she 
will  in  the  future  endure,  the  \Norfi 
'•mav"  was  not  likely  to  mislead,  and 
must:  be  considered  as  harmless,  and 
lint  warranting  reversal.  Krinard  v. 
Westerman,  216  S.  W.  938,  279  Mo. 

^^2*2  Indianapolis  Traction  &  Tenninal 
Co  v.  Thornburg  (Ind.  App.)  125  ^. 
E  57 ;  Terre  Haute,  I.  &  E.  Tractiwi 
Co  V.  Stevenson  (Ind.)  123  N.  E.  <So, 
rehearing  denied  126  N^  E.  3 ;  In- 
dianapolis Traction  &  Terminal  Co. 
V.  Beckman,  81  N.  E.  82,  40  Ind.  App. 

100 

43  McCormack  v.  Phillips,  4  Dak. 
^n«  '^4  N  W.  39;  Chopin  v.  Badger 
Ser  CO.;  83  Wis.  192.  53  N.  W.  452 

44  u.  S.  (C.  C.  A.  Tex.)  Texas  & 
P.  Ry.  Co.,  V.  Nolan,  62  F.  o52,  11  C. 
C    \'  ''02 

'Ark.    'McNeill  v.  Arnold,  22  Ark. 

Fla.      Keech  v.   Enriquez,  28  Fla. 

597    10  So.  91.  ^    r*      ^ 

111       North   Chicago   St.  K.  L>0.  v. 

Cook,*  145  111.  551,  33  N.  E.  958. 


Ind.  Evansville  &  I.  R-  Co.  v.  Dart- 
ing. 6  Ind.  App.  375,  33  N.  E.  636. 

Kan.  Burns  v.  Clark,  185  P.  27, 
105  Kan.  454. 

Mo.  Tillery  v.  Harvey  (App )  214 
S  W  246;  Taylor  v.  Scherpe  &  Ivo- 
ken  Architectural  Iron  Co.,  133  Mo. 
349.  34  S.  W.  581. 

Tex.  Gulf.  C.  &  S.  F.  Ry.  Co.  v. 
Kelly  (Civ.  App.)  34  S.  W\  140. 

Vt.  Bragg  V.  Laraway.  65  Vt.  673, 
27  a!  492. 

4  5Foote  v.  Brown,  70  A.  699,  81 
Conn.  218;  Wally  v.  Clark,  106  A. 
.542  203  Pa.  322;  Stremme  v.  D>er, 
72  A.  274,  223  Pa.  7 ;  ^^enft  v.  Mc- 
lU-ain,  43  Pa.  Super.  Ct.  518. 

4  6  Wilson  V.  Chicago  Heights  Ter- 
minal Transfer  R.  Co.,  212  111.  App. 

271 

47  Central  of  Georgia  Ry.  Co  v. 
Hartley  (Ga.  App.)  103  S.  E.  2o9; 
Manes  v.  St.  Louis.  San  Francisco  Uj. 
Co..  220  S.  W.  14,  205  Mo.  App.  300. 

4  8  McCormick  v.  Parriott,  80  P- 
1044,  33  Colo.  382. 

49  Stringham  v.  Parker,  lo9  111.  304. 

40  N  E  794.  affirming  Stringam  v. 
Same.  56  111.  App.  36;  Boynton  v. 
Chicago  City  Ry.  Co.,  155  HI.  ApP- 
44S  •  Robertson  v.  Monroe,  t  Ind.  App. 
470."  33  N.  E.  1002  ;  Hatfield  v.  Chica- 
go R.  I.  &  P.  Ry-  Co.,  61  Iowa,  434, 
16' N.  W.  336. 

5  0  Probert  v.  Anderson,  77  Iowa.  60, 

41  N  W  574;  Southern  Ry.  Co.  v. 
Ganong,  55  So.  355.  99  Miss.  540:  Mis- 
souri, K.  &  T.  Ry-  CO.  of  Te^^^  V- 
Aycock  (Tex.  Civ.  App.)  135  S.  >> - 
198. 


535 


INSTRUCTIONS   TO  JURIES 


1002 


ibility  of  witnesses,^^  to  instructions  on  the  burden  of  proof  or 
amount  of  evidence  required  to  find  a  fact  in  issue,^*  to  instruc- 
tions upon  the  measure  of  damages  or  the  amount  of  recovery,*'' 


3  9  Griffin  v.  State,  216  S.  W.  34,  141 
Ark.  43;  St.  Louis  Southwestern  Ry. 
Co.  V.  Johnson,  59  Ark.  122,  26  S.  W. 
593 ;  Morehouse  v.  Remson,  59  Conn. 
392,  22  A.  427 ;  Roberts  v.  Morrison, 
75  Iowa,  321,  39  N.  W.  519 ;  State  v. 
Keys,  53  Kan.  674,  37  P.  167. 

Illustrations  of  errors  not  cured 
by  other  instructions.  Error  in  in- 
structing that  where  two  witnesses 
directly  contradict  each  other  tlie  evi- 
dence is  balanced  unless  one  is  cor- 
roborated, was  not  rendered  harmless 
by  a  subsequent  instruction  that  two 
witnesses  did  not  necessarily  out- 
weigh one,  and  that  the  jury  should 
consider  all  the  circumstances  sur- 
rounding each  witness  in  detei-mining 
his  credibility.  Sickle  v.  Wolf,  91 
Wis.  396,  64  N.  W.  1028.  An  instruc- 
tion that  the  jury  should  consider 
•'the  character  of  the  witness,  so  far 
as  you  know  it,  as  bearing  upon  the 
question  whether  a  witness  would  be 
truthful  and  reliable,  or  not.  My  ob- 
servation is  that  pretty  good  persons 
sometimes  lie,  and  that  pretty  bad 
persons  sometimes  tell  the  truth" — is 
erroneous,  and  is  not  cured  by  an- 
other instruction  that  nothing  is  to  be 
found  "by  conjecture,"  but  that  the 
verdict  "must  be  based  upon  evi- 
dence," and  facts  inferable  from  the 
proofs.  Johnson  v.  Superior  Rapid 
Transit  Ry.  Co.,  91  Wis.  233,  64  N.  W. 
753. 

4  0  u.  S.  ^tna  Life  Ins.  Co.  v. 
Ward,  140  U.  S.  76,  11  S.  Ct.  720,  35 
L.  Ed.  371. 

Ala.  Montgomery  v.  Crossthwait, 
90  Ala.  553,  8  So.  498,  12  L.  R.  A.  140, 
24  Am.  St.  Rep.  832. 

Cal.  Foley  v.  Hornung,  169  P.  705, 
35  Cal.  App.  304 ;  Beckman  v.  McKay, 
14  Cal.  250. 

Conn.  Appeal  of  City  Bank  of  New 
Haven,  54  Conn.  269,  7  A.  548. 

Ga.  Postal  Telegraph  Cable  Co.  v. 
Douglass,  96  Ga.  816,  22  S.  E.  930. 

111.  Holliday  v.  O'Gara  Coal  Co., 
203  111.  App.  89;  Smilev  v.  Barnes, 
196  111.  App.  530;  Hinchliff  v.  Robin- 
son, 118  111.  App.  450. 

Neb.     Xye-Schneider-Fowler  Co.  v. 


Chicago  &  N.  W.  Ry.  Co.,  179  N.  W. 
503. 

Illustrations  of  objections  cured. 

A  charge  that,  to  sustain  a  plea  of 
truth  in  justification  of  slanderous 
language,  defendant  must  prove  the 
plaintiff  "actually"  guilty,  while 
standing  alone,  was  objectionable  in 
that  the  word  "actually"  placed  too 
heavy  a  burden  on  defendant,  yet 
when  taken  in  connection  with  other 
charges,  that  it  was  only  necessary  to 
sustain  the  plea  by  a  preponderance 
of  the  evidence,  was  not  error.  Gil- 
strap  V.  Leith,  102  S.  E.  169,  24  Ga. 
App.  720.  In  an  action  for  death  in 
an  accident  to  which  there  were  no 
eyewitnesses,  an  instruction  that  the 
law  "presumes"  that  deceased  was  ex- 
ercising due  care  was  not  objection- 
able as  shifting  on  defendant  the  bur- 
den of  proof  as  to  contributoiy  negli- 
gence, where  the  court  subsequently 
and  repeatedly  charged  that  the  bur- 
den was  at  all  times  on  plaintiff  to 
prove  that  decedent  exercised  ordi- 
nary care,  in  view  of  the  fact  that 
the  word  "presumption"  is  frequently 
used  as  the  equivalent  and  synonym 
of  the  word  "inference."  Anderson  v. 
Chicago,  R.  L  &  P.  Ry.  Co.  (Iowa)  175 
N.  W.  583. 

41  U.  S.  Louisville,  E.  &  St.  L.  R. 
Co.  v.  Clarke,  152  U.  S.  230,  14  S.  Ct. 
579,  38  L.  Ed.  422. 

Ga.  City  of  Atlanta  v.  Whitley, 
101  S.  E.  2,  24  Ga.  App.  411. 

ni.  McFarlane  v.  Chicago  City  Ry. 
Co..  123  N.  E.  638,  288  111.  476,  af- 
firming judgment  212  111.  App.  664 ; 
Malott  V.  Crow,  90  111.  App.  628. 

Ind.  Otter  Creek  Coal  Co.  v.  Arch- 
er, 115  N.  E.  952,  64  Ind.  App.  381. 

Iowa.  Flanagan  v.  Baltimore  &  O. 
R.  Co.,  83  Iowa,  639,  50  N.  W.  60; 
Davis  V.  Walter,  70  Iowa,  465,  30  N. 
W.  804. 

Micb.  Neely  v.  Detroit  Sugar  Co., 
101  N.  W.  664,  138  Mich.  469. 

Mo.  Wojciechowski  v.  Corvell 
(App.)  217  S.  W.  638 ;  Buck  v.  People's 
St.  Ry.  &  Electric  Light  &  Power  Co., 
108  Mo.  179,  18  S.  W.  1090;  Hulett 
V.  Missouri,  K.  &  T.  Ry.  Co.,  80  Mo. 


1003 


CONSTRUCTION  AND  OPERATION 


i  535 


that  an  instruction  does  not  confine  the  jury  to  the  evidence  in  as- 
sessing the  damages,*-  to  instructions  given  in  connection  with  the 
submission  of  special  interrogatories,*^  to  objections  that  instruc- 
tions given  are  not  applicable  to  the  facts,**  that  the  court  mis- 
stated the  evidence  or  the  testimony  of  a  witness,*"  that  a  mistake 
was  made  in  giving  a  date,*^  to  the  use  of  the  word  "plaintifif,"  in- 
stead of  "defendant,"  or  vice  versa,**  that  instructions  are  argu- 
mentative,** that  they  devolve  upon  the  jury  the  duty  of  determin- 
ing what  the  issues  in  the  case  are,  or  of  deciding  what  the  ma- 
terial allegations  of  the  pleadings  are,*^  that  they  refer  the  jury  to 
the  pleadings  to  determine  their  contents  or  the  issue,^"  that  they 
use   inappropriate  phrases  or  contain   improper  definitions  or  fail 


App.   87;     Price  v.   Barnard,   70  Mo 
App.  175. 

Or.  Farmers' 
Bank  v.  Wnodell. 
2f>4.  affirmed  65  P 

Use    of    \irords 


&    Traders'     Nat. 
61   P.   837,   38   Or. 
520,  38  Or.  294. 
suggesting    bare 


possibility  instead  of  reasonable 
certainty.  In  an  action  for  malprac- 
tice, an  instruction  on  ttie  question  of 
reasonable  certainty  of  future  opera- 
tions and  suffering,  while  the  use  of 
the  word  "may"  might  give  the  jury 
the  meaning  of  "bare  possibility,"  in- 
.stead  of  "reasonable  certainty,"  yet 
where  the  instruction  refers  to  such 
suffering  as  the  jury  "believes  she 
will  in  the  future  endure,"  the  word 
"may"  was  not  likely  to  mislead,  and 
must  be  considered  as  harmless,  and 
not  warranting  reversal.  Krinard  v. 
Westerman,  216  S.  W.  938,  279  Mo. 
680. 

>*2  Indianapolis  Traction  &  Tenninal 
Co.  V.  Thornburg  (Ind.  App.)  125  N. 
E.  57 ;  Terre  Haute,  I.  &  E.  Traction 
Co.  V.  Stevenson  (Ind.)  123  N.  E.  785, 
rehearing  denied  126  N.  E.  3;  In- 
dianapolis Traction  &  Terminal  Co. 
V.  Beckman,  81  N.  E.  82,  40  Ind.  App. 
100. 

4  3  McCormack  v.  Phillips,  4  Dak. 
506.  34  N.  W.  .30;  Chopin  v.  Badger 
Paper  Co.,  83  Wis.  192.  .53  N.  W.  452. 

44  U.  S.  (C.  C.  A.  Tex.)  Texas  & 
P.  Rv.  Co.,  V.  Nolan,  62  F.  552,  11  C. 
C.  A.  202. 

Ark.  McNeill  v.  Arnold,  22  Ark. 
477. 

Fla.  Keech  v.  Enriquez,  28  Fla. 
597    10  So.  91. 

lil.  North  Chicago  St.  R.  Co.  ▼. 
Cook,  145  111.  551,  33  N.  E.  958. 


Ind.  Evansville  &  I.  R.  Co.  v.  Dart- 
ing. 6  Ind.  App.  375,  .33  N.  E.  636. 

Kan.  Burns  v.  Clark,  185  P.  27, 
105  Kan.  4,54. 

Mo.  Tillery  v.  Harvey  (App.)  214 
S.  W.  246;  Taylor  v.  Scherpe  &  Ko- 
ken  Architectural  Iron  Co.,  133  Mo. 
349.  34  S.  W.  581. 

Tex.  Gulf.  C.  &  S.  P.  Ry.  Co.  v. 
Kelly  (Civ.  App.)  34  S.  W.  140. 

Vt.  Bragg  V.  Laraway.  65  Vt.  673, 
27  A.  492. 

4  5  Foote  V.  Brown,  70  A.  699.  81 
Conn.  218;  Wally  v.  Clark,  106  A. 
.542,  263  Pa.  322;  Stremme  v.  Dyer, 
72  A.  274.  223  Pa.  7;  Senft  v.  Mc- 
Ilvain,  43  Pa.  Super.  Ct.  518. 

4  6  Wilson  v.  Chicago  Heights  Ter- 
minal Transfer  R.  Co.,  212  111.  App. 
271. 

*T  Central  of  Georgia  Ry.  Co.  v. 
Hartley  (Ga.  App.)  103  S.  E.  259; 
Manes  v.  St.  Louis.  San  Francisco  Ry. 
Co..  220  S.  W.  14,  205  Mo.  App.  300. 

4  8  MeCormick  v.  Parriott,  80  P. 
1044,  33  Colo.  382. 

49  Stringham  v.  Parker,  159  111.  304. 
42  N.  E.  794.  affirming  Stringam  v. 
Same.  56  111.  App.  36;  Boynton  v. 
Chicago  City  Ry.  Co.,  155  111.  App. 
448  ;  Robertson  v.  Monroe.  7  Ind.  App. 
470.  33  N.  E.  1002 ;  Hatfield  v.  Chica- 
go R.  I.  &  P.  Ry.  Co.,  61  Iowa,  434, 
16' N.  W.  336. 

5  0  Probeit  v.  Anderson,  77  Iowa.  60, 
41  N.  W.  574;  Southern  Ry.  Co.  v. 
Ganong,  55  So.  355,  99  Miss.  540:  Mis- 
souri, K.  &  T.  Ry.  Co.  of  Texas  v. 
Avcock  (Tex.  Civ.  App.)  135  S.  W. 
198. 


535 


INSTRUCTIONS   TO  JURIES 


1004 


to  define  certain  terms,^^  and  that  they  apparently  leave  to  the  jury 
a  question  of  law.^^ 

In  criminal  cases  the  above  rule  has  been  applied  to  objections 
ta  sufficiency  of  instructions  on  the  elements  of  the  offense 
charged,^^  on  the  question  of  the  intent  of  the  defendant,^*  on  self- 
defense,^^  on  question  of  defense  of  insanity  or  intoxication,^^  to 
instructions  on  the  issue  of  the  defense  of  alibi,^^  to  instructions 
criticized  as  suggesting  the  interest  of  defendant  on  the  question 
of  his  credibility,^*  to  instructions  on  accomplice  testimony,^®  to 
instructions  on  inferences  arising  from  flight  and  concealment,®®  to 
instructions  bearing  on  the  burden  of  proof,®*  to  instructions  on 
the  right  to  convict  on  circumstantial  evidence,®^  on  the  character 


51  U.  S.  (C.  C.  A.  N.  t.)  Texas  & 
P.  Ry.  Co.  V.  Coutourie,  135  F.  465.  68 
C.  C.  A.  177. 

Colo.  Doherty  v.  Morris,  17  Colo. 
105.  28  P.  85. 

Ga.  Holland  v.  Durham  Coal  & 
Coke  Co.,  63  S.  E.  290,  131  Ga.  715. 

Iowa.  Collier  v.  McClintic-Mar- 
.shall  Const.  Co.,  138  N.  W.  522,  157 
Iowa,  244;  Webber  v.  Sullivan,  58 
Iowa.  260,  12  N.  W.  319. 

Mich.  Smith  v.  Detroit  United 
Ry.,  119  N.  W.  640,  155  Mich.  466. 

Minn.  Witaker  v.  Chicago,  St.  P., 
M.  &  O.  Ry.  Co.,  131  N.  W.  1061,  115 
Minn.  140. 

Mo.  Wamsganz  v.  Blanke-Wen- 
neker  Candy  Co.  (App.)  216  S.  W. 
1025 ;  Bond  v.  Williams  (Sup.)  214  S. 
W.  202 ;  Muehlhausen  v.  St.  Louis  R. 
Co.,  91  Mo.  332,  2  S.  W.  315 ;  Waller 
V.  Missouri,  K.  &  T.  Ry.  Co.,  59  Mo. 
App.  410. 

Tex.  Magnolia  Motor  Sales  Corp. 
V.  Chaffee  (Civ.  App.)  192  S.  W.  562 ; 
Friedrich  v.  Geisler  (Civ.  App.)  141 
S.  W.  1079;  Fordyce  v.  Chancy,  2 
Tex.  Civ.  App.  24,  21  S.  W.  181. 

Utah.  Downey  v.  Gemini  Min.  Co., 
68  P.  414,  24  Utah,  431,  91  Am.  St. 
Rep.  798. 

5  2  Seaboard  Air  Line  Ry.  v.  Scar- 
borough, 42  So.  706,  52  Fla.  425. 

5  3Avers  V.  State,  178  P.  782,  20 
Ariz.  ISO;  Zinn  v.  State,  205  S.  W. 
704,  135  Ark.  342;  People  v.  Wade- 
man,  175  P.  791,  38  Cal.  App.  116. 

5  4  People  V.  McKeighan,  171  N.  W. 
500,  205  Mich.  367 :  State  v.  Reagan, 
217  S.  W.  83,  280  Mo.  57. 


85  Ark.  Mallory  v.  State,  217  S. 
W.  482,  141  Ark.  496 ;  Hines  v.  State, 
215  S.  W.  735.  140  Ark.  13 :  Bran.scum 
V.  State,  203  S.  W.  13,  134  Ark.  66. 

Cal.  People  V.  Fowler,  174  P.  892, 
178  Cal.  657. 

Ga.  White  V.  State,  94  S.  E.  222, 
147  Ga.  377 ;  Swilling  v.  State,  90  S. 
E.  78,  18  Ga.  App.  618 ;  Cox  v.  State, 
88  S.  E.  214,  17  Ga.  App.  727. 

Ky.  Coplev  v.  Commonwealth,  211 
S.  W.  558,  184  Ky.  185. 

S.  C.  State  V.  Brown,  101  S.  E. 
847,  113  S.  C.  513;  State  v.  Gaudy, 
101  S.  E.  644,  113  S.  C.  147. 

Tex.  Anderson  v.  State,  217  S.  W. 
390,  86  Tex.  Cr.  R.  207;  Swilley  v. 
State,  166  S.  W.  7-33,  73  Tex.  Cr.  R. 
619;  Young  v.  State,  135  S.  W.  127, 
61  Tex.  Cr.  R.  303. 

5  6  Brown  v.  State,  96  S.  E.  435,  148 
Ga.  264. 

5T  McDonald  v.  State,  94  S.  E.  262, 
21  Ga.  App.  125 ;  Horton  v.  State,  93 
S.  E.  1012,  21  Ga.  App.  120. 

5  8  Murphy  v.  State,  80  So.  636,  119 
Miss.  220. 

5  0  Lockhead  v.  State,  213  S.  W.  653, 
85  Tex.  Cr.  R.  459. 

6  0  State  V.  Ching  Lem,  176  P.  590, 
91  Or.  611. 

61  State  V.  Tachin,  108  A.  318,  93 
N.  J.  Law,  485,  affirming  judgment 
106  A.  145,  92  N.  J.  Law,  269;  La- 
grone  v.  State,  209  S.  W.  411,  84 
Tex.  Cr.  R.  609. 

6  2  State  V.  Arnett  (Mo.)  210  S.  W. 
82. 


1005 


CONSTRUCTION  AND   OPERATION 


535 


of  the  defendant,®^  and  on  the  doctrine  of  reasonable  doubt,^*  to 


e;'.  Commonwealth  v.  Tenbroeck,  108 
A.  (i?,5.  265  Pa.  251;  Commonwealth 
V.  Stouer,  108  A.  G24,  265  Pa.  139. 

Illustrations  of  instructions 
Iield  not  erroneous.  Where  the 
court  correctly  and  properly  charges 
as  to  the  consideration  to  be  given  ev- 
idence of  good  character,  it  cannot  be 
convicted  of  error  in  further  charg- 
ing as  follows:  "This  does  not  mean 
that  because  a  man  has  behaved  well 
in  a  certain  particular  heretofore, 
and  has  there  and  then  ceased  to  be- 
have well  and  has  in  fact  committed 
the  crime  charged,  it  does  not  mean 
that,  if  he  is  guilty,  he  shall  be  ac- 
quitted or  have  any  benefit  of  the 
fact  that  he  has  heretofore  behaved 
well,  but  it  does  mean  that  in  deter- 
mining whether  you  are  satisfied  be- 
yond a  reasonable  doubt  that  he  is 
guilty,  that  he  did  commit  the  act, 
you  shall  give  him  the  benefit  of  a 
full  and  fair  consideration  of  the  evi- 
dence of  good  reputation  in  connec- 
tion with  all  the  other  evidence  in 
the  case."  Commonwealth  v.  Stoner, 
70  Pa.  Super.  Ct.  365.  Where  the 
trial  .judge  fully  and  accurately  in- 
structs as  to  the  effect  of  good  char- 
acter as  a  defense,  it  is  not  error  to 
add,  "but  where  the  jury  is  satisfied 
beyond  a  reasonable  doubt  under  all 
the  evidence  that  defendant  is  guilty, 
evidence  of  previous  good  character  is 
not  to  overcome  the  conclusion  which 
follows  from  that  view  of  the  case." 
Commonwealth  v.  Tenbroeck,  108  A. 
635,  265  Pa.  251. 

C4  Ala.  Brown  v.  State,  74  So.  733, 
15  Ala.  App.  611. 

Cal.  People  v.  Hatch,  125  P.  907, 
163  Cal.  368;  People  v.  Corey,  97  P. 
907,  8  Cal.  App.  720 ;  People  v.  Nun- 
ley,  75  P.  676,  142  Cal.  105 ;  Id.,  76 
P.  45,  142  Cal.  441;  People  v.  Gil- 
more,  53  P.  806,  121  Cal.  xvii;  People 
V.  Ross,  46  P.  1059,  115  Cal.  233; 
People  V.  Core,  59  Cal.  390. 

Conn.  State  V.  Bailey,  65  A.  951, 
79  Conn.  589. 

Ga.  Langston  v.  State,  97  S.  E, 
444,  23  Ga.  App.  82;  Harrison  v. 
State,  92  S.  E.  970,  20  Ga.  App.  157; 
Brooks  V.  State,  90  S.  E.  971,  19  Ga. 
App.  45;    Ponder  v.  State,  90  S.  E. 


376,  18  Ga.  App.  727 ;  Helms  v.  State, 
76  S.  E.  353,  138  Ga.  826 ;  Dickens  v. 
State,  73  S.  E.  826,  137  Ga.  523. 

Ind.  Hinshaw  v.  State,  124  N.  E. 
458,  188  Ind.  447;  Sherer  v.  State,  121 
N.  E.  369,  188  Ind.  14. 

Iowa.  State  v.  Smith,  99  N.  W. 
579:  State  v.  Phillips,  92  N.  W.  876, 
lis  Iowa,  660. 

Kan.     State  v.  Adams,  20  Kan.  311. 

Ky.  Daniels  v.  Commonwealth,  205 
S.  W.  402,  181  Ky.  392 ;  Long  v.  Com- 
monwealth, 197  S.  W.  843,  177  Ky. 
391;  O'Day  v.  Commonwealth,  99  S. 
W.  937,  30  Ky.  Law  Rep.  848. 

Mich.  People  V.  Williams,  175  N. 
W.  187,  208  Mich.  586.  " 

Mo.  State  v.  Miles,  98  S.  W.  25, 
199  Mo.  530. 

N.  J.  State  V.  Kuehnle,  88  A.  1085, 
85  N.  J.  Law,  220,  Ann.  Cas.  1916A, 
69,  affirming  judgment  85  A.  1014,  84 
N.  J.  Law,  164. 

N.  M.  Territory  v.  Caldwell,  98  P. 
167,  14  N.  M.  535 ;  Faulkner  v.  Terri- 
tory, 6  N.  M.  464,  30  P.  905. 

N.  C.  State  v.  Fain,  97  S.  E.  716, 
177  N.  C.  120 ;  State  v.  Martin,  92  S. 
E.  597,  173  N.  C.  808. 

Or.  State  v.  Morris,  163  P.  567,  83 
Or.  429. 

Pa.  Commonwealth  v.  Rusic,  79  A. 
140,  229  Pa.  587. 

Tex.  Graham  v.  State,  163  S.  W. 
726,  73  Tex.  Cr.  R.  28 ;  Harrolson  v. 
State,  113  S.  W.  544,  54  Tex.  Cr.  R. 
452 ;  Stephens  v.  State,  103  S.  W.  904, 
51  Tex.  Cr.  R.  406. 

Utah.  State  v.  Vacos,  120  P.  497, 
40  Utah,  169. 

Wash.  State  v.  Lance,  162  P.  574, 
94  Wash.  484;  State  v.  Shea,  139  P. 
203,  78  Wash.  342:  State  v.  Wappen- 
stein,  121  P.  989,  67  Wash.  502. 

Wis.  Till  v.  State,  111  N.  W.  1109, 
132  Wis.  242. 

Illustrations  of  defects  cured. 
In  a  prosecution  of  a  physician  for 
soliciting  patients  by  means  of  a 
drummer  or  solicitor,  an  instruction 
that  it  was  not  necessary  to  prove  ac- 
cused guilty  by  the  testimony  of  wit- 
nesses who  heard  him  employ  a  drum- 
mer or  solicitor  to  solicit  patients  for 
him,  but  that  such  guilt  might  be  es- 
tablished by  proof  of  facts  and  cir- 


8  535  INSTRL'CTIOXS  TO  JURIES  lOOG 

instructions  criticized  as  not  confining  the  jury  to  the  evidence,'^'* 


cumstances    from    which    his    guilt 
might   reasonably   and   satisfactorily 
he  implied  beyond  a  reasonable  doubt, 
while  not  in  apt  language,  was  not 
misleading  when  taken  in  connection 
with   instructions   that   accused   was 
presumed  to  be  innocent,  that  the  pre- 
sumption obtained  through  the  trial, 
and  that  he  was  not  required  to  pro- 
duce  evidence  of  his  innocence  until 
every  allegation  material  to  the  crime 
charged   had   been   proved  beyond   a 
reasonable  doubt,  and  that,  before  he 
could  be  convicted  on  circumstantial 
evidence,  the  testimony  should  be  so 
strong  as  to  convince  the  jury  of  his 
guilt  to  such  an  extent  as  to  exclude 
every    other    reasonable    hypothesis, 
and  that,  if  the  evidence  in  any  es- 
'  sential  point  admitted  of  reasonable 
douht,   accused   should   be  acquitted. 
Burrow  v.  City  of  Hot  Springs,  lOS 
S.  W.  823,  85  Ark.  396.     An  instruc- 
tion that  the  term  "reasonable  doubt" 
does  not  mean  a  "mere  possible  doubt, 
a   conjectural   doubt,"   nor   "a   doubt 
which    is    merely    capricious,"    when 
read  in  connection  with  a  preceding 
instruction  that  a  reasonable  doubt  is 
that  state  of  the  case  which,  after  an 
entire  comparison  and  consideration 
of  all  the  evidence,  leaves  the  minds 
of  the  jurors  in  that  condition  that 
they  cannot  say  they  feel  an  abiding 
conviction  to  a  moral  certainty  that 
defendant  committed  the  offense,  was 
entirely  correct.    People  v.  Botkin,  98 
P.  861,  9  Cal.  App.  244.     Where  the 
court  had  charged  that  the  law  pre- 
sumed every  man  to  be  innocent  until 
his  guilt  was  established  beyond  all 
doubt,  which  presumption  attaches  at 
every  stage  of  the  case  and  to  every 
fact   essential   to  a   conviction,   and, 
again,    that   if   the  jury   entertained 
any  reasonable  doubt  on  any  single 
fact  or  element  necessary  to  consti- 
tute the  crime  it  was  their  duty  to 
give  the  defendant  the  benefit  of  such 
doubt,  and  acquit,  defendant  was  not 
entitled  to  object  to  a  further  instruc- 
tion  that   if  the   jury   entertained   a 
reasonable  doubt  on  any  single  mate- 
rial fact,  which  was  inconsistent  with 
defendant's  guilt,  arising  from  the  ev- 
idence in  the  case,  it  was  their  duty 


to  acquit,  on  the  ground  that  such  in- 
struction dealt  only  with  facts  incon- 
sistent with  guilt.  People  v.  Ways- 
man,  81  P.  1087,  1  Cal.  App.  246. 
Where  the  court  charged  that  the  law 
presumes  every  man  innocent  until 
his  guilt  is  estahlished  to  a  moral  cer- 
tainty, and  beyond  all  reasonable 
doubt,  and  that  such  presumption  at- 
taches to  every  fact  essential  to  a 
conviction,  an  instruction  that,  while 
every  fact  essential  to  prove  defend- 
ant's guilt  to  a  moral  certainty  must 
be  fully  proven,  the  law  permits  this 
to  be  done  by  circumstantial  evidence, 
and  Avhere  the  evidence  is  circumstan- 
tial, but  proves  every  fact  essential  to 
sustain  the  hypothesis  of  guilt,  and 
to  exclude  the  hypothesis  of  inno- 
cence, and  is  inconsistent  with  any 
other  rational  conclusion  than  that  of 
guilt,  it  is  the  jury's  duty  to  convict, 
Avas  not  erroneous.  People  v.  Cain,  93 
P.  1037.  7  Cal.  App.  163.  An  instruc- 
tion that  an  alibi  meant  that  a  de- 
fendant was  elsewhere  at  the  time  of 
the  crime,  and  that  if  there  was  a 
reasonable  doubt  as  to  whether  the 
two  defendants  were  present  the  jury 
should  acquit  them,  but,  if  one  of  de- 
fendants was  present  and  the  other 
not,  the  defendant  not  present  should 
be  acquitted  and  the  one  present 
should  be  convicted,  was  not  errone- 
ous for  failing  to  state  the  law  of 
reasonable  douht,  burden  of  proof, 
and  the  various  ingredients  of  the  of- 
fense, stated  in  other  instructions,  the 
court  having  charged  that  no  one  in- 
struction contained  all  the  law,  but 
that  the  instructions  taken  together 
should  govern  the  jury.  Van  Wyk  v. 
People,  99  P.  1009,  45  Colo.  1.  Where, 
in  a  trial  for  homicide,  the  question 
of  reasonable  doubt  was  fully  present- 
ed to  the  jury,  an  instruction  that,  if 
defendant  inflicted  the  wound  on  de- 
cea.sed  which  caused,  or  contributed 
to,  his  death,  the  state  would  not  be 
required  to  show  that  neither  the  de- 
ceased, nor  any  one  in  attendance  on 
him,  was  guilty  of  negligence  in  the 
care  of  the  wound  was  not  objection- 

65  People  V.   Silver.  122  N.  E.  115. 
286  111.  496. 


1007 


CONSTRUCTION   AND   OPERATION 


§  535 


to  the  omission  of  particular  words,  such  as  "as  charged   in   the 


able  as  failing  to  tell  the  jury  that 
they  must  tind  from  the  testimony, 
beyond  a  reasonable  doubt,  that  de- 
fendant inflicted  the  wound.  State  v. 
Baker,  121  N.  W.  102S,  143  Iowa,  224. 
A  conviction  of  larceny  will  not  be  re- 
versed because  the  court,  in  referring 
to  defendant's  story,  instructed  the 
jury  to  consider  from  all  the  facts 
whether  the  defense  was  probably 
true,  where  they  were  also  told  that 
defendant  is  not  required  to  prove 
his  innocence,  and  that  if,  after  con- 
sideration of  all  the  evidence,  there 
was  any  reasonable  doubt  of  guilt,  he 
must  be  acquitted.  State  v.  Wolfley, 
89  P.  1046,  75  Kan.  406,  11  L.  R.  A. 
(N.  S.)  87,  12  Ann.  Cas.  412,  rehearing 
denied  93  P.  337,  75  Kan.  406,  11  L.  R. 
A.  (N.  S.)  87,  12  Ann.  Cas.  412.  The 
jury  having  been  instructed  that,  if 
on  the  whole  case  they  had  a  reasona- 
ble doubt  of  defendant's  guilt,  they 
should  find  him  not  guilty,  they  could 
not  find  him  guilty  unless  they  believ- 
ed the  facts  therein  set  forth  beyond 
a  reasonable  doubt  under  an  instruc- 
tion that  if  at  the  time  defendant  kill- 
ed decedent  he  believed,  and  had  rea- 
sonable grounds  to  believe,  that  he 
was  in  danger  of  death  or  great  bodily 
harm,  and  that  it  was  necessary  to 
kill  decedent,  then  defendant  was  not 
guilty  on  the  ground  of  self-defense, 
but  if  the  jury  believed  beyond  a  rea- 
sonable doubt  that  defendant  when 
not  in  danger  began  the  difficulty,  or 
if  the  combat  was  voluntarily  engag- 
ed in  by  both,  then  in  each  event  de- 
fendant could  not  be  acquitted,  Ken- 
nedy v.  Commonwealth,  109  S.  W.  313, 
33  Ky.  Law  Rep.  83.  A  charge  that 
suspicious  circumstances  may  come  to 
the  point  where  the  jury  is  satisfied 
of  the  existence  of  a  fact,  and  it  may 
be  they  would  go  so  far  as  to  satisfy 
the  jury  beyond  a  reasonable  doubt  of 
some  of  the  facts  claimed  to  have 
been  proved  by  such  evidence,  is  not 
erroneous,  particularly  where  taken 
with  other  parts  of  the  charge  stat- 
ing that  to  prove  the  existence  of  a 
fact  by  circumstances  they  must  be 
such  as  will  lead  the  jury  to  but  one 
conclusion ;  that  is,  proof  of  the  fact 
beyond  a  reasonable  doubt.    State  v. 


Ready,  72  A.  445,  77  N.  J.  Law,  329, 
j\idgment  reversed  75  A.  5G4,  78  N.  J. 
Law,  599,  28  L.  R.  A.  (N.  S.)  240.  An 
instruction  that,  when  the  plea  of 
self-defense  is  relied  on,  it  must  be 
proved  by  a  preponderance  of  evi- 
dence, is  not  erroneous,  hecause  it 
was  not  added  that  defendant  was  en- 
titled to  every  reasonable  doubt, 
where  such  instruction  is  afterwards 
given.  State  v.  Way,  56  S.  E.  653,  76 
S,  C.  91.  Where,  in  a  prosecution  for 
homicide,  where  the  trial  court  re- 
peatedly charged  that  defendant  must 
show  by  the  weight  of  the  evidence 
that  he  acted  in  self-defense,  and  that, 
if  there  was  a  doubt  as  to  the  pre- 
ponderance of  the  evidence  on  that  is- 
sue, it  should  be  resolved  in  favor  of 
defendant,  and  in  one  part  of  tlie  in- 
struction charged  that  "the  law  holds 
one  who  admits  the  killing  of  another 
to  a  very  strict  account,  and  it  re- 
quires of  him  very  satisfactory  evi- 
dence that  it  was  necessary,  that  is. 
apparently  necessary,"  it  w-as  held 
that  the  language  could  only  be  un- 
derstood to  mean  that  accused  must 
show  that  amount  of  evidence  which 
would  overbalance  the  state's  showing 
that  it  was  not  self-defense,  or  raise  a 
doubt  in  accused's  favor,  and  that  the 
instruction  was  not  erroneous.  State 
V.  Hibler,  60  S.  E.  438,  79  S.  C.  170. 
An  instruction  that  if  the  jury  believ- 
ed beyond  reasonable  doubt  that  ac- 
cused intentionally  and  unlawfully 
killed  decedent,  and  found  that  the 
facts  did  not  establish  express  malice 
beyond  reasonable  doubt,  and  that  the 
facts  established  beyond  reasonable 
doubt  that  the  homicide  was  not  of 
the  grade  of  manslaughter  and  was 
not  justified  on  the  ground  of  self- 
defense,  as  manslaughter  and  self- 
defense  were  thereinafter  defined, 
then  the  facts  did  not  tend  to  miti- 
gate or  justjfy  the  act,  and  there  was 
nothing  to  reduce  the  killing  below 
murder,  "as  these  expressions  are  us- 
ed in  the  above  charge  on  murder  in 
the  second  degree,  and  you  may  find 
implied  malice  and  that  the  offense 
is  murder  in  the  second  degree,"  was 
not  erroneous,  as  infringing  the  doc- 
trine of  reasonable  doubt,  when  con- 


§  535  INSTRUCTIONS  TO  JURIES  1008 

indictment/'  ^  to  the  omission  of  the  word  "express"  before  "mal- 
ice," ^'  to  the  omission  to  define  "adequate  cause,"  ®*  to  the  fail- 
ure to  define  "heat  of  passion,"  ^®  and  to  the  cure  of  an  improper 
reference  to  the  indictment.'** 

An  error  in  a  charge  for  the  state  on  a  particular  matter,  which 
is  merely  calculated  to  mislead  or  confuse  the  jury,  is  cured  by 
full  instructions  on  the  subject  given  for  the  defendant.'^  It  is 
not  necessary  for  each  instruction  in  a  series  given  in  a  homicide 
case  to  contain  the  whole  law  of  the  case,  or  to  call  the  attention 
of  the  jury  to  all  the  contentions  of  the  respective  parties;  but  it 
is  sufficient  if  the  instructions,  considered  as  a  whole,  fully  and 
fairly  announce  the  rules  of  law  applicable  to  the  prosecution  and 
the  defense,'^^  and  an  instruction,  misleading  as  charging  that  the 
plea  of  insanity  must  be  proven  beyond  a  reasonable  doubt,  is 
cured  by  a  further  instruction  that,  if  the  jury  have  a  reasonable 
doubt  as  to  any  fact  necessary  to  constitute  the  guilt  of  defend- 
ant, they  must  acquit.'^ 

§  536.     Objection  that  instructions  invade  province  of  jury 

In  determining  whether  instructions  trench  upon  the  province 
of  the  jury  by  commenting  upon  the  evidence,  or  expressing  an 
opinion  upon  the  weight  thereof,  or  impairing  the  right  of  the  jury 
to  determine  the  credibility  of  the  witnesses,'*  or  by  the  assump- 

sidered  with  other  instructions  dis-  held  that  the  charge  as  a  whole  was 
tinguishing  murder  in  the  first  and  correct,  and  was  not  erroneous  be- 
second  degrees,  defining  implied  mal-  cause  the  first  part  of  it  did  not  in- 
ice  and  manslaughter,  and  giving  ac-  elude  the  element  of  reasonable  doubt, 
cused  the  benefit  of  any  doubt  as  to  Mitchell  v.  State,  114  S.  W.  830,  55 
the  grade  of  the  offense  committed.  Tex.  Cr.  R.  62. 

Dobbs  V.  State,  113  S.  W.  923,  54  Tex.  ee  Uzzell   v.   People,   178   111.   App. 

Cr.  R.  550.    Where  the  court  charged  257. 

that  if  accused  killed  deceased,  but  s?  Johnson  v.  State,  138  S.  W.  1021, 

at  the  time  or  prior  thereto,  deceased  63  Tex.  Cr.  R.  50. 
had    said    or   done    anything    which  ss  Hendricks   v.    State,   154   S.   W. 

aroused  accused's  anger,  etc,  so  as  to  1005,  69  Tex.  Cr.  R.  209. 
render  his  mind  incapable  of  cool  re-  6  9  State  v.  Fox,  207  S.  W.  779,  276 

flection  when  he  killed  deceased,  the  Mo,  378. 

.iury  should  find  him  guilty  of  man-  ^o  State  v.  McLaughlin,  50   S.  W. 

slaughter,  but  in  another  charge  stat-  315,  149  Mo.  19. 

ed  that  if  they  had  a  reasonable  doubt  ^i  Kennard  v.  State,  28  So.  858,  42 

as  to  whether  accused  was  guilty  of  Fla,  581 ;    State  v.  Steffens,  89  N.  W. 

first  or  second  degree  murder,  they  974,  116  Iowa,  227;    State  v.  Lackey, 

should  acquit  him  of  the  higher  of-  82  P.  527,  72  Kan.  95;    Rodgers  v. 

fense,  and  if  they  believed  that  ac-  State  (Miss.)  21  So.  130. 
cused  was  guilty  of  some  grade  of  cul-  '^~  People  v.  Strause,  125  N.  E.  339, 

pable  homicide,  but  had  a  reasonable  290  111.  259. 

doubt  whether  it  was  murder  or  man-  7  3  Smith  v.   Commonwealth,  17   S. 

slaughter,  they  should  only  find  him  W.  868,  13  Ky.  Law  Rep.  612. 
guilty  of  the  latter   offense,   it  was  7*U.   S.     (C.  C.  A.  Ohio)   Shea  v. 


1009 


CONSTRUCTION  AND   OPERATION 


§  536 


tion  of  disputed  facts,'^  the  general  rule  is  that  the  uistructions 
should  be  considered  as  a  whole,  and  that  any  merely  misleading 
tendencies  of  one  instruction  in  this  regard  may  be  cured  by  other 

instructions.  .  . 

If  however,  an  instruction  clearly  and  unequivocally  invades 
the  province  of  the  jury  with  respect  to  any  matters  of  fact,  the 
rule  supported  by  the  weight  of  authority  is  that  such  an  errone- 
ous instruction  cannot  be  cured  by  other  instructions  submitting 
such  questions  of  fact  to  the  determination  of  the  jury,'^  or  by 


United  States,  251  F.  440,  1G3  C.  C. 
A  458,  writ  of  certiorari  denied  39  S. 
Ct  132,  248  U.  S.  581,  63  L.  Ed.  431. 
Ark.  Camp  v.  State,  215  S.  W. 
170.  144  Ark.  641. 

Cal.  People  V.  Haney  (App.)  189 
P.  338 ;  People  v.  Gibson,  178  P.  338, 
39  Cal.  App.  202. 

Ga.  Towns  v.  State,  101  S.  E.  678, 
149  Ga.  613;  Washington  v.  State, 
100  S.  E.  31,  24  Ga.  App.  65;  Scoggins 
V.  State,  98  S.  E.  240,  23  Ga.  App.  .366. 
Mich.  Labarge  v.  Pere  Marquette 
E.  Co.,  95  N.  W.  1073,  134  Mich.  139; 
Henry  v.  Henry,  80  N.  W.  800,  122 
Mich.  6;  Whelpley  v.  Stoughton,  78 
Ts.  W.  137,  119  Mich.  314. 

Mo.  Rice  V.  .Tefferson  City  Bridge 
&  Transit  Co.  (Sup.)  216  S.  W.  746. 

N.  C.  State  v.  Chambers,  104  S. 
E.  670,  180  N.  C.  705 ;  Neal  v.  Yates, 
104  S  E.  537,  180  N.  C.  266 ;  Cochran 
V.  Smith,  88  S.  E.  499,  171  N.  C.  369. 
S.  C.  Galluchat  v.  Atlantic  Coast 
Line  R.  Co.,  93  S.  E.  241,  108  S.  C. 
51 ;  Williams  v.  Greenville,  S.  &  A.  R. 
Co..  88  S.  E.  1.31,  103  S.  C.  321. 

Wis.  Twentieth  Century  Co.  v. 
Quilling,  117  N.  W.  1007,  136  Wis. 
481. 

7  5  u.  S.  CoflRn  V.  United  States, 
162  U.  S.  664,  16  S.  Ct.  943,  40  L.  Ed. 
1109. 

Ala.  Birmingham  Ry.,  Light  & 
Power  Co.  v.  Moore,  50  So.  115,  163 
Ala.  43. 

Ark.  Bowden  v.  Dennis,  217  S.  W., 
798,  144  Ark.  642;  Burke  Const.  Co. 
V.  St.  Louis  &  S.  F.  Ry.  Co.,  214  S.  W. 
13,  139  Ark.  199 ;  Louisiana  &  A.  Ry. 
Co.  V.  Anderson,  213  S.  W.  753,  139 
Ark.  349. 

Colo.  Pickett  v.  Handy,  48  P.  820, 
9  Colo.  App.  357. 

Inst. TO  Juries — 64 


Conn.  State  v.  Perretta,  105  A, 
690,  93  Conn.  328. 

Ga.  Citv  of  Atlanta  v.  Young,  93 
Ga.  265,  20'S.  E.  317. 

111.  East  St.  Louis  Connecting  Ry. 
Co.  V.  Enright,  152  111.  246,  38  N.  E. 
553;  Cleveland,  C,  C.  &  St.  L.  Ry. 
Co.  V.  Baddeley,  150  111.  328,  36  N.  E. 
965;  Small  v.  Roberts,  43  111.  App. 
577. 

Ind.  Kelley  v.  Kelley,  8  Ind.  App. 
606,  34  N.  E.  1009;  Evansville  &  T. 
H.  R.  Co.  V.  Talbot,  131  Ind.  221,  29 
N.  E.  1134;  Bishop  v.  State,  83  Ind. 
67. 

Ky.  Kentucky  Cent.  R.  Co.  v.  Mus- 
selman,  14  Ky.  Law  Rep.  (abstract) 
893. 

Mick.  Pierce  v.  C.  H.  Bidwell 
Thresher  Co.,  122  N.  W.  628.  158  Mich. 
356;  Rouse  v.  Michigan  United  Rys. 
Co.,  122  N.  W.  532,  158  Mich.  109. 

Minn.  Egan  v.  Faendel,  19  Minn. 
231  (Gil.  191). 

Mo.  Sparks  v.  Harvey  (App.)  214 
S  W.  249 ;  La  Riviere  v.  La  Riviere, 
97  Mo.  80,  10  S.  W.  840 ;  Ruth  v.  Chi- 
cago, R.  I.  &  P.  Ry.  Co.,  70  Mo.  App. 
190. 

N.  D.  Watson  v.  Nelson,  172  N.  W. 
823. 

Pa.  Irvin  v.  Kutruff,  152  Pa.  009, 
25  A.  796,  31  Wkly.  Notes  Cas.  485. 

Tex.  Ft.  Worth  &  D.  C.  Ry.  Co. 
V.  Morrison  (Civ.  App.)  129  S.  W. 
1159;  Missouri,  K.  &  T.  Ry.  Co.  of 
Texas  v.  Hood,  120  S.  W.  2.36,  55  Tex. 
Civ.   App.   636. 

Wash.  State  v.  Vane,  178  P.  456, 
105  Wash.  421. 

7  6  People  v.  Harvey,  122  N.  E.  138, 
286  111.  593;  Rouden  v.  Heisler's  Es- 
tate (Mo.  App.)  219  S.  W.  691;  State 
V.  Herbert,  105  A.  796,  92  N.  J.  Law, 


§  537 


INSTRUCTIONS  TO  JURIES 


1010 


anything  short  of  an  express  withdrawal  of  the  objectionable  in- 
struction." 


C.    CoNP'LicTiNG  Instructions  and  Cure  of  Positive;  Error  in 
Instructions  by  Giving  Othe;r  Instructions 

§  537.     General  rule 

While  the  instructions  must  be  considered  as  a  series,  and  may 
supplement  each  other,  each  one  must  state  the  law  correctly  as  far 
as  it  goes,  and  there  should  be  such  harmony  between  them  that 
the  jury  will  not  be  misled;'''*  and  where  instructions  are  in  ir- 
reconcilable conflict,  or  they  are  so  conflicting  as  to  confuse  or 
mislead  the  jury,  the  rule  requiring  them  to  be  read  together  has 
no  application.''^ 

An  instruction  stating  the  law  incorrectly  is  seldom  remedied 
by  another  correct  instruction,**^  and  the  general  rule  is  that  an 


341 ;  G.  W.  McNear,  Inc.,  v.  American 
&  British  Mfg.  Co.,  107  A.  242,  42  R. 
I.  .302. 

Contra,  Harvey  v.  Epes,  12  Grat. 
(Va.)  153. 

See.  also,  ante,  §  31,  notes  46.  47. 

Cases  in  wMcIi  assumption  of 
disputed  facts  held  not  to  liave 
been  cured.  Where  the  evidence  is 
conflicting,  and  the  balance  doubtful, 
an  instruction,  erroneously  assuming 
a  fact  in  issue,  is  not  cured  by  other 
instructions  vphich  assume  that  the 
question  is  still  open.  Illinois  Cent. 
R.  Co.  V.  Sanders,  58  111.  App.  117. 
Where  instructions  assumed  that  an 
alleged  settlement,  which  was  the 
question  at  issue,  was  not  made,  other 
instructions  given,  stating,  "If  the  set- 
tlement had  been  made,"  did  not  cure 
the  error.  Bressler  v.  Schwertferger, 
15  111.  App.  294.  In  an  action  by  an 
employ^  against  a  railroad  company 
for  injuries  alleged  to  have  been  sus- 
tained, in  boarding  his  train,  by  rea- 
son of  a  pile  of  cinders  negligently  al- 
lowed to  accumulate  near  the  track, 
an  instruction  that,  "before  plaintiff 
can  recover,  it  must  be  shown  that 
the  negligence  of"  defendants  "con- 
cerning the  pile  of  cinders,  as  alleged, 
involved  him  in  extra  risk,  and  there- 
by caused  his  injuries,"  is  erroneous, 
because  it  ass\imes  as  a  fact  that  the 
accumulation  of  the  cinders  was  neg- 


ligence, while  it  is  not  made  so  by 
statute ;  and  the  error  is  not  cured  by 
a  subsequent  instruction,  submitting 
the  question  to  the  jury,  along  with 
other  questions  of  fact,  in  such  a  man- 
ner as  not  to  correct  the  error. 
Campbell  v.  Ellsworth  (Tex.  Sup.)  20 
S.  W.   120. 

7  7  Wimberly  v.  State,  77  S.  E.  879, 
12  Ga.  App.  540. 

7  8  Funstou  V.  Hoffman,  83  N.  E. 
917,  232  111.  360. 

7  0  Ark.  Southern  Anthracite  Coal 
Co.  V.  Bowen,  124  S.  W.  1048,  93  Ark. 
140. 

Cal.  Howard  v.  Worthington 
(App.)  195  P.  709. 

Idaho.  Portneuf -Marsh  Valley  Irr. 
Co.  V.  Portneuf  Irrigating  Co.,  114  P. 
19,  19  Idaho,  483. 

111.     Baldwin  v.  Killian,  63  111.  550. 

Ky.  Lexington  &  E.  Ry.  Co.  v. 
Fields,  153  S.  W.  43,  152  Ky.  19. 

Tex.  St.  Louis  Southwestern  Ry, 
Co.  of  Texas  v.  Green,  138  S.  W.  241. 

80  Ark.  Doyle  &  Booth  v.  Kava- 
naugh,  112  S.  W.  889,  87  Ark.  364. 

Cal.  People  v.  Neetens  (App.)  184 
P.  27 ;  Fogarty  v.  Southern  Pac.  Co,, 
91  P.  650,  151  Cal.  785. 

D.  C.  Baltimore  &  O.  R.  Co,  v, 
Morgan,  35  App.  D.  C.  195. 

111.  Ratner  v.  Chicago  City  Ry. 
Co.,  84  N.  E.  201,  233  111.  169,  revers- 
ing judgment  Chicago  City  Ry.  Co.  v. 


1011 


CONSTRUCTION   AND   OPERATION 


§537 


unambiguous  and  affirmatively  erroneous  instruction  on  a  material 


Ratner,  133  111.  App.  628;  Sloan  v. 
Cleveland,  C,  C.  &  St.  L.  Ky.  Co.,  140 
III.  App.  31. 

Ind.  Chicago  &  E.  R.  Co.  v.  Fretz, 
90  N.  E.  76,  173  Ind.  519. 

Ind.  T.  Gulf,  C.  &  S.  F.  R.  Co.  v. 
Warlick,  1  Ind.  T.  10,  35  S.  W.  235. 

Iowa.  Latta  v.  Illinois  Cent.  R. 
Co.,  130  N.  W.  10.59,  151  Iowa,  244; 
Parsons  v.  United  States  Express  Co., 
123  N.  W.  776,  144  Iowa,  745,  25  L,  R. 
A.  (N.  S.)  842. 

Ky.  Burton's  Adm'r  v.  Cincinnati, 
N.  O.  &  T.  P.  Ry.  Co.,  113  S.  W.  442. 

Md.  Seaboard  Air  Line  Ry.  Co.  v. 
PliiUips,  70  A.  232,  108  Md.  285; 
Rosenkovitz  v.  United  Rys.  &  Electric 
Co.  of  Baltimore  City,  70  A.  108,  108 
Md.  306. 

Miss.  MahafCey  Co.  v.  Russell  & 
P.utler,  54  So.  945,  100  Miss.  122.  over- 
ruling suggestion  54  So.  807,  100 
Miss.  122. 

Mo.  Stumpf  V.  United  Rys.  Co.  of 
St.  Louis  (App.)  227  S.  W.  852;  Mc- 
Gee  V.  St.  Joseph  Ry.,  Light,  Heat  & 
Power  Co.,  133  S.  W.  1194,  153  Mo. 
App.  492;  Kirkpatrick  v.  Metropoli- 
tan St.  Ry.  Co.,  109  S.  W.  682,  211 
Mo.  68,  reversing  judgment  107  S.  W. 
1025,  129  Mo.  App.  524;  Glover  v. 
Atchison,  T.  &  S.  F.  Ry.  Co.,  108  S. 
W.  105,  129  Mo.  App.  563;  Welch  v. 
Hannibal  &  St.  J.  Ry.  Co.,  20  Mo. 
App.  477. 

Neb.  McPherson  v.  Wiswell,  19 
Neb.  117,  26  N.  W.  916. 

N.  H.  Gerry  v.  Kennett,  78  A.  649, 
75  N.  H.  564. 

N.  J.  State  V.  Tachin,  108  A.  318, 
93  X.  J.  Law,  485,  affirming  judgment 
106  A.  145,  92  N.  J.  Law,  269. 

N.  Y.  Goodwin  v.  Burke,  57  Hun, 
592,  10  N.  Y.  S.  628. 

Or.  Dalton  v.  Kelsey,  114  P.  464, 
58  Or.  244. 

Pa.  Arthurs  v.  Wilson,  40  Pa.  Su- 
per. Ct.  604. 

S.  C.  Scarborough  v.  Woodley,  62 
S.  E.  405,  81  S.  C.  329. 

Tex.  Chicago,  R.  I.  &  G.  Ry.  Co. 
V.  Forrester  (Civ.  App.)  137  S.  W. 
162. 

Va.  American  Locomotive  Co.  v. 
Whitlock,  63  S.  E.  991,  109  Va.  238. 

Wash.     Rosin  v.  Danaher  Lumber 


Co.,    115    P.    833,    63    Wash.    430,   40 
L.  R.  A.  (N.  S.)  913. 

W.  Va.  State  v.  Ringer,  100  S.  E. 
413,  84  W.  Va.  546;  Cobb  v.  Dunle- 
vie,  GO  S.  E.  384,  63  W.  Va.  398. 

Wis.  Carle  v.  Nelson,  130  N.  W. 
4G7,  145  Wis.  593;  DriscoU  v.  AlUs- 
Chalmers  Co.,  129  N.  W.  401,  144  Wis. 
451 ;  Guinard  v.  Knapp,  Stout  &  Co. 
Company,  90  Wis.  123,  62  N.  W.  625, 
48  Am.  St.  Rep.  901. 

Illustrations  of  errors  not  cured 
by  other  instructions.  Error  of  an 
instruction  in  putting  on  defendant 
the  burden  of  proof,  before  plaintiB: 
had  made  out  a  prima  facie  case  of 
negligence,  is  not  cured  by  an  in- 
struction that,  if  certain  facts  were 
found,  defendant  was  not  liable. 
Trotter  v.  St.  Louis  &  Suburban  Ry. 
Co.,  99  S.  W.  508,  122  Mo.  App.  405. 
In  an  action  by  architects  for  com- 
pensation, an  erroneous  instruction 
given  at  the  request  of  plaintilt's  that 
plaintiffs  were  entitled  to  recover  if 
they  prepared  the  plans  and  specifi- 
cations for  defendant,  unless  it  was 
"distinctly  understood  and  agreed  by 
the  plaintiffs"  that  they  should  re- 
ceive no  compensation  if  the  cost  of 
the  building  proved  to  be  more  than 
their  estimate,  was  not  cured  by  an 
instruction  given  at  the  reiiuest  of 
defendant  that  if  plaintiffs  undertook 
to  prepare  plans  and  specifications 
for  the  building  to  cost  not  over  a 
certain  sum,  and  that  the  lowest  bid 
received  was  for  a  sum  greatly  in  ex- 
cess of  the  estimate,  the  jury  must 
find  for  defendant,  since  the  instruc- 
tions were  contradictory,  and  it  could 
not  be  said  which  instruction  the 
jurv  observed.  Williar  v.  Nagle,  71 
A.  427,  109  Md.  75,  16  Ann.  Cas.  928. 
An  instruction  that  a  carrier  is  re- 
quired to  provide  the  safest  means 
practicable,  the  safest  means  known, 
in  assisting  alighting  passengers,  is 
not  cured  by  a  subsequent  instruction 
that  if  a  carrier  failed  to  provide 
a  safe  means  of  alighting  from  a 
train,  and  plaintiff  was  injured  there- 
bv,  to  find  for  plaintiff.  Texas  &  P. 
Ry.  Co.  V.  Beezley,  120  S.  W.  1136,  56 
Tex.  Civ.  App.  245.  In  an  action  for 
carrying  a  passenger  beyond  his  desti- 


537 


INSTRUCTIONS  TO  JURIES 


1012 


matter  is  not  cured  by  a  correct  instruction  on  the  same  point,^* 


nation,  an  erroneous  instruction  that 
it  was  the  duty  of  the  railroad  com- 
pany to  safely  carry  him  from  the 
starting  point  and  deliver  him  at  his 
destination,  and  that  a  failure  to  do 
so  would  be  negligence  on  their  part, 
was  not  cured  by  an  instruction  prop- 
erly defining  the  words  "negligence" 
and  "ordinary  care,"  and  charging 
that  if  the  passenger  was  properly  on 
the  train  and  that  the  employes  of  de- 
fendant negligently,  as  the  term  is 
above  defined,  carried  him  past  his 
destination,  etc.,  they  should  find  for 
plaintiff.  Gulf,  C.  &  S.  F.  Ry.  Co. 
V.  Ward,  124  S.  W.  130,  58  Tex.  Civ. 
App.  210.  In  an  action  for  services 
by  a  salesman,  an  instruction  that  if, 
at  the  time  when  plaintiff  was  em- 
ployed and  during  his  employment, 
the  custom  existed  that  salesmen  in 
such  business  were  excused  from  du- 
ty while  sick  and  paid  their  full  sala- 
ries, then  such  custom  was  a  pai't  of 
the  contract,  without  instructing  on 
the  indispensable  elements  of  no- 
toriety and  ancientness  of  the  cus- 
tom, was  not  cured  by  the  giving  of 
another  instruction  that  a  custom 
was  not  binding  which  had  not  been 
generally  acquiesced  in  for  such 
length  of  time  as  to  warrant  the  jury 
in  finding  that  such  custom  entered 
into  the  minds  of  the  parties  at  the 
time  of  making  the  agreement.  Sweet 
v.  Leach,  6  111.  App.  212.  Where,  in 
an  action  for  injuries  to  a  servant, 
the  only  theory  on  which  a  recovery 
could  be  had  was'  defendant's  failure 
to  supply  a  pin  missing  from  a  ma- 
chine, error  in  refusing  to  charge  that 
plaintiff  could  not  recover  unless  the 
jury  found  that  the  proximate  cause 
was  the  failure  to  supply  the  pin, 
and  that  the  accident  would  not  have 
happened  had  the  pin  been  in  place, 
was  not  cured  by  a  subsequent  in- 
stniction  that  the  failure  to  supply 
the  pin  must  have  been  the  proximate 
cause  of  the  injury.  Ladiew  v.  Sher- 
wood Metal  Working  Co.,  109  N.  Y. 
S.  477,  125  App.  Div.  65.  The  error 
in  an  instruction  that  an  employer  in 
supplying  materials  for  a  platfonn 
was  required  to  exercise  reasonable 
oare  to  inspect  the  materials,  and 
Ihat  if  he  was  negligent,  and  dece- 


dent was  injured  in  consequence 
thereof,  the  employer  was  liable,  due 
to  the  fact  that  it  ignored  evidence 
that  decedent  had  the  exclusive  super- 
vision of  the  construction  of  the  plat- 
foi-m,  and  induced  the  jury  to  infer 
that  there  was  no  duty  of  the  em- 
ployes to  inspect  the  materials,  was 
not  cured  by  an  instruction  that  there 
could  be  no  recovery  if  decedent  was 
the  foreman  directing  the  details  of 
the  work  in  erecting  the  platform. 
Murch  Bros.  Const.  Co.  v.  Hays,  114 
S.  W.  697,  88  Ark.  292.  Error  in  an 
instruction  that  it  is  sufficient  to 
charge  defendants  as  partners  if  it  be 
shown  that  they  were  joint  owners  is 
not  cured  by  other  instructions  cor- 
rectly stating  the  law,  and  what  is 
necessary  to  make  them  liable  as 
partners.  Miller  v.  Vermurie,  7 
Wash.  386,  34  P.  1108.  In  an  action 
against  a  street  railroad,  error  in  an 
instruction  that  defendant  was  not 
required  to  keep  its  track  in  a  rea- 
sonably safe  condition  and  was  not 
required  to  keep  the  space  between 
the  rails  filled,  was  not  cured  by  the 
statement  that  the  defendant  was  on- 
ly required  to  use  ordinary  care  to 
keep  the  space  between  the  rails  in  a 
reasonably  safe  condition,  since  such 
statement  was  merely  a  contradiction 
in  terms  of  the  first  statement,  and 
rendered  the  instruction  inconsistent 
and  misleading.  Huff  v.  St.  Joseph 
Ry.,  Light,  Heat  &  Power  Co.,  Ill  S. 
W.  1145,  213  Mo.  495.  The  error  in  an 
instruction  that  a  grantee  would,  un- 
der specified  circumstances,  be  bound 
by  knowledge  of  the  notary  of  in- 
firmities in  the  deed  acquired  in  tak- 
ing the  acknowledgment,  was  not 
cured  by  a  further  instruction  that 
the  grantee  would  not  be  bound  by 
knowledge  or  conduct  of  the  notary, 
unless  the  notary  was  authorized  to 
act  for  him,  or  unless  grantee  had 
knowledge  of  irregularities  and  ac- 
cepted the  benefit  thereof,  where 
there  was  no  evidence  that  the  gran- 
tee had  any  actual  knowledge  of  any 
irregularities  or  in  the  acknowledg- 
ment. Stringfellow  v.  Braselton,  117 
S.  W.  204,  54  Tex.  Civ.  App.  X. 

81  Ala.      Alabama   Consol.   Coal   it 
Iron   Co.   V.    Heald,   53    So,    162,    1G8 


1013 


CONSTRUCTION  AND   OPERATION 


53- 


which  does  not  give  the  jury  clearly  to  understand  that  the  erro- 


Ala.  626 ;  Alabama  City,  G.  &  A.  Ry. 
Co.  V.  Bates,  46  So.  776,  155  Ala.  347. 

Ark.  Sweet  v.  McEwen,  215  S.  W. 
651.  140  Ark.  162;  Goodell  v.  Bluff 
Citv  Lumber  Co.,  57  Ark.  203,  21  S. 
W.  104. 

Cal.  Watts  V.  Murphy,  99  B.  1104, 
9  Cal.  App.  564 ;  Malone  v.  Sierra 
Ry.  Co.  of  California,  91  P.  522.  151 
Cal.  113;  People  v.  Maughs,  86  P. 
187,  149  Cal.  253;  People  v.  West- 
lake.  57  P.  465,  124  Cal.  452. 

Colo.  Harris  v.  People,  75  P.  427, 
32  Colo.  211. 

Ga.  White  v.  State,  100  S.  E.  9, 
24  Ga.  App.  122;  Beach  v.  State,  75 
S.  E.  139.  138  Ga.  265. 

111.  People  V.  Emmel,  127  N.  E. 
53,  292  111.  477:  People  v.  Dettmer- 
ing,  116  N.  E.  205,  278  lU.  580 ;  Lan- 
gan  V.  Chicago  City  Ry.  Co.,  145  111. 
App.  249. 

Ind.  McEntire  v.  Brown,  28  Ind. 
347. 

Iowa.  McDivitt  v.  Des  Moines 
City  Ry.  Co.,  118  N.  W.  459,  141  Iowa, 
689. 

La.  State  v.  Ardoin,  22  So.  620, 
49  La.  Ann.  1145,  62  Am.  St.  Rep.  678. 

Mich.  People  v.  Holmes,  69  N.  W. 
501.  Ill  Mich.  364. 

Miss.  Barnes  v.  State,  79  So.  815, 
118  Miss.  621. 

Mo.  Doty  V.  Quincy,  O.  &  K.  C.  R. 
Co.,  116  S.  W.  1126.  136  Mo.  App. 
254 ;  McKinnon  v.  Western  Coal  & 
Mining  Co..  96  S.  W.  485,  120  Mo. 
App.  148:  State  v.  Tatlow.  136  Mo. 
678.  38  S.  W.  552:  State  v.  Cable, 
117  Mo.  .880.  22  S.  W.  9.53;  State  v. 
Davies.  SO  Mo.  App.  239. 

Mont.  State  V.  Oliver,  50  P.  1018, 
20  Mont.  318. 

Neb.  Howell  V.  State,  85  N.  W. 
289,  61  Neb.  391 ;  Thompson  v.  State. 
85  N.  W.  62,  61  Nob.  210,  87  Am.  St. 
Rep.  453;  Sweenie  v.  State,  80  N.  W. 
815.  59  Neb.  269;  Bergeron  v.  State, 
74  N.  W.  253,  53  Neb.  752 ;  Henry  v. 
State.  70  N.  W.  924.  51  Neb.  149, -60 
Am.  St.  Rep.  450;  Beck  v.  State,  70 
N.  W.  498.  51  Neb.  106;  Raker  v. 
State,  69  N.  W.  749,  50  Neb.  202; 
School  Dist.  of  Chadron  v.  Foster,  31 
Neb.  501,  48  N.  W.  267;  McCleneghan 
V.  Omaha  &  R.  V.  R.  Co.,  25  Neb.  523, 
41  N.  W.  350,  13  Am.  St.  Rep.  508. 


N.  J.  State  V.  Tachin,  106  A.  145, 
92  N.  ,J.  Law,  269 ;  State  v.  Clayton, 
85  A.  173,  83  N.  J.  Law,  673. 

X.  y.  Jacobs  V.  Katz  (Sup.)  176 
N.  Y.  S.  831;  Sullivan  v.  Brooklvn 
Heights  R.  Co.,  102  N.  Y.  S.  982,  117 
App.   Div.  784. 

N.  C.  State  v.  Morgan,  48  S.  C. 
670.  136  N.  C.  628. 

Okl.  Davis  v.  State,  113  P.  220, 
4    Okl.    Cr.    508. 

Or.  Anderson  v.  Columbia  Con- 
tract Co..  185  P.  231,  94  Or.  171,  7  A. 
L.  R.  653,  denying  rehearing  184  P. 
240.  94  Or.  171,  7  A.  L.  R.  653. 

Temn.  Louisville  &  N.  R.  Co.  v. 
Cheatham,  100  S.  W.  902,  118  Tenn. 
160. 

Tex.  Patterson  v.  Williams  (Civ. 
App.)  225  S.  W.  89;  Galveston,  H. 
&  S.  A.  Ry.  Co.  V.  State  (Sup.)  216  S. 
W.  393.  reversing  judgment  (Civ. 
App.)  194  S.  W.  462,  and  rehearing 
denied  218  S.  W.  361 ;  St.  Ix)uis  &  S. 
F.  R.  Co.  V.  Brosius  &  Le  Compte, 
105  S.  W.  1131,  47  Tex.  Civ.  App.  647 : 
St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Moon. 
103  S.  W.  1176,  47  Tex.  Civ.  App.  209 ; 
Johnson  v.  Texas  &  G.  Rv.  Co..  100  S. 
W.  206.  45  Tex.  Civ.  App.  146. 

Va.  Neal  v.  Commonwealth,  98  S. 
E.  629,  124  Va.  842. 

Illustrations  of  errors  not  cur- 
ed. An  instruction  in  a  murder  trial 
which  limits  the  right  of  self-defense 
to  actual  danger.  People  v.  Scott, 
120  N.  E.  553,  284  111.  465.  An  er- 
roneous charge,  that  jury  sthould  not 
acquit  unless  alibi  evidence  showed 
that  defendant  could  not  have  been 
at  place  of  crime  at  time  of  its  com- 
mission, was  not  cured  by  further 
charge  that,  if  such  proof  failed  to 
satisfy  the  test  given,  the  jury  could 
not  convict  for  such  failure,  but  only 
if  whole  evidence  established  guilt. 
People  V.  Monti ake,  172  N.  Y.  S.  102, 
184  App.  Div.  578.  A  charge  to  con- 
vict if  accused  feloniously,  willfully, 
and  with  malice  aforethought,  with  a 
deadly  weapon,  to  wit,  an  ax,  did 
strike  at  prosecuting  witness  with  in- 
tent to  murder  and  kill  him,  being 
erroneous,  was  not  cured  by  the  giv- 
ing for  accused  of  a  correct  charge 
that  before  Jie  could  be  convicted  the 
jury  should  be  satisfied  that  he  not 


537 


INSTRUCTIONS  TO  JURIES 


1014 


neous  instruction  is  intended  to  be  retracted,*^  since,  there  being 
in  such  case  a  direct  conflict  in  the  pronouncements  of  the  court, 


only  attempted  to  strike  prosecuting 
witness  with  an  ax,  but  that  he  was 
also  at  the  time  sufficiently  near 
prosecuting  witness  to  enable  him  to 
strike  him  and  inflict  an  injury  upon 
his  person,  since  the  two  charges 
were  inconsistent.  Jones  v.  State, 
116  S.  W.  230,  89  Ark.  213. 

Error  in  instruction  as  to  credi- 
bility of  witnesses.  Error  in  an  in- 
struction which  might  have  misled 
the  jury  to  believe  that  court  intend- 
ed to  instruct  that  plaintiff  was  en- 
titled to  more  credit  than  defendant's 
witnesses  was  not  cured  by  other  in- 
structions, laying  down  the  rules  as 
to  the  credibility  of  witnesses  and 
leaving  jury  free  to  decide.  Walsh 
V.  Chicago  Rys.  Co.,  128  N.  E.  647, 
294  111.  586.  The  error  in  an  in- 
struction, authorizing  conviction  if 
the  jury  believed  that  the  evidence 
of  the  accomplice  tended  to  show 
that  accused  was  guilty  and  that  the 
corroboration  of  her  testimony  tend- 
ed to  show  the  crime,  was  not  cured 
by  a  special  charge  that,  before  the 
jury  could  convict,  they  must  believe 
beyond  a  reasonable  doubt  that  the 
testimony  of  the  prosecutrix  was 
true,  and  that  there  was  credible 
independent  evidence  tending  to  show 
that  accused  was  guilty.  Barrett 
V.  State,  115  S.  W.  1187,  55  Tex. 
Cr.  R.  182.  Where  court  erroneous- 
ly instructed,  "If  you  should  believe 
that  witnesses  or  a  witness  has 
sworn  falsely  upon  some  point,  then 
you  are  not  bound  to  give  any  credit 
whatsoever  to  their  testimony,  such 
error  was  not  cured,  where  the 
rule  was  subsequently  correctly 
charged  at  the  request  of  the  defend- 
ant; the  correction  not  being  charg- 
ed as  a  substitute  for  the  previous 
incorrect  charge,  to  which  exception 
was  taken.  People  v.  Parsons,  183 
N.  Y.  S.  100,  192  App.  Div.  841. 

Instructions  tending  to  mislead 
jury  to  disregard  proper  testimo- 
ny. Distinct  portions  of  a  charge 
applied  in  sul)mitting  separate  issues, 
and  which  would  naturally  tend  to 
mislead  the  jury  to  disregard  proper 
testimony  in  a  case  wherein  it  was 


especially  important  that  the  jury 
should  give  proper  consideration  to 
all  the  evidence,  must  be  held  to 
necessitate  a  new  trial,  regardless  of 
a  subsequent  correct  instruction  as 
to  their  duty  in  determining  the 
weight  of  evidence  and  the  credibility 
of  witnesses.  Steber  v.  Chicago  &  N. 
W.  Ry.  Co.,  120  N.  W.  502,  139  Wis. 
10. 

8  2  Ark.  St.  Louis  Southwestern 
Ry.  Co.  V.  Jagerman,  59  Ark.  98,  26 
S.  W.  591. 

D.  C.  Boswell  V.  District  of  Co- 
lumbia, 10  Mackey  (21  App.  D.  C.) 
526. 

Ga.  Rowe  v.  Spencer,  64  S.  E. 
468,  132  Ga.  426 ;  Atlanta  &  B.  A.  L. 
Ry.  v.  McManus,  58  S.  E.  258,  1  Ga. 
App.  302. 

ni.  Wilbur  V.  Wilbur,  129  111.  392, 
21  N.  E.  1076;  Counselman  v.  Collins, 
35  111.  App.  68 ;  Gale  v.  Rector,  5  111. 
App.  481. 

Ind.  Abney  v.  Indiana  Union  Trac- 
tion Co.,  83  N.  E.  387,  41  Ind.  App. 
53;  Hudelson  v.  State,  94  Ind.  426, 
48  Am.  Rep.  171;  Binns  v.  State,  66 
Ind.  428;  Toledo,  W.  &  W.  Ry.  Co. 
V.  Shuckman,  50  Ind.  42. 

Ky.  Clay  v.  Miller,  3  T.  B.  Mon. 
146. 

Md.  Adams  v.  Capron,  21  Md.  186, 
83  Am.  Dec.  566. 

Mo.  Toncrey  v.  Metropolitan  St. 
Ry.  Co..  107  S.  W.  1091,  129  Mo.  App. 
596 ;  Hickman  v.  Griffin,  6  Mo.  37,  34 
Am.  Dec.  124;  McNichols  v.  Nelson, 
45  Mo.  App.  446 ;  Fink  v.  Algermis- 
sen,  25  Mo.  App.  186. 

Neb.  Richardson  v.  Halstead,  44 
Neb.  606,  62  N.  W.  1077;  First  Nat. 
Bank  v.  Lowrey,  30  Neb.  290,  54  N. 
W.  568. 

N.  Y.  Sinica  v.  New  York  Rys. 
Co.,  ISO  N.  Y.  S.  377,  190  App.  Div. 
727. 

N.  C.  Wilson  V.  Atlantic  Coast 
Line  R.  Co.,  55  S.  E.  257,  142  N.  C. 
333. 

Ohio.  Pendleton  St.  R,  Co.  v. 
Stallmann,  22  Ohio  St.  1. 

Tex.  Texas  Cent.  R.  Co.  v.  Waldie 
(Civ.  App.)  101  S.  W.  517;  Missouri, 
K.  &  T.  Ry.  Co.  of  Texas  v.  Rodgers, 


1015 


CONSTRUCTION  AND  OPERATION 


§537 


it  will  ordinarily  be  impossible  to  say  whether  the  jury  has  fol- 
lowed the  right  or  the  wrong  rule.^^ 

Where  the  instructions  of  the  successful  party  state  an  errone- 


89  Tex.  675,  36  S.  W.  243;  Arcia  v. 
State,  28  Tex.  App.  19S,  12  S.  W.  599. 

Wash.  Peyser  v.  Western  Dry 
Goods  Co.,  92  P.  886,  48  Wash.  55; 
Baxter  v.  Waite,  2  Wash.  T.  228,  6  P. 
429. 

W.  Va.  McKelvey  v.  Chesapeake 
&  O.  Ry.  Co.,  35  W.  Va.  500,  14  S. 
E.  261. 

Wis.  Jackman  v.  Inman,  114  N. 
W.  480,  134  Wis.  297 ;  Imhoff  v.  Chi- 
cago &  M.  Ry.  Co.,  20  Wis.  344. 

Instructions  erroneous  '(vitliin 
rule.  The  error  in  an  instruction  in 
an  action  on  a  note,  arising  from  the 
fact  that  it  required  plaintiff  to  prove 
that  tlie  maker  knew  the  contents 
of  the  note  at  the  time  he  signed  it  by 
his  mark,  and  that  he  delivered  the 
same  for  a  valuable  consideration, 
etc.,  though  the  law  presumes  the 
existence  of  such  facts  from  the  facts 
proved,  is  not  cured  by  a  charge  pred- 
icating a  right  of  recovery  on  facts 
stated  in  general  terms,  without  in- 
forming the  jury  that  the  law  pre- 
sumes the  existence  of  such  facts. 
Dawson  v.  Wombles,  100  S.  W.  547, 
123  Mo.  App.  340. 

8  3  Ala.  Alabama  City,  G.  &  A.  Ry. 
Co.  v.  Bullard,  47  So.  578,  157  Ala. 
618. 

Ark.  St.  Louis,  I.  M.  &  S.  Ry.  Co. 
V.  Woods,  131  S.  W.  869,  96  Ark.  311. 
33  L.  R.  A.  (N.  S.)  855;  Merchants' 
Fire  Ins.  Co.  v.  McAdams,  115  S.  W. 
175,  88  Ark.  550. 

Cal.  Fountain  v.  Connecticut  Fire 
Ins.  Co.,  112  P.  546,  158  Cal.  760,  139 
Am.  St.  Rep.  214;  Rathbun  v.  White, 
107  P.  309,  157  Cal.  248. 

Ga.  Pelham  Mfg.  Co.  v.  Powell, 
64  S.  E.  1116,  6  Ga.  App.  308. 

111.  Fowler  v.  Chicago  &  E.  I.  R. 
Co.,  85  N.  E.  298,  234  111.  619,  re- 
versing judgment  Chicago  &  E.  I.  R. 
Co.  V.  Fowler,  138  111.  App.  352; 
Kath  V,  East  St.  Louis  &  Suburban 
Ry.  Co.,  83  N.  E.  533,  232  111.  126,  15 
L.  R.  A.  (N.  S.)  1109;  Swiercz  v.  Illi- 
nois Steel  Co.,  83  N.  E.  168,  231  111. 
456 ;  Kankakee  Stone  «&  Lime  Co.  v. 
City  of  Kankakee,  128  111.  173,  20  N. 
E.  670 ;   Cleveland,  C,  C.  &  St.  L.  Ry. 


Co.  V.  Dukeman,  134  111.  App.  396; 
Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Gill, 
132  111.  App.  310;  Chicago,  R.  L  & 
P.  Ry.  Co.  V.  Turck,  131  111.  App. 
128;  Cleveland,  C,  C.  &  St.  L.  Ry. 
Co.  V.  Dukeman,  130  111.  App.  105; 
Belvidere  City  Ry.  Co.  v.  Bute,  128 
111.  App.  620;  Second  Nat.  Bank  v. 
Thuet,  124  111.  App.  501. 

Ind.  Monongahela  River  Consol. 
Coal  &  Coke  Co.  v.  Hardsaw,  81  N.  E. 
492,  169  Ind.  147. 

Iowa.  McDivitt  V.  Des  Moines 
City  Ry.  Co.,  118  N.  W.  459,  141 
Iowa,  689. 

Mo.  Gordy  v.  Manufacturers'  Coal 
&  Coke  Co.,  132  S.  W.  21,  151  Mo. 
App.  455;  Butz  v.  Murch  Bros. 
Const.  Co.,  117  S.  W.  635,  137  Mo. 
App.  222. 

Mont.  Sullivan  v.  Metropolitan 
Life  Ins.  Co.,  88  P.  401,  35  Mont.  1. 

N.  Y.  Blumberg  v.  Sterling  Bronze 
Co.,  107  N.  Y.  S.  142,  56  Misc.  Rep. 
477. 

N.  C.  Kimbrough  v.  Hines,  104  S. 
E.  684,  180  N.  C.  274;  Jones  v.  Life 
Ins.  Co.  of  Virginia,  65  S.  E.  602,  151 
X.   C.  54. 

Pa.  Commonwealth  v.  Ross,  110 
A.  327,  266  Pa.  580;  Commonwealth 
V.  Divomte.  105  A.  821,  262  Pa.  504. 

Tex.  Petty  v.  .Tordan-Spencer  Co. 
(Civ.  App.)  135  S.  W.  227. 

Va.  Atlantic  Coast  Line  R.  Co.  v. 
Caple's  Adm'x,  66  S.  E.  855.  110  Va. 
514. 

Wyo.  Palmer  v.  State,  .59  P.  793, 
9  Wyo.  40,  87  Am.  St.  Rep.  910. 

Instructions  on  insanity  as  a 
defense  to  accusation  of  crime. 
An  instruction  that  defendant  must 
prove  that  at  the  time  of  the  killing 
he  was  laboring  under  such  defect 
of  reason  from  diseased  mind  as  not 
to  know  the  nature  and  quality  of  the 
act  is  correct,  but  where  it  is  follow- 
ed by  another,  erroneously  charging 
that  insanity  will  only  excuse  crime 
where  the  person  was  so  insane  as 
not  to  know  right  from  wrong,  the 
two  are  irreconcilable,  and  constitute 
reversible  error.  Rolling  v.  State,  54 
Ark.  588,  16  S.  W.  658. 


§  537 


INSTRUCTIONS   TO   JURIES 


1016 


ous  rule,  and  those  of  the  defeated  party  state  the  rule  correctly, 
the  only  presumption  permissible  is  that  the  jury  discarded  the 
true  rule  for  the  false.***  Instructions  misleading  on  a  vital  issue 
will  not  be  cured  merely  by  the  giving  of  other  correct  instruc- 
tions.^^ Affirmative  error  in  an  instruction  can  only  be  cured  by  the 
withdrav^ral  of  the  instruction  by  the  court  in  language  so  explicit 
as  to  preclude  an  inference  that  the  jury  may  have  been  influenced 
by  it.*®  Under  the  above  rule,  the  error  of  an  instruction  in  pre- 
senting a  wrong  theory  of  the  entire  case  is  not  cured  by  other 
instructions  announcing  the  right  theory,*'  and  an  instruction, 
whether  in  a  civil  or  criminal  case,  purporting  to  state  the  facts 
on  proof  of  which  the  jury  may  find  for  one  party  or  the  other,  but 
which  omits  an  element  essential  to  such  a  finding,  is  not  suscepti- 
ble of  cure  by  any  other  instructions  in  the  series,  or  by  an  instruc- 
tion given  for  the  other  party.** 


S4  Ross  V.  Metropolitan  St.  Ry.  Co., 
112  S.  W.  9,  132  Mo.  App.  472. 

8  5  Walsh  V.  Henry,  88  P.  449,  38 
Colo.  393 ;  Radcliffe  v.  Hollyfield,  65 
A.  789,  216  Pa.  367. 

86  Cleveland,  C,  C.  &  St.  L.  Ry.  Co. 
V.  Powers,  88  N.  E.  1073,  173  Ind. 
10.5,  rehearing  denied  89  N.  E.  485, 
173  Ind.  105 ;  Lake  Shore  &  M.  S. 
Ry.  Co.  V.  Johnson,  88  N.  E.  849,  172 
Ind.  548,  transferred  from  Appellate 
Court  84  N.  E.  1104;  Fuelling  v. 
Fuesse,  87  N.  B.  700,  43  Ind.  App. 
441;  Galino  v.  Fleischmann  Realty 
&  Const.  Co.,  115  N.  Y.  S.  334,  130 
App.  Div.  605. 

87  Flucks  V.  St.  Louis.  I.  M.  «&  S. 
Ry.  Co.,  122  S.  W.  348,  143  Mo.  App. 
17. 

8  8  111.  People  V.  Israel,  88  N.  E. 
S02,  240  111.  375;  Mooney  v.  City  of 
Chicago,  88  N.  E.  194,  239  111.  414; 
Ilerdman-Harrison  Milling  Co.  v. 
Spehr,  145  111.  329,  33  N.  E.  944,  af- 
firming 46  111.  App.  24;  Lake  Shore 
&  M.  S.  Ry.  Co.  V.  Richards  (Sup.) 
32  N.  E.  402 ;  Belskis  v.  Bering  Coal 
Co.,  146  111.  App.  124 ;  Winn  v.  Walk- 
er, 145  111.  App.  333 ;  City  of  Chicago 
V.  Fields,  139  111.  App.  250;  Balti- 
more &  O.  S.  W.  Ry.  Co.  V.  Schell, 
122  111.  App.  346 ;  Osner  v.  Zadek.  120 
111.  App.  444;  Gregg  v.  People,  98 
111.  App.  170;  Gedney  v.  Gedney,  61 
111.  App.  511. 

Ind.  Steele  v.  Michigan  Buggy 
Co.,  95  N.  E.  435,  50  Ind.  App.  635; 


Rahke  v.  State,  81  N.  E.  584,  168  Ind. 
615. 

Iowa.  Jackson  v.  Mott,  76  Iowa, 
263,  41  N.  W.  12. 

Miss.  Harper  v.  State,  35  So.  572, 
83  Miss.  402. 

Mo.  Vaughn  v.  William  F.  Davis 
&  Sons  (App.)  221  S.  W.  782;  Low  v. 
Paddock  (App.)  220  S.  W.  969 ;  Yontz 
V.  McVean,  217  S.  W.  1000,  202  Mo. 
App.  .377 ;  Montgomery  v.  Hammond 
Packing  Co.  (App.)  217  S.  W.  867; 
Ward  V.  Stutzman  (App.)  212  S.  W. 
65;  Schneider  v.  Hawks  (App.)  211 
S.  W.  081;  Sullivan  v.  Hannibal  & 
St.  J.  R.  Co..  88  Mo.  169;  Hohstadt  v. 
Daggs,  50  Mo.  App.  240;  Flynn  v. 
Union  Bridge  Co.,  42  Mo.  App.  529. 

Mont.  State  v.  Peterson,  92  P. 
302,    36   Mont.    109. 

Neb.  Dobson  v.  State,  85  N.  W. 
843,  61  Neb.  584. 

Okl.  McCarthy  v.  State.  119  P. 
1020,  6  Okl.  Cr.  483;  Hinchman  v. 
State,  119  P.  1022,  6  Okl.  Cr.  700. 

S.  C.  State  V.  Johnson,  67  S.  E. 
453,  85  S.  C.  265. 

Illustrations  of  errors  not  cur- 
ed. In  a  passenger's  action  for  in- 
juries while  alighting  from  a  street 
car,  it  was  error  to  instruct  for  plain- 
tiff if  the  jury  believed  that  plaintiff, 
aft^r  the  car  had  made  a  usiuil  stop, 
got  up  and  was  thrown  from  the  plat- 
form by  a  sudden  forward  movement 
of  the  car,  as  such  facts  did  not  de- 
mand   the    inference    that   plaintiff's 


1017 


CONSTRUCTION  AND  OPERATION 


539 


An  erroneous  specific  instruction  on  a  controlling  point  is  not 
cured  by  the  correctness  of  the  general  charge.**^  Error  in  the  last 
instruction  of  a  series  cannot  be  overcome  merely  by  construing 
such  instruction  with  the  others  given,^  and  ordinarily  error  in  a 
charge  given  by  the  court  on  its  own  motion  will  not  be  cured 
by  a  correct  charge  on  the  point  involved,  given  in  an  isolated  in- 
struction requested  by  a  party .^^ 

§  538,     Limitations  of  rule 

The  rule  that  there  is  reversible  error,  if  a  correct  and  a  wrong 
instruction  are  given  on  the  same  point,  does  not  apply  where  the 
instructions,  when  taken  together,  ^s  they  must  be,  make  the  cor- 
rect rule  of  law  clear,®-  and  although  instructions  given  are  appar- 
ently conflicting,  if  from  the  language  used  or  the  relation  which 
the  instructions  bear  to  each  other  it  appears  that  they  may  be 
read  together  as  a  harmonious  whole,  and,  when  so  read,  are  not 
misleading,  any  seeming  conflict  therein  is  not  prejudicial.**^  If  two 
instructions,  each  improper  in  itself,  amount  to  a  correct  statement 
of  the  law  when  taken  together,  the  error  in  each  will  be  disre- 
garded.®* 

§  539.     Cure  of  erroneous  instruction  by  its  withdrawal 

As  has  already  been  indicated,  in  the  preceding  discussion,  the 
action  of  the  court,  after  calling  the  attention  of  the  jury  thereto, 


injury  was  caused  by  defendant's 
negligence,  and  such  error  was  not 
cured  by  an  instruction  that  plaintiff 
would  not  be  entitled  to  recover  un- 
less the  in-jury  was  caused  by  defend- 
ant's negligence.  Savannah  Electric 
Co.  v.  Johnson  (Ga.  App.)  103  S.  B. 
798.  Where  plaintiff  was  injured  by 
the  use  of  pads  purchased  as  a 
cure  for  rupture,  because  of  injurious 
substances  contained  therein,  an  in- 
.'istruction  attempting  to  cover  the 
whole  case,  but  omitting  the  elements 
that  the  pads  contained  injurious  in- 
gredients, which  caused  plaintiff's  in- 
juries, and  that  defendant  knew  or 
should  have  known  the  character  of 
the  pads  by  the  exercise  of  ordinary 
caro.  was  erroneous,  and  could  not  be 
cured  by  any  subsequent  instruction. 
Harmon  v.  Plapao  Laboratories  (Mo. 
App.)  218  S.  W.  701. 


8  9  Pittsburgh,  C.  &  St.  L.  Ry.  Co. 
V.  Krouse,  30  Ohio  St.  222. 

9  0  Ackerman  v.  Stacey,  143  N.  Y. 
S.  227,  157  App.  Div.  835. 

»i  Burns  v.  Sennett,  99  Cal.  363, 
33  P.  916;  Sterling  v.  Callahan,  94 
Mich.  536,  54  N.  W.  495. 

9  2  Escambia  County  Electric  Light 
&  Power  Co.  v.  Sutherland,  55  So.  83, 
61  Fla.  167;  Piper  v.  Murray,  115  P. 
669,  43  Mont.  230 ;  Taylor  v.  Houston 
Electric  Co..  85  S.  W.  1019,  38  Tex. 
Civ.  App.  432 :  E.  T.  &  H.  K.  Ide  v. 
Boston  &  M.  R.  I{.,  74  A.  401.  83  Vt 
66 ;  City  of  Tacoma  v.  Nisqually 
Power  Co.,  107  P.  199,  57  Wash.  420. 

93  A.  L.  Clark  Lumber  Co.  v.  St. 
Coner,  133  S.  W.  1132,  97  Ark.  358; 
St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Rogers, 
126  S.  W.  375,  1190.  93  Ark.  564. 

94  Pond  V.  Wymau,  15  Mo.  175. 


§  539 


INSTRUCTIONS  TO  JURIES 


lOlS 


in  withdrawing  an  erroneous  part  of  its  charge,  and  giving  them 
the  correct  rule  on  the  issue  covered  by  it,  cures  the  error.*^ 


95  Ala.  United  States  Casualty 
Co.  V.  Perrvman,  82  So.  462,  203  Ala. 
212;  Null  V.  State.  79  So.  678,  16 
Ala.  App.  542. 

Ark.  St.  Louis,  I.  M.  &  S.  Ry.  Co. 
V.  Stamps,  104  S.  W.  1114,  84  Ark. 
241. 

Ga.  Central  of  Georgia  Ry.  Co.  v. 
Ray,  65  S.  E.  281,  133  Ga.  126 ;  Raw- 
lins V.  State.  52  S.  E.  1,  124  Ga.  31, 
judsrment  affirmed  26  S.  Ct.  560,  201 
U.  S.  638,  50  L.  Ed.  899,  5  Ann.  Cas. 
783. 

Lra.  State  v.  Jones,  36  La.  Ann. 
204. 

Neb.  Reed  v.  State,  92  N.  W.  321, 
66  Neb.  184. 

Tex.  International  &  G.  N.  R.  Co. 
V.  Ford  (Civ.  App.)  118  S.  W.  1137. 

Vt.  Dyer  v.  Lalor,  109  A.  30,  94 
Vt.  103;  Barren  v.  Dickinson,  74  A. 
234.  82  Vt.  551. 

Witlidra^val  held  insufficient 
within  the  above  rule.     Withdraw- 


al by  the  court  of  the  objectionable 
portion  of  its  charge,  and  iustntctiug. 
at  counsel's  request,  that  the  law  is 
directly  contrary  to  that  previously 
charged,  being  qualified  by  the  court's 
statement  that  his  ideas  of  the  case 
are  entirely  different  from  those  of 
both  of  the  counsel,  whose  views, 
however,  he  has  just  accepted  and 
charged  as  the  law,  does  not  correct 
the  original  error.  Orendorf  v.  New 
York  Cent.  &  H.  R.  R.  Co.,  104  N.  Y. 
S.  222,  119  App.  Div.  638.  Where,  in 
an  action  for  injuries  to  a  servant, 
the  court  charged  unfavorably  to  de- 
fendant at  length,  with  reference  to 
the  provisions  of  the  labor  law,  and, 
when  requested  to  give  defendant  an 
exception,  withdrew  all  that  portion 
of  the  charge  from  the  jury  by  a 
single  sentence,  such  withdrawal  did 
not  obviate  the  objection.  Ladiew  v. 
Sherwood  Metal  Working  Co.,  109  N. 
Y.  S.  477,  125  App.  Div.  65. 


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